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Sedition in India: Colonial Legacy, Misuse and Effect onFree SpeechEPW ENGAGE

Since its inception, Section 124A of the Indian Penal Code, which punishes sedition, hasbeen a tool in the hands of the state to curb criticism and dissent. It has been used by thecolonial British government as well as by successive governments of independent Indiaagainst political dissidents.

Six senior journalists—Rajdeep Sardesai, Mrinal Pande, Anant Nath, Paresh Nath, ZafarAgha, and Vinod Jose—and Shashi Tharoor, member of Parliament from the Congress, hadbeen booked for “posting tweets and deliberately circulating fake news” about the death ofa farmer during the farmers protests in Delhi on 26 January 2021.

In the first information reports (FIRs) against them, the charges included promoting enmity,engaging in acts that are prejudicial to the maintenance of harmony between religions,making statements promoting hatred or ill-will, and sedition.

While arrest in these FIRs has been stayed by the Supreme Court, the filing of cases againstjournalists and political dissenters has become increasingly commonplace in recent years. Anew database by Article 14 reveals a 28% increase in the number of sedition cases filedeach year between 2014 and 2020, as compared to the yearly average between 2010 and2014.

In this reading list, we take a look at the sedition law and discuss why such an offence, withits colonial roots, has remained in the law books.

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What Is Sedition?According to Section 124A of the Indian Penal Code,

Whoever, by words, either spoken or written, or by signs, or by visiblerepresentation, or otherwise, brings or attempts to bring into hatred orcontempt, or excites or attempts to excite disaffection towards, theGovernment established by law in India, shall be punished with imprisonmentfor life, to which fine may be added, or with imprisonment which may extend tothree years, to which fine may be added, or with fine.

This means that the law punishes attempts to create “hatred,” “contempt,” or “disaffection”towards the government as “sedition.”

The explanation to Section 124A explicitly excludes “disapprobation” of the measures oractions of the government that does not excite or attempt to excite hatred, contempt ordisaffection. Siddharth Narrain (2011) wrote:

The law in its wording distinguished between bringing into hatred or contempt,or exciting or attempting to excite disaffection towards the governmentestablished by law and what is termed in the explanation as expressingdisapprobation against the state (which is permissible). “Disaffection” has beendefined as a feeling that can exist only between “the ruler” and “the ruled”.The ruler must be accepted as a ruler, and disaffection, which is the oppositeof that feeling, is the repudiation of that spirit of acceptance of a particulargovernment as ruler.

The Supreme Court has also weighed on the meaning of sedition and given it a narrowinterpretation. Moushumi Basu and Deepika Tandon (2016) highlighted:

… the Supreme Court in the Kedar Nath Singh v State of Bihar Verdict (1962)established that the charge of sedition can only be sustained in the instance ofincitement to violence in a speech, not for advocacy.

Justice A P Shah (2017), while delivering the M N Roy Memorial Lecture, explained theKedar Nath judgment further:

The Court upheld the constitutionality of sedition, but limited its application to“acts involving intention or tendency to create disorder, or disturbance of law

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and order, or incitement to violence.” It distinguished these acts from “verystrong speech” or the use of “vigorous words” which were strongly critical ofthe government.

Similarly, Narrain added:

The judges observed that if the sedition law was to be given a widerinterpretation, it would not survive the test of constitutionality.

Citing another landmark case, Basu and Tandon wrote:

In another progressive judgment, the Supreme Court in 1995 in the BalwantSingh v State of Punjab case set aside the charge of sedition in relation to anti-India slogans raised—“Khalistan Zindabad…Hindustan Murdabad.” The verdictopined that mere casual slogans having no effect on public order in terms ofprovocation to violence do not constitute sedition.

Justice Shah also explained:

Instead of simply looking at the “tendency” of the words to cause publicdisorder, the Court held that “raising of some lonesome slogans, a couple oftimes... which neither evoked any response nor reaction from anyone in thepublic” did not amount to sedition, for which a more overt act was required.The Court took cognizance of the fact that the accused had not intended to“incite people to create disorder” and that no “law and order problem” actuallyoccurred.

