How to be free in the 21st century

The experience of liberal democracies elsewhere shines a light upon the outdatedness of the sedition law that India uses so loosely.

March 18, 2016 12:50 am | Updated September 18, 2016 12:25 pm IST

“By no means is the tension between the right to freedom of speech and the ambitions of a government to quell criticism of its policies a new dilemma for democratic politics worldwide.” Picture shows students protesting in JNU in New Delhi against JNUSU president Kanhaiya Kumar’s arrest. Photo: R. V. Moorthy

“By no means is the tension between the right to freedom of speech and the ambitions of a government to quell criticism of its policies a new dilemma for democratic politics worldwide.” Picture shows students protesting in JNU in New Delhi against JNUSU president Kanhaiya Kumar’s arrest. Photo: R. V. Moorthy

In little more than a month since a partisan and heavy-handed Delhi Police arrested Jawaharlal Nehru University Students Union President Kanhaiya Kumar and slapped him with the > charge of sedition , reams of newsprint have been dedicated to challenging that odious legal provision of the Indian Penal Code, dating back to 1860, principally on the grounds that it is > draconian and specifically that its abuse impairs a critical feature of liberal democracy: > dissent

In the process the troubling history of Section 124-A of the IPC has been clearly traced, especially its remarkable survival from the pre-Independence era, when it served the colonial government as a weapon of mass suppression against all opposition, into modern India, where it has now become an untenable blot on the right to free speech guaranteed by Article 19 of the Constitution.

At the heart of this ongoing battle for India’s liberal soul is the argument that speech that is alleged to be seditious may be considered illegal only if it is an incitement to violence or public disorder, a view that has been clarified by a multitude of legal precedents including Kedar Nath Singh vs State Of Bihar (1962), Indra Das vs State Of Assam (2011), Arup Bhuyan vs State Of Assam (2011), and most recently the well-known case of Shreya Singhal v. Union of India (2013).

Yet by no means is the tension between the right to freedom of speech and the ambitions of a government to quell criticism of its policies a new dilemma for democratic politics worldwide, and indeed the experience of liberal Western democracy shines a light upon what could be considered a reasonable position on this subject.

Consider first the experience of the U.K., where laws on seditious libel and criminal defamation were summarily abolished by Section 73 of the Coroners and Justice Act in 2009 nearly 40 years after the British Law Commission first recommended doing so, albeit after “after a century of disuse,” according to Professor John Spencer of Cambridge University.

Modern Britain’s struggle with the chilling effects of sedition on free speech dates back centuries to the times of the Star Chamber, and was poignantly illustrated in the 1792 trial of political theorist Thomas Paine, whose work was influential in igniting the American Revolution, specifically for his publication of the second part of the Rights of Man.

In that tome Mr. Paine effectively argued that popular political revolution was permissible when a government no longer safeguarded inalienable rights of its people, rights that stemmed from nature and not any government-written document, not even a Constitution.

Unsurprisingly when an estimated 50,000 copies of Mr. Paine’s manuscript started circulating in Britain it led to a massive furore within government, a trial in absentia, and finally conviction for seditious libel against the Crown. Fortunately for Mr. Paine he was at the time a resident of France and hence “unavailable for hanging,” and so he got away with never returning to his homeland.

In the early years sedition came with rather steep punishments, including perpetrators having their ears cut off for a first offense and put to death for recidivism. Later it became punishable up to life imprisonment and/or a fine, and in most cases “Not only was truth no defence, but intention was irrelevant.”

However in line with what Professor Spencer had indicated to The Hindu, on multiple occasions 21-st century debates in the House of Lords agreed that “the common law of sedition had rarely been used in England over the course of the past century,” and the last major case in the country where there was an attempt to try an individual for sedition involved the publication of Salman Rushdie’s book, The Satantic Verses.

Reports in the U.S. Library of Congress quote allegations made that Mr. Rushdie’s book was a “scurrilous attack on the Muslim religion,” and that it resulted in violence in the UK as well as a severance of diplomatic relations between the UK and Iran.

Taking matters further an individual was said to have attempted to obtain a summons against Mr. Rushdie and his publisher, alleging that both parties had committed the offense of seditious libel, a claim that was denied after judges found that there was not a seditious intent by either of the parties against any of the UK’s democratic institutions.

In the U.S., Congress enacted the Sedition Act of 1798 in anticipation of a possible war with France, according to Professor Geoffrey Stone of the University of Chicago, and the Act made it a crime for any person to make any statement that brought the President, Congress, or the government into contempt or disrepute.

Unlike the U.K.’s sedition law, truth was a defence, but still it was bitterly opposed by those who sought to criticise the government, and the government used it to prosecute numerous journalists and politicians who criticised its policies, Professor Stone said to The Hindu.

While the Act expired by its own force in 1801 amidst condemnation as a serious violation of the First Amendment guaranteeing the right to freedom of expression, a series of compulsions relating the wartime politics, from 1798 to the present led to reinstitution of seditious libel laws.

These included, Professor Stone notes, the government putting some presses out of business during the American Civil War; the government enacting the Espionage Act of 1917 and the Sedition Act of 1918 during World War I, which were used to prosecute around 2,000 individuals for criticising the war and the draft; and the federal government and most states enacting laws prohibiting anyone to advocate the violent overthrow of the government During the “Red Scare” of the 1950s.

Notwithstanding this regressive shift during the war years, the U.S. Supreme Court began to address the constitutionality of these laws for the first time during World War I. Although it found them to be constitutional at that time, the Court’s questioning set off a “fierce challenge,” to sedition as a legal concept, Professor Stone said, particularly by Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis.

From that time until 1969 the U.S. Supreme Court struggled with sedition laws and ultimately came to the view in Brandenbug v. Ohio that the government could punish speech because it turned people against the government or might cause them to engage in unlawful conduct only if the speaker expressly incited unlawful conduct and only if the speech is likely to cause such conduct imminently.

Since that time no restrictions on seditious libel have been upheld in the U.S. and Professor Stone argues that this has largely been because the nation and its government have come to encompass the understanding that “It is more important to protect a vital freedom of speech than to suppress views we do not like. The suppression of criticism of the government, we have come to understand, is fundamentally incompatible with the aspirations of a true democracy.”

The Government of India frequently speaks of India becoming a superpower comparable to some democratic Western nations. Yet as this government goes about arrogating to itself the right to victimise those who challenge the legitimacy of its actions, or raise dissenting slogans against widespread inequities in the country, it may have pause for thought if it bothered to glance through the historical evolution of jurisprudential thought on sedition laws in these very same nations.


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