Amend, not Abrogate Sedition Law

 

In popular parlance, the word ‘sedition’ carries the idea of an “anti-national act”, but the British colonial rulers distorted the meaning in the statute as an “anti-Government act”. Distorted semantics to mislead people is a feature of Western culture. In every branch of study like Law, Economics, Politics, Social Sciences, etc., we find distorted meanings that differ from popular notions.

Certain milestones in recent history have changed the discourse on nationalism. They are the building of Sri Ram Mandir in Ayodhya, ending anti-Indian slogans in Jawaharlal Nehru University, Delhi, scrapping of Article 370 for Jammu and Kashmir and the retreat of anti-CAA agitation. Post-independent India had, through the years, seen national spirit waning with a series of incidents where anti-national forces were violently disturbing public peace and order, many times in the name of freedom of expression and liberty. As a fashion, every part of India started demanding separate identities, whether in Dravidian politics, Khalistan, Kashmir, North East or Maoist areas, which resulted from the weaknesses of the Nehru family regime.

Nationalism Strengthened

But the Modi Government coming to power saw a sea of changes and India has become a strong nation, and the Indian national spirit has reverberated across continents. Such national sentiments need to be reflected in the judicial system too, so that our laws progress a step ahead of the entire comity of nations. The Indianisation of the judicial system is also a new area open for discussion now.

Today anti-national elements are still dormant in all walks of life, including academics, media, art, literature, cinema and other intellectual activities. A common way of their reporting style is “certain people protesting or raising slogans were arrested”. We cannot brush aside such a reporting as irresponsible or inadvertent but are mostly intentional.

Supreme Court’s Intervention

Supreme Court’s recent comments on the 162-year-old sedition law, Section 124A of the Indian Penal Code, have attracted mixed reactions. The Supreme Court kept in abeyance Section 124A and urged the Centre and the State Governments to refrain from registering any FIRs, investigating or taking other steps under the said provision until the Central Government re-examines the colonial-era law.

Reacting to the said order, while expressing his regard for the independence of Courts, the Law Minister reminded that Lakshman Rekha needs to be respected by the three organs of the constitutional system ‘in letter and spirit’. Even though initially the Government defended the sedition law, later it said that Prime Minister Narendra Modi had expressed unequivocal views to protect civil liberties and respect human rights and believed that outdated colonial laws have no place in India which is celebrating its 75th year of Independence. The Union Government’s stand of “re-consideration and re-examination” of the provision was in tune with the observation of the Apex Court that “rigours of 124A IPC isn’t in tune with current social milieu.”

Nehru the Villain of Sedition Law

Noted Muslim lawyer and political commentator A.G Norani totally went wrong when he commented on the Kedar Nath case of 1962 as “how a Supreme Court judgment brought back the sedition law in India” (Frontline, Jan.15, 2021). Really it was Pt Jawaharlal Nehru who, in 1951, infused life back into Sedition law which the Constituent Assembly dropped. The initial draft of the Constitution used the word “sedition” as a restriction on Freedom of Speech and Expression in the then Article 13 (1). But Shri KM Munshi was at the forefront of removing the word “sedition” from the Constitution. Finally, the Constituent Assembly deleted the word from the draft of Article 13, and the remaining part was passed as Article 19. The reason for opposing the sedition clause in the Constitution was that the British colonial government grossly misused the sedition law against national leaders for participating in the freedom struggle, starting from Bal Gangadhar Tilak and prominent figures like Mahatma Gandhi, Jawaharlal Nehru, Annie Basant and a long list of other leaders.

