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August 11, 2016

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Reform Sedition Law To Curb Anti-Nationalism


- Amit K Vyas, Vice President - Legal [ Mahyco ]

amit-k-vyas

While accepting the principle that ‘mere shouting of anti-India slogans’ cannot be construed as ‘sedition’, the Govt must wake up to the reality that well-orchestrated sinister programmes aimed to attack India’s reputation, consistently, persistently and with the design of spreading it far and wide, cannot be disregarded or ignored

Genesis

The term ‘Sedition’ has been a matter of great debate in the country in recent times, in the backdrop of some untoward and ugly incidents involving anti-India demonstrations and sloganeering by some leftist student groups in a prominent Indian University. The problem has been reportedly compounded by the Govt. of India which charged some of them with the serious offence of ‘sedition’. Some of these slogans were aimed at: deriding India for its forcible occupation of the State of J&K, inciting/waging a war against India till the liberation of J&K; and finally, hero-worshipping a terrorist (Afzal) who was hanged (after conviction by the SC) and for waging a war against India by attacking the Parliament.

The public perception of ‘sedition’ is that it is associated with antinational activities e.g. spying for an enemy country, terrorism etc. However, the Indian media has been agog with debates and vociferous campaigns lambasting the Govt’s action of charging the students with ‘sedition’ with waves of articles and editorials.

Some damning remarks therein have been captured hereinbelow:
  • “trampling freedom of speech and expression”;
  • “living under a government that is rabidly malign”;
  • “The Govt using nationalism to crush constitutional patriotism; legal tyranny to crush dissent, political power to settle petty scores, and administrative power to destroy institutions”.

In this regard, it is necessary to understand the following basic aspects relating to ‘sedition’ to get a clearer picture from a legal perspective:

Sedition - its dictionary and legal meanings; Definition under the Indian Penal Code and background

Section 124A of the Indian Penal Code (IPC) defines ‘Sedition’ as under:

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with 104 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1. The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2. Comments expressing disapprobation of Government measures with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. Comments expressing disapprobation of administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

What really is wrong with the current definition of ‘sedition’?

  • The section needs to use the term ‘Union of India as a Sovereign State’ as against the term ‘Govt of India’ since in common parlance, the former term refers to the Country and the latter refers to the Political outfit ruling India as Central Govt;
  • The definition is so exhaustive that it does not leave out of its purview any possible mode of self expression, simply by using the words “or otherwise”. The punishment for the offence of sedition is life imprisonment but lesser punishment can also be awarded. This is draconian and only fit to be applied to those who wage a war against the Union of India. How can a person inciting ‘disaffection’ towards the Govt be awarded life imprisonment – a punishment otherwise reserved for gravest offences like Murder, Terrorism, Rape, etc?;
  • The problem further gets compounded by the fact that the section includes and treats as seditious ‘any disaffection’, hatred or contempt of the measures adopted by the lawfully established Govt. This is too sweeping and could simply take away the fundamental right of the citizens of India to severely criticise or condemn the Govt, though it might be construed as disaffection, hatred etc. by the Govt. The term ‘disaffection’ is too extreme since a person may not have and is also not required to have affection for the Govt of India, though he is required to have love and affection for his Country; • The potential of abuse in this regard is very high and the section has been factually abused due to its loose and vague wording;
  • The regressive and repressive nature of this provision draws its roots in pre-Independence British India. Sedition was brought into the Indian Penal Code in 1870 with the object of crushing freedom fighters and silencing the Indian voice of dissent against the British Raj. After sedition was introduced in the code, the first major case that was tried under it was Lokmanya Tilak’s case (Queen Empress v. BalGangadhar Tilak (1897) ILR 22BOM) in which the clearest exposition of the law was made by Strachy J. While stating the law before the jury, he said “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial”. This statement of law was later approved by the Privy Council;
  • Another landmark case in which the scope and nature of sedition as defined in the Indian code was explained was Sadashiv Narain Bhalerao’s case (King Emperor v. Sadashiv Narain Bhalerao (1947) LR 74 IA 89). The privy council held “but even if he (accused) neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the Section”;
  • In the post Independence scenario, Sec 124A of the IPC should have been scrapped being blatantly in violation of the fundamental right of freedom of speech and expression enshrined by the Constitution. The law of sedition is too colonial, too dangerous and too destructive of the basic freedoms of the people. By retaining it in the code, free India’s governments repudiated the concept of human rights evolved through long years of freedom struggle. Every strong criticism of the government, a minister or a Chief Minister or the Prime Minister causes some amount of disaffection towards them. When people read about the corrupt deeds of a government, what is exactly the feeling generated in them? Is it contempt or hatred or a feeling of love and sympathy for such a government? In a democracy, people change such governments through vote. No democratic government can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India;
What has the Supreme Court held on the constitutional validity of section 124A?

