RELEVANCE OF SEDITION LAW IN THE INDIAN DEMOCRATIC POLITY: UNRAVELLING THE DRACONIAN AGENT OF COLONIALISM AND ITS POST INDEPENDENCE DEBATE
Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.
- Mahatma Gandhi, March, 1922
The continued presence of Section 124A of the IPC, a hundred and fifty years after its introduction in the Indian constitution, is a stark reminder of the many similarities between the pre and post colonial eras. Since the very beginning of its induction, which came in the context of the rising Wahabi Movement, the objective of this law has been to muzzle any political dissent and hound critics of the dominant state narrative. It is a cut-throat, glaring reminder of how little has changed as far as the social contract between the state and the citizens is concerned.
The recent infamous Bidar case where the single mother of an 11 year old was charged with sedition after her daughter participated in a purportedly anti CAA play in Karnataka, deemed to be 'seditious and of scandalous nature' , signals a democracy which is weakening in terms of civil public debate.
Although, Section 124A deals with criminal offences intended to incite hatred, contempt or disaffection against the state; but in popular imagination among the masses, it is a direct translation of 'anti nation' or 'deshdroh' instead of its original meaning i.e 'anti state'. This strikes well with the emotional chord of the citizens and gives a legitimate reason for the government to paint any criticism against it with black.
In my opinion, one of the main factors driving arrests in the name of sedition is failure in the reading of speech acts as the terms used under Section 124A like 'disaffection' are vague and subject to different interpretation to the whims and fancies of the government.
Some may argue that it is to protect the national integrity from secessionist and Maoist movements, but the IPC and UAPA already have provisions that penalize 'disrupting public order or 'overthrowing the government with violence and illegal means' . Moreover, the Britishers who introduced it to oppress the Indian media, have themselves abolished the law in their own country through the Corners and Justice Act, 2009. Such cognitive dissonance and recent developments alter the reasons for the further continuation of the Sedition law.
BRIEF HISTORY OF THE ORIGIN OF SECTION 124A
Origin of the Sedition law in the history of modern India can be dated back to the British Raj. It was originally drafted in 1837 by Thomas Macaulay but omitted when the IPC was enacted in 1860. Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephan and it came in the context of the rising Wahabi Movement which aimed to protect the sanctity of the Islamic laws and then was directed at overthrowing the British rule.
Throughout the 19th and early 20th Centuries, the law was mainly used against Indian political leaders seeking independence from British rule and editors of notable newspaper for writing articles criticizing the British rule. The first among them was the trial of Jogendra Chandra Bose, the editor of Bamgobasi in 1891, for criticizing the Age of Consent Bill. The most infamous cases amongst them were the trials of Bal Gangadhar Tilak and Mahatma Gandhi( in 1922) for some articles published in the weekly.
The British also introduced the Dramatic performance Act of 1876 to ' prevent performances of a seditious, defamatory and scandalous nature' and it was only repealed in 2017. But the essence of this archaic law can be traced in the recent Bidar case.
RECENT DEVELOPMENTS IN THE INTERNATIONAL JURISDICTION
>The United Kingdom deleted the seditious libel through the Coroners and Justice Act, 2009.
>In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed and replaced with references to 'urging violence offenses'.
SEDITION LAW IN THE LEGAL JURISDICTION
The constitutionality of sedition has been challenged time and again in the Supreme Court, notably, in the Kedar Nath Vs State of Bihar (1962). The Court did not repeal the Section on the basis that it was required by the state to protect itself. However, it had added a vital caveat that "a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace".
Another important judgement in the criminal justice system was the case of Balwant Singh vs State of Punjab(1995), wherein the SC overturned a sedition conviction of the sloganeers who chanted ' Khalistan Zindabad' soon after the assassination of Indira Gandhi. This marked a dichotomy between 'incitement' and 'advocacy' and held only incitement to violence as an imminent threat to the state punishable under the Sedition Law.
More notable judgments that read down this particular section and constricted its meaning to strike a balance between positive criticism imminent threat of causing public disorder and overthrowing the government established by law with violent means were - Maneka Gandhi case(1978) or more more recently the India Gandhi vs. State of Assam(2011) and Shreya Singhal vs Union of India(2015).
Moreover, the law commission in an earlier report in 1968 had rejected the idea of repealing the section. But, in a consultation paper published in August, 2018 it recommended that it was time to rethink the repeal of the particular section. It also opined that the burning of Constitution, or expression of disappointment with members of Parliament through a visually disparaging cartoon cannot amount to sedition.
Clearly, skepticism has been expressed both by the judiciary and the law commission about the potential misuse of the sedition law. It was also observed that sedition is many a times used to stem any sort of political dissent in the country and it was suggested that sedition law only be criminalized in cases of incitement to cause public disorder or overthrowing the government through violent means, as in the commission's own words, that 'an expression of frustration over the state of affairs cannot be treated as sedition'.
RIGHT TO DISSENT IN MODERN DEMOCRATIC POLITY
As enshrined in Article 19(1) of the Indian constitution, it is unconstitutional to have a constraint on the legitimate exercise of constitutionally guaranteed freedom of expression and speech. Political dissent, criticism and right to question the government are essential ingredient of a robust democracy and cannot amount to sedition, unless they attempt to incite people to violence or cause public disorder. But, it is being used as a tool to persecute political dissent and due to its legal loopholes, it permits its blatant abuse at the hands of the rulers.
Some infamous cases under sedition law that have taken the law experts and the citizens aback were-
>The case of Aseem Trivedi, a cartoonist, against whom sedition charges were pressed for a cartoon highlighting corruption during the Anna Hazare movement for Lokpal Bill and alledgelly mocking the Constitution, but was released by the Bombay High court.
> A human rights activist, Binayak Sen, who was sentenced to life imprisonment by a trial court in Chhattisgarh for supporting Naxalites, and then released on bail by the Supreme Court, which held that no case of sedition was made against him.
> The recent case where the single mother was charged because her daughter took part in an anti CAA play in Bidar, Karnataka.
> A political leader in Tamil Nadu, Vaiko, [for speaking in support of the banned Liberation Tigers of Tamil Eelam]
It is thus clear from the law's recent history that it is deterrent to the freedom of speech and expression and is undermining the civil society and public dissent.
THE WAY AHEAD/ CONCLUSION:-
It is rightly said that 'speech is silver, silver is gold' , but when criticism and political dissent are at the fag end of legal persecutions by the state on bogus allegation and manipulative interpretations, it not only injures the liberty of the citizens but also acts as a deterrent to the democratic processes of a nation like India.
Understanding the national valour of the present regime, it is uncertain whether the Section will be abrogated in the near future. So, the only legal option we are left to lurch ourselves with is to read down this section or constrict its meaning to only criminalise speech-acts directed at causing public disorder or insinuating the idea of violence.
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