Non-violent speech and the violent State: Understanding ‘Sedition’ in India

[dropcap]T[/dropcap]he most recent arrests and raids at the homes of eminent academics and activists, has only added to the discourse surrounding the government and its dissenting citizens. Activists like Sudha Bharadwaj, Gautam Navlakha, Varavara Rao, and others all are facing petitions before the court to adjudicate whether they may be accused of being "inappropriate" in their public opinions, even though the charge of "sedition" has not been slapped on them, as yet. However, sedition has had centre-stage in Indian political discourse for a while now — with people from diverse backgrounds, such as JNU students, Congress politician Navjot Singh Sidhu and even Koodankulam anti-nuclear protesters (in 2012) all inviting the charge of sedition, which reads as follows:

124A. Sedition.—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, ¹⁰² [***] the Government estab­lished by law in ¹⁰³ [India], [***] shall be punished with ¹⁰⁴ [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. Explanation 1.—The expression "disaffection" includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. 

Photo Credit: The Nation

Recent cases of Sedition in India 

The cases of sedition, slapped under Section 124A of the Indian Penal Code, have been on an incremental rise in contemporary India, especially under the current regime run by the BJP. The spectacle surrounding the politics of student groups in public institutions such as Ramjas College, Delhi University and Jawaharlal Nehru University have captured the imagination of Indians in the constructions of the "anti-national" subject. While these protests began in 2016, the movement has faced severe crackdown by the State bureaucracy, including indiscriminate police arrests, water cannoning and tear-gassing of all those present.

In March 2017, before the appointment of BJP leader and Union minister M Venkaiah Naidu as the current Vice President of India, he criticised the student protests against ABVP — the student wing of the RSS, affiliated to the ruling BJP — as being a product of political manipulation by the Congress and the Left. He categorised former JNUSU president Kanhaiya Kumar's azadi speech (see video) as treason, by stating that, "The slogan of azadi is always followed by violence. These people, whether in Bastar or Jammu and Kashmir, always take to the gun. That is the next course. Their slogans will be followed by violence." Naidu was keen in this backdrop to revamp the sedition law towards greater stringency.

https://www.youtube.com/watch?v=5qviGF5y0mM

Not only are those with alternative political opinions being persecuted for their disaffection against the current government, but also, minorities are becoming increasingly vulnerable. In July 2017, a Muslim man was arrested at Chennai airport by the Air Intelligence Unit of the customs department on seditious grounds. The accusations were based on an audio message received by him that suggested the congregation of Muslims to protest denigrations of the Quran. Despite the absence of any details of the gathering, or indications of violence, Tadikala Akbar Saleem was arrested.

The dangers of such rhetoric have created the intangible fears and branding of institutions like JNU as academically deficient, or fundamentally anti-administration in their approach. However, the more tangible dangers are of jingoist vigilantism, evident from the recent shooting attack on JNU student leader Umar Khalid, and the murder of senior journalist and activist Gauri Lankesh last year.

Whereas her assailants attacked Lankesh right outside her home in Bengaluru, Khalid was fired at in front of the Constitution Club of India. While Lankesh's killer have been traced to those with Hindutva ideologies, in case of the assault on Umar Khalid's life, the Delhi Police nabbed the duo, which proudly circulated their identity for attacking Khalid as an "Independence Day gift". The laxity by the state machinery has set precedent in favor of "ideal citizens" who are awarded requisite rights and protections, while the rest are disregarded for their differences from the prototype. This becomes necessary to realise that the location of the "violent" is misplaced, i.e. both Lankesh and Khalid had requested state protection, and an ignorance of their requests have led to their persecution.

A case of sedition was filed against former cricketer and Punjab minister Navjot Singh Sidhu on August 20, 2018 for hugging the Pakistan Army Chief General Qamar Javed Bajwa during his visit to Pakistan. The petitioner in the case is lawyer Sudhir Kumar Ojha, who filed the case in a claim that was driven by the fact that Sidhu's gesture hurt the people of the country.

Sidhu was severely criticised by several political leaders for the hug that took place at current Prime Minister of Pakistan, Imran Khan's swearing-in ceremony. The primary grounds for complaint by Ojha accuse Sidhu of disrespecting the family of martyred Indian soldiers, who were beheaded at the instance of the General. He stated that the mere visit to Pakistan was in contravention to the nation's mourning of former prime minister Atal Bihari Vajpayee's death. Sidhu's defence of the hug was an "emotional response" due to the recent permissibility of Sikh pilgrims in the Katarpur shrine in Pakistan.

Sedition law: A colonial residue

Photo Credit: Rebel Politik

The government's obsession with sedition relates to its history as a colonial relic, i.e., a product of the authoritarian state, which treats members of the state as subservient subjects, rather than equivalent citizens. 

