“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.

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