It is time to revisit an archaic law introduced by the British to stifle dissent
The arrest of political cartoonist Aseem Trivedi and the states crackdown on thousands of protestors at Koodankulam have once again brought into focus an archaic provision of the law introduced by the British to stifle political dissent Section 124A of the Indian Penal Code. Based on a private complaint by a third-year law student,the Mumbai Police charged Trivedi with sedition,besides other offences such as insulting national honour and producing grossly offensive material that was circulated online. After considerable public outrage,the sedition charges were dropped. Earlier this year,6,800 protestors opposed to the Koodankulam Nuclear Power Plant were slapped with sedition charges.
In an open letter written while in police custody,Trivedi explains why he refused to get bail. I will say this again and again. I am not a criminal that I will deposit some money to get bail. Until such time as sedition,an authoritarian British Raj law,is not repealed,I shall remain in jail. I will fight against Indian Penal Code Section 124A (sedition) and against censorship from within jail. Section 124A is in Chapter VI of the IPC,entitled Of Offences Against the State,which deals with serious offences including waging war against the state. Offences under this section carry punishment that can extend up to life imprisonment,and the charge is both non-bailable and cognisable. All of these indicate the seriousness of the crime. In its wording,the law distinguishes between bringing into… hatred or contempt,or exciting or attempting to excite disaffection towards the Government established by law and expressing disapprobation against the state (which is permissible).
It is because of the colonial history of Section 124A that sedition was,after a debate in the Constituent Assembly,not included in the list of exceptions to Article 19(1)a the right to the freedom of speech and expression. The sedition law has survived constitutional challenges based on the exception pertaining to public order. This exception was introduced in 1951 through the First Amendment to the Indian Constitution,piloted by Jawaharlal Nehrus government. Nehru was aware of the criticism that amending Article 19(1)a might legitimise provisions like sedition that he considered objectionable and obnoxious. While defending the First Amendment in Parliament,he said that just because Article 19(1)a had been amended,it did not put an end to the rest of the Constitution its spirit,language and objectives. While sedition is not a specified ground for restricting the constitutional right to free speech,Section 124A continues to be on the statute book.
After a number of challenges to the law in the 1950s and 60s,the Supreme Court finally settled the matter in the Kedar Nath Singh case in 1962. The court struck a balance between the right to free speech and public order,holding that while the law was constitutional,the scope of the section should be limited to acts involving intention or tendency to create disorder,or disturbance of law and order,or incitement to violence.
The question is not whether Trivedi or the Koodankulam protestors should be tried for sedition,but whether the sedition provision should be in the statute book at all. One can quibble about the aesthetics of Trivedis cartoons,but that is a matter of taste and not disloyalty or disaffection. Sedition laws have been regularly used against artists,political dissenters,students,activists and journalists. Earlier this year,human rights activist and journalist Seema Azad and her husband Vishvijay Kamal were convicted by an Allahabad court on charges of sedition for allegedly being members of the CPI (Maoist) party. Azad has been in the forefront of exposing fake encounters and atrocities against mine workers in the state. The case is reminiscent of the Chhattisgarh governments attempt to muzzle Binayak Sen,who spent over a year in jail and is still appealing a Raipur trial court judgment that convicted him of sedition.
Once a case of sedition is filed,judges are reluctant to dismiss the charges since it is seen as a serious offence. The government must initiate the repeal of section 124A through legislative reform. Along with this,there needs to be a serious effort at procedural reform. Lawmakers need to ensure that private complaints of sedition can be regulated so that the law is not blatantly misused. Strong punitive measures must be put in place to punish mischievous and frivolous complaints. We must act now,before the section that Gandhi termed the prince of political sections in the IPC makes a pauper of Indian democracy.
The writer is a legal researcher and lawyer with the Alternative Law Forum,Bangalore.