During the freedom struggle, Jawaharlal Nehru was vehement in condemning the sedition law as “highly objectionable and obnoxious” which “should have no place in any body of laws that we might pass”. He said, “The sooner we get rid of it, the better.” But after India got Independence and within hardly one year and four months of the Constituent Assembly deleting the word, the First Amendment in the history of the Constitution moved by the then Prime Minister Pt Nehru himself, resurrected the provision as subsection (2) of Article 19. The immediate provocation for Nehru bringing amendment was two Supreme Court rulings in cases favouring Organiser Weekly and Leftist magazine Cross Roads, which were charged for their strong criticism of Nehru’s policies. Organiser published a cartoon criticising Nehru for his alliance with Pakistan Prime Minister Liaquat Ali Khan. It published a cartoon titled “Villains Versus Fools” with the comment, “the villainy of Pakistan is matched only by our idiocy”. The Nehru Government imposed pre-censorship on Organiser on March 2, 1950, which was quashed by the Supreme Court in the famous case Brij Bhushan vs The State of Delhi. In his inimitable words, Malkaniji retorted the censorship saying “non-occurrence of such brutal facts” is the only way for “ugly facts not to appear in the press.”

While the First Amendment to the American Constitution in 1791 is famously known in the annals of history for upholding Freedom of Speech, just the reverse happened in India in 1951. Nehru’s amendment added an exemption to Freedom of Expression “in the interests of the security of the State……… public order……or in relation to contempt of court….”, etc. Dr Syama Prasad Mookerjee and others in the Provisional Parliament opposing the First Amendment pointed out the police firing and deaths in Cooch-Behar as a result of a crisis of acute food shortage as also the reports of a police lathi charge on weavers demanding yarn in the Saidapet area of Madras. Despite opposition, the First Amendment was passed.

In the Kedar Nath case, the Supreme Court declared the constitutional validity of sedition law deriving the strength from Nehru’s amendment to the Constitution. Kedar Nath case protected not only Section 124A but also Section 505 of IPC. It said broadly, “cl. (2) (Nehru’s amendment) of Article 19 clearly saves the section from the vice of unconstitutionality.” There are other similar laws like the Prevention of Insult to National Honour Act, 1971, Contempt of Courts Act, 1971 etc., which seek protection under Nehru’s amendment.

Interpretation of Kedar Nath Case

In the landmark Kedar Nath case (reported in 1962 AIR SC 955), the Supreme Court gave an extended legal interpretation to save the statute through a judicial adventure. While upholding the constitutional validity of Section 124A of IPC, Supreme Court’s interpretation is adhered to in all subsequent judicial pronouncements dealing with sedition till this day. It derived legal distinction from two cases of the British period, one by the Federal Court and another by the Privy Council. The Federal Court, in the case, Niharendu Dutt Majumdar v. The King-Emperor (reported in (1942) F.C.R. 38) had held that “words, deeds or writings constituted an offence under s. 124A only when they had the intention or tendency to disturb public tranquillity, to create public disturbance or to promote disorder”. The Federal Court clarified its position famously that the sedition law was not created “to minister to the wounded vanity of Government.” But soon, the Privy Council recognised the danger the decision may cause to colonial rule in India. In King-Emperor v. Sadashiv Narayan Bhalerao (reported in (1947) L.R. 74 I.A. 89), Privy Council disagreed with the Federal Court’s view by saying “intention or tendency to disturb public tranquillity, to create public disturbance or to promote disorder” is not an essential ingredient of the offence of sedition. Privy Council declared: “the expression ‘excite disaffection’ did not include ‘excite disorder’.”

Scrutinising both the decisions, the Supreme Court in the Kedar Nath case settled the legal position: “If the view taken by the Federal Court was accepted then Section 124A would be constitutional, but if the view of the Privy Council was accepted it would be unconstitutional.” Thus, the limits created by the Federal Court interpretation of the Sedition law became the rule thereafter. No one should incite people to resort to violence against the government established by law. Kedar Nath’s case declared unequivocally that sedition law is in the interest of public order, hence “saved from the vice of constitutional invalidity.” The section is intended to prevent “public disorder or disturbance of law and order.”

Inciting Disaffection

Many in the media are propagating that the provision punishes expression of “dissatisfaction” against the Government in the place of the word “disaffection”. Supreme Court in the Kedar Nath case said, the provision does not mean “merely create disaffection or feelings of enmity against the Government.” Privy Council reiterated the colonial interpretation given to the word “disaffection” as mere “absence of affection and disloyalty signifying political alienation or discontent, enmity, hatred against the government”, relying on the dictum in the famous case of Bal Gangadhar Tilak vs Queen Empress of 1916.

