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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