By Sumeysh Srivastava
In “Gadar: Ek Prem Katha”, there is a nationalism packed scene where Sunny Deol’s character, Tara Singh, is being asked to convert to Islam so that his iniquitous Pakistani Father-in-Law (Amrish Puri) can accept him and allow him to be with his wife and kid. In this legendary scene, Tara Singh approves of saying “Islam Zindabad” and “Pakistan Zindabad”, but when is asked to say “Hindustan Murdabad”, he bristles with anger and reiterates that “Hindustan Zindabad Thaa, Zindabad hai aur zindabad Rahega”.
Now, people generally assume that this is because of his patriotic spirit and love for the motherland, which it perhaps is. However, an alternate theory could be that he was simply afraid of being prosecuted for sedition back home! Sedition, as given in Section 124A of the Indian Penal Code, 1860 reads as follow:
“124A. Sedition – Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite dissatisfaction towards, the Government established by law in India, shall be punished ….”
The provision explicitly states that sedition is committed against the government, and not the country. The British Government had introduced this provision in 1870 to stifle dissent against the colonial Government of the time as Muslim Ulema had given a call of jihad against them. Bal Gangadhar Tilak and Mahatama Gandhi are just two of the more famous names who were prosecuted under this law, amongst a host of other people, comprising mostly of newspaper editors.
In the present day, we have seen people like Kanhaiya Kumar being charged with sedition for allegedly inciting people to shout “Bharat Tere Tukde Honge”. We have also seen sedition charges being slapped against people for supporting Pakistan in cricket matches. Recently, we can witness a bizarre case, wherein the provisions of seditions have been invited in a dispute between students of Aligarh Muslim University and a private news channel This is a case where the Government is nowhere involved as a party in any form. Sedition has become a convenient tool to stifle any voice or perspective that goes against what the State perceives as nationalism or patriotism. Let’s try to understand the finer details of how the law defines sedition.
An act is seditious if it is attempted to or results in people feeling hatred, contempt or dissatisfaction towards the government elected under the law. These actions should lead people to resort to violence and create public disorder.
The Supreme Court has held in various judgments that the law of sedition is only applicable where:
- A person causes violence, or
- A person encourages people to create violence.
In Kedar Nath vs. State of Bihar, the Court held that criticism of public measures or comment on governmental action, however strongly worded, within reasonable limits and consistent with the fundamental right of speech and expression, is not affected by this law. It is only when the words have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in. Similarly, in Sri Indra Das vs. State of Assam, the court has decided that for an act to be considered seditious under the law, it must be shown that the act will result in imminent violence or public disorder
Therefore, for a crime of sedition to be made, it is very important to make a distinction between genuine criticism of the government [see Explanations to section 124A] and statements which seek to overthrow the government leading to imminent violence. As discussed in Romesh Thapar vs State of Maharashtra, this is a distinction that the framers of the constitution were keen to clarify. The Court observed that the deletion of ‘sedition’ as a ground for restricting free speech guaranteed under Article 19 of the Constitution shows that mere criticism of the government was not to be regarded as a ground to restrict freedom of speech and expression unless it could lead issues related to public order, security and the existence of the government. So, just saying “Hindustan Murdabad” itself would not amount to sedition unless it is accompanied by a call to arms for overthrowing the Government of India, and people actually follow through on that call, leading to violence.
Every time sedition is in the news, questions are asked about the justifications for using a colonial era-law in modern India. It is understood that the British no longer rules our country, still, the Government do have a colonial hangover which defines the relationship between the state and its people. The structures are still the same and are sometimes used for the oppression of people, rather than their benefit. The presence of Armed forces in areas where people are in dispute with the State belies the idea of a democratic, responsive state. Most worryingly, the distinction between the “nation” and the Government has been blurred to the extent that any criticism of Government functioning, irrespective of its merit, is seen as being anti-national, disloyal and unfaithful to the motherland. In a democratic republic like India, there can be no compulsion for everyone to always wear their patriotism on their sleeves. Constructive criticism of government policies, debating on the effectiveness of different state interventions should also be seen as an expression of love towards the nation and signifies concern about how the nation is progressing. This cannot be seen as sedition.
