India losing a cricket match is a cricketing tragedy and just that. Those who cheer such an event may lack discretion and taste, but their conduct is not seditious

I belong to that generation of Indian cricket enthusiasts which is still traumatised by Javed Miandad’s last ball six in Sharjah, 1986. Now 28 years on, Shahid Afridi’s two sixes off Ashwin’s last over in Dhaka have led to sedition charges against and the expulsion of 67 Kashmiri students from a private university in Meerut. While I understand the motivations, the actions of the university and the police authorities are certainly not lawful.

Celebrations by some ended with the Meerut police wrongly invoking criminal charges of sedition under Section 124A of the Indian Penal Code. A court could not have taken cognisance of those charges without an express sanction by the State government under Section 196 of the Code of Criminal Procedure. In this case, the State government seems to have decided to drop charges rather than grant such sanction.

Sedition is easy to allege but difficult to prosecute. Nationalism is easy to profess but difficult to define. Shouting “Pakistan hai hai” through a match is cheap nationalism, but fun nevertheless. One can be a nationalistic cricket lover, but can abhor supporting a team which has Ishant Sharma bowling the death overs. One cannot be a genuine cricket lover without appreciating the greatness of a batsman who annihilates the opposition in the last ball of the last over. Similarly, like the Chennai crowd of 1999, one can even cheer the winning cricket team of a country that has gone to war with your own and yet not be seditious in law.

Sedition in the statutory sense requires a perpetrator who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.” Hatred or contempt of a sports team is simply not covered by the section.

Sedition in the criminal sense began to be defined in the Elizabethan era as a crime short of treason but as a “notion of inciting by words or writings disaffection towards the state or constituted authority.” Some Commonwealth countries like New Zealand have abolished sedition as a crime. The events of 9/11 and other terrorist threats have seen Australia and others strengthen legislation in this regard and persist in its continued, though sparing, use.

With British India facing an incipient Wahabist threat, sedition as a crime found its way into the IPC in 1870 as Section 124A. Subsequently it proved a useful tool for a colonial administration to keep order among restive natives.

It came in handy in 1908 to put Bal Gangadhar Tilak on trial in the Bombay High Court for his writings in the Kesari. Despite being defended by M.A. Jinnah, Tilak was convicted by a 6-3 majority jury.

In independent India, even after the constitution came into force, the crime remained on the statute book to be invoked against dangerous dissenters. While introducing the first amendment to India’s constitution which imposed restrictions on free speech, Pandit Nehru said: “...Take again Section 124A of the IPC. So far as I am concerned, that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons — in any body of laws that we might pass. The sooner we get rid of it the better.”

Despite Nehruji’s protestations, the law remained in the statute books. It was invoked against sundry communist speeches and communalists of all hues. Doubts arose about the constitutionality of the Section after the fundamental right to freedom of speech was guaranteed by the constitution in 1950.

Answering these doubts in 1962, in Kedarnath vs Union of India, the Supreme Court’s Constitution bench ruled: “The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence… It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”

The Supreme Court’s balancing act has, however, been largely ignored by administrators when it comes to enforcement. Every person whose inconvenient view sparks outrage ends up being charged under this section or Sections 153A and 295A. However, most of these prosecutions are withdrawn or fail when faced with strict legal scrutiny from a superior court.

Cartoonist Aseem Trivedi’s innocuous cartoons during the Anna agitation saw the Maharashtra government invoke this section to curb dissent. The Advocate General of the State later withdrew these charges in court. Arundhati Roy and Syed Ali Shah Geelani’s speeches at a Delhi conference in October, 2010 resulted in prosecution for sedition on the orders of a trial court. Binayak Sen’s possession of Naxal literature was the basis of his conviction and life sentence under this section by a Chhattisgarh sessions court. The Supreme Court later granted him bail pending an appeal to the High Court.

The test of sedition must be to invoke or excite a hatred or contempt, or disaffection towards the government or nation resulting in public disorder or disturbance. Much as we think otherwise, legally speaking, cricketing or cinematic heroes are not the nation, nor do they symbolise it. Their achievements may bring joy or sorrow. But there is no duty in law to cheer, nor is there a penalty for jeering.

India losing a close match is a cricketing tragedy and just that. Those who cheer such an event may lack discretion and taste but their conduct is not seditious. In other words “ Jeetega bhai jeetega, Pakistan jeetega” is not seditious but “Kashmir banega Pakistan” definitely is. Wisdom lies in ensuring that those Indians who scream the first slogan are not pushed to screaming the second.

(Sanjay Hegde is a Supreme Court lawyer. )