Right to dissent

Students of Delhi's Jawaharlal Nehru University (JNU) will probably never forget February 9, 2016 – an evening that permanently changed the politics of the university. That fateful day, former JNU Students Union president Kanhaiya Kumar, along with fellow compatriots Umar Khalid and Anirban Bhattacharya were arrested for allegedly shouting "anti-national" slogans at an on-campus event they had organised against the hanging of Parliament attack mastermind Afzal Guru. Cases were filed against them under the sedition act. In January 2019, the police finally presented the charge-sheet of the case.

In India, every citizen has been given the freedom to speak and express their views under Article 19(1)(a) of the Indian Constitution. However, this freedom is not absolute and some reasonable restrictions have been imposed on the freedom of speech and expression under Article 19(2).

But when a person acts, speaks or uses signs and representations which can be held contemptuous towards the Government of India, they can be punished under the sedition law, section 124-A of Indian Penal Code, 1860. Sedition is offensive to the extent that it criminalises any perceived threat to the integrity of the state.

Legality of sedition

The list of people accused under sedition law, over time, has been long. Starting from freedom fighter Bal Gangadhar Tilak to writer Arundhati Roy, doctor Binayak Sen and cartoonist Aseem Trivedi, among many others.

Reports show that, over 10 years, India's apex court has not convicted a single person under the sedition act. Sedition cases are most common in areas where terror activities loom prominently, such as Kashmir, Nagaland, Jharkhand and others. Reports also show that only 10 per cent of filed cases finally reach state high courts and a rare few reach the Supreme Court corridors.

"India should strike down the sedition law. In a democracy, the state must listen to criticism from all quarters to reconstitute itself where necessary. Under British rule, sedition used to be slapped against freedom fighters because rulers were not open to criticism," noted advocate of Supreme Court, Karuna Nundy, told Millennium Post.

She also explained how in recent constitutional cases, the Supreme Court has observed that advocacy of a view like separatism would also be considered permissible, constitutional speech. However, incitement of violence would not be tolerated.

Similarly, in April 2011, the Supreme Court granted bail to human rights activist Dr Binayak Sen and dropped the charge of sedition against him. Sen had been convicted for sedition by a trial court in Chhattisgarh for his alleged links with Naxalites and, consequently, sentenced to life imprisonment.

Interestingly, on the charge of sedition against Binayak Sen, Supreme Court judge Justice C K Prasad asked, "If Gandhi's book was found in my house, would that make me Gandhian?" This was in reference to the charge that literature had been found in Sen's house suggesting his Naxal leanings.

Left, Right & Centre

Whether the sedition law is just a mere political tool or not has pivoted many debates. However, it must be noted that the use of sedition law has pervaded the rule of different political parties who have wishfully pulled the weapon to silence critics.

Recently, opposition Congress has been a strong critic of the law, voicing strongly in favour of repealing this "draconian" penal code. "The Congress party believes that this British era law of sedition should be relooked in a similar vein as section 377. We should retrospect on whether there is any need of such a law in today's time," said Priyanka Chaturvedi, a spokesperson of Congress.

However, there have been many past occasions where Congress has used the law, when in power. In response to this, Chaturvedi said, "Yes, I agree it happened. In a democracy, we always learn new things and realise our own mistakes. We have learnt from our mistakes and we will relook laws like sedition when we assume power again."

Unlike Congress, the Left parties have been a strong critic of restrictive laws in India. However, when the Communist Party of India (Marxist) was in power in West Bengal, there were rippling allegations that the ruling party had choked freedom of speech on various occasions.

Historically, the sedition law has been slapped largely against activists, many of whom have been arrested. Explaining these arrests, leader of CPI (M-L) liberation, Kavitha Krishnan said, "Sedition law has been always misused against the freedom of speech. The state uses this law to intimidate people who work for human rights, students and the critics."

Krishnan also observed that the political stand of Congress is not clear, as when Binayak Sen was arrested, Congress never came out vocally in support of Sen who faced arrest by the BJP-led state government in Chhattisgarh.

A section of the political class also believes that the judiciary itself should come out and scrap such undemocratic laws as the existence of such a law is "dangerous" for the Constitution of any democracy.

Amid every criticism, BJP has maintained that there is a need for a law on sedition because scrapping it will encourage "anti-national" activities across the country. "There should not be any question on scrapping the law. We need to strengthen this law to stop anti-national activities around us," said BJP leader and Delhi's leader of the opposition, Vijender Gupta.

The ruling BJP found the Congress stance "dangerous", as repealing sedition law could be harmful for India. "How will you deal with people who raise slogans against the country? If we repeal sedition, such people will increase in number and any question on the need of this law should be beyond politics," said Gupta.

Political misuse

In September 2011, small town Kudankulam in Tamil Nadu witnessed a protest against the setting up of a nuclear power plant. The police filed first information reports (FIRs) for 7,000 villagers and those leading the protest, charging them all with sedition.

Various reports have shown that people who stay in conflicting areas face higher charges of sedition. Before elections, every time, opposition parties come forward to voice against laws like sedition – but, in Indian history, no political party has ever really fought against the sedition law when they have come into power.

Freedom of speech is a fundamental right. Citizens in a democracy have the right to criticise the government, authorities, decisions of the government and even verdicts of the Supreme Court. The interpretation of what is actually seditious and what is not is also tainted in conflicting perspectives. The Supreme Court itself has gone against various interpretations of sedition. However, critics of the sedition law have observed how political parties in India have miserably failed to scrap this draconian ruling. Despite intense debates on TV and in rallies, there has never been any debate in Parliament because politicians, irrespective of lineage, remain fearful of criticism.