The other major issue with the law on sedition is how it is processed in the legal system. In the NCRB’s Crime in India report 2016, it can be seen that out of 34 cases of sedition reported in 2016, there was only one conviction, two acquittals, and the rest are still pending trial. In fact, between 2014 and 2016, a total of 179 cases were lodged under the sedition law. However, by the end of 2016, no charge sheet had been filed in more than 80% of cases. The trial could only begin in 10% of cases. So, in most cases, the sedition law becomes a tool of oppression, where the police don’t even file a charge sheet and people just spend time in prison. Of course, this is true for most laws in India. Data shows that in April 2018, 86% of cases in subordinate courts in India are pending, with around 8% having pendency of over two years. Further, 81% of all cases pending in subordinate courts are criminal cases. This means an increase in the number of undertrials languishing in jails, awaiting their day in court. Specifically for cases on sedition, this means people, on whom frivolous charges of sedition have been applied, are punished with jail for a long period without a trial which can examine the veracity of allegations against them.
This does not mean that the law on sedition has no utility today. All laws can be misused. An argument can be made that the law on sedition, if applied, as interpreted by the Supreme Court, does act as a bulwark around the integrity of the Indian nation and discourages elements which seek to incite violence to encourage public disorder and overthrow elected governments. The problem is, this not how the law has been historically applied. The problem is the misuse of the law by an overtly sensitive government and the illegal and arbitrary actions which often accompany its application.
The Law Commission of India had released a consultation paper on sedition in August 2018. It discussed the various aspects of the sedition law as it existed in India pre-independence. It also looked at international jurisprudence related to sedition, as well as its application in present-day India. In its conclusion, the commission stresses on the fact that any irresponsible statement will not be termed seditious automatically. It specified that the right to criticize one’s own history and the right to offend are rights protected under free speech. The commission stressed that the section on sedition can only be invoked for acts where the intention is to disrupt public order or to overthrow the government with violence and illegal means.
One of the most pertinent points to come out of the paper is the focus on the existence of other provisions within the Indian Legal system to deal with offences covered under sedition and deal with issues related to disturbing public order or threatening the security of the state. Some of the provisions mentioned are Sections 121, 122, 123, 131, 132, 141, and 153A of the Indian Penal Code. These provisions broadly cover actions such as waging war against the state, collecting arms for waging war, abetting mutiny, unlawful assembly and actions promoting enmity between different groups. Further, the paper calls attention to the Unlawful Activities Prevention Act, 1967, which enables state authorities to deal with activities directed against the integrity and sovereignty of India. Finally, it clarifies that for specific actions like insulting the national flag and/or the Constitution of India, the National Honour Act 1971 is sufficient.
Concluding Remarks
To revisit the situation in the first paragraph, Tara Singh’s fear of the law of sedition is justified as you can be sure that anyone shouting “Hindustan Murdabad” will swiftly be finding themselves in a situation where they are desperately reading and trying to understand what Section 124-A of the Indian Penal Code says. This continuation of a colonial legacy like the sedition law, in a democratic republic like India, is an abnormality. The application of this law has consistently moved away from how the Supreme Court has articulated that it should be applied. It has been clarified that the main condition for the act to apply is creating violence or exhibiting a clear intention to create violence to create disaffection against the state and disruption in public order. However, the actions of the state have not been guided by this principle. Going forward, if the law is to be retained, one of the three organs of the state, the legislature, executive or the judiciary must narrow down and elucidate the scope of how this law is applied. Failing that, the law must simply be repealed.
[Sumeysh Srivastava is a legal researcher working at Nyaaya, an initiative of the Vidhi Centre for Legal Policy in New Delhi.]
Image Source: The Battle for Liberty
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