Jogendra Chunder Bose may not be a well known name. He was the editor and proprietor of Bangobasi, a Bengali magazine in the late 19th century. Bose has a place in history as the first to be tried for sedition in India in 1891 under the infamous Section 124A of the Indian Penal Code drafted by Thomas Macaulay which we continue to follow even after independence. But unlike later when the law was used to suppress the nationalist movement, Bose was not tried for a cause one can be proud about by today’s value system. He was tried in the case -Queen Empress vs Jogendra Chunder-, for criticising the British government’s decision to raise the age of consent for sexual intercourse to 12 years. Bangobasi argued that it was an assault on Indian tradition and morals. But Bose was eventually acquitted as the prosecution could not prove who wrote the anonymous article.
Six years after, the fiery nationalist Bal Gangadhar Tilak became the first to be convicted under this law for his speeches which allegedly prompted the murder of two British officers and again in 1908 for his articles in his Marathi paper, Kesari. In 1922, Mahatma Gandhi was charged with sedition for his articles in his journal Young India that created “disaffection” towards the government. At the trial, Gandhi upped the British ante by pleading guilty and narrated his history of disaffection towards the British government. In 1930, Jawaharlal Nehru was arrested in Uttar Pradesh for sedition after he made a speech calling for non-cooperation. Nehru also refused to defend himself and pleaded guilty. Sardar Patel and Maulana Azad too were charged for the same offence.
As one of the most notorious weapons used against the national movement, it was expected to be buried forever by independent India. However, the first Nehru government surprised many by retaining the relic, proving that power behaves uniformly irrespective of its wielder. This was despite the Constituent Assembly in 1948 deciding not to include “sedition” as an exception to freedom of speech. Interestingly, it was KM Munshi, the nationalist who later became a champion of the “Hindu cause” who during the debates in the Constituent assembly, opposed the induction of sedition as against Patel who wanted its retention despite having once been its victim! Despite various governments of different ideologies coming to power in the past 75 years of independence, none thought the notorious law worthy of being dumped.
under sedition law
Even as India prides as the world’s largest democracy, the world increasingly sees us as a flawed democracy. The 22nd Law Commission’s recent recommendation on the infamous colonial law on sedition would push us further down the slippery slope. The Commission in its 279th Report has not just called for the retention of Section 124A in the IPC related to sedition but it recommended an enhancement of the punishment for its breach. The Modi government’s position on this remains nebulous now. On the one side it indicates its plans to review the law but its Solicitor General Tushar Mehta argued for its retention in the Supreme Court last year when a three-year member bench stayed its operation until a re-examination of its validity. The Union Law Minister Arjun Meghwal also has tweeted that the government is not bound by the Law Commission’s recommendation although it was “persuasive”.
Even a cursory reading of 124A is enough to understand how easily and arbitrarily, it could be invoked to suppress any dissent. It says that whoever, by word, either spoken or written, or by sign 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 for sedition.
The punishment can range from three years imprisonment with fine up to life term. The minimum punishment has now been recommended to be increased to seven by the Commision headed by Justice Ritu Raj Awasthi, former Chief Justice of Karnataka High Court. The present Commission’s three full time members include KT Sankaran, former judge of Kerala High court.
Ironically, the Commission’s retrograde recommendation has come when the judicial and political opinion has largely turned against this undemocratic law. Its constitutionality was upheld by the Supreme Court in 1962 in the landmark case related to Kedarnath Singh, a Communist from Bihar for making a speech critical of the Nehru government at the centre. But much water has flown since then. The world and India have woken up to the value of free speech and dissent as the cornerstones of democracy. Most democratic countries, including Britain, which imposed it in our country and even less democratic countries like Indonesia and Singapore have done away with sedition laws. Even in India, every court judgment on the law sought to make it less stringent. Hence the observation that the Law Commission has "undone years of established jurisprudence" on the subject.
