April 2, 2021
What is the sedition law?
Indian Penal Code, 1860, 71 [124A Sedition]
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], shall be punished with [imprisonment for life],to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1: The expression ‘disaffection’ includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of the government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3: Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Sedition laws were first enacted in the 17th century in England to protect the Crown and the state from potential uprising – in other words, a popular revolt. It was added to the Indian Penal Code in 1870 by the British to perpetuate their subjugation of India, and to intimidate and supress dissent by Indians.
Unfortunately, independent India – while adopting a constitutional democracy – has retained this oppressive, anti-democratic law and abused it to punish dissent, intimidate dissenters and stifle criticism of the government. In other words, democratically elected governments have used a draconian law in an authoritarian, oppressive manner.
In colonial India, the four most famous sedition trials were of Lokmanya Bal Gangadhar Tilak – in 1897, 1908 and 1916 – and Mohandas Gandhi in 1922. Tilak was first charged with sedition 1897 for his writings and the rendition of a poem commemorating the coronation of Chhatrapati Shivaji Maharaj. He was declared guilty and sentenced to 18 months’ imprisonment. He was again sentenced for sedition for his ‘anti-national’ writings in Kesari to six years’ imprisonment in Burma. In 1916 Tilak, was again prosecuted for sedition but defended by Barrister Mohammed Ali Jinnah; Tilak was acquitted.
After he stopped the Asahakar Andolan, the Non-Cooperation Movement, because of the lynching of policemen at Chauri Chaura, Gandhi was prosecuted along with his publisher for his ‘anti-British’ articles in Young India. Gandhi’s statement in Judge Broomfield’s court was telling about the immorality of the British oppression and the evil of the sedition law: “I came to the conclusion that the British connection had made India more helpless than it ever was before. Politically and economically, she has become so poor that she has little power of resisting famines… My experience of political cases in India leads me to the conclusion that in nine out of every 10 condemned men were totally innocent. Their crime consisted in the love for their country…”
The ‘prince’ of the IPC
At his sedition trial, Gandhi called Section 124A “the prince among political sections of the Indian Penal Code, designed to supress the liberty of citizens”. He added: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or a system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr Banker and I have been charged is one under which mere promotion of disaffection is a crime… I have studied some of the cases tried under it (Section 124A) and I know that some of the most loved Indian patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section…” Concluding his defence, Gandhi said: “I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me, for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen, the only course open to you, the judge, is either to resign the post and thus disassociate yourself from evil if you feel that the law you are called upon to administer is evil and that in reality I am innocent, or to inflict upon me the severest penalty if you believe that the system and the law you are assisting to administer are good for the people of this country.”
Judge Broomfield reluctantly sentenced Gandhi to six years’ imprisonment.
What Gandhi said in 1922 rings true for present-day India. It is a message for the government, law administration and the judiciary. They need to be reminded of his words, they need to understand what he told the British administration, his prosecutors and the judge.
The crushing of dissent
Independent India has continued with the application of Article 124A to oppress and intimidate dissent. The last decade has seen it being abused to extreme levels – to the menace of the misuse of Article 124A by the government has been added the brutal trial by media and societal labels of ‘anti-nationals’, ‘desh drohis’ and ‘urban Naxals’. They have demonised dissent, a duty in a healthy democracy. Prime Minister Narendra Modi and his Cabinet colleagues have added fuel to this fire of hate by utterances such as “termites”, “andolan jeevi” and calls of “desh ke gaddaron ko, goli maaro saalon ko”.
During the Emergency, the Maintenance of Internal Security Act (MISA) law was used to stifle and subjugate opposers. Since then, India has outdone itself by implementing laws that have harassed and oppressed its citizens more than prevented crime. The Terrorist and Disruptive Activities (TADA) Act in Maharashtra was one such. The dishonest and in most cases malafide application of these laws has resulted in many arrests and prosecutions but a dismal percentage of convictions. What they have spectacularly done is destroyed lives.
Such laws have empowered the state to prosecute with impunity but do not provide for compensation to those exonerated of charges. There is no mechanism by which the police, who help fabricate cases and file trumped up chargesheets, are punished when the cases do not stand up to judicial scrutiny. Neither is the state penalised for subjecting its citizens to harassment and psychological torture during incarceration.
Flawed case after flawed case
In Surat, 122 people were accused of being members of the outlawed Students Islamic Movement of India. They were arrested and charged in 2001 and languished in jail till their acquittals last month. They were denied bail, because they had been booked under one such law – the Unlawful Activities (Prevention) Act or UAPA. Five of them died in prison. Although all got back their freedom, the police and the state government got away scot free.
Gujarat has another such draconian law, the Prevention of Antisocial Activities (PASA) Act. These laws have ambiguous names but are used basically to oppress and intimidate citizens who dare to agitate against the government. The Gujarat chief minister has declared that more ‘crimes’ will be brought under the ambit of PASA.
The Bhima Koregaon Yalgar Parishad case is another blatant intimidation of dissent in which intellectuals have been arrested and charged. There are reports of fabrication of evidence and the denial of bail even to those who are old, infirm and with severe health issues. The accused have been chargesheeted by the National Investigation Agency (NIA) and are being prosecuted by an NIA court, so the justice delivery system is skewed in favour of the prosecutor. How is this a democratic situation? The few accused who managed to get bail have appealed to higher courts. While poet Varavara Rao manged to get bail because of his very poor health, the NIA cussedly refuses Father Stan Smith bail on similar grounds.
Gujarat under Modi saw a spate of sedition charges to intimidate journalists and intellectuals. Not that others have lagged behind – even cartoonists have been charged with sedition for humour. In these times of hate receiving official patronage, humour and satire have also been prosecuted. Students who dared to protest against the Citizenship Amendment Act and National Register of Citizens have been incarcerated under sedition laws. Pregnant women and senior citizens have not been spared either. A journalist trying to cover the Hathras gangrape and murder was arrested in Uttar Pradesh and tried under laws made to prosecute terrorists. Journalists and Parliamentarians who tweeted about the death of a farmer participating in the ongoing farmers’ protest, have been slapped with charges of sedition.
As the government becomes more and more authoritarian and autocratic, the oppression of dissenting opinion is increasing. When you see the conviction percentage, it is apparent that even the police and government know that prosecution is unsustainable but they do it anyway. They know they will not be punished for wrongdoings.
Independent India should have done away with Article 124A, but unfortunately it did not and has instead been using it to harass its own citizens. When we once again win back our freedom and restore true democracy, I hope India will have the courage to do away with Article 124A and all such anti-democratic laws.
I conclude with what Gandhi said about sedition Writings and Speeches of Mahatma Gandhi: “If our rulers are doing what, in your opinion, is wrong, and if we feel it our duty to let them hear our voice though it may be considered seditious, I urge you to speak sedition – but at your peril. You must be prepared to suffer the consequences.”
Tushar Gandhi, great grandson of the Mahatma, is an activist, author and president of the Mahatma Gandhi Foundation. Reach him here: firstname.lastname@example.org.