SC has ruled that sedition only applies when there is incitement to violence

I’ve long suspected we lack the facility to strike the right balance in tricky situations. When discretion and judgment are required, we have a knack of ending up in extreme positions. To put it bluntly, we often get difficult calls wrong.

This was glaringly obvious in the response to Muslims who celebrated Pakistan’s victory over the Indian cricket team in the Champions Trophy. Fifteen men who shouted pro-Pakistan slogans and let off firecrackers in Madhya Pradesh and five more in Rajasthan were charged with sedition. Eventually charges were dropped against the Madhya Pradesh 15, but continue for the Rajasthan five. Meanwhile in Mussoorie, Kashmiri traders, some of whom have lived there for 50 years, have been ordered by the traders’ association to leave because their children chanted Pakistan Zindabad.

Celebrating your country’s defeat may be distasteful and even offensive but it’s not a crime. More importantly, it’s definitely not sedition. It’s in no way different to the behaviour of Indian-origin citizens of Britain who, at the Oval or Lord’s, celebrate the Indian team’s victory over what is their ‘national’ side. We, in India, rather like that. Then what moral right do we have to criticise when our own citizens applaud a Pakistani victory? And anyway, isn’t that what sportsmanship is about? The sensible thing would be to ignore such slogans and celebrations because, quite clearly, they’re seeking a response. If that’s too difficult, the next best would be to admonish them. However, there are no grounds for the state or civil society to punish.

Deliberate misuse of sedition

Let me now focus on the deliberate misuse of sedition. The Supreme Court has repeatedly ruled that sedition only applies when there is clear and immediate incitement to violence, which is certainly not the case if you applaud, burst firecrackers or shout Pakistan Zindabad. The Supreme Court first made this clear in 1962 in the Kedar Nath Singh judgment when it read down Section 124A of the Indian Penal Code, which is the sedition clause. In 1995, in the Balwant Singh case, when it ruled that Khalistan Zindabad is not seditious, it upheld the 1962 ruling. More recently, in September 2016, the Supreme Court explicitly reaffirmed this position. So why do our police continue to misuse the sedition law? More critically, why do our elected governments permit and condone it?

Sadly, there are even occasions when some of our most learned and sophisticated politicians get it wrong. In a speech earlier this year in London, Arun Jaitley said: “Free speech does not permit you to assault the sovereignty of the country.” He’s wrong. As long as that assault is verbal — and not physical and, therefore, violent — it is fully covered by Article 19 (1), which guarantees free speech. Furthermore, what most politicians forget is that whilst Article 19 (2) permits restrictions on freedom of speech on the grounds of sovereignty, it’s an enabling provision and not the law itself. After the law of sedition was read down, such a law no longer exists.

(Karan Thapar is a broadcast journalist)