Section 124A of the Indian Penal Code that deals with sedition is by now quite familiar. The new interest in academic circles and the media about the law on sedition was triggered by an abnormal spurt in the cases registered under this section. Have Indians suddenly become more seditious? What really accounts for this sudden surge of ‘seditious intent’? The arrest of the young climate change activist Disha Ravi and the bail granted by the Delhi court with valuable observations have brought to the centre stage the discourse on sedition.
The offence of sedition is quite grave. It has to be invoked and investigated with the same gravity. Comedians, media persons, poets, intellectuals, academics and even leaders of political parties are all being booked under Section 124A, with the light-heartedness of a petty case, it appears. This provision entered the Indian Penal Code in 1870 after some initial reservations even for the British. For the colonial rulers, such a provision was inevitable to intimidate and contain dissent. A meticulous reading of the words and tone of Section 124A will decipher colonial fears and context. “Whosoever by words, either spoken or written, or by signs, or by visible representation or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added or with fine.”
Though the law had been drafted as early as in 1837, it was not included when the IPC was enacted in 1860. It took another 10 years for the sedition law to be included in the IPC. They were the years following the First War of Independence of 1857. The uprising, which was the first serious and organised challenge to British hegemony at a national level, was quelled and the last Mughal emperor was deposed. The East India Company withdrew and the British Crown became the ruler of India. When the Government of Britain established its administration here, any challenge to that authority had to be dealt with an iron fist. They needed a strong provision that conveyed to the Indian subjects that any act of disloyalty would invite non-bailable arrest and imprisonment for life. The word ‘disaffection’ in the section on sedition is the perverse expression of the awareness that there was hardly any ‘affection’ for British rule. Therefore the British government had to view any attempt to create ‘hatred’ or contempt’ as sedition. Such a draconian law can exist only when there are no fundamental rights guaranteed by a Constitution. When the Indian Constitution with its fundamental rights of freedom of speech and expression came into operation, this law became anachronistic. In a multi-party democracy, a political party or a coalition that is mandated to form the government for five years cannot expect that all the citizens support them. ‘Disaffection’ by several sections is natural in a democracy. The party that rules often gets less than 50% of the votes, but electoral arithmetic makes it possible to ‘lawfully’ form the government. Dissent against the ruling party and ‘disaffection’ as contemplated in the provision on sedition are two different things. Mahatma Gandhi, who was tried for sedition in 1922 for his articles in ‘Young India’, told the court that this section is a “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. Exactly a century later with the British rule gone nearly 75 years ago, we seem to be doing exactly what the Mahatma told the British Court: ‘suppress the liberty of the citizen.’ In fact, the freedom struggle was meant to redeem the ‘liberty of the citizen’.
The term in the section ‘government established by law’ originally referred to the British government in India. It is not identical with the democratically elected government in free India. The possibility of trivial use of this section could easily be prevented if the expression—‘disaffection towards the Government established by law’—is replaced by the term ‘the state’. Government and the state are two entities in a democracy, while they are identical in a colonial rule of an alien power. Any overdose of the section on sedition can have major unfortunate consequences for our polity. When it is clamped on persons disagreeing with the government, by extrapolation of hair-thin facts and far-fetched inferences that do not stand legal scrutiny, the seriousness of this provision is eroded in due course. When such instances are on the rise, the message that the government does not brook any criticism or dissent becomes the unproclaimed decree of the day. It would make acquiescence the accepted norm, dissent a sin and democracy a shell.
While the present government has used this section more flagrantly than its predecessors, no government can possibly plead innocence for having kept this section in the law book, despite the fact that in independent India, Section 124A has been struck down by the courts only to be reintroduced by successive governments. Even the powerless Indian knows that our democracy has enormous inner strength and resilience to tolerate criticism and accommodate differing voices, but it seems power makes the powerful weak and fearful.
K Jayakumar
Former Kerala chief secretary & ex-VC, Thunchath Ezhuthachan Malayalam Varsity
(k.jayakumar123@gmail.com)