Weeks after Kanhaiya Kumar’s arrest, the air still reeks of the spirit of revolt. If the government behaves like an occupying force, it gives citizens just cause to resist. It must know that the charge of sedition, which applies disproportionate force on citizens, has always legitimised proportionate resistance.
The quaintest crimes against the state are listed in Chapter VI of the Indian Penal Code. The most archaic are Section 125, which criminalises “waging war against any Asiatic power in alliance with the Government of India”, Section 126, which forbids “depredations on territories of powers at peace with the Government of India”, and Section 127, which bans citizens from receiving the spoils of such wars and depredations.
We don’t hear much about them precisely because they are absurdly archaic, redolent of the age of Pindaris and privateers. But governments, both colonial and independent, love two other provisions of Chapter VI, which define waging war against the government and sedition, offences which were fashionable during the freedom struggle. The finest people of the period wore it with grace, from Bal Gangadhar Tilak and Mahatma Gandhi down to young men training for armed insurrection.
Perhaps, the most interesting was the case of MN Roy, founder of the Communist Party of Mexico, who helped Lenin to institutionalise the Communist International. In July 1931, dozens of people suspected of being Roy were picked up in Bombay, Calcutta, Benares, Lucknow and Faizabad for waging war against the king (Section 121 and 121A), and homes were raided across the country, on the slender basis of a warrant issued in 1924 to counter a “Bolshevik conspiracy”. One of the detainees was indeed Roy, and he faced the court in the Cawnpore Conspiracy Case, which foregrounded the question of India to the Western democracies. Albert Einstein apparently wrote to the Round Table, urging Roy’s case, and 20,000 workers in Hamburg signed a petition for his release.
Rattled, the court shifted the trial to jail. Roy’s communications with Ramsay MacDonald, British MPs, the Congress and Indian opposition leaders were cut off. Jawaharlal Nehru was denied an audience with Roy. The counsel for the defence was not allowed to make a case or to call witnesses. Crucially, Roy was denied his right to make a statement to the court, for the judge believed that it would offer him an opportunity to utter “seditious propaganda”. He was transported for 13 years, but his statement, which had been suppressed, was published as a tract titled I Accuse in 1932 by the Roy Defence Committee of India, from its offices on 2nd Avenue, New York City. Facsimile copies are available at Archive.org and the online section of the library of the University of Pennsylvania.
Roy’s statement insisted on the individual’s right to revolt against the unjust use of state power. “I stand here not to answer any such absurd charge and insolent accusation [of waging war against the king],” he wrote. “I stand here to indict the British government of India at the bar of the civilised world for wanton aggression against one-fifth of the human race…”
Cleverly, Roy did not refer to communist dogma, but to the founders of the modern democratic states of Europe, who “passionately preached the sacred right to revolt”. He invoked Jeremy Bentham’s vision of the role of government, “to provide subsistence, to supply abundance, to encourage equality and to maintain security.” The government of British India did only the last, he pointed out. He quoted David Hume, who argued that those “who would deny the right of resistance have renounced all pretensions to common sense”, and that the establishment of constitutional government does not reduce the right to resistance — even armed resistance. These are unthinkable thoughts today.
Roy reminded readers that in the Lahore session of the Indian National Congress in 1929, where Jawaharlal Nehru was elected president, the resolution demanding Poorna Swaraj was passed. Every delegate could have been put away under Section 121A of the IPC, which criminalised “conspiracy to deprive the king of his sovereignty of India.”
Sedition is one of the two sections in Chapter VI of the IPC which have an “A” appended, for user-friendly utility. While Section 124 only criminalises attacks on the person, office or powers of presidents and governors, Section 124A criminalises attempts to excite hatred, contempt or dissatisfaction for the Government of India. It is simply easier to press charges under the latter section. Similarly, while Section 121 criminalises waging war against the state, Section 121A criminalises conspiracy to do so. If the government has a doctored video in which people are heard muttering darkly, that is sufficient to have them put away for a bit. For their user-friendly utility, governments — both colonial and elected — have simply loved the two sections marked “A” in this chapter of the IPC. The current government is merely continuing a grand tradition.