Issues

SEDITION, DEMOCRATIC DISSENT AND RIGHTS

Zaboor ahmad

India is passing through a phase of polarization. Sedition as an offence incorporated into the Indian Penal Code has proved handy to the government to silence its critics, particularly intellectual class. The sedition law is a colonial vestige which the democratic government of India has inherited and retained. It has been more often used by the free India compared with the British imperial dispensation. It was not a part of original IPC enacted in 1860.

Section 124A of IPC defines an act of sedition as whosoever by word spoken or written or by signs by visible representation brings or attempts to bring into hatred or contempt the government established by law or whosoever by above means incites disaffection  towards the government has committed the offence of sedition. It talks about disaffection including disloyalty and feelings of enmity. The second, disapprobation of measures or administrative action of government, to obtain their change by lawfull means is not an offence.

The federal court in the case, Niharendu Dutt Majumdhar Vs King emperor 1942 held public disorder or its likelihood as the gist of offence. If there is no incitement to violence, there is no sedition. In independent India, the Supreme Court turned down the decision of the federal court in Kaeder Nath Vs state of Bihar and said the crux of sedition was incitement to violence or proclivity to create public disorder. Simultaneously, the Constitution also provides certain fundamental rights like 19, 1(a) freedom of speech and expression 19 (b) to assemble peacefully. The clash between two fundamental rights and sedition was imminent. As a result the Supreme Court in Tara Singh Vs state of Punjab declared 124A of IPC as ultra vires as it violated 19,1 (a). To avert this situation, the words “in the interest and public order” were added to Fundamental Rights 19, 1(a). The need has been to maintain the fine balance between the Fundamental Rights and the sedition law.

Arundhati Roy, while speaking at a seminar organised on the freedom of Kashmir, had advocated its independence. She said perhaps posthumously a sedition case against Nehru should be filed and cited 14 instances where Nehru as a prime minister had reiterated that the issue of accession in any disputed territory should be solved according to the wishes of people. Ironically sedition charges were slapped against her.  In Indira Das Vs state of Assam, the Supreme Court observed that, only speech that amounted to inciting or leading to imminent lawless action could be categorised as sedition, and hence criminalised. In the Shreya Singal Vs Union of India, the Supreme Court drew a parallel between advocacy and incitement, and asserted that only the latter could be pursued. Advocating revolution or even violent overthrow of state does not amount to sedition, unless incitement leads to imminent violence. In Balwant Singh Vs state of Punjab, the Supreme Court overturned the conviction of Balwant for sedition and promoting enmity between different groups on ground of race, or religion under 153A of IPC and acquitted him. His “crime” was, in fact smaller than Arundati Roy’s as Balwant Singh had shouted Khalistan Zindabad. The court strongly underscored the point that mere words, however distasteful to the government would not amount to criminal offence. The subject matter that emerges out is whether some action leads to imminent results or not. On the contrary, in Bilal Ahmad Kaloo Vs state of Andhra Pradesh, the Supreme Court asserted that acts which would bring the government established by law in India into hatred or contempt or create disaffection against it would amount to sedition.

It is a fact in India that corruption has remained entrenched in every government. Even if officials are proved to be involved, would protest by the people also constitute sedition as  it would bring the government into contempt and disaffection would be the fallout. If the structure of the Constitution is based on equality, then all those who protested against the hanging of Afzal Guru in New Delhi, Kashmir or else everywhere should be booked. But this has not been so in India. This is being applied on a selective basis to corner political opponents and pursue ulterior motives of party in power.

The campus of JNU, the reputed institution of excellence in the India has been a greenhouse for growth of liberal ideas. In the wake of a new, pro-establishment vice-chancellor the atmosphere has vitiated in this premier institution Universities, being institution of independent thinking, should not be hobbled by non-sensical policing of thought.

 The question that pops up is, had the actions of students who protested led to immediate fallout or not. The fight between the alleged anti-nationals and self-claimed patriots BJP is old. When news appeared in the media that Subramanian Swami would be the next vice-chancellor, he tweeted that the institution needed an anti-narcotic bureau and called for arrest of Naxals and jihadists (read communists and Muslims). Now the home minister has added fuel to the fire by linking Hafiz syeed of Pakistan to the issue. If it is so, the government should share information with the public. Otherwise it would signify two things, first, the issue is not one of sedition but of grim political vendetta. Secondly, it would amount to trampling on the basic rights of citizens.     

This article appeared in The Milli Gazette print issue of 1-15 March 2016 on page no. 2

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