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How India's 'draconian' sedition law hasn't just survived in statute books but thrived

Vinod Dua, Arundhati Roy
By Atul, Sandeep Pandey*
British left India in August 1947 but left many of their draconian laws here as a colonial legacy. Section 124A of the Indian Penal Code 1860, i.e., the law of sedition is one such law. British Government of India had inserted it in the penal code in the late 19th century to curb anti-colonial activities in British India.
However, in Independent India, it has often been conveniently misused by successive central and state governments to harass their critiques under the grab of sedition. Even high profile individuals like Arundhati Roy could not save herself from the heat of this law for being too critical of the government policies for openly sympathizing with Kashmiri separatists.
And now, Vinod Dua, an acclaimed journalist, has become its latest target or victim so to say for allegedly accusing Prime Minister Narendra Modi of using “deaths and terror attacks” to get votes. Given its frequent misuse, Indians must give serious thoughts over the need, rationale, and utility of having a sedition law in Independent India.
The sedition law has been often misused by the colonial dispensation and its legacy of misuse continued even after independence as successive Indian governments did not hesitate in invoking it to curb dissent and harass individuals who were too critical of government policies.
While the British government mainly used it against politicians like Gandhi, Nehru, Tilak, Azad, etc., independent India has used it even against dissenting doctors, students, teachers, journalists, human rights activists, scholars, poor, tribals and so on. This shows it has outwitted even the British in repressing dissent and criticism of the government. And through their reckless propaganda, ultra-nationalists have made it synonymous with being anti-national.
The present Bhartiya Janata Party governments are also using the Unlawful Activities (Prevention) Act, National Security Act and even Epidemic Diseases Act to silence any dissent by targeting people who participated in anti-Citizenship Amendment Act and National Register of Citizens protests, any protests during coronavirus crisis and ordinary Muslim citizens even in local disputes.
The sedition law should have been repealed after Independence. Even after drawing severe flak from the opposition and courts in numerous cases, the then Congress government went the extra mile to preserve the constitutionality of S.124A by amending the Constitution itself.
Note, that its validity had been earlier challenged in the Romesh Thapar case wherein the court had held that the words like ‘Public Order’ and ‘Public Safety’ in S.124A of the penal code are too wide and broad compared to the more specific restrictions on freedom of speech and expression under Article 19(2) of the Constitution.
To save it from being declared unconstitutional, the government amended the Constitution and added ‘Public Order’ as one of the reasons for restricting free speech and also added ‘Reasonable’ before the word ‘restriction’ in Article 19 of the Indian Constitution.
The sedition law has a long history of power and politics. Bal Gangadhar Tilak was tried thrice under this provision and in one case, was famously defended by Muhammad Ali Jinnah. In his defense, he had argued that if at all he had excited any defection, it was against a foreign occupation over India.
In the first case, Tilak was convicted and could be released only after the intervention of some international figures like Max-Weber. Tilak was tried again in 1908 after an editorial in his newspaper ‘Kesari’ severely criticized the government policies of curbing press freedom.
Despite the rigorous defense by Jinnah, Tilak was convicted and sentenced to six-year rigorous punishment. In 1916, he was again arrested for allegedly disseminating seditious materials in the Bombay Province but this time Jinnah successfully saved him by arguing that Tilak had only criticized the bureaucracy and not the government.
In 1889, an amendment was made to the provision and the words ‘hatred’ and ‘contempt’ were added along with ‘disaffection’ which, he explained, included all feelings of enmity and disloyalty against the government. This was done primarily to eliminate any possible loophole in the provision which could give an accused the benefit of the doubt. 
Some other provisions such as Sections 153A and 505 were also added in the penal code to deal with the rising cases of extremism and communal hatred and reign in the revolutionary preachings of some vernacular newspapers.
Another pre-independence trial that generated much hype was that of Mohandas Gandhi in 1922 for allegedly publishing some seditious articles in his magazine ‘Young India’. Gandhi was overwhelmed and felt honoured when his case was compared to Tilak’s. 
