A test of freedom: ‘To be anti-Indian is not a criminal offence, and it is definitely not sedition’

Sedition in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence

Written by Fali S Nariman | Updated: February 17, 2016 10:03 pm
JNU students stand in solidarity with Kanhaiya. (Express Photo Praveen Khanna) JNU students stand in solidarity with JNUSU President Kanhaiya Kumar. (Express Photo Praveen Khanna)

“Sedition” is in the air. And a lot of hot air has been generated after the JNU incident.

It needs to be cleared. Under Macaulay’s penal code, “sedition” was declared, way back in the year 1898, as meaning: The bringing or attempting to bring into hatred or contempt (by words spoken or written, or by signs or by visible representation, or otherwise) “disaffection towards the government established by law.”

In British India, the Federal Court had wisely said (way back in 1942) that it was not any want of affection for government that constituted the offence of sedition but “only such disaffection as was accompanied by an appeal to violence and a disruption of the public order”. The essence of the offence, the Federal Court said, was “the disturbance of the peace and tranquillity of the state”.

READ: Sedition – SC’s shown the way, but govts have refused to see

But the wisdom of this decision of British India’s Federal Court was questioned and the decision was overruled five years later by the Privy Council, then the last court of appeal.

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Lord Thankerton spoke for the Privy Council when he said: “The word ‘sedition’ does not occur in Section 124A, it is only found as a marginal note to Section 124A, and is not an operative part of the section, but merely provides the name by which the crime defined in the section will be known. There can be no justification for restricting the contents of the section by the marginal note. In England, there is no statutory definition of sedition; its meaning and content have been laid down in many decisions, some of which are referred to by the chief justice of Bombay, but these decisions are not relevant when you have a statutory definition of that which is termed sedition, as we have in the present case. Their lordships are unable to find anything in the language of Section 124A which could suggest that ‘the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency’. Explanation 1 to Section 124A provides, ‘The expression “disaffection” includes disloyalty and all feelings of enmity.’ This is quite inconsistent with any suggestion that ‘excites or attempts to excite disaffection’ involves not only excitation of feelings of disaffection, but also exciting disorder. Their lordships are therefore of opinion that the decision of the Federal Court in AIR 1942 FC 22 proceeded on a wrong construction of Section 124A, penal code.”

Fortunately for the people of India, India’s Supreme Court, when required to revisit previously decided cases — in 1962, when a challenge was made to the constitutional validity of the offence of sedition as incorporated in Section 124A of the Indian Penal Code — held that it preferred to follow the more liberal interpretation of the term “sedition” as given by the Federal Court in 1942 rather than the pedantic and strictly “colonial” interpretation of “sedition” rendered in the Privy Council opinion of 1947.

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As a consequence, “sedition” in India is not unconstitutional, it remains an offence only if the words, spoken or written, are accompanied by disorder and violence and/ or incitement to disorder and violence. Mere hooliganism, disorder and other forms of violence, though punishable under other provisions of the penal code and under other laws, are not punishable under Section 124A of the penal code. Likewise, mere expressions of hate, and even contempt for one’s government, are not sedition. When a person is dubbed “anti-Indian”, it is distasteful to India’s citizenry, but then to be “anti-Indian” is not a criminal offence, and it is definitely not “sedition”. (It only means that you are a freak, and that it is high time to have your head examined!)

Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!”

The law in Singapore and Malaysia is different — they have followed the strict interpretation given by the Privy Council, and governments there have welcomed the interpretation, but alas, not their citizens. At a conference held some years ago in Kuala Lumpur, a prominent retired judge of the Court of Appeal of Malaysia said to a crowded hall of 500 delegates (at the International Bar Association conference held there): “Our written constitution guarantees freedom of speech” (loud applause). He then paused, and went on to frankly say: “but it does not guarantee freedom after speech.”

