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In light of the spike in sedition cases under the section 124A of the Indian Penal Code since 2014 for the mere expression of dissent against the union government, KULDIP SHARMA, former Director-General, Bureau of Police Research and Development, explains that prudence, as well as legislative intent behind India's criminal law framework, dictates that instead of rushing to file FIRs on charges of sedition under the Penal Code, police must avail of section 108 of the Criminal Procedure Code which allows it to take security for good behaviour from persons disseminating seditious material. He illustrates his point by taking us through the prosecution of Bal Gangadhar Tilak for sedition in 1916. Though twice prosecuted and convicted for sedition earlier, on the third occasion, the British colonial State deliberated whether to criminally prosecute him under section 124A of the Penal Code (sedition) or to proceed against him under section 108 of the Criminal Procedure Code (security for good behaviour), before choosing the latter.
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THE mainstays of criminal jurisdiction in India even today are the Indian Penal Code (IPC) enacted in 1860, the Code of Criminal Procedure (CrPC) first enacted in 1861 (before being replaced by the current version in 1973), and the Indian Evidence Act enacted in 1872. It is clear that the experiences of the British colonial government in suppressing popular rebellions, dealing with the revolt of 1857, the attendant atrocities, and the objective of perpetuating their rule, came to be reflected in these enactments.
The provision regarding sedition was not contained in the original IPC. It was introduced in 1870 when Section 124A, under the headnote, 'Exciting Disaffection' was made part of Chapter VI of the Code, which deals with offences against the state. Section 124A was subsequently amended in 1898. The new section differed from the repealed section in three ways:
1. In the repealed section, the offence consisted of exciting or attempting to excite feelings of 'disaffection'. In the present section, in addition to this, the feeling of 'hatred' or 'contempt' was made punishable.
2. In the old section, the object of the feeling was 'the Government established by law in British India'. In the new section, in addition to this 'Her Majesty' is also made the object of such feeling.
3. The offence under the old section was designated 'Exciting Disaffection' by its headnote. Under the new one, it is called 'Sedition'.
A well-known example of the early use of the sedition law is the trial of the nationalist, independence activist and teacher Bal Gangadhar Tilak in 1897. He was charged with sedition for exciting disaffection through an article he published in the Kesari. The Lokmanya was sentenced to imprisonment for twelve months. He had refuted the charge that the propagation of the Shivaji festival or his support for the Ganesh celebration had an anti-Muslim slant. According to him, these festivals gave the masses a sense of belonging and evoked in them a pride in their heritage.
His ordeal did not come to an end there. In 1908, for writing in favour of the Bengal revolutionaries, he was sentenced, again for sedition, to six years of transportation and banished to Mandalay in Burma.
Lesser known is the fact that, because of speeches delivered by Tilak in Marathi under the auspices of the Historical Research Society at Belgaum on 1st May and later at Ahmednagar on 31st May and 1st June 1916 on the subject of Home Rule, it was proposed to prosecute him for sedition for the third time. Eventually, proceedings were initiated against him under Section 108 of the then CrPC instead.
In his speech, Tilak sought to make a distinction between the King and those who carried out the administration in his name: "… those who are now servants, the State Secretary, Viceroy, Governor, below him the Collector, the Patil and lastly the police sepoy". He asked the audience that if the State Secretary or the Collector is not wanted and there is a demand to bring another, would that amount to sedition? He proceeded to say that the same principle that applies to the police sepoy also applies to the State Secretary. As all are servants of the King, it would not amount to sedition if one demands the removal of the Viceroy or the State Secretary.
Tilak then spoke about swarajya, or home rule. He mentioned that during East India Company's rule in India, all matters were carried out on commercial principles. The company's directors were in England, and their policy was to derive as much profit as possible. People's welfare was never considered, he said. He went on to add that now there is a King, and we are his subjects, it is his duty to rule for the good of the people. Although in 1858 the administration of India was taken over by the British Crown, nothing really changed for Indians; despite the then Queen's exhortations, her minions in India found it profitable to act with the same objective as during the Company's rule. Tilak concluded that there was no difference between the quality of administration then and now.
Tilak questioned the British theory that Indians are not fit to rule for themselves and suggested that this was being propagated only for ensuring perpetual slavery of the people they had colonised. He said that the King of England is our emperor and therefore the dignity and the rights that he accords to his people in England must be accorded to Indians as well. Explaining the meaning of home rule, he clarified that he was not asking for the King to be changed. All that he was asking was for a change in the administration, which rightfully belonged to the people of India. He then proceeded to explain that the objective of the civil servants was to delude the people to perpetuate their hegemony over India. He exhorted the people not to be deceived by the same but speak resolutely and demand what was theirs. He explained that this can be done without resorting to unlawful means.
