No sir, founding fathers did not want sedition law

Articles of Faith

The 279th report of the Law Commission of India recommends that the government amend the Indian Penal Code to expand what kind of speech would amount to ‘sedition’ and allow for harsher sentences to be imposed on someone convicted for sedition. Many commentators have pointed out the problems with this recommendation and the report’s removed-from-reality assessment of the problem. One of the most bizarre claims in the report is that the Constituent Assembly thought that ‘sedition’ as punishable under the IPC was a justified restriction to freedom of speech under the Constitution.

When we read the actual CA debates, a very different picture emerges. Under British rule, to be punished for sedition under Section 124-A of the IPC, one only needed to have spoken against the government -- not incited violence or attempted to incite violence, let alone actually indulge in violence. This was used to suppress legitimate criticism of colonial policies and was thus a hated provision. The Federal Court of India, in 1942, narrowed the scope of ‘sedition’ to mean only such words that were likely to make people take up arms against the government, and that is where the law stood when the CA discussed the draft Constitution.

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Many members of the CA were freedom fighters who wanted the Constitution to guarantee the rights that had been trampled upon during British rule. When the report of the committee on fundamental rights was tabled in April 1947, Somnath Lahiri, a Communist member, was upset that this report recommended that sedition would be a justified ground for restricting free speech. He, along with Prof R K Sidhwa, urged that the word “seditious” be dropped from the original formulation of Article 19.

More than a year later in December 1948, however, when the first version of the draft Constitution was revealed to the Constituent Assembly, the word ‘sedition’ still found its way into it, as a basis for limiting free speech. Damodar Swarup Seth, who had been arrested on numerous occasions by the British during the freedom struggle, was upset with the clause. As far as he was concerned: “It is therefore clear that under the draft Constitution, we will not have any greater freedom of the press than we enjoyed under the cursed foreign regime, and citizens will have no means of getting a sedition law invalidated, however flagrantly such a law may violate their civil rights.”

To allay this fear, K M Munshi moved his amendment to remove the word ‘sedition’ from what has now become Article 19. Munshi was not just doing word jugglery -- the idea behind removing the word was to make it clear that it was speech that incited violence in a manner which threatened public order or national security that could have been constitutionally limited. Munshi ended his speech by saying that the CA does not want to give the impression that it wishes to perpetuate Section 124-A of the IPC or its earlier use to clamp down on dissent.

This suggests that the Constituent Assembly would have favoured the striking down of Section 124-A of the IPC by the courts if not actually amended out of existence by Parliament itself, but strangely, this was not to be. The Supreme Court in 1962 upheld Section 124-A on the ground that it ought to be used only to prohibit speech which was likely to incite violence against the government even though no violence resulted.

As it stands, the constitutional validity of S.124-A is up for question in the SC once again because the fears raised in the CA have come true. Governments have used this provision to clamp down on dissenting voices without consequences as courts have been cowed down by the bogey of ‘national security’ and ‘public order’ to keep people in jail for years without bail. While it is not the only provision misused in this way, it’s time perhaps to complete the job begun in the CA and rid ourselves of this dangerous vestige of colonial rule.

(I wish to acknowledge the research assistance of Shivani Dixit, an intern at Vidhi Centre for Legal Policy, in writing this column)