In India, we cannot possibly countenance — we simply cannot live under — a regime that expresses like sentiments. As one of the judges in the Constitutional Court of South Africa recently said: “Speech is really free only when it hurts”.

The writer is an eminent jurist and senior advocate to the Supreme Court

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  1. J
    Jai Kumar
    Feb 17, 2016 at 1:49 pm
    I agree a free country is where I have a right not to agree with what the executive does on my behalf. Sedition charges are used as tools to enforce political agenda, that is why poets and human rights activists even disabled ones ,speaking on behalf of naxalites get booked unde the same clauses. On the point of howBritisjh treat their terrorists well they ship them off to Guantanomo bay. These guys were not supporting India in JNU. It went way way beyond political debate it was anti national. Our democracy and society is not mature enough to allow burning of its own flag. Too many have died to be the right to hoist that flag.
    Reply
    1. A
      Ambuj
      Feb 17, 2016 at 4:02 am
      Kyu jo sir aaplog itna padh likh liye. Anpadh log bole to chalo lagta hai pata ni hai to bol raha hai. Lekin aaplogo ki to buddhi hi khatm ho gyi umar and experience k sath sath. So sad.
      Reply
      1. I
        indian
        Feb 17, 2016 at 4:55 am
        No has a problem with them shouting anti government slogans. The problem is that they were chanting anti-India slogans and praising those who have waged war on this country
        Reply
        1. H
          Haradhan Mandal
          Feb 17, 2016 at 4:54 am
          Well written , excellently explained and need to further for ANY further clarification. 'But the w thing in JNU is given to a certain 'caste-organization and its 100 affiliates' - on a SILVER PLATE to don and pretend their FAVORITE 'Nationalistic and Patriotic' facade and robe and monopolize the platform of 'one and only one to defend and protect Nationalism and Patriotism' - which they LOVE and which helps them in hiding and furthering the basic character/agenda of their caste-based organization. And it was done by some brainless loony of ULTRA LEFT , who calls themselves Maoist.
          Reply
          1. H
            Haradhan Mandal
            Feb 17, 2016 at 12:24 pm
            Whenever BJP/their Govt faces any criticism , they use the word country (in place of the word , BJP/BJP Govt ) so as to make the criticism a criticism of the country, India, Nation, Hinduism. AND later, they make it or try to make it or try to make it sound as an attempt to INSULT the the ENTIRE country, India, Nation. When people criticized the RISING intolerance of BJP cadre, supporter/activists /BJP Govt - they changed it as if people are saying 'India is intolerant'. This TRICK does not work.
            Reply
            1. H
              Haradhan Mandal
              Feb 17, 2016 at 2:35 pm
              You have proved my point! THAT apart - RD does not make a crime of a CM of a state - a crime of the entire state or the people; nor the accusation against CM for the same crime is an accusation against the State. He does not represent the state, country, Nation or Hinduism. He represents and is accountable for the Govt of the DAY (as CM) SO FAR as democracy is concerned.
              Reply
              1. S
                Sourav
                Feb 17, 2016 at 6:04 pm
                But the remarks like Afjal guru and yekub mamon are patriot,JandK's freedom its not tolarate by any Indian
                Reply
                1. K
                  Kanu Patel
                  Feb 16, 2016 at 7:51 pm
                  Slogans to disintegrate the country and ruin the country are definitely incitement to disorder. It is the challenge thrown against the government made by law and further more it is against the very existence of the nation made by consution. It is not just against the policies of the government but against the w structure of legislative,executive and judiciary made by consution.How does the author conclude that it is not criminal ? Such interpretations are responsible to give birth for such stage of situation.
                  Reply
                  1. K
                    Kanu Patel
                    Feb 17, 2016 at 5:18 am
                    It is neither criminal nor sedition as per the opinion of the author. What is it then ? Let the author define and give guide lines ,how to deal with such situation. As a LAWER and as an INTELIGENT man what the author was doing for so many years ? Why ,he did not take the pain to find and propose a tool or a legal way to deal with anti national atude ,anti national behavior and supporting of anti national activities by political means.
                    Reply
                    1. M
                      M.h
                      Feb 17, 2016 at 6:50 pm