The Constitutional validity of section 124-A was upheld by the Supreme Court in Kedarnath case (Kedarnath Singh v. State of Bihar AIR 1962 SC 955). This decision was in line with the decisions of the federal court in (Niharendu Dutt Majumdar v. King Emperor (1942) FCR 38). The Supreme Court of India held that as public disorder and violence are the essential ingredients of sedition, it is a law made in the interest of public order under Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of speech. Article 19(2) permits reasonable restrictions on the freedom of speech. If the law imposing reasonable restriction is made in the interest of public order, it is constitutionally valid;

Ranjit Singh (appellant), who was then a driver in Punjab Roadways, raised the slogan “Khalistan Zindabad” in a market place of Chandigarh on October 31, 1984, the day Smt. Indira Gandhi, the then Prime Minister of India was assassinated. He was convicted and sentenced by the learned Judge, Special Court, Chandigarh, under sections 124-A and 153-A of the Indian Penal Code. However, the SC held that the ratio of the Balwant Singh case applied to this case and hence section 124-A could not be applied;

The imperative need to crush ‘antinationalism’ in India:

While accepting the principle that ‘mere shouting of anti- India slogans’ cannot be construed as ‘sedition’, the Govt must wake up to the reality that well orchestrated sinister programmes aimed to attack India’s reputation, consistently, persistently and with the design of spreading it far and wide, cannot be disregarded or ignored. In particular, the vicious and venomous evils of Maoism/Naxalism (extreme leftist ideology) and Jihadi extremism (Islamic fundamentalism) are raising their ugly heads in peaceful as well as violent forms in India and threatening our national security. These terrorists have no respect or regard for the Indian Constitution or India. All they want is to spread their ideology under the belief that ‘power flows from the barrel of the gun’. A noted Indian writer who subscribes to this ideology calls Maoists and Naxalitesas ‘Gandhians with guns’. What a shameful and irresponsible comment by an Indian intellectual who is actually ‘a terrorist with a pen’. The very mention of ‘violence’ is an antithesis to Gandhi who rightly predicted that “violent means have violent ends”.

What should the Govt do to reform the law to make it more effective rather than to be a ‘laughing stock’?

The Govt should adopt a yardstick “Your free speech ends where my nose begins. And there is no compromise on respect for the nation”

The Govt should first of all proceed to reframe section 124-A so as to replace the term ‘sedition’ with the term ‘anti-India activities’. The law should clearly define an ‘anti-India activity’ as a crime betraying India as a nation or a sovereign by acts considered dangerous to its security. In effect, the law must be clearly directed against activities which do not threaten a government or individuals in power BUT NECESSARILY the entire country with any or all its people, in the short or long run. The section should also remove ambiguous wording like ‘disaffection’ and also refer to the Union of India as a ‘sovereign’ instead of ‘Govt of India’. The section has to focus on the terms ‘enmity’, ‘disloyalty’ and ‘contempt’. The Govt then has to make it clear (by explanations) as to what it means by ‘anti-India activities’. Also, Police officials investigating such cases should unearth the deeper conspiracy and sinister designs behind a particular act of slogan shouting and get to the root of the malady. Thus, while the mere act of slogan shouting against India may not be an offence any well orchestrated and designed machinery working against the interests of India needs to be demolished.

Conclusion

The law makers in India should be clear about the fact that Freedom of speech is a constitutionally-guaranteed and constitutionally-protected right — under Article 19(1) (a) — bestowed upon every citizen of India and hence, any restrictions/curbs on the same should be reasonable and for the protection of sovereignty and integrity of India and security of the State (para 2). The citizens on the other hand have a fundamental duty viz., to protect and preserve the sovereignty of India, rather than to be swayed by religious sentiments and poisonous propaganda spread by the neighbouring countries. The need of the hour is to defeat fundamentalism by the common man in India rather than to waste the blood of our security personnel on the borders.

Disclaimer - The views expressed in this article are the personal views of the authors and are purely informative in nature.

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