The colonial government made sedition a far harsher offence in India than it was in England. However, independent India made the offence far more potent than it was even during colonial rule. This must change now, writes ABHINAV CHANDRACHUD.
THE arrest of young environment activist Disha Ravi and the attempts by Delhi Police to apprehend two other activists, Nikita Jacob and Shantanu Muluk, have once again brought the law of sedition into the spotlight.
Carrying a term of life imprisonment, section 124-A, which makes it a criminal offence to foster “disaffection” against the government, was inserted into the Indian Penal Code (IPC) in 1870, during the colonial period.
The British discriminated against Indians when they introduced this provision into the statute books. Sedition was made a far harsher offence here than it was in England. However, in the 1970s, by changing the rules about when the police could arrest a person accused of sedition, the government of independent India made sedition more potent than it was even during the colonial period.
Colony as Laboratory
The IPC was enacted and brought into force in colonial India in 1860. At the time, it had no section concerning sedition. There are two theories for why sedition was not in the original text. The official version is that it was a blunder—though sedition was supposed to be in the final version of the IPC, it was left out by mistake. This is hard to believe.
On the other hand, it is quite likely that sedition was excluded from the IPC because it had virtually ceased to be an offence in England by that time. According to one 19th century British author, prosecutions for sedition in England from 1832 onwards were so rare that the offence had virtually ceased to exist.
The IPC was part of the colonial experiment of codification. There were no codes in England at that time; as the “common law” was contained in cases decided over centuries. The great Indian “codes”—the IPC, the Indian Contract Act, the Indian Evidence Act—were meant to be models for adoption in England.
India, the colony, was used by the followers of Jeremy Bentham as a laboratory for England. In all likelihood, it is for this reason that sedition was left out of the IPC—the draftsmen probably hoped that this would soon be used as a template for an English Penal Code.
When sedition was finally inserted into the IPC in 1870, it had the ill odour of colonial discrimination about it. Englishmen who were accused of sedition back home were entitled to be tried by a jury of their peers. These juries tended to be sympathetic towards their countrymen and it was, therefore, difficult to secure a prosecution for sedition.
By contrast, in the colony, Indian patriots accused of sedition were tried not by a jury of their peers, but by a racially stacked jury, consisting of a majority of white jurors. So, for instance, Bal Gangadhar Tilak was found guilty of the crime of sedition by a jury composed of nine members, with the six white jurors voting against Tilak, and three Indian jurors voting in his favor.
Since around 1832, the offence of sedition in England penalised only those who attempted to incite violence against the government or encouraged others to take up arms against the government. In R v. Sullivan (1868), Justice Fitzgerald famously said that the “very tendency of sedition is to incite the people to insurrection and rebellion”.
However, in India, even those who did not incite violence against the government could be found guilty of sedition if they got their listeners to entertain feelings of mere disloyalty towards the government. As Justice Arthur Strachey of the Bombay High Court famously told the jury in Tilak’s case, sedition in India means the “absence of affection” towards the government. This was not the law of England since 1832. It was perhaps for this reason that Gandhi referred to sedition as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.
Going by Strachey’s definition, since nearly any anti-colonial leader could be accused of generating “disaffection” against the colonial government, sedition was, in Gandhi’s words, like the “sword of Damocles”, forever hanging over the freedom movement.
It took many years for the definition of sedition to change in India. In the Federal Court in 1942, Chief Justice Maurice Gwyer explained that the offence of sedition was not meant to “minister to the wounded vanity of governments”. Even “vulgar abuse”, he said, was not sedition, as it was the “stock in trade of the demagogue”.
However, Gwyer was soon overruled by the Privy Council in London in 1947. Eventually, it was the Supreme Court of independent India which, in Kedar Nath Singh v. State of Bihar (1962), brought the definition of sedition in line with what it was in England since 1832.
In England, sedition was considered a “misdemeanor” as opposed to a “felony”, which made it a relatively insignificant offence. In England, sedition attracted a maximum punishment of only two years in prison. It was also what we would now refer to as a “bailable” and “non-cognizable” offence.
A bailable offence is one in which the police are duty-bound to immediately release an arrested person on bail. In a non-cognizable offence the police cannot investigate the case or arrest a person without a warrant from a magistrate.
By contrast, in India, sedition attracted a whopping punishment of transportation for life in colonial times. The British also made it a “non-bailable” offence in India, which meant that those who were arrested for sedition had to file a bail application before a magistrate who could either allow or refuse that application at his discretion.
A Self-Inflicted Wound
To their credit, the British colonial government made sedition a non-cognizable offence in colonial India, as it was in England. In other words, when leaders like Tilak and Gandhi were accused of sedition, the police could not arrest them or investigate the case without first obtaining a warrant from a magistrate.
This position changed in independent India during the regime of former prime minister late Indira Gandhi. In the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonial-era 1898 Code of Criminal Procedure, sedition was made a cognizable offence for the first time in India’s history. In other words, the police now have the power to arrest a person accused of sedition without a warrant from a magistrate. We have inflicted this wound upon ourselves in independent India.
In 2009, the offence of sedition was formally abolished in England, though prosecutions for sedition were scarce there since 1832. There is, therefore, no good reason why this colonial relic should continue to exist in India. However, even if our national leaders believe that there is still some merit in retaining sedition on our IPC, they should seriously consider bringing the offence of sedition here in line with the English law of sedition since 1832.
In other words, Indian lawmakers should reduce the maximum sentence for sedition from life imprisonment to two years’ imprisonment. They should make the offence of sedition bailable and non-cognizable as it was in 19th century England. The Supreme Court’s definition of sedition in Kedar Nath Singh’s case should also be inserted into section 124A so that a police officer who reads the text of the IPC, without any commentary, can understand that sedition no longer means merely exciting “disaffection” against the government.
(Abhinav Chandrachud is an advocate at the Bombay High Court and the author of “Republic of Rhetoric: Free Speech and the Constitution of India” published by Penguin in 2017. The views expressed are personal.)