Reflecting on the sedition charges against students of Jawaharlal Nehru University, theCentral University of Gujarat Teachers' Association (2016) summed up:

The Supreme Court has unambiguously stated in previous cases that words andspeech can be criminalised and punished as “sedition” only in situations wherethey are being used to incite mobs or crowds to violent action.

Has the Law of Sedition Been Misused?The use of sedition law to curb all kinds of criticism against the government, and not againstincitement to violence against the state alone, has been well-documented over the years.

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An EPW editorial (2016) wrote:

Whether it is the first information reports (FIRs) against protestors atKoodankulam or the recent complaints against Kanhaiya Kumar or AmnestyInternational, Section 124A has been used by governments of all shades tostifle dissent. The relatively small number of cases should not hide theintention of the government—to have a chilling effect on dissenting speech.

Justice Shah (2017) similarly remarked:

Today, sadly, in this country I love, if anyone holds a view that is different fromthe government’s “acceptable” view, they are immediately dubbed as “anti-national” or “desh-drohi”. This marker of “anti-national” is used to intimidateand browbeat voices of dissent and criticism, and more worryingly, can be usedto slap criminal charges of sedition against them.

Despite the attempts made by the higher judiciary to restrict the understanding of seditionto an act of incitement to violence, the use of the law in the hands of the state executivenarrates a story of the misuse of law. Commenting on the sedition charges against S A RGeelani of University of Delhi, Basu and Tandon (2016) specifically emphasised how the lawhas been used to target minority voices:

It needs to be recalled that the use of sedition against Muslims in general andKashmiris in particular is not sporadic. In March 2014, the police hadregistered a case of sedition against 67 Kashmiri students of Meerut’s SwamiVivekanand Subharti University (SVSU) under pressure from the BharatiyaJanata Party (BJP) workers for cheering Pakistan’s victory in a cricket match.In November 2014, 10 schoolgoing boys in the Kushinagar District of UttarPradesh were charged for sedition, when they wore T-shirts of the Pakistanicricket team during a Muharram procession. In the past, there have beenpopular demands to prosecute figures like Arundhati Roy and PrashantBhushan under the section on sedition for voicing their opinion in support of aplebiscite in Kashmir.

In her review of Anushka Singh’s Sedition in Liberal Democracies, Ankita Pandey (2019)highlighted a similar trend in the practice and deployment on the ground of sedition:

Predictably, Singh finds that in its everyday application, sedition is deeplyembedded in local politics and in variables such as caste, class, and

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community. For instance, her fieldwork reveals that in Haryana variousmarginalised groups experience sedition as a tool for upper-caste domination.

Another facet of the government instituting sedition charges is that irrespective of whetherfurther prosecution is tenable, the process of the law itself acts as a deterrent againstdissent. The EPW editorial (2016) pointed out:

Save for rare cases, an FIR almost inevitably follows the complaint, thecriminal justice system proceeds to grind down the accused, who no matterhow obviously innocent, is forced to defend herself and run from court to policestation to clear her name. Even when a court ultimately finds that thecomplaint and the FIR were entirely frivolous, there is no remedy orcompensation offered to the exonerated for the blatantly illegal acts unless shewants to once again run from court to court seeking compensation.

The nature of its use by the government indicates that the government has used it to muzzledissenters even when its action would not stand judicial scrutiny at a later stage. JusticeShah noted:

Unfortunately, the broad scope of Section 124-A allows it to be used by theState to go after those who challenge its power, whether it is the JNU students,activists such as Hardik Patel and Binayak Sen, authors such as Arundhati Roy,cartoonists such as Aseem Trivedi, or the villagers of Idinthakarai in TamilNadu protesting against the Kudankulam Nuclear Power Plant. These examplesare demonstrative of the misuse of the provision. The law is clear that meresloganeering is not enough, and has to be accompanied by a call for violence.However, at the stage of registering the FIR and initiating criminalproceedings, the question of the interpretation of the section in line with theSupreme Court’s jurisprudence, does not arise. Thus, sedition charges areeasily slapped, but seldom stick, but cause immense harassment in the process.Even if one is eventually acquitted of sedition, the process of having to undergothe trial itself is the punishment – and more importantly, the deterrent againstany voice of dissent or criticism.