Relying on the Federal Court’s decision which is a deviation from this view, the Supreme Court in the Kedar Nath case laid down the ingredient of sedition charge as: “the gist of the offence of ‘sedition’ is incitement to violence or the tendency or the intention to create public disorder by words spoken or written…” Without this, the Supreme Court observed, the charge would be “very much beyond the limits laid down in cl. (2) of Section 19.”

Law Commission’s Views

The Law Commission of India in its 39th report in 1968, suggested imprisonment for life or lesser punishment for sedition. In its 42nd report in 1971, the Commission suggested the incorporation of ‘mens rea’ (criminal intent) in the section. It also wanted to widen the definition of “disaffection” to include disaffection to the judiciary, constitution, legislature and executive. Recently in 2017, in the 267th report, the Commission distinguished between “sedition” and “hate speech”. Sedition is a direct attack, whereas hate speech is an indirect one. The anomaly in India is that there is a dichotomous approach towards insult to nation and insult to religion. All the “progressives” and “liberals” canvass for abrogating sedition law, at the same time demanding stringent punishment for criticism against minority religions in the name of “hate speech”. The glaring example is the Kerala Communist Government’s case against former MLA Sri PC George in his speech at a Hindu conference. In 2018, the Law Commission brushed aside seditious speeches lightly as “expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious.” The Commission suggested that the provision should be limited only to cases where the intention behind any act is to disrupt public order or to overthrow the government with violence and illegal means.

At the global level, various countries have taken different positions on the law of sedition. The UK, Ireland, Scotland, New Zealand, Canada, Indonesia, South Korea, Ghana, Nigeria and Uganda have withdrawn the sedition laws and relied on other provisions of law. But US Code Sections 2381 to 2385 provides punishment for treason, sedition and subversive activities. Singapore replaced the law with other more stringent provisions. In Australia, the National Security Amendment Act 2010 replaced the word ‘sedition’ with ‘urging violence offences.’

Preventing Misuse

The main concern expressed by the Supreme Court is “misuse” of the law, to which the Attorney General also agreed. Government has to incorporate sufficient legislative safeguards to prevent misuse. The recent controversy on sedition started when a cartoonist Aseem Trivedi was arrested in 2012 by the UPA Government. Opposition leader Shri LK Advani, Shiv Sena leader Shri Bal Thackeray and others criticised the step and demanded amending of the sedition law. Similarly, in March 2014, a group of 60 Kashmiri students were charged with sedition in Uttar Pradesh when Samajwadi Party was ruling the State and UPA was at the Centre.

The Indian criminal justice system badly suffers twin vices viz., the lack of knowledge of the judicial interpretations given to various provisions of law, as well as lack of coordination between the three agencies of investigation, prosecution and judiciary, which are entrusted with the duty of prevention of crimes. Police registers FIR without the basic idea of the interpretation of the sedition law in the Kedar Nath case. Hence, they misuse the law to book even those who simply criticise the Government policies.

Striking a Balance

Punishment for saying or acting anything against the Government or administration is a colonial relic, but saying or acting against the nation and national symbols is the real sedition which has to be seriously viewed. On one side, we have to uphold the high ideals of Freedom of Expression guaranteed to the law-abiding citizens by the Constitution; on the other hand, we have to prevent miscreants from intentionally disturbing public tranquillity in the name of religion, liberalism etc. Bringing a balance between the two is a challenge before the nation, which cannot be left to the fancy of an irresponsible section of Indian intelligentsia. Criticising the Government and trying to destabilise its functioning by unlawful means are two entirely different things.

In the Kedar Nath case, the Supreme Court said, “the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”

Dissent is the strength of democracy, and respecting criticism is in the DNA of every Indian. The Constitution guarantees Freedom of Speech and Expression as well as the right to organise, criticise, protest or agitate against government policies and programmes. People should be able to criticise their government. In an adversarial democracy which our Constitution has adopted from the British tradition, the job of opposition parties is to constantly oppose and criticise the Government whether it does good or bad. It is an inevitable evil that the Indian democracy is tolerantly carrying. No law can be used to discipline any such opposite viewpoint. Explanation 3 to Section 124A allows people to express their disapproval of any government. Supreme Court in the Kedar Nath case said, “the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.”

