LEFT | Umar Khalid

It is not in rates of conviction but in the criminalisation of dissent that the expediency of sedition law rests

Dissent is the lifeblood of democracy. But today when the stench of fascism looms large, exercising this constitutional right can get one branded as anti-national, thrown behind bars or a lynch mob waiting outside to teach you a lesson. A law that has especially come in handy for the self-proclaimed nationalists of our times to suppress dissent is the archaic colonial era sedition law.

A tool to muzzle

For the entire hullabaloo about ‘anti-national’ sloganeers of Jawaharlal Nehru University (JNU), the police have been unable to even file a charge sheet in the case for almost 17 months now. To assume, however, that the slapping of sedition charge was to ensure our legal conviction would be to miss the wood for the trees. Figures of the National Crime Records Bureau reveal that in the two years preceding the JNU case, there were a total of 77 sedition cases, of which only one resulted in conviction. It is not in rates of conviction but in the criminalisation of dissent that the expediency of sedition law rests.

The sedition law was incorporated into the Indian Penal Code (IPC) in 1870 as fears of a possible uprising plagued the colonial authorities. Most of this penal code was retained intact after 1947. Despite demands to scrap it, the law of sedition remains enshrined in our statute book till today. In the last one decade, along with many other draconian laws of colonial vintage, it has become extremely popular with our rulers.

Beyond the high-profile urban cases, the reach of Section 124-A has extended even to faraway places. An entire village in Kudankulam, Tamil Nadu had sedition cases slapped against it for resisting a nuclear power project. Adivasis of Jharkhand, resisting displacement, topped the list of those slapped with sedition in 2014. Most of these cases don’t end in conviction. But when the legal process itself becomes the punishment, the slapping of sedition charges is an attempt to browbeat the protesters into submission.

It can’t even be said that the law is being misused, for such has been the very use the law has been put to since its inception. The urge amongst our present-day rulers is akin to the urge of the colonial administrators — total domination over its citizens.

In fact, there is also an attempt to create an eerie culture of compliance.

Ask no questions

For example, the invocation of the Army in just about any political debate, and its projection as the ideal to which every citizen should aspire towards, is also an attempt to regiment the citizenry on the same hierarchical lines. Those on the lower rungs of the society will follow the command of those at the top and ask no questions. Asking questions is anti-national, anti-state, anti-Army, anti-India or as Union Minister Kiren Rijiju commented last year, part of a bad culture.

Draconian laws such as the Section 124-A only serve to give a legal veneer to the regime’s persecution of voices and movements against oppression by casting them as anti-national.

Last week, 15 Muslim men were arrested from Burhanpur, Madhya Pradesh, on sedition charges by the police. They were alleged to have cheered for Pakistan in the recent Champions Trophy match. Just a few days later, however, the police dropped the sedition charges as its main witnesses stated they had been forced to give false witness. The need for scrapping the sedition law could never have been more urgent.

(The writer was taken into custody in February 2016 after anti-national slogans were allegedly raised on the JNU campus)

RIGHT | Meenakshi Lekhi

Denunciating the sedition law for ‘rampant misuse’ concedes ground that there exist instances where its ‘use’ may be necessary

India is facing an unprecedented level of threat from a countless variety of adversaries many of whom act under the veil of being social activists, NGO conveners or just student leaders.

The law of sedition emanating from Section 124-A of the IPC, rests in Chapter VI which also codifies other ‘Offences Against the State’. The need for this chapter is underscored by the fact that actions which threaten the security of a government, tasked to represent the people who elected it, are repelled and its perpetrators punished.

Why we need it

A denunciation against the law of sedition is that its misuse is rampant and thus must be done away with. This argument has two fallacies. First, it concedes ground that there exist instances where its ‘use’ may be warranted and necessary. The effect of any individual seditious activity is far-reaching, which is why the offence is categorised in ‘Offences Against the State’ and not in Chapter XIII of the IPC pertaining to ‘Offences Against Public Tranquility’.

The impact on public tranquility is but one of the consequences of any seditious activity. However, far more alarming potentialities include calls for violent revolutions seeking to overthrow the government, appeals for a separate Khalistan or Kashmir and other atrocity propaganda, which does not qualify as protected speech and has the ability to denude the legitimacy of a democratically elected government. Second, the Supreme Court has repeatedly observed that the mere possibility of misuse of a provision does not per se invalidate the legislation. In such cases, the vulnerability extends only to the ‘action’ and not the ‘section’.

