Among other things the arrest of JNU president Kanhaiya Kumar for alleged anti-national activities has brought the focus back is on the controversial sedition charge which under Section 124-A of the Indian Penal Code (IPC) prescribes a jail sentence from three years to life imprisonment for "whoever, by words, either spoken or written, or by signs, 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".
While the case of JNUSU president and other JNU students like Umar Khalid and Anirban Bhattacharya may be sub-judice and the court is yet to declare them guilty or not-guilty, the fact is that a law which was enacted by the British to suppress the voice of Indian people, should at least be given a second look, if not changed in a hurry.
Also, while any attempt to incite violence, promote indecency, contempt of court or to disturb public order must be dealt with sternly and freedom of speech and expression has its limits under Clause (2) of Article 19, the harsh reality is that successive governments and the law enforcement agencies have many a times used the sedition law 'wrongly' against artists, intellectuals and even common people.
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Many moons ago, Kedarnath Singh who hailed from Begusarai (Bihar), was charged with sedition by the trial court, with the punishment being upheld by the High Court for saying the following among other things:
“The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it… They have to-day established a rule of lathis and bullets in the country… We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established by a Government of the poor and the downtrodden people of India.”
Hearing the case in 1962, the Constitution bench of the Supreme Court had said that the gist of an offence as far as sedition was concerned was “incitement to violence” or the “tendency or the intention to create public disorder”. In short, action and words have to go hand in hand. However, the Supreme Court had upheld the punishment of Kedarnath.
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From then till now, the judiciary has time and again taken not-so-favourable view of the sedition law. In 1995, Balwant Singh and his accomplice, who had supposedly raised inflammable slogans like khalistan zindabad and raj karega khalsa in the wake of former PM Indira Gandhi’s assassination were let off by the court on the grounds that there existed no link between the slogans and actual threats to public order.
The court had said then - “The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government… Section 124A of IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case.”
Further, in 2011, the SC, while pronouncing the judgment in Indra Das versus State of Assam, had said that all laws, including Section 124A, had to be “read in a manner so as to make them in conformity with the Fundamental Rights”.
And dropping sedition against Binayak Sen, a pediatrician, public health specialist and activist who had been arrested by the Chhattisgarh police in 2007, the apex court had noted that merely possessing Maoist literature did not make someone a member the banned CPI (Maoist) and had said - “We are a democratic country. He may be a (Maoist) sympathiser. That does not make him guilty of sedition.”
The question once again before the country is whether Section 124A is violative of Article 19(1)(a) relating to freedom of speech and expression?
Questions were raised when Aseem Trivedi, a cartoonist, was sent to judicial custody in September 2012 on charges of uploading a series of cartoons against corruption in the then UPA government on his website. He was also charged for “insulting the Constitution” during an anti-corruption protest in Mumbai in 2011.
Talking to Zee Media,Trivedi said, “There is a need to revisit the sedition law. As per data available, this law is used more in areas which are relatively peaceful, rather than in areas like J&K. Here police and those in power use the law to curb the freedom of expression of the common masses. Later the cases are not established in court but in between the government becomes successful in stifling the voice being raised against them. If the law is challenged in court today, then like Section 66A of the IT Act, who knows 124A may also be thrown out.”
Thus, while anyone who even remotely feels proud to be an Indian and believes in the integrity and unity of India will denounce the anti-national slogans raised in JNU, the point is did the students commit the above crimes as enumerated by the apex court over the years and did the law enforcement agencies act in haste at least in the case of Kumar? Also, what are the limits to freedom of speech and expression and can a painting or a cartoon or a speech threaten the very fabric of the county?
It’s time the government of the day addresses these very pertinent questions and take a re-look at a law which has been termed draconian and vague by many and which was used on greats like Bal Gangadhar Tilak and Mahatma Gandhi by the British. If not then the political class will always be accused of suppressing and quelling any and every form of dissent if it does not suit them.
It would do the lawmakers some good to read what the Father of the Nation had to say when he was charged with sedition in 1922 - “Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
It would also do them good to revisit what India’s first Prime Minister Jawaharlal Nehru said in Parliament when the first amendment to the Constitution was introduced - “Now so far as I am concerned (Section 124-A) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass… The sooner we get rid of it the better.”
It’s been more than ninety years since Gandhi made the above observations and it’s been more than 60 years since Nehru made the above remarks but the sedition law continues be a part of the Indian Penal Code. For how long is the moot question…