Time to junk sedition law, your Lordships

The Constitution is not a religious text. It is meant for its non-believers as well. To use the phrase coined by John Rawls, “Tolerating the intolerable” is an intrinsic democratic virtue. Dissent is the soul of democracy and therefore to label opposite views as instances of sedition is deleteriously undemocratic.

Freedom of expression has its foundational logic in what John Stuart Mill said: “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.”

There is no question of misusing a draconian law, for its every use is a misuse. Invoking Section 124A of the Indian Penal Code (IPC) against some students of Jawaharlal Nehru University (JNU) and the subsequent violence to suppress the dissent is a shame for the nation.

Paradoxically, sedition is not an Indian legal concept. Macaulay’s draft code contained Section 113 in it, criminalising “sedition”. Even the IPC at its inception (1860) did not carry it. The offence of sedition was incorporated in 1870.  Since then it did its work by trying to suppress the political dissenters.

According to Section 124A, the words or signs which attempt to lead to hatred or contempt or disaffection towards the government would be punishable, even with life imprisonment. The very vocabulary of the Section has a chilling effect on free speech. Now, scan the Section, historically. It was the disaffection or hatred towards “Her majesty” that was originally styled as sedition. Again, in the original section, it was the British government, and not even India, that was “insulated”.  It was only in 1950 that we “Indianised” the sedition part of IPC, by deleting the words “Her majesty” and “British”.

An earlier attempt to incorporate sedition as an instance of exception to freedom of speech guaranteed by Article 19(1)(a) of the Constitution was aborted by the timely intervention of K M Munshi, T T Krishnamachari and Seth Govind Das. Their speeches in the Constituent Assembly (1948) were emblematic.  Munshi bemoaned: “Our notorious Section 124A of the Penal Code was sometimes construed so widely, that I remember in a case of criticism of district magistrate was urged to be covered by Section 124A. But the public opinion has changed considerably since and now we have a democratic government….”

The constitutional validity of sedition laws came up for consideration by the Supreme Court in Kedar Nath vs State of Bihar (AIR 1962 SC 955). Kedar Nath, inter alia, said that himself and his party, the United Communist Party, advocated for “that revolution, which will come and in the flavours of which the capitalists, zamindars and Congress leaders of India…will be reduced to ashes”.  He was charged for sedition–Sections 124A and 505(b) of the IPC). The trial court convicted him and the Patna High Court upheld the conviction.

The Supreme Court, however, set aside the judgments and held: “The criticism or comment of government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words……have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps into such activities in the interest of public order.”

In Kedar Nath, unfortunately the court did not strike down the law which in turn resulted in its continued and atrocious imposition. In Bilal Ahmed Kaloo (1997) and Balwant Singh (1995), finally it took the Supreme Court to hold that charge of sedition was untenable.    These judgments may have an exonerative impact on JNU students. The tragedy, however, is that even for dissent, one may have to pay a heavy cost.

Judicial review

In my view, the Supreme Court should have scrapped the law by using its power of judicial review. First of all, the apparent conflict of the sedition law with Article 19(1)(a) of the Constitution as evaluated in the  Constituent Assembly debates should have been acknowledged and accepted by the Court.   

Secondly, the Supreme Court needs to consider the global trend on the subject. Countries like the UK and New Zealand have abolished  sedition laws for those had the potential to meddle with free speech. In the US and many other democracies, the law has been put to disuse.

Thirdly, in the new legal context of Shreya Singhal verdict (2014) that scrapped Section 66A of the Information Technology Act for the cause of free speech, a revisit to Section 124A of the IPC by the apex court is a legal imperative. Shreya Singhal has taken the view that “mere discussion or even advocacy of a particular cause, however unpopular,” is protected in the country that believes in “free trade in ideas”. The judgment thus contains a judicial warning against “trapping the innocent”, even by specifically referring to the IPC (paragraph 47). Therefore, the Kedar Nath doctrine to the extent to which it validates the law, needs reconsideration by a larger bench.

The most prominent academic bastion in the country is now mowed down by a government which is politically primitive, intellectually fragile and morally indefensible.
Again paradoxically, the very same government by its quixotic posture has indirectly made out a strong case for junking the sedition law once and for all.

(The writer is lawyer at the Supreme Court and the Kerala High Court)