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    Does India need a colonial sedition law?

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    As we step into the 75th year of India’sindependence, it’s time to introspect the most sensitive law which defines the relationship between the citizens and the government of the day: the law of sedition.

    Patriotism, as a concept doesn’t mean singing out of a common songbook orshouting out the same slogans. It is such undying affection for one’s country that would lead to disaffection towards anything or anyone that would stand in the way of its welfare or mess with its institutions. It cannot be construed as blind fidelity.

    The Constitution is the supreme law of the land. Our affinity towards it is sacrosanct. But our discontent with the political establishment should be seen as independent of our absolute devotion to the values instilled in the Constitution.

    In a democracy, people have the inalienable right to change the government they do not like. The Colonial baggage of the Law of sedition is a serious topic of contention nowadays. Owing to its growing misuse the Chief Justice of the Supreme Court has questioned its continuance. Justice Ramana has rightly pointed out that in order to understand the misuse of the law, one can see the history of conviction under this despotic Section. The empirical data clearly spells out that is law has been used to restraint free speech as the rate of conviction under this law is very low. It is arbitrarily used to put every dissenting voice behind bars, which seldom results in a conviction under the section.

    The law which penalises the citizens for criticising a government cannot exist because it violates Article 19(1)(a) and is not protected by Article 19(2). The reason for its existence is that the Colonial governance wanted to produce loyal subjects. But as Professor UpendraBaxi puts it, “Citizens are beings with rights. Dissent and disagreement are the lifeblood of a democratic political and social orderings.”

    In the 75th year of Independence the Citizens of the country, who are no longersubjects, cannot be coerced into the obedience of thought. Mahatma Gandhi, rightly pointed out once, that law cannot manufacture affection. The law of sedition is a tool in the hands of the ruler to subjugate the ruled and crush the right to dissent, the right to criticise. It is interesting to note that the United Kingdom to has abolished sedition law, a decade back. Given the fact that the law itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain s.124A in IPC.

    What we need is to examine the history of the law and the purpose of its existence.

    This law was enacted by the British colonial government in 1870 with the sole object of suppressing all critical voices emanating from the Indian freedom movement. It was not a part of Lord Macaulay’s final Act of 1860 and was added later on. James Stephen, the author of the Bill, had clarified then that not only critical comments but even a seditious disposition of a person will attract this penal law.

    The basic propositions of this draconian law were followed by courts in all cases on sedition before Independence. In the Bangobasi case in 1891, BalGangadharTilak’s case in 1897 and 1908, and Mahatma Gandhi’s case in 1922, it was made absolutely clear by the courts then that even attempts to cause disaffection would attract the provision, meaning thereby that rebellion, disorder or violence are not an ingredient of sedition.

    This makes it amply clear that Section 124A of the IPC is a colonial law made primarily to crush dissent and muzzle free expression of the citizenry by the imperialist forces.

    It is therefore a misfit in any democracy, in any welfare state where the interest of the citizens is foremost.

    The text of section 124-A of the Indian Penal Code, 1872 which defines the crime of sedition in Indian law, does not refer to public order. However, in the KedarNath Singh Judgement in 1962 the Supreme Court read down section 124-A to restrict its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”The apex court directed the governments to adhere to the interpretation of the provision. As per this judgment, unless speeches or writings tend to cause violence or disorder, there is no sedition.But this has been consistently ignored by subsequent governments all these years, and citizens of all ages have been charged with sedition for merely criticising the authorities, which is an increasing and very dangerous trend.

    With the sweeping powers under this law, the law-enforcing agencies and the state are themselves a threat to democracy.

    Indian law, thus, operates on the public order conception of sedition as opposed to the ‘affective’ conception which the tyrannical forces presume it to be. This conception of sedition is at work when the system tries to punish any dissent or criticism of the government by tagging it to be anti-national and claiming it to be seditious, even when there is no connection with public violence.

    Since the KedarNathJudgement public order has been recognised as an important ingredient of sedition in India. The term ‘public order’ has been defined and distinguished from ‘law and order’ and ‘security of State’ in Ram ManoharLohia v. State of Bihar. The Court observed the difference between the three of them is that of degree.“One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State.”

    Going by this definition the rampant misuse of the section could have been avoided. For those who advocate the retention of the section in its entirety, this was the fitting way to define the limits of sedition.

    As per the “originalist approach”, in times of conflict between a restriction and a right, one should refer to the constitutional assembly debates. As they reflect the intention of the framers of the Constitution while conferring these rights to the citizenry and the limits on the power of the state.

    ShriDamodar S. Seth, a member of the constituent assembly remarked that if sedition is provided as a ground to curb free speech and expression, then all the regressive Acts such as the Official Secrets Act, 1923 will remain intact.

    Further, Shree K.M. Munshireferred to many incidents where mere criticism of the government, or holding an ill-will against the government was termed as sedition. He went on to say that in a democracy, such terms are unwelcome, as criticism of government forms the foundation of a democratic setup of State.

    The arguments of SardarHukum Singh, emphasising the role of the judiciary,are very pertinent in this respect. The term ‘reasonable restrictions’ was added to the right to freedom, as proposed by Shri Das Bhargava, to increase the ambit of the judiciary.  The Constitutionality of the section based on its reasonability was now to be decided by the judiciary, not by the legislature, to ensure the rule of law.

    The judiciary which was entrusted with the cause has expressed its concern about the lack of accountability of the executive with regard to the law of sedition. The apex court opined that a law that owes its origin to the British Raj to suppress the freedom of Indians, is an unreasonable restriction and causes constitutionally impermissible ‘chilling effect’ on Freedom of Speech and Expression. Hence, it is time this law is completely done away with.

    By Ishanee Sharma,

    Managing partner of Ishanee Sharma Law Offices

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