In a historic order, the Supreme Court in May last year called for a reexamination of the law by the central government. The apex court’s three member bench consisting of Chief Justice NV Ramana , Justices Surya Kant and Hima Kohli specifically said the central government may reconsider the law and hoped it realised that its rigours were not in tune with the current situation as it was intended for a time when the country was under colonial law. The apex court also stayed the operation of the section until the reexamination.
In July 2021, the CJI had asked the Attorney General to clarify if this law was still needed after 75 years of independence. “The sedition law was used by the British against Mahatma Gandhi, Bal Gangadhar Tilak and was now being misused with no accountability from the government…The government has repealed a number of laws...I don't know why you aren't looking into it," the CJI had asked.
But during the hearing in 2022 the central government opposed the stay on the operation. The court rejected the Solicitor General’s proposal that all FIRs under the section could be directed to be filed only after the scrutiny of the Superintendent of Police.
The petitioners who challenged the Section 124A included Editors Guild of India and former Major General S G Vombatkere, former union minister Arun Shourie and journalists Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh. Prominent Malayali media person Sashi Kumar too has impleaded in the case.
The petitioners pointed out the phenomenal increase in the cases filed under the section since the new Modi government came to power and the abysmal level of conviction rate. According to the National Crime Records Bureau, the sedition cases registered every year rose from 47 in 2014 to a record 90 in 2019 and 73 in 2020. The conviction rate in these cases was below 3% and pendency in courts touched 95% in 2020. While a total of 399 cases were registered in the country under the law from 2014, chargesheets were filed only in 169, trials were completed in 66 and the number of convicted was merely nine until 2020.
But unfortunately the Commission has justified its stand by saying that it is not the law per se but who uses it or how it is used makes it good or bad. It also went a step ahead asking when the entire IPC is a colonial legacy why demonize only this law. It went on to explain that a colonial government is fundamentally illegal and authoritarian while a democratically elected government is not so and hence needn't use the law arbitrarily always.
What the Commission ignored seems to be the fundamental question. How can a law brought in by an illegal government to penalise Indians have any justification to continue in a country ruled by its own people?
Secondly, how could a government penalise a citizen for criticising it, which is a right enshrined in the Indian Constitution as a Fundamental Right under the Article 19 (A)?. According to the law, an act is seen as sedition when it contains a “tendency” to incite hatred or disaffection against the state. The problem is who decides a particular word or deed as seditious especially when it is a non- bailable offence.
The basic flaw regarding the law arises from the misconception that equates the state with the government as pointed out by many experts. How could a law that is supposed to oppose sedition against the state be used against criticising the government of the day? The very strength and basis of democratic governance is built on a continuous interrogation of the governments by its people not just at the time of election but everytime. Every citizen has the right to this democratic interrogation though in practical terms it is carried out by political parties, judiciary, media and civil society in general.
However, every government has resorted to this obnoxious law to suppress dissent which has only quadrupled during the present dispensation. More than 15,000 Indian citizens have been booked for sedition which include those who partook in popular struggles against the Citizen Amendment Act of 2019 (CAA) or the farmers’ struggles. Among them are prominent political and social activists, writers, journalists like Arundhati Roy, Binayak sen, Kanhaiya Kumar, Hardilk Patel, Siddique Kappen, Vinod Dua, Aseem Trivedi and so on.
Hope the Law Commission recommendations on the Sedition Law find their rightful place. The dustbin.
PS: It was only while ending this article that the news flashed about the Kerala Police charging a case against Akhila Nandakumar, an upright Asianet News reporter for reporting on a recent scandal allegedly involving SFI activists. The present Left Democratic Front (LDF) government could well ensure its place in history as having done the most to kill free speech and dissent. The latest comes on the heels of recent actions against a news anchor and two TV reporters for doing their jobs. So much for the progressive Kerala resisting the waves of fascism engulfing the country.
Published: 11 Jun 2023, 01:58 pm IST
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