A quick history of sedition law and why it can’t apply to JNU’s Kanhaiya Kumar

First things first: There is no way Kanhaiya Kumar, the arrested JNU student leader, will be convicted for sedition, especially if the case goes all the way up to the Supreme Court. In fact, one won’t be found seditious even for an offence seemingly as grave as waving ISIS flags. In several instances in the past, the apex court has made clear that the extreme act of provoking “imminent violence” through words, written or spoken, is the sine qua non (indispensable condition) of making one seditious.

To understand why the bar for conviction under sedition law – Section 124A of the Indian Penal Code – has been set so high, it is necessary to understand the evolution of this law. The first step towards that is to cut through the legalese and break down the wording of this law to what it essentially means — love thy government. Yes, love, quite literally.

It is rather odd that in the world’s largest democracy, citizens should be deemed seditious not for not loving the nation, but for not loving the government — a prerequisite to keeping any government on its toes.

Before Independence

The explanation behind this anomaly lies in the colonial-era origin of this law. It was included in IPC by the British back in 1870, exclusively to censure dissenting voices from Indian media, intellectuals, and freedom fighters. Little wonder, then, that the law demands allegiance to government, and not to the nation. Being a Victorian-era law, the demand from all citizens to love the government was couched in the euphemistic “disaffection” — described bluntly by the presiding judge as “absence of affection” towards the government, during a trial against Bal Gangadhar Tilak.

Mahatma Gandhi, also a victim of this draconian law, eloquently critiqued disaffection towards government as grounds for sedition by saying, “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 to violence.”

He went on to excoriate the law as “the prince among the political sections of the Indian Penal code designed to suppress the liberty of the citizen”.

After Independence

Post-Independence, erstwhile Indian leaders realised the dangers posed by this law to freedom of speech and expression, contained in Article 19(1)(a) of the Constitution, in an independent India. The Constituent Assembly moved an amendment to drop sedition from the list of restrictions on this fundamental right. On this occasion, highlighting the change needed in interpretation of sedition law brought about by India’s independence, KM Munshi said, “a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State.”

In 1951, India’s PM Jawaharlal Nehru publicly voiced his dislike of Section 124A, saying, “that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons.” However, this was ironic given these words were spoken on the occasion of the First Amendment to the Constitution, which imposed greater restrictions on the right to free speech.

The sedition law died a judicial death in 1958 when the Allahabad High Court declared it ultra vires Article 19(1)(a), only to be resuscitated in 1962 by the Supreme Court, in Kedar Nath Singh vs State Of Bihar. However, the SC greatly reduced the scope of offences under which this law could be applied. To make sure section 124A did not impinge on the fundamental right to free speech, the SC added, “strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal.”

Thus, the court sided with an effects-based test (based on the implication of words) rather than content-based test (which examines the text closely) in deciding sedition cases, much like in American law. Further, the court went as far as to say that section 124A would be ultra vires Article 19(1)(a) if it were applied in case of “words written or spoken which merely create disaffection or feelings of enmity against the Government.”

The apex court’s insistence on provocation of “imminent violence” being an acid test for sedition, or for curbing speech of any kind, has been reiterated in several subsequent judgements, such as in S. Rangarajan Etc vs P. Jagjivan Ram, Indra Das vs State of Assam, and Arup Bhuyan vs State of Assam.

One of the most important judgements in this regard is Balwant Singh vs State Of Punjab. In this case, the two Sikh accused raised three slogans – “Khalistan Zindabad”, “Raj Karega Khalsa” (Khalsa will rule), and “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da” (Hindus will leave Punjab, we will rule). Despite the slogans clearly undermining Indian sovereignty and government, the SC acquitted the accused because the slogans did not imminently incite violence. Removing any doubts whatsoever over the doctrine of imminent violence, the SC said, “the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded.”

Elaborating further, the SC said, “The casual raising of the slogans…alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India, Section 124A IPC.” Thus, even advocating secession of the country or violent overthrow of the government, does not attract sedition unless there is imminent incitement to violence.

Contemporary application of sedition law

Browsing through the list of people accused of sedition, one could be forgiven for conflating independent India with the British Raj, for it has been liberally used by the present-day law enforcement agencies to quell political dissent, and sometimes much less.

While the accused might eventually be acquitted, they usually become synonymous with being a traitor, and face harassment fighting legal battles. Famous names to have faced sedition charges include Arundhati Roy, Syed Geelani and the alleged Maoist Dr Binayak Sen. In the case of Dr Sen, the police had cited the presence of literature sympathetic to Maoists as one of the evidences of his seditious activities, regarding which the Supreme Court, while granting him bail, disbelievingly asked, “If Gandhi’s book was found in my house, would that make me Gandhian?”

Lesser known victims of this law include a Kashmiri school teacher who was dubbed seditious for allegedly setting an examination paper with questions related to unrest in the Kashmir Valley; Sudhir Dhawale, a reputed Dalit social activist and editor of Vidrohi, at Gondia, Maharashtra, who was held for receiving a computer from a member of the banned CPI (Maoist); The Times of India’s resident editor at Ahmedabad, Bharat Desai, who faced charges along with a senior reporter and a photographer, for questioning the competence of police officials and alleging links between them and the mafia; Kashmiri students cheering Pakistan during an Indo-Pak cricket match. The list goes on.

While most Indians might have made peace with the police being the stooge of their political masters, what’s more worrying is the zeal shown by lower judiciary in convicting people for sedition on frivolous charges. In case of Geelani and Roy, sedition charges were slapped not by the government but by a lower court.

Noting this gulf between the higher and lower judiciary, the SC observed in 1997, “Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Section 153A, 124A and 505(2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences… It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.”

International experience

UK — the country which birthed section 124A — while repealing its own sedition law in 2009, observed that even the sporadic uses of the law had a “chilling effect” on free speech. In New Zealand, where sedition law was repealed in 2007, the last conviction for sedition happened in 2006, of one Timothy Selwyn. The case is relevant in the Indian context for how similarly and cautiously India’s and New Zealand’s judiciary interpret sedition law. Timothy Selwyn was prosecuted for having broken the glass of the Prime Minister’s office window and calling on other citizens to do the same in two pamphlets he had authored and distributed. The jury convicted him only for the seditious statements in the pamphlet asking New Zealanders to carry out similar acts.

Malaysia is one example of a democratic country where use of sedition law is rampant. Regarding this, the United Nations Human Rights Commission has the following comment, “In Malaysia, the colonial-era sedition act has been the tool of choice for the government in an intensifying crackdown on dissent, in particular online.”

The United States’ sedition law was earlier used to crush political opposition, especially of the communist kind. However, Brandenburg vs Ohio judgement was a watershed in upholding the primacy of free speech, where the US Supreme Court used the doctrine of incitement of imminent violence to rule the case in favour of the accused.

Future course

Despite the higher judiciary’s best attempts, it seems unlikely that India’s law enforcement agencies will give primacy to right to freedom of speech. This is yet more unlikely given that section 66A of IT Act has been scrapped, which means the sedition law might now be used to also quell online dissent, like in Malaysia. Laughably, feeble attempts to modify the law have fallen prey to errors in language translation, thereby making it prone to greater misuse.

Given that other laws, such as Section 121 of IPC, cover the offences under Section 124A, and carry the same sentence (a disproportionately high life imprisonment for Section 124A), this episode should provide fertile ground for the ongoing drive to scrap old, useless and in this case, dangerous laws.