Point of View | Dissent and Sedition

Source: indiatoday.in

Shehla Rashid, JNU student leader and aspiring politician from Kashmir, is the latest target of the sedition law. Her tweets on alleged army excesses in Kashmir prompted Supreme Court lawyer Alakh Alok Srivastava to file a complaint with the Delhi Police. Given that the complaint cites a cognisable offence under the Indian Penal Code, Rashid risks arrest for speaking her mind on Twitter. In another, follow-up tweet, the combative Rashid says: Tell me that it is not a democracy anymore, and I promise that I won’t criticise the government’s actions.’

Just a day earlier, on September 7, Justice Deepak Gupta of the Supreme Court said in a public lecture: Criticism of the executive, the judiciary, the bureaucracy or the armed forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions, whether it be the legislature, the executive or the judiciary or other bodies of the state, we shall become a police state instead of a democracy, and this, the founding fathers never expected this country to be. He added, I think our country, our Constitution and our national emblems are strong enough to stand on their own [feet] without the aid of the law of sedition.

Sedition, as a crime, is easy to allege, hard to prosecute and almost certain to not end in conviction. Sedition acquired its criminal definition in Elizabethan England, as a crime short of treason but as a notion of inciting by words or writings disaffection towards the state or constituted authority’. In 1870, it found its way into the Indian Penal Code, 1860as Section 124A. British India then faced an incipient Wahabi threat. Subsequently, it proved to be a useful tool for the colonial administration to keep order among restive natives’. The section was used, on different occasions, to convict Bal Gangadhar Tilak and Gandhi.

Doubts arose about the constitutionality of the sedition law after the Constitution of India, in 1950, guaranteed freedom of speech as a fundamental right. While piloting the first amendment to the Constitutionwhich imposed reasonable restrictions’ on free speechJawaharlal Nehru said: So far as I am concerned, that particular Section [124A IPC] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws we might pass. The sooner we get rid of it, the better.

In 1962, a Supreme Court constitution bench read down the sedition section in Kedar Nath Singh: The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence . It is only when the words, written or spoken, etc. which [sic] have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.

The Supreme Court’s balancing act has, however, been largely ignored by administrators. Many a person whose inconvenient views sparked outrage among administrators and the police has been charged under 124Aor Section 153A or 295A (penalising insults based on religious or other identities). The threat of life imprisonment after trial, or even some imprisonment before bail, has a chilling effect on free speech, and would deter all but the most obdurate dissenter.

However, most prosecutions under 124A are withdrawn or fail legal scrutiny in a higher court. Rashid is only the latest target of a harsh law, sought to be applied selectively, with no real prospect of a final conviction. A similar case against her university compatriot, Kanhaiya Kumar, has not taken off after the Delhi government refused to sanction the prosecution.

The obsolete, colonial-era sedition law, abandoned even in its country of origin, needs to be jettisoned. It can scarcely be used to suppress the voice of a millennial generation raised in the internet age.