India’s law regarding free speech has gone through a fair amount of changes over the years right from the inception of the Indian Penal Code (IPC) in 1860. The arrest of JNU student leader Kanhaiya Kumar, on charges of sedition inciting violence through ‘unlawful’ and ‘anti-national’ speech, allegedly, created waves not only across India, but internationally as well as students, teachers and academicians the world over speak out in support of JNU students and against their treatment by the government.
Suhrith Parthasarathy, an advocate at the Madras High Court , who’s also working on a biography of the Supreme Court, cites the law regarding sedition, Section 124-A of the IPC, in his article for The Hindu; as it reads today, sedition is defined as any action--whether by words, signs or visible representation--which “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India.” The law was part of the original IPC drawn up by Thomas Macaulay, but was dropped when implemented in 1860, only to be reintroduced, citing the initial omission to be a mistake, a decade later. Left ambiguous and vague, the law of sedition came to good use for the country’s rulers as a method of crowd control, in a way. Open to ambiguous interpretation with an added clause, it was used to famously smack down the ‘dissenting’ Bal Gangadhar Tilak, and later, in prosecuting Mahatma Gandhi in 1922. “Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” said Mahatma Gandhi, in response to the charges against him, and he couldn’t have been more correct.
The law of sedition needs to be constantly updated keeping in the mind the current global context, arguing against the law of sedition does not directly mean complete and utter freedom of speech, as words that do in fact provoke violence and actions that threaten public order do deserve to be contained, specially giving the diverse sentiments of Indian society. However, abuse of this particular law has become a weapon in the hands of the government to subdue oppositional voices. While nothing legally seditious can be pointed in the speech of Kanhaiya Kumar for which he is being charged, it has once against brought into focus the inherently draconian law that is Section 124-A. Those who did express the so-called anti-national sentiments should be identified, those individuals themselves be punished, whereas demonizing an entire body of students and political thinking could be the real grounds of un-Constitutional behaviour.
While the tides continue to twist and turn in the JNU debacle, we take a look at some landmark cases regarding sedition in India through the years, that affected the reconstruction of Section 124-A time and again, shedding light on its wide scope of misuse.
Perhaps the most famous cases of sedition in history have been of our country’s freedom fighters against colonial rule. Bal Gangadhar Tilak, staunch advocate of India’s freedom was charged with sedition on two occasions. The first in 1897 for speeches that allegedly incited the violent behaviour of others, which resulted in the death of two British officers. He was convicted and released on bail in 1898, and in 1909 prosecuted again for seditious writing in his newspaper Kesari.
1897 was the first instance where Section 124 (a) from the IPC was identified and applied. Incitement to violence and insurrection was immaterial in the eyes of the presiding Privy Council in regards to the culpability of a person that’s been charged with sedition.
This was a landmark case, the first case of sedition tried in the court of Independent India, where the constitutionality of the very provision was challenged and the Supreme court clearly differentiated between disloyalty to the country’s government and commenting on the measures of the government without inciting public disorder by acts of violence. Similar to the alleged anti-national speech of Kanhaiya Kumar, in a way, Kedar Nath Singh, a member of the Forward Communist Party in Bihar, was charged for quite an extreme speech condemning the ruling government of the time and calling for a revolution.
“Today the dogs of the CID are loitering around Barauni. Many official dogs are sitting even in this meeting,” he said as he began his speech. “The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well...” The Supreme Court imposed a narrower scope of interpretation, holding only those matters that had the intention or tendency to incite public disorder or violence as legally seditious.
III. Dr. Binayak Sen vs. State of Chhattisgarh (2007)
Dr. Binayak Sen was charged for sedition, amongst other things, for allegedly aiding naxalites, and sentenced to life imprisonment at the Session Court in Raipur. He was accused of helping insurgents, who were very active in the region at the time, by passing notes from a Maoist prisoner that was his patient to someone outside the jail. Denying all charges against him, Dr. Sen stated he was under the constant supervision of prison officials during his treatments so such an action would not be possible. It was his criticism of the killings committed by a vigilante group that prompted his arrest and subsequent accusations, Dr. Sen stated to The Wall Street Journal. Salwa Judum, is the group he’s referring to, designed and supported by the state government of Chhattisgarh to curb the insurgency in the villages of indigenous tribes where it thrived, according to them. But Dr. Sen, who’s a human-rights activist apart from being a paediatrician, claims that the groups real job’s to clear village land that’s rich in iron ore, bauxite and diamonds for it to be quarried.
His arrest gained a lot of international attention, and the U.S.-based Global Health Council awarded Dr. Sen its 2008 Jonathan Mann Award for global health and human rights in recognition of his services to poor and indigenous communities in India. In May later that year, 22 Nobel laureates sent a letter to the Indian government criticizing the incarceration and asking that he be released to receive the award in person. “We also wish to express grave concern that Dr. Sen appears to be incarcerated solely for peacefully exercising his fundamental human rights…and that he is charged under two internal security laws that do not comport with international human rights standards,” they said in the letter.
Controversial political cartoonist and activist, Aseem Trivedi, best known for his anti-corruption campaign, Cartoons Against Corruption, was arrested on charges of sedition, in 2010. The complaint, filed by Amit Katarnayea who is a legal advisor for a Mumbai-based NGO, condemns Trivedi’s display of ‘insulting and derogatory’ sketches, that depicted the Parliament as a commode and the National Emblem in a negative manner having replaced the lions with rabid wolves, during an Anna Hazare protest against corruption, as well as posting them on social networking sites.
As reported by India Today, members of India Against Corruption (IAC) claimed that the cases were foisted on Trivedi by the government, as the government was angry with their anti-corruption crusade. Mayank Gandhi of the IAC said, “The case has been registered simply because Aseem had participated in the BKC protest organized by Anna Hazare and had raised his voice against corruption. So the government is trying to scuttle his protest in this manner.” Trivedi’s case seriously questioned freedom of speech and expression in the country we a young man got arrested for lampooning evident corruption in the country. It’s acceptable that some may find his cartoon offensive and in bad taste, but sentencing a person to life in prison for such an act is too extreme.
This case is monumental in India’s jurisprudence as its judgement took down Section 66A of the IT Act, sought to be in violation of Article 19 (1) of the Constitution of India that guarantees the right to freedom of speech and expression to all citizens. A student of law at the time, Shreya Singhal filed a petition in 2012 seeking an amendment in the section 66A, triggered by the arrest of two young girls in Mumbai, for a post on Facebook that was critical of the shutdown of the city after the death of Shiv Sena leader, Bal Thackeray; one of them posted the comment, the other merely ‘liked’ it.
What’s critical about this judgement is the court’s ruling that a person could not be tried for sedition unless their speech, however “unpopular,” offensive or inappropriate, had an established connection with any provokation to violence or disruption in public order. The Supreme Court distinguished between “advocacy” and “incitement”, stating that only the latter is punishable by law. The Supreme Court judgement came after three years of the petition’s filing in 2015, but Shreya did not deter. “I did feel saddened in between but never lost hope. I was also hurt to see that despite the matter pending before the SC, police continued to arrest people under section 66A of the IT act. What was heartening was that the arrests did not deter people from posting comments,” Shreya told Hindustan Times.