Ajit Prakash ShahOCTOBER 07, 2019
The threat of sedition leads to unauthorised self-censorship and has a chilling effect on free speech
The recent order of a Bihar court directing the filing of an FIR against 49 eminent persons who signed an open letter to the Prime Minister expressing concerns over mob lynching is shocking, disappointing, and completely disregards the true meaning of the law. The FIR was lodged under various sections of the Indian Penal Code (IPC), including sedition, public nuisance, hurting religious feelings, and insulting with intent to provoke breach of peace. But many would agree that the writers of the letter were doing precisely what every citizen ought to do in a democracy — raise questions, debate, disagree, and challenge the powers that be on issues that face the nation.
It is evident that if you take the letter as a whole, leave alone sedition, no criminal offence is made out. Surely, this court decision warrants an urgent and fresh debate on the need to repeal the sedition law, for it has no place in a vibrant democracy.
History of the sedition law
A century ago, debates around sedition were about how the British abused it to convict and sentence freedom fighters. Today, unfortunately, Indians face the same question, except that instead of a foreign government, the country’s own institutions appear to be misusing the law. This decision strangely coincided with Mahatma Gandhi’s birth anniversary. The soul of Gandhi’s philosophy lay in the right to dissent, which is today being systematically destroyed. Now, anyone, be it university students or civil society activists, who utters even a single critical phrase is instantly targeted, without any introspection on why such criticism was voiced at all.
Sedition laws were enacted in 17th century England, when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy. This sentiment (and law) was borrowed and inserted into the IPC in 1870.
The law was first used to prosecute Bal Gangadhar Tilak in 1897. That case led to Section 124A of the IPC (which deals with sedition) being amended, to add the words “hatred” and “contempt” to “disaffection”, which was defined to include disloyalty and feelings of enmity. In 1908, upon conviction for sedition in another case, and imprisonment, Tilak reportedly said, “The government has converted the entire nation into a prison and we are all prisoners.” Gandhi, too, was later tried for sedition for his articles in Young India, and famously pleaded guilty.
Twice in the Constituent Assembly, some tried to include sedition as a ground for restricting free speech. But this was vehemently (and successfully) opposed for fear that it would be used to crush political dissent.
The Supreme Court highlighted these debates in 1950 in its decisions in Brij Bhushan v the State of Delhi and Romesh Thappar v. the State of Madras. These decisions prompted the First Constitution Amendment, where Article 19(2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.
However, in Parliament, Jawaharlal Nehru clarified that the related penal provision of Section 124A was “highly objectionable and obnoxious and …[t]he sooner we get rid of it the better.”
In 1962, the Supreme Court decided on the constitutionality of Section 124A in Kedar Nath Singh v State of Bihar. It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”. It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
In 1995, the Supreme Court, in Balwant Singh v State of Punjab, acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema after Indira Gandhi’s assassination. Instead of looking at the “tendency” of the words to cause public disorder, the Court held that mere sloganeering which evoked no public response did not amount to sedition, for which a more overt act was required; the accused did not intend to “incite people to create disorder” and no “law and order problem” actually occurred.
This same lens must be used to examine the present letter. The law and its application clearly distinguishes between strong criticism of the government and incitement of violence. Even if the letter is considered hateful, or contemptuous and disdainful of the government, if it did not incite violence, it is not seditious. Unfortunately, Indian courts have, especially recently, repeatedly failed to appreciate this distinction.
The broad scope of Section 124A means that the state can use it to chase those who challenge its power, and the mere pressing of sedition charges ends up acting as a deterrent against any voice of dissent or criticism.
Challenging the law
Even the threat of sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech. This misuse must be stopped by removing the power source itself. The law must go, as has happened in the U.K. already. No government will give up this power easily, and logically, one would turn to the courts for help. Unfortunately, although I have been part of it, the judiciary seems less and less of a protector of our rights, having let us down on civil liberties often lately. Arguably, it is time for the people, for civil society, to challenge the law directly. There needs to be a concentrated movement from the ground up. What form such a direct challenge should take cannot be said, but we must protect our right to dissent as fiercely as we protect our right to live. If we fail to do so, our existence as a proudly democratic nation is at risk.
Ajit Prakash Shah is a former Chief Justice of the Delhi High Court and Chairman of the 20th Law Commission of India