Several academics like Lawrence Liang have attributed the entire framework of free speech in India as being a residue of colonial laws. The Constituent Assembly was faced with a paradox when they had to legislate in the matter of sedition. While they understood the history of misuse of penal laws in colonial India, used to suppress free speech, they also concluded that the absolute right of free speech was not something that the Indian polity was "ready for". This dilemma has manifested itself onto the sphere of the Indian Constitution both in 19 (1) (a) as the understanding of the 'universal/ rational subject', but also 19 (2) as the qualifier, under which is the more paternalistic 'native subject', who is entitled to free speech under certain conditions.

The very idea of the need to regulate speech through regulatory measures assumes that the public sphere is susceptible to outrage and provocation, and the state has an essential role as a mediating pacifier. The right to free speech is granted only to the properly constituted citizen, i.e. not as a laterally equal right, but as something which the state holds the power to deliberate upon and bestow to those it considers fit.

Anxieties of a Postcolonial State: Sedition and the Court

Historians realise that the nascent postcolonial state was keen on sedition, due to the radical voices of the Left and the Right as being inflammatory to the success of the nation. However, early decisions pronounced by the Court such as Romesh Thapar v. State of Madras and Brij Bhushan v. State of Delhi held that the judiciary did not hold the same apprehensions as the government about the imminent implosion of the country.

The government saw the two judgments as being an erosion of the sovereignty of the State, and introduced the First Amendment, which introduced "public order" as well as "reasonable" as restrictions on free speech. The subsequent case laws introduced a wide array of inconsistent doctrinal tests to determine the contours of permissible speech, by trying to grapple the space of "public order". While a judgment has understood free speech as being seditious only if having a proximate and direct nexus with the expression, intrinsically dangerous to public interest, another has held that public order is synonymous with public peace, safety, and tranquility.

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Upendra Baxi has regarded the Court be a State ideological and coercive apparatus, which has sustained not only colonial laws like that of sedition, but also upheld against human rights based challenges to such draconian, post-Independence, neo-colonial laws. It is perhaps imperative to realize, that the Supreme Court has often offered respite in times when the other two wings of the government, i.e. the Executive and the Judiciary have been inadequate in their support. 

Law Commission's Consultation Paper on Sedition 

The Law Commission was asked to consider Section 124A of the Indian Penal Code, 1860, which deals with sedition. A Consultation Paper was released on the same to the public domain on August 30, 2018, so as to facilitate wider discussions on the topic.

The elements in the same contain the various aspects of sedition law as existing in the pre-Independence era, in international jurisdiction and the present scenario in the country. The predominant arguments against the law underline the same of being a colonial relic used to suppress dissent, and there has been an acknowledgement the Constitution provides adequate safeguards even in the absence of the same. However, those wishing for its retention argue that among growing concerns of national security, the Section is essential for the restriction on utterances threatening the same.

According to the National Crime Records Bureau, 35 cases of sedition were reported in 2016, and the response to the same by the courts have been to stress on the importance of contextualising the restrictions while ascertaining the permissibility of expression. Although the same is a colonial vestige, the Indian courts have upheld its constitutionality by attempting to strike a balance between balancing freedom of expression with collective national interest.

The suggestion of the courts in the same regard has been to try and conceptualise a possible way forward. There are ten pertinent questions that the Report state to try and ascertain the future of sedition laws in India;

1. The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain Section124A in IPC?
2. Should sedition be not redefined in a country like India – the largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?
3. Will it be worthwhile to think of an option of renaming the section with a suitable substitute for the term "sedition" and prescribe punishment accordingly?
4. What is the extent to which the citizens of our country may enjoy the "right to offend"?
5. At what point the right to "offend" would qualify as hate speech?
6. How to strike a balance between Section 124A and right to freedom of speech and expression?
7. In view of the fact that there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping section 124A in the IPC, serve any purpose?
8. Given the fact that all the existing statutes cover the various offences against the individual and / or the offences against the society, will reducing the rigour of Section 124A or repealing it be detrimental or beneficial, to the nation?
9. In a country, where contempt of Court invites penal action, should contempt against the Government established by law not invite punishment?
10. What could be the possible safeguards to ensure that Section 124A is not misused?

The above questions have been presented in the hope that there may be scope for debate and discussion among legal luminaries, lawmakers, government and non-government agencies, academia, students and above all, the general public, on the above issues, so that a public friendly amendment could be brought about.

Read the Law Commission's Consultation Paper on Sedition

[pdfviewer]https://cdn.theleaflet.in/wp-content/uploads/2018/09/CP-on-Sedition.pdf[/pdfviewer]