Of bygone era

"The censorial power is in the people over the government, and not in the government over the people" said James Madison, emphasising that sedition is like the government censoring the people but, ideally, it should be the opposite as the sovereignty lies with the people and not with the government.

Section 124A was included in the Indian Penal Code (IPC) — drafted by Thomas Macaulay in 1937 — in 1970. Sedition was not a part of the original draft of the IPC which was enacted in 1960. Section 124A states: "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 the law in India shall be punished with imprisonment for life, to which a fine may be added; or with imprisonment which may extend to the three years, to which a fine may be added, or with fine."

Sedition in India is a cognisable (not requiring a warrant for an arrest), non-compoundable (not allowing a compromise between the accused and the victim) and non-bailable offence. The law was primarily used to curb the rising nationalist sentiments during the freedom movement.

From Mahatma Gandhi to Jawaharlal Nehru, Bal Gangadhar Tilak and Abul Kalam Azad — all were charged under sedition law. Tilak was tried many times in cases related to sedition. Firstly, for writing an article in the Kesari — his weekly publication — justifying the killing of Afzal Khan by Shivaji during the Bubonic plague in 1897, resulting in the killing of Walter Charles Rand by the Chapker brothers. Walter was a British officer appointed as plague commissioner of the city who misused his post and looted innocent Indians and humiliated women. British press quickly drew equivalence and criticized the British government for not taking any action against Tilak, and soon, Tilak was in jail. Again, for the second time, he was booked on the sedition charge when Khudiram Bose hurled a bomb on a caravan of British officers, mistakenly killing two European women. Tilak wrote in his article: "This, no doubt, will inspire many with hatred against the people belonging to the party of rebels. It is not possible to make the British rule disappear from this country by such monstrous deeds but, the rulers who exercise unrestricted power must always remember that there is also a limit to the patience of humanity."

Gandhi was also arrested on charges of sedition and sentenced to six years of imprisonment for taking part in a protest against the colonial government in 1922. Mahatma Gandhi termed sedition 124A as the "prince among the political section of the Indian Penal Code designed to suppress the liberty of the citizen."

In the Constituent Assembly, while laying out the freedom rights, Sardar Vallabhbhai Patel laid down exceptions in the form of 'sedition and obscene, blasphemous, slanderous, libellous or defamatory language'. But ultimately, an amendment was made to remove the word sedition from the list of the grounds of reasonable restriction over the rights to freedom. The word 'sedition' was dropped from the Constitution but Section 124A stayed in the IPC.

In 1950, the Supreme Court, in two of its judgements, sided by the government and asked the editor of Organiser (a magazine run by Rashtriya Swayamsevak Sangh) to clear provocative content, and banned Crossroads (a pro-Communist weekly published from Bombay).

In the landmark case of 'Kedarnath versus the state of Bihar', the verdict upheld the Constitutionality of Section 124A of IPC but, at the same time, also attempted to restrict the scope of the colonial-era law by making a distinction between which acts amounted to sedition and which didn't.

After so many arguments regarding sedition, the real question remains the same: Do we need Section 124A of the IPC? There are several arguments both in favour and against the law. In favour of Section 124A, it is said that the law is useful in combating anti-national, secessionist and terrorist elements. It protects the elected government from attempts to overthrow the same with violence and illegal means. It is also argued that if contempt of court invites penal actions, contempt of government should also be punished. Many districts across states face Maoist insurgency, and the rebel groups virtually run a parallel administration. These groups allegedly tend to overthrow state governments through violence. After so much argument in the favour of the legitimacy of this law, its misuse also cannot be ignored. Some of the instances where sedition law has been deployed include the Amulya leone case, Pathalgadi movement, case against the mother and the teacher of a nine-year-old child due to some lines in a play; in the protest against the Kudankulam nuclear power project in 2012-13, Disha Ravi case etc.

According to National Crime Records Bureau (NCRB), the conviction rate in sedition cases was just 3.3 per cent in 2019. However, the process itself becomes the punishment as the case lingers across the judicial structure. The Law Commission's 2018 consultation report on sedition called for a rethink or repeal of the sedition law stating: "dissent and criticism are essential ingredients of a robust public debate on policy issues as part of a vibrant democracy".

If we look at the global picture, the UK, New Zealand, Australia, Indonesia, and the USA have all either scrapped the sedition law or have amended it to boost the idea of freedom of expression in modern society.

India should also either abrogate this colonial-era law or make it a non-cognisable offence so that the persons are not arrested at the drop of a hat and also a bailable offence to ensure that the rights of humans are respected. Before arresting any person on the charges of sedition, there must be an investigation by an officer of the rank of SP. Otherwise, this will always remain a self-inflicted wound.

Views expressed are strictly personal