Citing the Supreme Court’s observations in a case related to a Kashmiri youth, Bilal AhmedKaloo, in 1997, Narrain wrote about “the mechanical process of the state filing seditioncharges against persons they want to target, and judges refusing bail, and in some cases,convicting accused persons of sedition based on flimsy evidence.” “Successive central andstate governments in the country” have continued to use charges of sedition against“journalists, media practitioners, human rights activists and anyone who dares express

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dissent.”

Referring to Singh’s Sedition in Liberal Democracies, Pandey noted:

In case after case, she demonstrates that successive governments havedeployed sedition in order to criminalise political opposition. This is also madeevident by the fact that there is an extremely low rate of prosecution forsedition but a high rate of registration of cases. Evidently, such cases areregistered merely to intimidate and inconvenience movement groups andactivists.

Another dimension of the filing of sedition charges is the inevitable, often unfavourable,media attention that follows. Adfer Rashid Shah (2016) wrote:

The monster of media trial in almost every matter in a democratic country,along with the efforts to turn a complicated term like sedition to common senseand everyday use and communalising academic spaces, is a dangerous trend.For media perhaps every protest tantamounts to deshdroh (sedition) and everystudent is a deshdrohi (traitor). But social realities are different and anger,emotion and mistakes or confusion cannot be sedition all at once.

The Colonial Legacy of the Law of SeditionSection 124A had been introduced in the Indian Penal Code by the British to punish seditionas an “offence against the state,” and was used to arrest freedom fighters, notably BalGangadhar Tilak and M K Gandhi.

Justice Shah (2017) observed:

Sedition laws were enacted around the 17th Century in England in a bid toprotect the Crown and the State from any potential uprising. The premise wasthat people could only have a good opinion of the government, and a badopinion was detrimental to the functioning of the government and themonarchy. It was subsequently introduced in the Indian Penal Code in 1870.

Recounting the British-era sedition trials against Tilak and Gandhi, he noted:

The first major case was when Bal Gangadhar Tilak was brought to trial forsedition in 1897 for his lectures and songs at the Shivaji Coronation Ceremony.

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Given that these speeches and songs made no mention of overthrowing ordisobeying the government, the Court widened the interpretation of sedition byequating “disaffection” to “disloyalty,” and including within it hatred, enmity,dislike, hostility, contempt, and every form of ill will towards the government ...Thereafter, in 1908, Tilak was again charged with sedition for the publicationof a critical article in his magazine Kesari. He was held guilty and sentenced tosix years imprisonment by the Bombay High Court, which ruled that no onewas permitted to “attribute dishonest or immoral motives to the government.”… The next landmark sedition case pre-independence was Gandhi’s trial for theoffence of sedition for his articles in the Young India magazine. The trial itselfwas remarkable for his decision to plead guilty to the charge of sedition andJustice Broomfield’s reluctance to sentence him, because he did not believethat Gandhi deserved to be charged with sedition in the first place.

This colonial intent of the law is part and parcel of what continues to constitute “sedition” inmodern-day India. Siddharth Narrain (2011) wrote:

The Supreme Court lawyer and legal commentator Rajeev Dhavan hascommented on how sedition provisions are a prime example of the manner inwhich the imperial powers of a foreign government are transformed into thenormal powers of an independent regime (Dhavan 1987:290).

