Sedition Law And Free Speech
A Vague Sedition Law is Antithetical to Free Speech
Section 124A of the Indian Penal Code criminalizing ‘sedition’ is broad and can virtually engulf any expression of opposing opinion—a poem, a movie, a speech or any anti-establishment idea—as long as it qualifies as inciting hatred and disaffection towards the government. As vague as the law may sound, sedition is no petty crime in India. It carries the highest punishment as imprisonment for life, the same that is awarded for heinous crimes like rape and slave trade, to name a few.
In September 2016, the Supreme Court dismissed a petition filed by Common Cause that sought to curb the rampant misuse of this law. The petition prayed for integration of procedural safeguards before booking someone for sedition. The Court, in the brusque dismissal order, reminded the authorities of its 1962 dictum in Kedar Nath v State of Bihar but stopped short of curing the mischief that exists in indiscriminate misapplication of the law in spite of decades having gone by since that verdict.
Preventing Misuse: The Common Cause Case
The Common Cause petition had urged that Section 124A was being misused as a means to harass and persecute legitimate dissent. It aimed to prevent misapplication of the Section and bring about strict compliance of the Constitutional Bench dictum in the much-talked-about Kedar Nath case that narrowed down the scope of the law. In Kedar Nath, the Supreme Court had held that mere criticism of the government was not seditious unless it incited violence or had the tendency to disturb public order.
The Common Cause petition had sought to limit the misuse of this law by calling for exercise of due diligence and reason by law enforcement authorities before arresting anyone for sedition. To this effect, directions were sought that before an FIR was lodged or an arrest was made under Section 124A, a prior reasoned order by the Director General of Police or the Commissioner or the Magistrate, as applicable, may be obtained certifying that the alleged seditious act either incited violence or had the tendency to disturb public order.
The intention was to ensure that the Director General of Police, the Commissioner or the Magistrate was not only apprised of the incident but also certain of its potential to create violence and disturb public order before characterizing such conduct as seditious.
The dismissal of this case by a mere reference to Kedar Nath is problematic. Sheer number and range of cases in which sedition has been invoked since Kedar Nath makes it hard to logically delineate a threshold for invoking this law. In addition, neither Section 124A nor the jurisprudence clarify if the government in the damning provision is central or state. This may lead to ambiguity in application of this law if the allegedly seditious act favors either the union or the state government at the cost of condemning the other.
The Apex Court decision of hinging sedition on incitement of violence in Kedar Nath also needs to be taken with a pinch of salt as any impassioned speech may incite violence, especially from the disagreeing segments of the audience.
Sedition charges are more often than not slapped to silence dissent or gain publicity, only to be dropped eventually. The National Crime Records Bureau (NCRB) Report for 2015 indicates that 73 arrests were made under 30 cases alleging sedition in 2015. But out of 11 trials completed, not a single person was actually convicted.
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Of the most ridiculous recent cases, a sedition case was filed against the actor Aamir Khan and wife Kiran Rao for their comments on the rising intolerance in the country. Sedition charges were also slapped to browbeat two police constables from Karnataka who attempted to organize a mass leave in protest against long-pending welfare measures.
Last year, Tamil folk singer Kovan was unceremoniously picked up at midnight by the police under charges of sedition for his songs that poked holes into Chief Minister J Jayalalithaa’s liquor policy. Was there an urgency justifying a dramatic midnight arrest? A question that was not and probably will not be raised in the current parochial scheme of things where sedition has become synonymous with criticism.
Sedition is the creation and legacy of colonialism. It was crafted to throttle dissent and rebellion of the subjects against the Crown. Now, it merely stands in guard of majoritarianism, a weapon in the hands of zealots peddling their political agenda. It should not find space in a “mature” democracy. While one can wait for the Legislature or a higher bench to deliberate on the purpose of this colonial vestige, the least that could have been done was to curb the misapplication of the law by instituting procedural safeguards before arrests, an opportunity that the Apex Court lost by merely leaning on Kedar Nath, without reflecting on the prevalent reality of its abuse.
It is rather ironic that the United Kingdom repealed its sedition law in 2009, for being obsolete in a democratic state, but we, a former colony and the world’s largest democracy, continue to brandish it in the face of our own constitutional freedom of expression. But the Courts have spoken and the Legislature has chosen to silently preserve this tool of oppression by a paranoid state, chilling the freedom of expression, including dissenting opinions of its citizens.
*Pallavi is a Legal Consultant with Common Cause.