James Adolphus Guider was the Deputy Inspector-General of Police, Crime Investigation Department, Poona at that time. He had deputed Police Sub-Inspectors Somnath Deshpande and Trimback Datre, both of whom knew shorthand, to cover Tilaks's visits to Belgaum. Sitting four to five paces away, the latter had taken down verbatim the speech delivered. He was also present during the lecture delivered by the Lokmanya at Ahmednagar on both days. All three speeches were translated into English and submitted to the Provincial Government at Bombay.
These were first examined by the Remembrancer of Legal Affairs, who after noting that the offence of sedition consists of an attitude taken towards the existing system of the Government in India and is contrasted with an attitude towards any particular measures of that government, proceeded to record his opinion on 25th June 1916. Tilak, he advised, advocates the employment of constitutional means such as a petition to Parliament, for effecting the change, and insists that in view of this, the Home Rule Agitation is not seditious. In response to this, the law officer wrote that his speeches were full of statements and innuendoes that were well-calculated to excite hatred, contempt and disaffection against the British Government in India. He, therefore, opined that the speeches contained sufficient evidence for prosecution under section 124 A of the IPC or proceedings under Section 108 of the then CrPC.
On receipt of the above opinion, the Governor in Council considered the desirability of prosecuting Tilak under Section 124A IPC either at Belgaum or Ahmednagar. There were, however, objections to either course. The worst speech, it was perceived, was delivered at Belgaum but at that place, similar cases had recently been withdrawn and therefore the institution of proceedings there might have invited adverse criticism. The trial at Ahmednagar was also not considered expedient as it was doubtful how far the speech made at Belgaum could be admitted in evidence over there. It was therefore decided to obtain the opinion of the Advocate General. The latter opined that all the three speeches rendered at Belgaum and Ahmednagar contain passages that fall within the ambit of Section 124A and that they constitute attempts to bring into hatred or contempt or excite disaffection towards the Government in British India.
Also read: Sedition Law: State of Permanent Emergency?
The matter was again considered by the Governor in Council. Although both the Law Officers had opined that there was a reasonable chance of succeeding for prosecution under Section 124A of the IPC, the provincial government preferred proceedings under Section 108 of the then CrPC. The logic for this course of action was that the process would be simpler, the case would be heard in Pune and all three speeches could be put in evidence. Further, as recorded by E. C. Jukes, Acting Secretary, Judicial Department, Government of Bombay, this course of action would show "… that government were not actuated by a vindictive motive and were unwilling to place any restraint upon Tilak's liberty…".
One member of the Governor's Council recorded a note of dissent. This was Sir Mahadev Chaubal who, at one time, had also served as Acting Chief Justice of Bombay High Court. While agreeing that the speech contained some rabid and violent utterances, he was doubtful whether such expressions would weigh with the jury, as against the main objective of the speeches, which was the formation of the Home Rule League to which the people can subscribe, so as to place an organised demand before the British Parliament for self-government. According to Chaubal, a trial would drag on for several days at the end of which Tilak, though convicted of sedition, would emerge a martyr.
So, it came to be that the Government conveyed its decision to proceed against Tilak under Section 108 of the then CrPC, which provides for taking security for good behaviour from persons disseminating seditious matters. The power for the same is vested in the executive magistracy as distinguished from the judicial magistracy.
Accordingly, Guider appeared before the Court of the District Magistrate, Poona on 22nd July and filed the matter. He asked that a substantial surety of Rs. 50,000 be taken for a period of one year. He described Tilak as a man of considerable influence having wealthy friends. When the matter was next taken up Mohammad Ali Jinnah, Bar-at-law appeared for the Lokmanya.
The District Magistrate of Poona was G.W. Hatch. Three prosecution witnesses were examined by Binning, the Public Prosecutor, those being the two police officers who covered and recorded verbatim Tilak's speeches and the Government Translator, one Anant Krishna Thakur, employed in the office of the Oriental Translator to the Government.
Since the speech was delivered in Marathi and Tilak had used several idioms colloquially, Jinnah, during cross-examination, dwelled on words like adhikari varg (official class), dhurt (rogue), ghulamgiri (slavery), and raj vyavastha (administration). He argued that the speeches should be taken as a whole, freely and fairly, without giving undue weightage to isolated passages. He contended that Tilak's only purpose was to defend the Home Rule League and that Binning's suggestion that this was used as a cloak for libelling the Government was misplaced. Jinnah said that Tilak's point was that civil servants had got a monopoly over power and such a system was not beneficial for the country; he only asked for an amendment to the present law, and that too through the Parliament.
