December 2, 2023
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
Last week, Chief Justice DY Chandrachud said he would constitute a bench in January 2024 to hear a batch of pleas challenging the constitutional validity of the sedition law. Months earlier, the government introduced in Parliament bills to replace British era laws that included the one on sedition. However, many observers said that the new bills simply introduced sedition clauses using different language and in fact had a wider definition of it. I’ve done episodes on India’s sedition law before but it’s worth looking at again in light of the chief justice’s announcement and to understand why any free-thinking country simply cannot have such a law on the statute.
Britain left behind several things as it exited India. Among them, were several oppressive laws designed to suppress opposition to its rule. And among these laws was the one on sedition, which was used to imprison freedom fighters ranging from Mahatma Gandhi to Bal Gangadhar Tilak.
In court in 1922, Gandhi termed the law “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.
For decades after Independence, the law remained a handy tool used to crush dissent. And no one has deployed it as much as the Narendra Modi government. It has used the law to clamp down on activists, journalists, students, academicians, minorities, you name it.
Earlier, the Supreme Court had rejected the government’s request that the petitions being passed on to a bench be deferred because Parliament is “re-enacting” provisions of the Indian Penal Code and a bill is before a Standing Committee.
The Supreme Court had said that the right thing for the three-judge bench would be to direct that the petition papers be placed before the chief justice so that the pleas could be heard by a bench of at least five judges.
The thing about sedition is that, while courts ultimately dismiss most of these cases, the long-drawn-out process is itself the punishment. For example, a couple of years ago, three Kashmiri Muslim students spent six months in jail for allegedly celebrating Pakistan’s win over India in a cricket match.
On May 11, 2022, the Supreme Court put on hold the sedition law and directed the Centre and states to not register any fresh FIRs invoking the provision. Ongoing investigations and trials were also kept in abeyance.
What’s curious is that the 22nd Law Commission of India, headed by former Chief Justice of the Karnataka High Court, Ritu Raj Awasthi, argued in favour of the sedition law, going so far as to suggest that the punishment under it be increased. The commission’s report said: “Section 124A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh vs State of Bihar so as to bring about greater clarity regarding the usage of the provision.”
This would amount to India walking back its freedom, which it gained after much sacrifice and struggle. It would be a backslide that would take India back to the 19th century.
The law was initially taken back but reintroduced a decade later in 1870 by the British to deal with those who may “excite disaffection” against their rule. The British wanted unquestioned obedience from their Indian subjects. In contrast, sedition was defined differently in England because, as one articulation of the logic put it, the right to free speech in India resembled smoking a cigar near a gunpowder room.
The Law Commission’s proposed amendments sought to reintroduce interpretations of sedition which the courts have rejected in the past and neglected the debate that has evolved over the years around the potential to abuse the law.
Several former British colonies have repealed colonial-era sedition laws because they are a clear violation of the right to expression. In 2010, the Constitutional Court of Uganda struck down the law. In 2018, the Community Court of Justice of the Economic Community of West African States held that the so-called offence in Gambia violated the right to freedom of expression under African and international law. The Court of Appeal in Nigeria ruled the sedition law unconstitutional in 1985, saying: “Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.”
India needs to learn from these actions. And we must never cease to assert that the sedition law is a relic, fit for the dustbin of history rather than what should be a more evolved present.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at email@example.com. Catch you again soon.