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Mainstream, VOL XLIX, No 26, June 18, 2011

Repeal the Law of Sedition

Monday 20 June 2011, by Rajindar Sachar

One of the most shameful pieces of legislation in our penal code is the continuance of ‘Sedition’ in Section 124A of the Penal Code which provides that whoever excites or attempts to excite disaffection towards the government established by law in India shall be punished with imprison-ment for life. The expression disaffection includes disloyalty and all feelings of enmity. This provision was included by the British Government in 1870 as the rulers of India. Regretfully it continues to muddy our laws of crime.

This imperialist legislation was used against several freedom fighters like Bal Gangadhar Tilak, Annie Besant. Mahatma Gandhi was also prosecuted under 124A in 1922. In a speech before the Trial Judge he said: “.....Section 124A under which I am happily charged is perhaps the prince among the political sections of the I.P.C. designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Though in the original draft of the Constitution “sedition” was provided as one of the exceptions to limiting fundamental freedom of speech and expression, however after a long debate in the Constituent Assembly it was dropped.

This was because the incongruity of conti-nuance of such a provision in free India was recognised in the debates of the Constituent Assembly. K.M. Munshi advocated its deletion from Article 19 because “The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy”.

T.T. Krishnamachari, who was then a member of Legislative Assembly of Madras, supported Munshi pointing out that such a law became non-functional since 1802 in the USA.

Nehru’s views were totally against this provision when he said in 1951: “Take again Section 124A of the Indian Penal Code. Now so far as I am concerned, that particular Section is highly objectionable and obnoxious and it should have no place, both for practical and historical reasons, in any body of laws that one might pass. The sooner we get rid of it, the better.” But alas, these encouraging words remained merely on paper and Section 124A continues to be used as a weapon of oppression by tainted governments.

IMMEDIATELY after 1950, the High Courts of Punjab and Allahabad held Section 124A to be invalid. But unfortunately these decisions were overruled in the Kedar Nath Singh case (1962) where, with the greatest respect, in an exercise of judicial word-play the court, while holding that “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section”, at the same time downplayed the above by saying that this should be without exciting feeling of disloyalty to the governments. It is to be regretted that the Supreme Court refused to recognise the difference between the State and government. Disloyalty can only be to the Indian State. But to spread disloyalty peacefully to the government because it is considered to have anti-people policies is the very foundation of a vibrant democracy. In a democracy anybody, who is dissatisfied with the government, has the right to create disaffection against it and seek its removal at the next election. In fact, it is the constitutional right of every citizen to expose the misdeeds of the government it disapproves of and create disaffection and disloyalty among the people and work for throwing it out of power—of course without resorting to violence. Disloyalty to a government is different from disloyalty to the State. But alas, because of the Kedar Nath Singh case the police confidently go on resorting to Section 124A against social activists and being non-bailable the courts as a routine deny bail and the activist remains in jail for years even without the trial starting. A greater degree of human right violation is hard to imagine.

Very significantly, the explanation to Section 124A which distinguishes “disapprobation” (that is, criticism) from “disaffection” has been dropped in the Unlawful Activities Prevention Act (UAPA) definition. This makes this provision all that much more dangerous to democratic rights.

A recent convention, organised by the People’s Union for Civil Liberties (PUCL) and participated by other human right organisations, heard accounts of widespread and systematic misuse of the sedition law across India. All forms of democratic struggles—from farmer’s agitations to citizens protesting against state policies—have been criminalised and the participants prosecuted under the sedition law. Consequently thousands of ordinary citizens have not only suffered violations of fundamental freedoms and liberties but also been forced to undergo major personal, emotional and financial hardships due to imprisonment and seeking legal remedies. It consequently resolved to launch a nationwide signature campaign to collect at least a million signatures to be presented to Parliament demanding the immediate repeal of the sedition law, that is, Section 124A IPC and Section 2(o) (iii) UAPA, 1967.

It is ironic that the sedition law, which owes its ancestry to English imperial domination, continues on our statute book, notwithstanding that England has abolished the crime of sedition and in doing so emphasised that

• Sedition is defined in vague and uncertain terms. This offends the fundamental principles of criminal law.

• In any case, it refers to a particular historical context (sovereignty residing in the person of the King) which no longer holds. The law is archaic and must be done away with.

• While certain political views may be unreaso-nable or unpopular, they cannot be criminalised. This offends democratic values.

• The definition of sedition offends fundamental freedoms of speech and expression which are universally recognised.

• In practice, the law is used to silence political opposition or criticism of the government. This has a “chilling effect” on free speech.

Should India still suffer public humiliation and embarrassment before the human rights audience, both nationally and internationally, by continuing the law on sedition?

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims, and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23 @bol.net.in

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