An outdated section with controversial past

The arrest of little-known cartoonist Aseem Trivedi for putting up banners mocking the Indian Constitution at a rally last year has again brought into focus the need to do away

Written by Maneesh Chhibber | Published:September 11, 2012 3:37 am

The arrest of little-known cartoonist Aseem Trivedi for putting up banners mocking the Indian Constitution at a rally last year has again brought into focus the need to do away with or,at least,redraft the controversial Section 124A of the Indian Penal Code,which makes it an offence to spread “disaffection” against the government through “words,either spoken or written,or by signs,or by visible representation,or otherwise”.

There is a history behind the controversial law: It was part of Macaulay’s Draft Penal Code of 1837,but was left out when the IPC was finally enacted in 1860 by the British. But,within 10 years,it was brought back since the British rulers of colonial India felt the need for a law to deal with dissent. Prominent among those charged under this section by the British were Mahatma Gandhi,who had once termed the law as a “prince among the political sections of the IPC designed to suppress the liberty of the citizen”,and Bal Gangadhar Tilak.

What does it say of our judicial system that sends Trivedi to police custody till September 16 on the basis of a complaint by a political worker who felt that Trivedi’s cartoons were a threat to the country? While Gandhi and Tilak were leaders who were a threat to the British rule in India,Trivedi is just an “aam aadmi”.

In 1962,while upholding Section 124A as being constitutional in Kedar Nath Singh vs State of Bihar,the Supreme Court of India had said: “A citizen has a right to say or write whatever he likes about the government,or its measures,by way of criticism or comment,so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”

Our courts and governments — Central as well as states — would do well to remember the response of the Supreme Court of the US in 1989,when dealing with a case where a citizen had burnt the US flag to express his disenchantment with the government. The court ruled that burning the flag was a right granted to citizens by the constitution under the right to free speech. Numerous attempts by the US legislature to pass laws making flag-burning a criminal offence have failed — either due to lack of adequate support from the Senate or adverse pronouncements by the judiciary.

maneesh.chhibber@expressindia.com

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