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Sedition law: aye, nay

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In recent times, there has been an increase in the instances in which sedition charges were pressed against intellectuals, human rights activists, filmmakers, university teachers, students, and journalists.

The Central Hall of Parliament doubles up as a portrait gallery. On its walls hang portraits of leaders who shaped the destiny of India. If a viceroy from British India were to walk into the hall today, his mind will find a different commonality between the portraits of M K Gandhi, Bal Gangadhar Tilak, Jawaharlal Nehru, Abul Kalam Azad and Vinayak Damodar Savarkar. All seditious men, he would think, rightly jailed by the government of British India.

Governments past and present have used a colonial-era law to charge many more ‘seditious’ men and women. The crime of sedition first found mention in the draft Indian Penal Code of 1837. Englishman Thomas Macaulay was responsible for codifying the mishmash of laws applicable in different parts of the country into a draft code. Macaulay had studied law at Cambridge but never seriously practised it. He ventured into writing and politics and even after being elected to the House of Commons (twice), he found his political and financial future bleak. A yearly salary of 10,000 pounds was 34-year-old Macaulay’s incentive for coming to India as a member of the Governor General’s council and chairing the first law commission.

Macaulay’s draft code provided that anyone who by speaking or writing attempts to “excite feelings of disaffection” towards the government in the territories of the East India Company will be punished with banishment for life or with imprisonment for three years. The clause did not use the word sedition and was loosely modelled on old English law. The draft code was finished in 1837 and the mutiny of 1857 catalysed its becoming into law in 1860, a year after Macaulay’s death. But the law missed out on including the clause related to sedition. The ‘mistake’ was rectified 10 years later by the insertion of Section 124A in the penal code.

With nationalist movements gaining ground, the government started using the sedition law as a tool for suppressing free speech and dissent. In 1897, Bal Gangadhar Tilak became the first political personality to be persecuted under the sedition clause for his writing and speeches. He faced three separate trials and was jailed twice. When Mahatma Gandhi was tried under Section 124A in 1922, he did not deny the charges. He said that “to preach disaffection towards the existing system of government has become almost a passion with me…’’. Maulana Azad and Nehru remained equally defiant at their sedition trials.

The sedition law came up for discussion during the framing of the Constitution. The draft Constitution included sedition as a restriction on the right of freedom of speech and expression. Members like Sardar Bhopinder Singh Mann, Sardar Hukum Singh (who later became Lok Sabha Speaker), both from East Punjab, rallied for the removal of the word sedition from the Constitution. As a result, sedition was omitted and the Constitution restricted the freedom of expression on grounds like libel, contempt of court, morality and security of the State.

After the Constitution came into effect, judicial decisions interpreted the freedom of speech and expression in a comprehensive manner. It created difficulties for the government. In response, Prime Minister Nehru’s government in 1951 introduced the first constitutional amendment Bill in the provisional Parliament. This amendment added three new restrictions to the freedom of speech, one of them being “public order”. During the debate on the Bill, MPs again raised concerns about Section 124A of the Indian Penal Code. Nehru responded to the debate by stating, “So far as I am concerned, that particular section is highly objectionable and obnoxious. It should be given no place in our Constitution for reasons both practical and historical. The sooner we get rid of it, the better. We might deal with the subject of this section in other ways, in more limited ways, as every other country does, but that particular Section as it is should have no place, because all of us have had enough experience of it in a variety of ways.” But neither his nor successive governments tried removing Section 124A.

In 1962, a five-judge Bench of the Supreme Court held that Section 124A was constitutionally valid as it came within the limit of public order restrictions in the Constitution. It also protected speech that was critical of government action and limited the use of sedition law to cases of inciting violence and armed rebellion.

In 2011, D Raja as a Member of the Rajya Sabha made one of the last attempts through his private member Bill to remove the sedition law from the penal statute book. Over the years, poets, students, authors, journalists, cartoonists and even an entire village have been booked under the sedition law. And, Macaulay’s Section 124A in an updated form continues to be a part of the Indian Penal Code.

India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. The expression or thought that is not in consonance with the policy of the government of the day should not be considered as sedition. The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. If the country is not open to positive criticism, there would be no difference between the pre- and post-Independence eras.

Of course, it is essential to protect national integrity. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon. However, the section should not be misused as a tool to curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.

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