In his review of the book, Challenging the Rule(s) of Law: Colonialism, Criminology andHuman Rights in India edited by Kalpana Kannabiran and Ranbir Singh, K S Subramanian(2009) wrote about the “strong continuity between colonial and independent India’sdiscursive practices with regard to specific laws, trials and the ideology of punishment.”From Bikram Jeet’s essay in the book, he summarised:

… the attempted reform efforts in the field of criminal justice administration inindependent India have led to “hardening” the system and enhancing theseverity of punishment, signifying a change in the character of the state. Thus,the colonial emphasis on retribution and deterrence has not really beeneliminated.

Interestingly, the United Kingdom (UK), from whom we have inherited the offence ofsedition, has repealed the offences of “sedition” and “seditious libel.”

Referring to Singh’s “comparative study of sedition within the legal regimes of fourcountries: the UK, the United States (US), Australia, and India” in her book Sedition inLiberal Democracies, Pandey (2019) wrote:

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It turns out that India is the only country to continue using the same definitionof sedition that was introduced in British India in 1870. The other threecountries have either abolished, restricted or modernised their sections onsedition.

Justice Shah quoted former UK Justice Minister Claire Ward as saying:

“Sedition and seditious and defamatory libel are arcane offences – from abygone era when freedom of expression wasn’t seen as the right it is today....The existence of these obsolete offences in this country had been used by othercountries as justification for the retention of similar laws which have beenactively used to suppress political dissent and restrict pressfreedom...Abolishing these offences will allow the UK to take a lead inchallenging similar laws in other countries, where they are used to suppressfree speech.”

Is Being ‘Anti-national’ Sedition?In today’s media discourse, the term “sedition” is often translated as desh-droh oropposition to the nation. This has led to a conflation of the terms “seditious” and “anti-national” in the popular imagination. Yet, there is a key difference between anti-nationalsentiment and actionable sedition—incitement to violence.

According to Justice Shah (2017):

The law … is quite clear on the distinction between strong criticism of thegovernment and the incitement of violence, with only the latter being related tosedition. Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against thegovernment, as long as they did not incite violence, it does not get coveredunder sedition.

Similarly, Romila Thapar (2016) wrote:

Charges of sedition, extremely serious as they are, nevertheless are slapped onanyone who has virtually any critical opinion about the country. Even thedictionary meaning of sedition is enticement to violence and the overthrow ofthe state/government. As others have pointed out, there is a considerabledifference between advocacy of violent methods and actual incitement toviolence. But such distinctions seem to be beyond the comprehension of most

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politicians.

She emphasised that even statements in support of secession would not constitute sedition:

To maintain that a statement made about the possibility of a segment of theIndian nation breaking away is sedition, shows neither an understanding of theword nor knowledge of the historical occasions in the last half century whensuch statements were made with reference to other parts of India. This is notthe first time that Kashmir has been mentioned as part of such a suggestion.There have been earlier threats of secession from other parts of the nation,such as Nagaland and Tamil Nadu, and in the intention of establishing the Sikhstate of Khalistan, to mention just a few. Some others are not completely silenteven in present times. Threats of secession are in part the way in whichnationalisms play out in nations that extend over large territories and multiplecultures. It has to be understood as a process of change and has to be debatedrather than being silenced by calling it sedition.

Taking it a step further, Thapar highlighted the contested meanings of “nationalism” and“anti-national:”

… there are those who, because they are critical of some aspects of the nation,are immediately condemned as anti-national. Nationalisms have a history andone has to be familiar with this, as familiar as one has to be with what isdefined as the nation and as anti-national. Taken literally it could apply to alarge number of Indians who are critical of various aspects of events in India.Governments have described people as anti-national, but the frequency of thisaccusation has increased in the last couple of years. It has been applied sooften now that the word has become virtually meaningless, but not harmless,because it can be used to politically persecute a person.

Similarly, Justice Shah opined:

The strength of a nation is not gauged by the uniformity of opinion of itscitizens or a public profession of patriotism. The true strength of a nation isrevealed when it does not feel threatened by its citizens expressingrevolutionary views; when there is a free and open press that can criticise thegovernment; and when citizens do not resort to violence against their fellowcitizens, merely for expressing a contrary view. That is when we will haveachieved liberty of speech. And that is when we will be truly free.