The law should not hesitate to intervene at the moment when any person crosses the legal barriers and resorts to violent means. There is no offence caused until then, and sedition law should not be misused to silence dissent. People long for a peaceful and harmonious social life. It is the duty of the government to prevent anarchy and chaos from breeding from any corner. If intentional statements or acts incite violence and undermine security, then strong law to prevent sedition is essential.

Indian society is faced with a wide variety of fissiparous tendencies that may divide the society and incite violence since the intention of the rule of law is not to let in large mischievous elements. Rajat Sharma v. Union of India (2021) is a case where the Supreme Court casually dealt with such an issue. In that case, in an interview, Farooq Abdullah allegedly remarked “restoring Article 370” with “China’s support.” Previously in an interview with ‘The Wire, Abdullah stated that the Kashmiri people do not feel or want to be Indian and would rather be dominated by the Chinese. But the Supreme Court, in a one-paragraph non-speaking judgement, imposed a cost of Rs. 50,000 on the petitioners who complained about this for filing a “publicity interest litigation” saying “there was nothing in the statement”. When the Indian Army is guarding our borders or fighting with Naxals risking their lives, there are cases of some people who enjoy insulting them in the name of religion, politics or other reasons. Zakir Hussain’s case from Ladak and Sikha Sarma’s case from Assam are examples in 2021. In a case of the same year, Rajina Parbin Sultana from Assam used the National flag as a table cloth during the Eid celebration feast, and the High Court had to reprimand her while granting bail, to proceed with caution and care in the future. Radical religious groups mislead youngsters in Kerala not to stand up during the National anthem in cinema theatres, though the trend has stopped after a few cases. During Indo-Pak cricket matches, supporting Pakistan and celebrating India’s losses in the name of religion is apparently painful for the rest of the people of the country. Kanhaiya Kumar and Umar Khalid of JNU were charged for raising slogans like “destroy India”. Journalists like Siddique Kapan have been keeping links with the extremist group under cover of press freedom. Bhima Koregaon case of 2018 shows urban Naxals are active in cities with the mission of creating division in the society and dreaming of toppling Governments through armed revolution. These cases had a disastrous impact on the social psyche and public tranquillity, calling for stringent penal action. These cases of sedition are plainly crimes against the nation and society and not against the government, which need to be legally distinguished.

Amend and Not Abrogate

The best option is to amend the law and supplement the interpretive extension coined by the Supreme Court in the Kedar Nath case. A thorough codification of all the laws involving safety, security, public order, sedition, security of nation etc., is also another option. The Central Government told the Court that while the abuse of a provision would not justify its scraping, the solution would be to prevent the misuse. Abrogating the entire provision will not be good in the interest of the nation and public order. It will be an irresponsible way of approaching the issue. The Congress Party has taken a position that amendment is feasible and not abrogation. While Communists wanted total abrogation of the provision from the statute, Congress MP Shashi Tharoor, in 2015, had brought a private bill in Lok Sabha to add “those actions or words that directly result in the use of violence or incitement to violence as ‘seditious’.” In May 2021, in the case of two Telugu channels, TV5 News and ABN Andhra Jyoti News, the Supreme Court proposed to “define the limits of sedition” and not abrogate it. The Supreme Court often upheld press freedom based on the protection given by the Kedar Nath Judgment.

In fact, the Kedar Nath case is a “judicial amendment” to the provision saying that the law can be applied only in the case where there is “incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State.”

Recently the Supreme Court has started a new chapter of judicial maturity in approaching litigations by deviating from the age-old system of Anglo-Saxon hair split analysis of the letters of the statute and then pronouncing judgments. Ayodhya Judgment is one in which a decision acceptable to all was pronounced in one of the most controversial litigations of the century. In the sedition case also, the Supreme Court reacted to the Centre’s stand in a mature way. The brilliant analysis of the spirit of the law on sedition in the Kedar Nath case is still to be understood in its totality. Considering all the facts, let us give a practical shape to the law that will protect society by incorporating progressive ideas consistent with the passage of time.