It is time to exorcise sedition from our statute books

It is a travesty that the law against sedition is still on our statute books. Ninety-six years ago, the ‘Father of the Nation’ condemned it as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. Eighty-nine years ago, the gentle apostle of non-violence used very violent words to condemn Section 124A as “a rape of the word law” and demanded its repeal as a necessary pre-condition for the achievement of ‘swaraj’. Yet, such is the hypnotic hold of this law over the minds of those who rule India that even former prisoners of Section 124A could not find the political will to heed his call and erase it from our statute books when they came to power.

After an extensive 368-page tour-de-force on political theory, comparative international practice, court decisions, social and political struggle and police practice, Anushka Singh’s book Sedition in Liberal Democracies concludes that “Sedition law is used [in India] by those in power to perpetuate themselves by suppressing pol-itical opposition, presenting them as concerns of national and public security.The claims of liberal democracy in guaranteeing to the individual their freedom of political speech and dissent, thus remain precarious. (sic)”

A compilation of some 30 or so well known sedition cases from across India (Chapter 6, “Indian Democracy and the Moment of Contradiction”) demonstrates how Section 124A (sedition) is being used to criminalise an almost infinite range of ordinary, peaceful day-to-day democratic political activity — such as protests, dissent, questioning, social media communications, strikes, dharnas, speaking, teaching and writing. Favourite targets of sedition prosecutions seem to include human rights, social justice, environmental and labour movements and activists, as well as progressive journalists and intellectuals.

The book reports that sedition charges are being tagged on to anti-terror cases that fall well outside the scope of Section 124A (as read down in the 1962 Kedar Nath decision). This is said to be because public sentiment considers “desh droh” a very grave offence and it therefore adds “weight” to an anti-terror case, enhances pain to the accused (because a “desh drohi” accused often draws social condemnation) and makes it more difficult for suspects to get bail.

An original, field-based empirical analysis of some twenty sedition cases in Haryana, Maharashtra and the Punjab shows how in the “everyday use” of the crime of sedition by “street level bureaucrats” (to borrow Prof Michael Lipsky’s phrase) and social elites it becomes “a caste-ridden idea.… used against [Dalits] as a tool of caste domination”. A landless Haryana labourer, a refugee forced to flee his village because of Jat caste violence calls out the casteism in the working of sedition: “When Jats organise rail roko rallies and attack police stations, it is called a movement (andolan) but when Dalits protest peacefully, it becomes ‘desh droh’. (Chapter 5, “Caste, Class, Community and the Everyday Tales of Law,” the longest chapter).

It seems that for the most part, initial police actions (registering a FIR; conducting investigations; interrogating suspects including by use of third degree; and often prolonged detention of suspects) do not survive judicial scrutiny. However, that is of little consolation because the process is the punishment. The devastation caused by the police investigation is serious. It typically delegitimises, demoralises and bankrupts movements and activists and kills democratic assertion. This is often the main purpose of the police action in the first place. The book argues that, in contrast to the extensive continued use of sedition in India, in England, the US and Australia there has been a “decline in the use of sedition… accompanied by increasing provisions in counter-terror legislations to restrict freedom of expression (sic)” resulting in “either abolishing the archaic and pre-modern language of sedition or restricting its use…The liberal democracies of the west have gradually moved towards a politico-legal paradigm in which restriction on political speech has been justified mostly in the name of countering terror. (sic)” England is said to be at a moment of ‘abolition’ because it has replaced sedition with other laws such as those dealing with terrorism and treason. The U.S., (where the book says the last conviction on sedition was in 1995) is said to be at a moment of ‘restriction’ because it has limited the use of sedition to direct incitement to unlawful conduct likely to cause an imminent lawless situation while having expanded its arsenal of laws against terrorism. Australia (where the book says the last conviction on sedition was in 1960) is said to be at a moment of ‘modernization’ because it is said to have shifted “from the law of sedition to the law of terrorism under the exact same provisions”.

Notwithstanding the cumulative weight of all these failures of this outdated and obsolete crime, and although the book does not make one positive point in support of sedition law as it now stands, disappointingly, the book stops short of demanding, or even making a powerful case for, the much needed abolition of sedition in India and elsewhere. On the contrary, the book says that India is at a moment of contradiction (conflict in understanding of the law between bureaucrats and judges; and use of both sedition and anti-terror laws to restrain speech) and does not preclude sustaining sedition by what it calls “restriction” (limiting it to instances where seditious statements are the direct cause of violence, as in the US); or “modernisation” (moving the restraints on freedom in sedition law to anti-terror laws, using more contemporary language, as in Australia).

There are at least four reasons why Section 124A should no longer be retained on our statute books. First, we know that it is being abused by governments, social oligarchies and street bureaucrats to prosecute actions that do not fall within its scope and as a casteist tool for caste supremacy. It is clear from the book that the content and use of Section 124A have become uncertain and unpredictable. It is no longer a workable law.

Second, the crime of sedition is being slowly transformed by an increasingly influential Hindutva-minded section of the executive and the judiciary as a weapon against the Republic. Sedition’s first avatar was as a crime against the colonial regime. After independence, it was sought to be morphed into a second avatar as a crime against the social democratic republic, even while retaining the same text. In the last few years we are seeing sedition now slowly transforming into a third avatar — a crime against the Hindu Rashtra — desh droh. The emerging avatar of sedition is sought to be used to punish violations of “Golwalkar’s law”, i.e., that all Indians — Hindu and non-Hindu — shall “learn and respect and hold in reverence the Hindu religion [and] entertain no idea but of those of glorification of the Hindu race and culture; and that ..[all minorities shall be] wholly subordinated to the Hindu nation, claiming nothing, deserving no privileges, far less any preferential treatment—not even citizens’ rights.” (Golwalkar, “We, or Our Nation Defined”).

Third, Section 124A is now redundant. It is one of 12 offences that constitute Chapter V of IPC. The entire chapter deals in one way or another with war against the Government of India. At the heart of the offence of sedition is the intentional creation by the accused, in one or more other human beings, one or more of three specific states of mind inimical to the Government of India i.e., (i) hatred, (ii) contempt, or (iii) disaffection including disloyalty and all feelings of enmity towards the Government established by law in India. The accused may create this state of mind in another person through any means — words, either spoken or written, or by signs, or by visible representation, or otherwise (not only through speech acts because of which the illocutionary/perlocutionary framework is not fully relevant to the analysis of sedition). When this state of mind is created in the target person(s), the target person and the accused both become enemies of India in the eyes of Chapter V. One or both of them may be expected to then wage war against India (or prepare for or attempt to do so), in which case their conduct will be covered by other provisions in Chapter V. Alternatively, notwithstanding their mindset, they may choose not wage war against India or do anything illegal. If so, principles of liberal democracy would prohibit criminalisation of attitudes that do not crystalise into some form of illicit conduct or at least preparations for illicit conduct. In either case, Section 124A is redundant.

Fourth, sedition should be abolished because its continued existence is a threat to the core liberal, democratic character of the Republic. It is high time that we heed the nearly century old call of the Father of our Nation to exorcise sedition from our statute books.

The editing and proof-reading of the book does not do justice to the hard work of the author or the sterling reputation of the publisher or indeed to the high cost of the book. Analysis of legal issues should have been best left to legal scholars of relevant competence if only to avoid mistakes.

The author is a jurist, former director of National Judicial Academy and National Law School of India University, Bangalore