                      When you barge into an event within a university campus, deploy police forces, have your storm troopers create havoc, and finally allow so much debate and politicisation, it's a clever way to forcefully create a condition where the Nasty sedition clause can be said to be justly applied. Had this been left at university level, those sloganeering could have been identified and corrected at the local level. But to make it grow out of proportion and justify sedition charges. Very wrong. And very scary.
                      Reply
                      1. G
                        GiveModiAbReak
                        Feb 17, 2016 at 6:34 pm
                        Consution, as interpreted by a lawyer may allow anti-india behaviour, but my conscience does not. It is not a question of how cleverly or cunningly u. Interpret the law in ur favour. No room for commonsense or conscientiousness mr nariman?
                        Reply
                        1. M
                          mihir mehta
                          Feb 17, 2016 at 12:21 pm
                          Slogan were not anti government at all .. Slogans were anti national .... Do i need to say the same thing if you cannot understand it in english ?
                          Reply
                          1. S
                            Saurabh
                            Feb 17, 2016 at 8:08 am
                            Like you.
                            Reply
                            1. S
                              Swa
                              Feb 17, 2016 at 1:47 am
                              What an article. So clear and explicit. Thank you Mr. Nariman. People , listen to what he has said. Understand.
                              Reply
                              1. V
                                Vaibhav
                                Feb 18, 2016 at 2:05 am
                                The author although highly reputed name seems to be confused between a person being anti-indian and anti-government.-- both of which are not the same thing. While anti-government may be called dissent, anti-india is definitely something else which can't be justified by any word play or logic. Democracy and free speech are terms that can not be absolute in any case.
                                Reply
                                1. K
                                  K SHESHU
                                  Feb 17, 2016 at 12:25 pm
                                  When Bangladesh was born from stan parion, everyone praised (includng some rightists). That was not 'anti-national!! When someone went to stan for attending birthday, that too was not 'anti-national...! But when one just says, Pakriston zaindabaad, s/he is anti-national? Some nationals are others anti-nationals...
                                  Reply
                                  1. A
                                    Aninda
                                    Feb 17, 2016 at 8:45 am
                                    Slow applause is all that I can say. As long as we have such erudite people as an integral part of our judicial system, we shouldn't have much to worry about
                                    Reply
                                    1. A
                                      Aditya Gaiha
                                      Feb 17, 2016 at 7:42 pm
                                      Missing the trees for the woods. No one questions the right to dissent or have different views but raising anti national slogans and asking for the destruction of India and the vivisection of India is not freedom of speech or democracy it is sedition and anti nationalism. Please have the courage and intellectual integrity to call a spade a spade.
                                      Reply
                                      1. S
                                        Sidharth Sankar
                                        Feb 17, 2016 at 1:30 pm
                                        Fali S. Nariman is an intelligent . If somebody is anti-Indian, India is not the country for him. Why would you tolerate a neighbor who hates you and is plotting against you? Why would you keep a cobra in the house?
                                        Reply
                                        1. K
                                          Krishna
                                          Feb 17, 2016 at 11:07 am
                                          Sir,with due respect you are one of the finest lawyers in the country, just want to tell you that raising slogans like bharat ki barbaadi and bharat ke tukde kardenge ,may not be a problem for you but in my heart its pure sedition... Freedom of expression in speech is the precinct on which action is implied , do u mean to say the Maoists in chattisgarh are right in waging the war against Indian state till its destruction is right?
                                          Reply
                                          1. A
                                            Arvind
                                            Feb 17, 2016 at 12:34 pm
                                            Mr. Mondal - we live in a Representative Democracy. The BJP in power represents the interests of the country.
                                            Reply
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