“I have no desire whatsoever to conceal from this court the fact that to preach disaffection towards the existing system of Government has almost become a passion with me,” declared Mahatma Gandhi in 1922, while pleading guilty to sedition as charged. “Affection cannot be manufactured or regulated by law,” he went on to say memorably, describing Section 124A as the “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” The case, which related to two articles penned in Young India, ended with a reluctant judge, bound by the letter of the law, sentencing the Mahatma to six years in prison; in the same breath, he noted that no one would be “better pleased” were the man he sentenced released earlier. If Gandhi thought it was a “privilege” to be charged under Section 124A, it was because “some of the most loved of India's patriots have been convicted under it” — most famously, Bal Gangadhar Tilak who, when prosecuted for his speeches and writings twice, asked each time whether he was guilty of committing sedition against the British government or against the people of the country. That this is an archaic colonial-era law that has no place in any democracy that values freedom of expression was recognised by no less than Prime Minister Jawaharlal Nehru, who told Parliament in 1951 that he found Section 124A “highly objectionable and obnoxious.” “The sooner we got rid of it the better,” was his opinion of the broad and inexact provision that punishes those who, by use of words, signs or visible representation, “bring into hatred or contempt” or “excite disaffection” towards the government with a maximum of life imprisonment.
This raises the obvious question: why does the provision still remain in our statute books? And just as pertinently: why is it used to threaten and prosecute our thinkers and social activists because of an opinion they express or an ideology they may have some sympathy with? The conviction by a Sessions Court of civil rights activist Binayak Sen under Section 124A for his alleged links with a Maoist ideologue, and the sedition case registered against writer Arundhati Roy over a speech she made in Kashmir, are just two high-profile cases of the outrageous misuse of the law. Ms Roy is right in saying that “little pinholes of light” have emerged from the recent Supreme Court order granting bail to Binayak Sen, in which it said “no case of sedition has been made out” and where it drew a distinction between merely sympathising with a movement and committing an offence under Section 124A. Within hours of the order, Law Minister Veerappa Moily declared there was a need to review the sedition law and that the Law Commission of India would be asked to take a fresh look at it. While this is a positive development, the important thing is to scrap Section 124A — and quickly.
A climate in which it is permissible to express political dissent and question —– even savage — government policy is integral to the idea of free expression. The Supreme Court may have upheld the constitutional validity of Section 124A in Kedar Nath Singh vs. State of Bihar (1962), but made it more than clear that sedition does not apply to mere “criticism of government action, however strongly worded.” The operation of the provision, the five-member bench ruled, would be limited to cases where what is said or spoken incites violence and public disorder — a line of thought that broadly conforms to John Stuart Mill's famous ‘harm principle,' which suggests that the only justification for curbing a person's expression against his will is to prevent him from causing harm to others. Unfortunately, our prosecuting authorities and the lower judiciary have failed to understand that the scope of the sedition law is severely limited. Otherwise, a magistrate would not have ordered a sedition case against Ms Roy for saying, at a seminar, that Kashmir's status was not settled despite accession to India. And a sessions court would not have held that possessing Maoist literature, as Binayak Sen was charged with having, would constitute a ground for treating the person as a subversive. As the Supreme Court sarcastically observed, “If a copy of Gandhi's autobiography were found in somebody's place, can he be called a Gandhian?”
Section 124A was not a part of the original Indian Penal Code 1860. It was introduced 10 years later and then amended in 1898 to include seditious libel (bringing the government into hatred or contempt). It is distressing that we are slapping sedition cases on people when the offence has been rendered obsolete in many countries, either through a formal scrapping of the sedition law or by rendering it virtually toothless because of judicial rulings. Over the years, the United States has had a slew of laws making it an offence to bring its government into hatred or contempt. Some like the Sedition Act of 1918 have been repealed; others like the Smith Act, which was enacted in 1940, have been made a dead letter thanks to Supreme Court intervention. The last completed trial in a case of sedition (a common law offence) in Britain dates back to 1947. Even so, the British government thought it fit to abolish the offences of sedition and seditious libel in early 2010. One of the reasons cited for scrapping these offences — obsolete though they had become — was that their formal existence in Britain was used by other countries to justify their retention and use them to suppress political dissent. There is no place in a democracy for a law that conflates disaffection with disloyalty and regards trenchant criticism as a form of treason. What was once an instrument by British colonialism to suppress the freedom struggle cannot be retained by the state to silence the voices of its own people. It's time Section 124A was sent to where it really belongs — to the scrapheap of repealed laws.
Keywords: sedition law, Binayak Sen bail, Mahatma Gandhi, Bal Gangadhar Tilak, Indian Penal Code, Section 124A
There has to be contemplative efforts not to put the reality into oblivion while gunning for the scrapping for sedition offence under 124(A) of the Indian Penal Code .No doubt the veritable rights of citizens to freedom of speech should be accorded highest respect in a mature democracy of India, but the fact should not be forgotten that the political engine,the fabric of governance that runs through the country at its present form is largely responsible for endowing the freedom we all cherish.
While you are invoking the celebrated 'harm principle' of political theorist JS MILLS ,you must not forget that the word harm should not be evaluated on a very myopic scale.In this context, What Arundhati Ray was lending her voice to constitutes a clear act of discarding the existing geo political composition of India,The very of INDIA constitutes of 'unity in diversity'. If Mrs Roy cannot melt the hearts of Kashmiris, better not iginite irrational passions in them with her poigant arrogance of monopoly over intellectual romanticism. We all acknowledge that Kashmir is a political problem but that does not give scope for locating the solution to the problem outside the political contours of India. The idea of India is too precious to be let tampered by persons like Ms Roy who see themselves as the only voices for people who consider themselves UN -INDIAN.