During the trial when Justice Strangman asked what made him such a strong ‘disaffectionist’ from a staunch royalist, Gandhi replied that, “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 violence”. 
Though the judge was quite impressed with Gandhi, nonetheless, he gave him six years' imprisonment. Note, that not only Gandhi but also many revolutionaries justified their disaffection towards the British rule using novel arguments.
Many even questioned the legality of the British government which they said was established in India not according to the will of people or the mandate of the law but by force and fraud and, therefore, there exists neither any obligation to obey its writs nor deserves any affection or loyalty from Indians.
Through their reckless propaganda, ultra-nationalists have made criticism of the government synonymous with being anti-national
The first direct challenge to the constitutionality of S.124A came before the Allahabad High Court in the case of Ram Nandan v State in 1959. Ram Nandan was charged under this section for giving an inflammatory speech against the Central government for not addressing the issues of poverty and laborers. He allegedly incited them to overthrow the Congress regime by forming an armed militia. He also accused Prime Minister Jawaharlal Nehru of being a traitor for allowing the Partition of the nation.
The Allahabad High Court overturned the conviction and also declared S.124A IPC to be ultra-vires of the Constitution because it restricted freedom of speech and expression regardless of the fact as to whether such an expression tended to cause public disorder. Court termed such restrictions to be undemocratic which can strike the very roots of the Constitution and the democracy.
But this decision was overturned by the Supreme Court in the case of Kedar Nath v State of Bihar in 1962 wherein the apex court restored the constitutional validity of S.124A although limiting its scope at the same time. Kedar Nath was a communist leader who in his speeches had targeted the Congress government and called for an armed revolution to overthrow zamindars, capitalists, and Congress governments from different provinces.
The Supreme Court in this case distinguished between ‘disloyalty to government’ and ‘criticism of government policies without inciting public disorder by using acts of violence’. The court upheld the constitutionality of the provision by reasoning that if there are two interpretations of a statute, and one interpretation will render the provision as unconstitutional while another will make it constitutional, the court shall go by the latter interpretation.
The court, however, limited the scope and application of the sedition provision by restricting its application to only those acts involving intention or tendency to create disorder or disturbance of law and order or an incitement to violence.
Despite the limits placed on the scope of the application of S.124A in the Kedar Nath case, accusations and trials under sedition law have only increased significantly over the years. People from diverse backgrounds have been charged under this section. 
Criticism of government, policies, politicians, and dissent that can be said to be the pillars of a healthy democracy, have been often treated as sedition by the police under political pressure and thus endangering the very idea of a healthy and inclusive democracy.
Even if the convictions are rare in such cases, a mere accusation and arrest can cause so much harm to the prestige, honour, and dignity of an individual who is immediately labeled as anti-national through the media trial and by the propaganda of right-wing fanatics. 
Writing on this issue, Justice AP Shah said, “A parochial, selfish, narrow-minded nationalism has caused so much misfortune and misery to the world. A mad and exaggerated form of this cult of nationalism is today running rampant.”
As Gandhi said affection towards any authority can be cultivated only through mutual consent and respect and not by fear or force. Also, disaffection towards a government, in and of itself does not necessarily imply disaffection towards one’s nation and people. It is unfortunate that even after India became independent, this draconian law has not only survived in the statute books but also thrived through frequent misuse.
It is high time the government must review it through amendment or repeal it altogether. And given its historicity of rampant misuse, it would not be unwise to call upon the honorable Supreme Court to reconsider its decision in the Kedar Nath. 
Last but not the least we also must give a serious thought if our republic is so fragile that its integrity is threatened by mere sloganeering and speeches. Concerned authorities must cultivate affection towards the nation by building confidence, by using reason and through public works and not through fear and force.
---
Atul is a 4th year LLB student at National Law University (NLU), Delhi; Sandeep Pandey is Magsaysay award winning social activist, and is a visiting faculty of NLU there for this semester

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