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Criticising the arrest of Uttarakhand activist Prashant Rahi, Harish Dhawan and NagrajAdve (2008) noted that his activism on issues of forest rights and land rights is an extensionof the history of people’s movements in Uttarakhand. They wrote:

Forty-eight year old Prashant Rahi is the product of and a participant in thishistory, and has consistently used his pen to inform people both within andoutside Uttarakhand about these people’s demands and concerns. All thesestruggles, all unarmed and with mass participation, comprise the democratictraditions of the people of this region.

Justice Shah reiterated Upendra Baxi’s distinction between “constitutional patriotism” and“statist patriotism.” He quoted Gandhi as saying:

“Affection cannot be manufactured or regulated by the law. One should be freeto give full expression to their disaffection unless it incites violence.”

Commenting to the conviction of Binayak Sen, Piyush Guha and Narayan Sanyal for treasonand sedition, an EPW editorial (2011) also took a similar stance:

It is the fundamental right of every citizen in a democracy to think, express andorganise “disaffection” against the government. Far from being a crime, this isa virtue in any democratic polity. Violence and bloodshed are an entirelydifferent matter and there are sufficient laws (which often remain a deadletter) to prevent and punish these crimes.

Should the Law of Sedition Be Repealed?While speech considered “seditious” and “anti-national” by some can equally be perceivedas democratic and virtuous by others, there is no denying that the law of sedition continuesto be used and misused by successive governments to further political ends, irrespective ofthe judicial safeguards. Narrain (2011) wrote:

The chilling effect of these laws threatens to undermine, and gradually destroy,the legitimate and constitutionally protected right to protest, dissent orcriticise the government.

Yet, the law of sedition has continued to stay in the statute. Thapar (2016) observed:

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The debate on sedition goes back to the early years of independence when theattempt to silence free speech was successfully resisted by the Supreme Court(Brij Bhushan v State of Delhi (1950) and Romesh Thapar v State of Madras(1950)). Nehru was in favour of expunging sedition as unconstitutional. Thosewere the days when democracy was valued and was nurtured. We shouldfamiliarise ourselves with the many occasions when sedition has been objectedto and on valid grounds, and therefore consider its removal from the body oflaws. Laws that can be easily misused should be reconsidered.

Justice Shah (2017) quoted Jawaharlal Nehru’s position on the subject:

“Take again Section 124-A of the Indian Penal Code. Now so far as I amconcerned that particular section is highly objectionable and obnoxious and itshould have no place both for practical and historical reasons, if you like, inany body of laws that we might pass. The sooner we get rid of it the better.”

As secretaries of the People’s Union for Democratic Rights (PUDR), Basu and Tandon (2016)wrote:

PUDR reiterates that laws like sedition would be subjected to misuse for thevery fact that they exist on the statute books.

Justice Shah reached a similar conclusion:

The enforcement or the threat of invocation of sedition constitutes an insidiousform of unauthorised self-censorship by producing a chilling effect on theexercise of one’s fundamental right to free speech and expression. That is whythe law needs to be repealed. However, it is unlikely that any government willgive up this power, and it is therefore left to the courts to re-examine theconstitutionality of sedition. It is not enough to expect an acquittal by thecourts after 4-5 years; we need to stop the misuse of the law to silence dissentby removing the source of the power itself.

Read more

India’s Unforgivable Laws | EPW Engage, 2018

‘Seditious’ Struggle for Rights? | Deba Ranjan, 2017

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Stand with JNU-II: This Is Not Sedition | Malavika Kasturi, Aparna Vaidik and Dhiraj Nite,2016

Where is this Self-Proclaimed Nationalism Coming From? | Kanhaiya Kumar, 2016

References:

Dhavan, R (1987): Only the Good News: On the Law of the Press in India (New Delhi:Manohar Publications).

Image-Credit/Misc:

Image courtesy: Modified. Canva.

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