Jinnah cross-examined all the three witnesses. He dealt extensively with the statements made by Tilak and argued that he was not trying to bring the government into contempt or ridicule or excite disaffection. On the contrary, the only object was to secure a change in the system by which the bureaucracy controls the whole of India's internal affairs. It is not only the white bureaucrat that he abhorred but the system as a whole.
Tilak was subtle and flexible, a consummate politician and yet highly principled. Not unnaturally, the British were malignantly hostile towards him. On being questioned by the District Magistrate regarding his objective of delivering the lectures, he replied that it was his intention to defend and explain Home Rule and point out the best way of obtaining it. His two previous convictions did not help his case. Citing the same, despite objections from Jinnah, the District Magistrate, on 12 August 1916, ordered him to execute a bond with two sureties in the sum of Rs. 20,000 each, for maintaining good behaviour.
The Lokmanya preferred an appeal before the Bombay High Court. It was heard by a bench consisting of Justices Sir Stanley Batchelor and Sir Lallubhai Shah. Both jurists wrote concurring but separate judgements. Jinnah appeared for the Lokmanya in the High Court as well, while the Advocate General appeared for the State.
The Court admitted that no question of law was involved, and that the only question was whether the effect of the speeches was seditious or not within the meaning of Section 124 A of the IPC. They did find objectionable the description of the British government as an alien government looking merely towards its own interests, as the passage did not occupy an especially prominent place in the address and would not, in their view, impress the audience so as to overwrite the general effect of the speech.
Also read: Now, Mere Disagreement is Sedition
Although the Court rejected the argument put forward by Jinnah that the King's officers in India are not part of the Government established by law, it held that it was not disaffection to represent them as actuated throughout by the lowest possible motives. Speeches must be read as a whole, and a fair construction must be put on them, straining neither for the Crown nor for the applicant, and paying more attention to the whole general effect than to any isolated words or passages.
The court went on to say that it was reasonably clear that in contending for swarajya, Tilak's object was to obtain for Indians increased share of political authority and to subject the administration of the country to the control of the people of India. The advocacy of such an object, the Court observed, was not per se an infringement of the law.
The Court further observed, that having read the speeches, they were of the view that their intention was to be gathered primarily from the language used, and on reading them, whether they excite the feelings of hatred or disaffection towards the government. Speeches should be read "in a fair, free and liberal spirit", and one should not pause upon an objectionable sentence here or a strong word there; the same should be dealt with "in the spirit of freedom" and not viewed "with an eye of narrow criticism".
On 9th November 1916, the Bombay High Court set aside the order of the District Magistrate, Poona directing that the bonds, if executed, must be discharged. The same day a telegram was sent by the Government of Bombay to the Government of India conveying the decision of the Bombay High Court. Seven days later, after examining the judgement, the Remembrancer of Legal Affairs opined that the order of the High Court was based on consideration of the evidence, that there was no question of procedure or even of law involved and that the principles of natural justice had not been violated. He recommended that there were no grounds for making an application for review before the Privy Council.
There was much consternation in the Government circles by this development. A copy of the judgement along with all the papers was sent to the Viceroy's office. These were first examined by the Director, Criminal Intelligence, Sir Reginald Craddock, who described the results as mischievous. He opined that the High Court should not have lightly interfered with the discretion of the District Magistrate in taking security.
The Home Member, G. R. Lowndes, on the other hand, was unambiguous. He noted that there was little in the judgements that were open to criticism. He agreed that the result of the proceedings was no doubt unfortunate and that it would have been wiser not to have initiated them at all.
The above chronicle brings out vividly the complete application of mind, at every stage of the proceedings, on part of the authorities and the way a matter of sedition was dealt with by the dramatis personae, whether in the judiciary or the government. Most importantly there is a lesson here for police officers who rush to file sedition cases against citizens questioning government measures without perhaps understanding the history, the purpose, or the meaning of this provision, and without bothering, in lieu, to even consider proceedings under Section 108 of the present CrPC (similar to Section 108 in the previous CrPC), which is to obtain security for good behaviour.
(Kuldip Sharma is a retired Indian Police Service officer and a former Director-General of the Bureau of Police Research and Development. The views expressed are personal.)
