Siddharth Narrain: Sedition and the death of free speech
The repeated use of sedition laws has made these laws one of the biggest threats to the freedom of speech and expression in this country. Along with other colonial laws such as criminal defamation, laws dealing with obscenity and blasphemy laws, sedition laws undermine the right to dissent and the right to criticise state policy in large parts of the Commonwealth. It is time that we followed the lead of modern constitutional democracies such as the United Kingdom, the U.S.A, and New Zealand and seriously re-examined the need for these undemocratic laws in the world’s largest democracy.
Ironically some of the most famous sedition trials of the late 19th and early 20th century were those of Indian nationalist leaders including Tilak, Gandhi, and Annie Besant. In 1898, the law was amended by the British. Disaffection was now stated to include ‘disloyalty and all feelings of enmity’. The new amendment added the words 'hatred or contempt' to the word 'disaffection’. These amendments also brought in section 153-A and section 505 of the IPC.
The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. Gandhi was charged, along with Shankerlal Banker, the proprietor of Young India, for three articles published in the magazine. The trial, attended by the most prominent political figures of that time, was followed closely by the entire nation. It was presided over by Judge Strangman. Gandhi explained to the judge why from being a staunch royalist, he had become an uncompromising disaffectionist and non-cooperator, and why it was his moral duty to disobey the law. In a stunning statement, Gandhi commented on the law that was used to try him and demanded that the judge give him the maximum punishment possible .
..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. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavoured to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it a virtue to be disaffected towards a Government which in its totality has done more harm to India than previous systems. India is less manly under the British rule than she ever was before. Holding such a belief, I consider it to be a sin to have affection for the system. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in as evidence against me”.
The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the statute books of independent India was not lost on those drafting the Constitution. The Draft Constitution included ‘sedition’ and the term ‘public order’ as grounds on which laws limiting the fundamental right to speech (Article 13) could be framed. However, the final draft of the Constitution eliminated sedition from the list of exceptions to the freedom of speech and expression (Article 19 (2)). This amendment was the result of the initiative taken by K.M. Munshi who proposed these changes in the debates in the Constitutional Assembly.
The sedition laws were successfully challenged in two High Court cases in the 1950’s, when the courts held that they violated the right to freedom of speech and expression guaranteed by the Constitution. However these judicial developments received a jolt when, stung by two court decisions in 1949 that upheld freedom of speech with regard to opinions from the far left and the far right, Nehru asked his Cabinet to amend Article 19(1)a. The two cases that prompted Nehru to do this were the Romesh Thapar case, in which the Madras government, after declaring the Communist Party illegal, banned the left-leaning magazine Crossroads for being overly critical of the Nehru government. The court held that banning a publication because it would endanger public safety or public order, was not supported by the constitutional scheme since the exceptions to 19(1)a were specific and had to entail a danger to the security of the state. The second case related to an order passed by the Chief Commissioner, Delhi asking the RSS mouthpiece Organiser to submit all communal matter and material related to Pakistan to scrutiny.
Nehru’s government decided to amend the Constitution, inserting the words ‘public order’ and ‘relations with friendly states’ into Article 19(2); and the word ‘reasonable’ before ‘restrictions’, as a safeguard against misuse by the government. In the debates around this amendment Ambedkar supported the move, which he saw as a way of tackling social boycott and incitement to offences against vulnerable communities in contexts of extreme inequality. Nehru saw it as a way of dealing with what he called ‘irresponsible journalism’, and with dangers to the state - widely understood to be linked to the ongoing armed rebellion in Telengana. Of those who disagreed with the move, Anglo-Indian leader Frank Anthony was the most prescient. In the debate on the amendment in Parliament, Anthony warned that State legislatures might use this power to crush political opposition, especially at a local level. This can be seen happening in states across India today.
Despite the First Amendment, in 1958 the Allahabad High Court did follow the previous two cases and held section 124A of the IPC to be unconstitutional. However, the defining moment came in 1962 when in the landmark Kedar Nath Singh judgement, the Supreme Court upheld the constitutionality of section 124A, at the same time circumscribing its meaning. In its decision, the Supreme Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence. The Court upheld the constitutionality of the sedition law, whilst also curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.
While the Supreme Court has limited the scope of the sedition law (at the same time upholding its constitutionality), successive central and state governments in the country continue to file charges of sedition against journalists, media practitioners, human rights activists and anyone who dares express dissent. For many it is the process of being dragged to court that is the punishment. So even if someone charged with sedition is acquitted along the way, they face punishment by being put through a torturous legal process. Trial courts have been increasingly guilty of entertaining sedition charges (and sometimes even convicting) at the initial stages. Some of this can be attributed to the local pressures that judges at the trial court face and the larger atmosphere of the so-called ‘war against terror’. The problem is aptly described in the Supreme Court’s observation in a case concerning a Kashmiri youth acquitted of charges of sedition in 1997:
“Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Section 153A, 124A and 505(2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences. Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.”..
