Sudhanva Shetty Shetty
Writer, coffee-addict, likes folk music & long walks in the rain. Firmly believes that there's nothing more important in a democracy than a well-informed electorate.
“Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code 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.” – Mahatma Gandhi, March 1922
Section 124A of the Indian Penal Code (IPC) is one of India’s most draconian laws. Introduced by Britain during the colonial period, it has remained in force in our country even after after independence. The law that was used to punish Mahatma Gandhi, Bal Gangadhar Tilak, Lala Lajpat Rai and Aurobindo Ghose is today routinely used against activists, writers, cartoonists and other members of civil society.
Section 124A reads thus: “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 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.”
The Section openly criminalises “attempts to excite disaffection towards the government”. Not the country or national security, but any elected government. It doesn’t take a genius to understand that this is a seriously flawed and dangerously loose law.
The Allahabad High Court found Section 124A unconstitutional in 1958 while the Supreme Court (SC) has repeatedly constrained the ambit of the Section and the definition of sedition as well. In many instances, the SC chided the Government and law enforcement agencies for misusing the sedition law. The British – who gave us 124(A) – have all but removed it entirely.
But the reign of Section 124A continues unabated in democratic India, even in the 21st century when most democracies have outlawed most sedition laws because of their spectacular ability to be misused.
Section 124A was introduced in the Draft Indian Penal Code by Thomas Macaulay in 1837. Though sedition was not included as an offence when the IPC was enacted in 1860, growing fears over Wahabi extremism in the Indian subcontinent enabled Section 124A to materialise in the IPC in 1870.
The first recorded state trial under Section 124A was in 1892. However, an 1898 case is more significant. This was Queen Empress v. Bal Gangadhar Tilak, and it was this case that defined sedition for the first time and dangerously expanded the scope of Section 124A.
The court ruled that: “The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”
Throughout the Indian Independence Movement, Section 124A was used to curb free press and imprison freedom fighters, the most notable among these being Mahatma Gandhi, who called the Section the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizens.”
Jawaharlal Nehru called it “objectionable and obnoxious”. (Though the fact that he didn’t have it amended or removed when he became Prime Minister is also objectionable and obnoxious.)
One can argue that sedition in the hands of colonial rulers made sense as they had nothing to gain by championing free speech in India. So let us take a look at how Section 124A fared in independent India.
Between 1950 and 1951, India was in a state of nearly absolute free speech as the Constitution guaranteed the same. It was a time that many of us are unaware of, a time that is unimaginable today.
When the Constitution came into effect in 1950, there was only Article 19, which guaranteed free speech for all Indian citizens. There was no Article 19B, which today states that “reasonable restrictions” can be placed on a citizen’s right to free speech to maintain public order and to preserve national security.
The trigger that led to the enactment of Article 19B? Three government attempts to crackdown on speech that were immediately defeated by the country’s powerful courts.
The first judicial interpretation of sedition in independent India took place in 1950 in cases linked to the circulation of two magazines that were deemed to threaten public order. In these cases, the court ruled: “… unless a law restricting free speech is directed solely against the undermining of the security of state or overthrow of it, a law cannot be a restriction on free speech.”
Independent India’s political leaders were worried by the courts’ liberal interpretation of Article 19.
Home Minister Vallabhbhai Patel wrote to Prime Minister Nehru, complaining that the Romesh Thappar v. State of Madras ruling “knocks the bottom out of most of our penal laws for the control and regulation of the press.”
India’s Founding Fathers did not see eye to eye on many issues; however, one of the few topics that united Patel, Nehru and others like Law Minister Bhimrao Ambedkar believed in a strong, centralised state where there were sufficient provisions for the government to keep the press and free speech in general at check.
PM Nehru soon constituted a Cabinet Committee to amend Article 19. Ambedkar suggested that the phrase “reasonable restrictions” be added while Patel argued that “reasonable” need not be added as this gave the judiciary the liberty to decide what “reasonable” meant, curtailing the powers of the government.
Nehru sided with Patel, but faced with some opposition over dropping the word “reasonable”, a common ground was reached and the phrase “reasonable restrictions” was agreed upon. The Bill passed in Parliament, 228-20.
This was the First Amendment to the Indian Constitution.
In one of history’s most intriguing ironies, the the US Constitution, which inspired constituent assemblies around the world, including our own, has as its First Amendment one of the most celebrated victories for free speech – the US First Amendment takes away from the US government the power to make any law that can curb free speech. Juxtaposed with this, the Indian First Amendment gave us Article 19B, which gives the Indian government the power to make any law that can curb free speech.
After Article 19B came into being, Section 124A was rejuvenated. The law that was used to punish our freedom fighters because they fought to free Indians has been used on several occasions in free India by various governments to punish free Indians.
Those who have been charged with sedition in recent years include cartoonist Aseem Trivedi, paediatrician Binayak Sen, author Arundhati Roy, JNU student Kanhaiya Kumar, and human rights NGO Amnesty International and dozens more. The main targets are, for lack of a better term, the usual suspects: journalists, students, comedians, singers, writers, and activists.
Most of these cases were thrown out due to absence of evidence or misinterpretation of Section 124A. The courts have traditionally been guardians of free speech in this matter, though not always and definitely not enough.
Virtually all of us agree that free speech is mandatory in a modern, progressive democracy. There is no debate to be had there.
The conflict arises on the question that follows our championship of free speech.
How free should free speech be – that is the question.
Christopher Hitchens once wrote, “… wherever the light of free debate is extinguished, the darkness is much deeper, more palpable and more protracted. But the urge to shut out bad news or unwelcome opinions will always be a very strong one, which is why the battle to reaffirm freedom of speech needs to be refought in every generation.”
There are those who think that free speech comes with limitations; that laws curbing extreme forms of speech that border on sedition or aim to hurt religious sentiments should be in place. Indeed, the Supreme Court in 2015 recognised that there is a “constitutional limitation” attached to free speech. (The apex court was talking about Article 19B.)
Then there are those who opine that the only form of free speech which is real is absolute free speech. These activists say that freedom of expression must include the license to offend. They say the only way for a democracy to be able to march forward and become more inclusive is by providing a platform for all opinions, no matter how distasteful they may be. This means allowing all opinions, engaging with some of them but curbing none of them.
But if we think free speech comes with limitations, who will adjudge whether the limitations are extreme enough to curb, and how will one define or list these limitations? More importantly, who is to impose these limitations – should the government be able to decide on the limits of free speech in a democracy?
These questions seem deceptively simple but they can be debated on for hours on end inconclusively. What we can declare with utmost confidence is that in this debate the thoughts and opinions of each and every one of us matters.
We must strive to keep in mind the following simple-yet-significant points:
Section 124A is vague. Its ambit is dangerously broad. Its potential to be misused is extravagant. It is any government’s best tool to control speech; it is a politician’s greatest weapon and a free citizen’s biggest nightmare.
If there’s anything that is “anti-national”, if there’s anything that is “anti-India”, it is Section 124A. Whatever be your political allegiance, if you are a supporter of free speech then it must seem incontrovertible that Section 124A has no place in the world’s largest democracy.
Cartoonist Aseem Trivedi, who was charged with sedition in 2012 for his political cartoons collaborated with The Logical Indian to depict the inanity of Section 124A. For more, click here.
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