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Amend sedition law to check its misuse

Singing from the same songbook is not a benchmark of patriotism in a democracy.

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Ayush Sarna
Assistant Advocate General, Punjab

Singing from the same songbook is not a benchmark of patriotism in a democracy. People should be at liberty to show their affection towards their country of their own free will. This is what the Law Commission said in its Consultation Paper released in 2018. It implies that dissent is the lifeblood of democracy, which has no meaning without freedom.

However, there has been a disturbing trend in recent times, wherein misguided people or dissenting opinions have been termed as ‘anti-national’. A Bihar court recently directed the filing of an FIR under Section 124-A (sedition) of the IPC and other charges against 49 eminent persons who had expressed concern over lynching incidents in an open letter to the Prime Minister (the charges were later dropped). 

Section 124-A says, “Whoever by words, either spoken or written, or by signs or by visible representations or otherwise, brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law in India, shall be punished for sedition.”

The law on sedition is a hangover from India’s colonial past. Its origin lies in 17th-century England, where it was deemed necessary to protect the monarchy and protect the country from instability. It was inserted in the Indian Penal Code (IPC) in 1870 as Section 124-A. This provision was first used on Bal Gangadhar Tilak in 1897, then on Gandhi (for writing an article in Young India) and on other freedom fighters, such as Bhagat Singh, who were prosecuted under this provision.

Ironically, the same draconian law has become a tool that the country is now using against its own people. In 2012, residents of an entire village in Kudankulam, Tamil Nadu, had sedition cases slapped against them for resisting a nuclear power project. In the same year, cartoonist Aseem Trivedi was booked for sedition for a cartoon that highlighted corruption. In 2014, these charges were slapped against students in Meerut for supporting Pakistan during a cricket match. In the same year, adivasis of Jharkhand, who were resisting displacement, were slapped with sedition charges. Kanhaiya Kumar was charged with sedition for allegedly inciting people to shout ‘Bharat tere tukde honge.’

Going through the numbers that the National Crime Records Bureau (NCRB) puts out every year, it is clear that despite the rise in sedition cases, conviction happens in barely a few cases. It implies that due to the broad scope and vague terms like ‘hatred’, ‘contempt’ and ‘disaffection’, this sedition law is open to different interpretations and is being increasingly used to stifle criticism and dissent that goes against what the state perceives as nationalism or patriotism and also on political opponents of the government. 

This puts a chilling effect on democracy by violating Articles 19 and 21, which talk about the right to free speech and the right to have a decent life. The continuance of this disturbing trend of putting sedition charges on dissenting opinion might result in people getting swayed towards Naxalism, insurgency and terrorist activities and away from democratic beliefs.

The conundrum arises as the constitutional validity of the sedition law was upheld by the Supreme Court (SC) in Kedar Nath vs State of Bihar (1962), with the condition that the sedition Section can be invoked only in cases of public disorder or disturbance of public peace and actual incitement to violence. In Balwant Singh vs State of Punjab (1995), the SC said that raising some slogan (e.g. ‘Khalistan Zindabad’), which neither evoked any response nor any reaction from the public, could not attract such punishment. Though with these liberal judgments, the sedition law has been watered down, misuse of this provision has become the law of land.

Being a colonial era relic which even the UK has repealed, the sedition law in its present form has absolutely no place in a modern democracy where power ultimately rests with the people, who must ask questions and criticise, as a method to ensuring accountability. Any constructive criticism of the government should be welcomed to uphold the very fabric of democracy. All speech-related offences should be made bailable offences. It would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising his right of speech and expression under Article 19(1)(a).

This sedition law, as interpreted by the SC, needs to be applied with caution. Only then can it act as a bulwark around the integrity of the nation and discourage elements which seek to incite violence to cause public disorder and overthrow an elected government. In balancing free speech with ensuring the security of the nation, this provision must be replaced with a set of laws specifying what stands for sedition, leaving no scope for misinterpretation by the authorities susceptible to political pressures.

This will go a long way in ensuring that a clear distinction is made between a ‘cartoonist’ drawing a cartoon and a ‘terrorist’ plotting against the Indian state. Clearly, the law on sedition is like a cannon that ought not to be used to shoot a mouse, but the arsenal also demands the possession of the cannon, mostly as a deterrent, and occasionally for shooting.

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