The recent arrest of cartoonist Aseem Trivedi has generated a lot of debate on the sedition law of India and whether it is repugnant to the fundamental right of Freedom of Speech and Expression guaranteed by the Constitution of India. Let us first understand what constitutes ‘Sedition’ under Indian law. The expression ‘sedition’ does not occur in the IPC except as a marginal note to Section 124A
Section 124A of the Indian Penal states that anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government,” with disaffection meaning “disloyalty and all feelings of enmity can be sentenced for a imprisonment for a term of life imprisonment.
In Mr. Trivedi’s case, it was being used to punish cartoons deemed insulting to the nation, including one that replaces the four lions of the Indian national emblem with blood-hungry wolves and the inscription “Satyamev Jayate” (truth alone prevails) with “Bhrashtamev Jayate” (corruption alone prevails). Mr. Trivedi has also been accused of insulting national emblems and violating India’s information technology law.
Majority Indians would concur that the cartoons were crude and rather distasteful. But were they enough incitement to invoke public violence? What immediate danger did Aseem Trivedi’s cartoons possess that he had to be put away behind bars?
The Bombay High Court has pulled up the Mumbai Police authorities for arresting Aseem Trivedi “on frivolous grounds” and “without application of mind”, thus “breaching his freedom of speech and expression”. It required public outrage and a PIL to receive this judicial opinion. What constitutes an insult or causes offence and can be construed as hate are deeply subjective issues. This ambiguity gives governments the legal handle to exercise an insidious form of censorship and control that goes well beyond the “reasonable restrictions” on free speech that the Constitution allows under Article 19.
Let us examine the origin and history of sedition law in India. The Indian Penal Code was originally framed in 1837 by the First Law Commission, chaired by Thomas Babington Macaulay, and it included similar wording to section 124-A in what was then section 113 of the draft law. However, after subsequent revisions, the final draft of the Penal Code was enacted in 1860 with section 113 omitted.
This section was later re-introduced in 1870 on the pretext of dealing with “increasing Wahabi activities between 1863 and 1870.” The section was amended in 1898 in order to expand the scope of the law by including the terms “hatred” and “contempt” along with disaffection.
From here on, the law was used to crush the Indian rebellion against the British rule which had been gaining momentum. In the 19th and early 20th centuries the sedition offense was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters. The first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
Many political leaders right from Gandhi ji to Bal Gangadhar Tilak were charged under sedition law. Gandhiji was infact jailed for six years for his columns he wrote for the journal “Young India”. Gandhiji pleaded guilty to the section and launched a scathing attack on the law of sedition stating that it was
“designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence”
In the draft Constitution of India, one of the heads mentioned for restricting freedom of expression under Article 19 was ‘sedition’. K M Munshi moved an amendment for its deletion. In the course of the debate in the Constituent Assembly, Munshi stated that “even holding an opinion against, which will bring ill-will towards government, was considered sedition once. … now that we have a democratic government a line must be drawn between criticism of government which shuld be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. … As a matter of fact the essence of democracy is criticism of government.”
India’s first Prime Minister Jawaharlal Nehru was also one of the fiercest critics of this law. He had stated in the parliamentary debate centred around freedom of speech in 1951. “Now as far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place…in any body of laws that we might pass. The sooner we get rid of it the better.” But this was not the case, the law of sedition was retained and continues to be used against intellectuals, journalists and cartoonists.
The constitutionality of this section was challenged post Independence in the case of Kedar Nath vs State of Bihar in the year 1961,where SC upheld its constitutionality but clearly explained that it should be applied only to cases where an accused person intended to create public disorder or incite violence. The constitutionality was challenged on the ground that it violated the fundamental right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Supreme Court dissented from the Privy Council judgments which had construed sedition to include any statement that was liable to cause ‘disaffection’, namely, exciting in others certain inimical feelings towards the government, even though there was no element of incitement to violence or rebellion. It limited the application of the section to acts or expressions which have the tendency to create disorder or incitement to violence and on that premise upheld its constitutionality.
Accordingly, raising slogans against the government or uttering abusive words at a meeting or dubbing the government corrupt or inefficient and seeking its removal and replacement by a different political party is not punishable as sedition so long as there is no advocacy of overthrow of government by force.
The Centre for the Study of Social Exclusion and Inclusive Policy and the Alternative Law Forum has also asserted the Court upheld the constitutionality of the sedition law, but at the same time was “curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”
However the misuse of sedition to silence speech has a long and infamous history in this country. Critics have long asserted that the lower trial courts have disregarded or ignored the interpretation of the law as laid out by the Supreme Court of India. Moreover, it is asserted that state authorities have misused the law to target critics and activists who, rather then inciting violence against the state, are simply expressing legitimate criticism of state activities.
Notable among those charged with sedition in recent times are Dr Binayak Sen (Chhattisgarh), Dr E. Rati Rao (Karnataka), Piyush Sethia (Tamil Nadu), Manoj Shinde (Gujarat), and Seema Azad and Vishwa Vijay (Uttar Pradesh). Another recent example is the Tehelka report on approximately 8,000 people, including children, having been charged under IPC Section 124 for protesting against the planned construction of a nuclear power plant in the fishing village of Idinthakari, Tamil Nadu. Their crime was that as a sign of protest, on Independence Day this year, the villagers had refused to hoist the national flag, and put up black flags instead. Another case is of Sudhir Dhawale, a Dalit activist, actor and publisher-editor of the bi-monthly Marathi Magazine, Vidrohi. Despite continuous condemnation and demand of his immediate release, he is languishing in jail since January 2011. In his case, even the minimum legal requirements for arrest and seizure were not followed. Similar is the case of activist-journalist Seema Azad and activist Vishwvijay. They were released on bail, ordered by the Allahabad High court, after two and half years.
Binayak Sen, a doctor and human rights activist, was found guilty of sedition and sentenced to life imprisonment for his alleged links to Maoist rebels. He was later granted bail by the Supreme Court of India because of lack of evidence. After the ruling in the Binayak Sen case, the then Law Minister Verappa Moily had called for a review of the law. However the only reasonable thing to do would be to repeal it immediately.
Even Soli Sorabjee the Former Attorney General of India had in his column in New Indian Express wrote that “A better course would be to repeal Section 124A and replace it by another provision enacted in conformity with Supreme Court’s judgment in the Kedar Nath case. The newly enacted provision should by means of explanations expressly state that certain acts will not be covered by the Section. Most important, there should be no mention of the eight-letter dirty word, sedition, anywhere in the newly enacted Section. Prosecutions for sedition should become bad dreams of the colonial past which have no place in a liberal democracy.”
Hence the time has come to get rid of the section which Gandhiji rightly referred to as “The Prince among the political sections of the IPC designed to suppress the liberty of the citizen and be replaced with a more appropriate one.
The author is a student of law, pursuing BA.LLB (H) from Dr RML National Law University, Lucknow and takes keen interest in law, politics and religion.