In the recent context of Binayak Sen case, I feel Dr Sen should feel himself that he is pursuing his seditious activities in the country whose courts are too liberal in interpreting 'crimes against the nation'. The comparision what you are drawing with Gandhi is disparaging in the sense because former was voicing the concern of the majority of the people who were denied their rights of 'national self determination' and had became servants in their own society under the yoke of imperialism.But here is is Dr Sen who owing to anti national psyche is resonating with voice of a few miniscule minority whose real motive is to overwhelm the democratic status quo of India through the barrel of gun.
I have always felt that political virtues like freedom of expression can only be guaranted in a truely strong state .No principles of intellectual liberalism can be greater than political nationalism.Even USA which has given historical importance to individiualism has been seen become hysterical when it saw looming threat to it as a nation.Not every supreme court decision can be called sacroscant and its need at present was called for showing better statemanship by pronouncing dictum on those who want to seieze the very existence of INDIA as an integrated entity.But the result was just dissappointing.
This is an excellent and timely piece in that it addresses the root cause of some of the problems plaguing India’s most marginalized. Not only is the existence of the law questionable, but its usage by the law enforcement is a huge question-mark as well. In various regions of India, this and other suppressive laws are being used to cover up an onslaught on general innocent populace on the basis of mere suspicion by a power-wielding, crude, ill-informed, biased and compromised enforcement body. Sympathy with a political ideology cannot and should not be the basis for prosecution in any free society. Can anyone be put in jail simply because they are a BJP / Congress supporter even though there is no proof of them having done anything illegal otherwise? Surely some of these major political parties have resorted to and preached violence at different points in time. Why do the citizens not need to be protected from those who support these parties or sympathize with their other agendas? Freedom to have and express a political thought or sympathize with a certain ideology is as integral to the soul of a democracy as secularism. Why some of the most corrupt cronies are not booked under this act (for disaffection) while people who hold opinions that hurt the undemocratic agendas of powers that be are swiftly taken under it? And in such situations the nameless people are the worst hit. While the police can simply get away by saying that they are following the letter of the law, these and other laws that give enforcement unreasonable powers, put the unfair burden of defense and proof of innocence on those booked under the flimsy parameters set by them. Who are the poorest to turn to in that situation? After years of neglect and having been kept outside the fold of the 8% development, can our dear democracy offer them nothing more than the dingy quarters of a jail and the endless tangle of legal processes that they will never be able to escape from? If it took Binayak Sen 3 years in jail (and he's not yet acquitted), what hope is there for others?
Apex court has rightly pondered and differentiated law on sedition in British time and after independent. It should have been amended as against democracy. Dissent is also a part of weeding worms from democratic state which it was not in Britsh period. What Gandhi and Tilak did was to free people of India and they set example for the democratic public and succeeded in getting freedom. Here in Binayak Case, he is projected aide to maoist but who are Maoists? Weren't they present when Gandhi and Tilak were staging war against foreign rules. Here the question is not of foreign question but out of sight political will to development of the naxalite and maoist are. Even Mamta Banerjee was criticised by all political parties when she visited a maoist area in wake of election. Who is against the govenment. Government is against government. Pro-active approach, awareness, education, health and foremost employment opportunity are the demands of the so called separatist for whom section 124a is being applied. How in free india people can dare to free themselves for which sedition is the charge.
There is a fine line between Freedom of Expression and Section 124A. Mere expression of views should not be punishable under any section of the penal code. No doubt it should not be grounds of a prosecution under Section 124A. But if the expression crosses the line and the person expressing is fully aware of the fact that some one is going to take up arms and revolt against the establishment and cause real danger to lives and property - That is a different story. Preachings of Maoists have been well documented and foster the idea of Power through Barrel. While we should tolerate any preachings including the Maoists, crossing the fine line from there should still be punishable as Sedition. As long as there is no connection between ones belief and actual violence there is no issue. But the minute it crosses that boundary state must protect innocent citizens as an Old English saying goes Your Freedom ends where my nose begins.
We hope your prayers will be answered, when the Apex court in the present case before it, takes time to define,what constitutes Sedition? Can a mere literature or speech incite violence or cause harm to others? It did when the great man used it to throw the British empire. Did it incite people or energised people, it is for the historians to dissect. Naxal movement started as a fight against the rich landlords who usurped the lands from the poor and tribals. But due to neglect of this issue, over the years, by the successive govts, it turned into a violent struggle. We had not seen this kind of murderous attitude and action in the seventies and the eighties, when it raised its head in the Andhra State.But it degenerated into a militant movement in the current century. The open economy model paved way for displacement of tribals and adivasis and there was a clear vaccum to address this issue. The younger generation in the naxal movement exploited this opportunity to their purpose. Can the govt repeal this law and watch hatred speeches going around, like that of the Pak mastermind in the Mumbai blast case? Can it allow hatred and religious uprising in the places of worship of a particular religion? How can we distinguish our Hinduvta leaders spreading hatred in their organised meetings, against minorities? Do we scrap the law altogether or want it in a form suited to the present day world? It would have been more appropriate, if the Editorial deliberated on these crucial issues instead of clamoring for repeal citing examples of a few noted individuals.
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