Sedition law a tool against free speech?

SC order in a 1962 case states that Section 124A applies only to actions inciting violence against govt

January 15, 2019 01:40 am | Updated 01:40 am IST - NEW DELHI

Delhi Police on Monday chargesheeted former JNU student leader Kanhaiya Kumar and nine others accused of “raising anti-India slogans” in 2016

Delhi Police on Monday chargesheeted former JNU student leader Kanhaiya Kumar and nine others accused of “raising anti-India slogans” in 2016

The case against former JNU student leader Kanhaiya Kumar and others, contained in the pages of the bulky chargesheet hauled into court in a steel box, hinges on a single factor.

That is, whether the acts of the university students inside their campus in February 2016 amounted to subversion of the government by inciting a violent “revolution”.

The law of sedition is authoritatively decided in the five-judge Constitution Bench judgment of the Supreme Court in Kedar Nath Singh versus State of Bihar in 1962.

Long list

The law declared by the Bench still holds true but is seldom seen to be followed by trial courts. The proof lies in the pudding. The list of people booked for sedition over the years is long — from Booker Prize-winning author Arundhati Roy to Kudankulam anti-nuclear activist S.P. Udayakumar to folk singer S. Kovan to Binayak Sen to political cartoonist Aseem Trivedi to former Delhi University professor S.A.R. Geelani to even two Karnataka policemen who asked for better wages.

The Kedar Nath judgment upholds the restrictions imposed by Section 124A (sedition) of the Indian Penal Code on the fundamental right to free speech and expression. But the court makes it clear that such restraints apply only to “acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence”.

The judgment explains what it means by “acts inciting violence against the government”. “Any written or spoken words, etc., which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question,” then Chief Justice of India, Justice B.P. Sinha, wrote for the Bench.

The Supreme Court held that “comments, however strongly worded, expressing disapprobation of actions of the government” and which shun violence are not sedition.

“In other words, disloyalty to government established by law is not the same thing as commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence,” the Constitution Bench explained.

Dissent and criticism

In its consultative paper on sedition, the Law Commission of India said dissent and criticism of the government are essential ingredients of a robust public debate in a vibrant democracy.

The Commission, which is the Centre’s topmost advisory body on laws headed by former Supreme Court judge, Justice B.S. Chauhan, suggested it was time to rethink or even repeal Section 124A.

British law

The Commission has invited public opinion on the prospect of either redefining or doing away with Section 124A in the “largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy”. Why should India retain sedition when the British, who introduced sedition to oppress Indians, have themselves abolished the law in their country, the Commission asked. Sedition attracts imprisonment from three years to life.

In his book Republic of Rhetoric , Abhinav Chadrachud argues that the Constitution of India has made “little or no substantive difference to the right to free speech in India”. Prior to India’s independence, there were four exceptions to the right to free speech. Sedition (and hate speech), obscenity, contempt of court and defamation. They remain virtually unchanged in the Constitution.

The book argues that prosecutions for sedition relentlessly launched against leaders of freedom struggle like Bal Gangadhar Tilak continue to be used to silence voices today.

As K.T. Shah pithily explained free speech and its exceptions in the Constituent Assembly, “what is given by one right hand seems to be taken away by three or four or five left hands”.

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