Supreme Court’s rationale

Section 124-A is circumscribed by Explanation 2 and Explanation 3, which protect constructive criticism of government measures made without any attempt to excite hatred, contempt or disaffection towards the government. Therefore the sedition law is not antithetical to free speech and the importance of free speech is highlighted in the Section itself. Even in the case of Kedar Nath Singh v. State of Bihar (1962), which happens to be the locus classicus on the law of sedition in India, a Bench of five judges of the Supreme Court held that a person using strong speech or vigorous words in writing, against the government, is outside the purview of the concerned Section. However, in the same breath, the court also edified that while it had a duty to protect its citizens from an oppressive law affecting free speech, this speech cannot become a licence for vilification of the government, which incites violence or has the tendency to create public disorder. Following this position, the High Courts of Andhra Pradesh and Punjab have rightly held poems and articles commending the principles of Naxalism and cries for secession of Khalistan to be seditious, respectively.

The Pakistan test

When Indians shout “Pakistan Zindabad” after a Pakistan win over India in a cricket match, are they celebrating the bowling of a young Mohammad Amir? Or the blitzkrieg of a four matches old Fakhar Zaman? Or the fielding prowess of an ageing Shoaib Malik? Or are they tacitly identifying themselves with a Pakistan that is killing Indian soldiers everyday, a Pakistan that is attempting to sever an entire Indian State? Will such words or representations that expose the Indian state to such ‘contempt’, ‘hatred’ or ‘disaffection’ qualify as sedition? As per Kedar Nath Singh, these actions certainly possess a “tendency to create public disorder”. These questions need no answer. Surprisingly, all those self-proclaimed liberals who spare no stone unturned to speak against India, remain impressively disciplined when they visit the U.S. and rarely speak against its territorial integrity because they know the consequences.

(Meenakshi Lekhi is a BJP MP and a Supreme Court advocate)

CENTRE | T.S.R. Subramanian

Praising Pakistan or waving its flag cannot be sedition, but asking for India’s dismemberment should attract the charge

The sedition law was part of the original IPC, which has, in general, stood the test of time in Indian conditions. Section 124-A was indeed amended for technical reasons after Independence but remains substantially the same — though very rarely used, as is to be expected.

Revisiting the sedition law

Mere criticism of the government, or of governance, indeed of the institutions of governance, however harsh, will not qualify as sedition. From a layman’s perspective, the issue of sedition would come into play only if the territorial integrity of India as well as the sovereignty of the country are questioned by an individual or a group. In other words, sedition is relevant only in the context of a demand for secession. ‘Waging war’ with India or other inimical acts against the country will be met by other legal provisions but cannot replace 124-A if a situation arises.

Advocating or raising slogans about breaking up India, to my mind, constitutes sedition. Using Afzal Guru, who carried out an attack on the high seat of democracy, the Indian Parliament, as one’s poster boy to advocate Bharat Ki Barbadi (with implication of separation of Kashmir) is sedition. The most recent Eid procession in Srinagar led by a group flaunting slain Hizbul Mujahideen commander Burhan Wani’s picture along with that of Lashkar-e-Taiba chief Hafiz Saeed, asking for a separate Kashmir, also smacks of sedition.

It would be recalled that in Kedar Nath Singh v. State of Bihar, a Division Bench had laid down the criterion stressing that a necessary component of sedition involves rebellion or use of arms, in conjunction with demand for separation from or dismemberment of India. This is too high a bar — subsequent events in India, including the significant spread of Naxalism, the movement in Punjab, the earlier demand for a Tamil Eelam, surely have sedition somewhere in their composition; perhaps the very stringent Supreme Court conditions need to be revisited.

I say this in the backdrop of the Gorkhaland agitation, and similar problems elsewhere. So long as the demand is for a separate State, it surely is constitutional, subject to other laws in the method of expression; the issue of sedition needs to be considered only in the unlikely context of a demand of separation. Waving Pakistan’s flag in the course of a match, or praising Pakistan, cannot be sedition — the recent acts of some State governments to slap the charge of sedition on people are excessive. That’s not the same as seeking azaadi (freedom) from India, or asking that the territory of India be dismembered. Zakir Naik, whom India is trying to extradite, claims he is a religious preacher and has neither advocated the break-up of India nor exhorted young men to join the Islamic State. But his words are insidious and possibly attract the sedition charge.

The need for nuance

Very recently, there was a protest in Bengaluru trains on the imposition of Hindi in Karnataka — is that dissenting note a seditious act? Surely not. Again, in another context, the Naga agitation essentially did not even recognise the sovereignty of India. Even though it qualified as sedition, the government did not invoke this clause due to sensible political reasons.

The word ‘sedition’ is thus extremely nuanced, and needs to be applied with caution. It is like a cannon that ought not be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.

(T.S.R. Subramanian is a former Cabinet Secretary)

- (as told to Anuradha Raman)