By Sambit Dash*
Section 124 A appears in Chapter VI of the Indian Penal Code (IPC), which is titled “Offences against the State”. This section was once called the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen” by Mahatma Gandhi. Section 124 A has been abused time and again by governments, often as a political tool to silence dissent, and has thus come under serious and legitimate criticism. It is thus imperative that such a law must either be repealed or amended to prevent its misuse.
The recent judgment by the Bombay High Court in the case questioning the sedition charges slapped against cartoonist Aseem Trivedi, might be a way forward in dealing with this oft-abused law. The honourable High Court upheld the PIL questioning the arrest and issued guidelines to the police for arresting someone under Section 124 A. It went on to clarify that comments, however strongly worded, that express disapproval of governments without being accompanied by violence or an incitement to violence would not qualify as sedition. This judgement in a case that has already caught public attention assumes significance at a time when militant nationalistic narratives and intolerance for dissenting opinions are on a rise.
The Stick of Law:
In the recent past, paediatrician and activist Dr Binayak Sen, writer Arundhati Roy, cartoonist Aseem Trivedi, politicians Surjit Singh Mann, Praveen Togadia and Vaiko have been slapped with charges under Section 124 A. While the Supreme Court has been consistent with its ruling on the Kedar Nath Singh case, lower courts have on occasions wrongfully disregarded it and shown adventure in convicting people charged with sedition. Though most of these people get acquitted once they appeal to the High Courts, the ordeal they are subjected to can be financially, psychologically and socially debilitating. Worryingly, instances of the misapplication of Section 124 A seem to have been on the rise recently. Some of the recent cases include a lecturer in Srinagar being arrested for asking questions about law & order in the Kashmir valley, or Kathuram Sunani, a journalist with OTV, being arrested after he reported that a tribal group in Odisha was consuming soft dolomite stones due to acute hunger. Perhaps the most blatant example was when 8,000 people were charged with sedition for protesting against the upcoming nuclear plant at Koodankulam.
There is no doubt that there is an urgent need to review Section 124 A as it has been abused multiple times to unreasonably stifle dissenting voices, which are the very essence of a democracy. Many countries have already shown that there are more progressive ways of moving forward. There are plenty of other legal provisions that can deal effectively with issues of ‘disaffection’ – if they need to be dealt with at all – and ‘public order’. Indeed, some of the provisions to deal with such issues that already exist in Indian law, such as the Unlawful Activities Prevention Act, Prevention of Seditious Meetings Act and Section 95 of the Code of Criminal Procedure, 1973, are also in need of amendment as their definition of ‘disaffection’ is borrowed from Section 124 A.
In a positive move, the Law Commission of India, in its 248th report dealing with obsolete laws, has recommended repealing the entire Prevention of Seditious Meetings Act, 1911. The Commission held that the phrase “likely to cause public disturbance or excitement” was too vague and broad a requirement to make out a criminal offence. However, the P.C. Jain Commission set up in 1998 did not recommend amending or repealing any of the above contentious statutes. The Repealing and Amending Bill, 2014, which is pending passage in Parliament, also does not include any Act relating to sedition in the 88 Acts it proposes to abolish. The government of the day should be questioned for their promise and commitment to remove archaic and unnecessary laws which is necessary to provide a fearless environment to society at large.
It is no one’s case that freedom is absolute. There are certain rights that a citizen has to give up to be part of the State and absolute freedom of speech and expression is one of them. That being said, the freedom of speech and expression is vital to the functioning of a democracy. If it is constantly being undermined by an antiquated and abused law it does not auger well for the country or its citizens. For Courts unable to question the constitutionality of Section 124 A, it might be more prudent to deal with cases of sedition from an ‘effect-based’ point of view along with the current ‘content-based’ approach. In the former, the effect that the expression or act in question has caused is observed and the severity of crime decided accordingly while in the latter, as is widely followed by Indian Courts, the text is ‘closely followed’.
As observed in the Aseem Trivedi case – and which could apply to a host of mediums like movies, literature and other artistic mediums – an ‘effects-based’ approach would weed out such frivolous cases. Taking away the vendetta angle from this piece of law would do it immense good too. A direction has been shown in the set of guidelines that the Bombay High Court has issued to the police, which does the dirty work of booking the alleged ‘criminal’. The honourable court has prescribed a set of do’s and don’ts for the police before making any arrest under the section. These guidelines enjoin upon the police officer to make sure that the said act constitutes an incitement to violence or creation or reasonable apprehension of public disorder; not to consider representations against government officials unless they show them as such; not to mistake obscenity and vulgarity for sedition; and to obtain in writing a legal opinion from district law officer and state public prosecutor giving reasons for booking a person(s) under Section 124 A.
‘Tolerating the intolerant’:
The room for dissent, the scope to express displeasure, the space for the minority alternative, the provision to opine against the broad mainstream, the militant nationalistic narrative, is shrinking fast. In the proliferation of views on social media which has the power to both distort and go viral; in discourses that are taking the ugly shape of outrage on Twitter, heated debates on television newsrooms or protest on streets against individuals, we are seeing a disturbing rise in intolerance. In the face of such changing times, sedition laws can become very handy to further nefarious political goals. It can be observed from the nature of offence for which sedition has been slapped on individuals that it is most often the hapless that get trapped. For those fearing dilution of power vested with the state to try secessionists will do well to note that even the recent arrest of Masarat Alam was under the UAPA and not Section 124 A.
The wisdom of having a separate law of sedition to prevent incitement to violence has been questioned for years by leaders like Nehru in the past who termed it ‘objectionable and obnoxious’. A ‘casual approach’ in its application, which is ‘doing more harm than good’ and thus interfering with liberty of a citizen has been observed by the Supreme Court. It is often questioned whether the fabric of the Indian nation is so fragile that a speech, cartoon or article can tatter it. After all, the ultimate test of any functional democracy is the extent of dissent it permits by way of freedom of expression. Practicing tolerance by promoting harmony and the spirit of common brotherhood among people transcending religious, linguistic and regional or sectional diversities is a fundamental duty as laid down in Article 51-A (e) of Fundamental Duties. It is time the powers that be and the masses practice it.
An observation made by Justice Patanjali Sastri, while addressing the law of sedition, way back in 1950 remains as relevant today as it was then. “…without free political discussion, no public education, so essential for the proper functioning of the processes of popular government, is possible, and freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected with Madison, who was “the leading spirit in the preparation of the First Amendment of the Federal Constitution [of the USA]” that “it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits”.
*Sambit Dash is a senior grade lecturer in the Department of Biochemistry at Melaka Manipal Medical College, Manipal University by profession and a blogger by inclination.