The recent controversial arrest of Jawaharlal Nehru University Students’ Union President Kanhaiya Kumar, on charges of sedition, has sparked an international uproar. Thousands of JNU students and faculty have taken to the streets to protest the arrest of Kumar and his colleagues for their alleged use of “anti-national slogans” during a peaceful protest, during which some protestors used inflammatory language.
The arrest is a point of political contention between the government and the opposition. BJP activists accuse those who stand in Kumar’s defence as being anti-Indian. Opposition leaders point to the developments at JNU as yet another example of the BJP’s persistent policies of intolerance and political persecution of those who disagree with them.
The great irony is that Jawaharlal Nehru, whose name adorns the university, would have probably disapproved of the sedition charges against Kumar. He had considered the sedition law “objectionable and obnoxious”.
An Obsolete Law
The sedition law is better known to lawyers as Section 124A of the Indian Penal Code. Section 124A originates from Britain’s 19th-century colonial oppression; it was written explicitly to enable the Empire to silence dissent against the Crown. Essentially, Section 124A prohibits any action that attempts to bring about “disaffection” or “contempt” towards the government. It was crafted with the intent of protecting British colonial interests from the criticism of Indian nationalists, who sought to assert their right to freedom. The early victims of 124A were heroes of the Independence movement: Bal Gangadhar Tilak, Annie Besant, and Mahatma Gandhi.
Legal systems in other democracies have mostly abandoned this 19th century conceptualisation of sedition law in the interests of protecting fundamental rights to freedom of speech. Globally, most democracies have restricted the applicability of sedition charges to cases where the accused have acted with the immediate interest of spawning violent action.
The United States Supreme Court, in the landmark case Brandenburg v. Ohio (1969), ruled that the government cannot seek legal reprimand against speech unless it seeks to incite “immediate and likely lawless action.” The “immediate and likely lawless action” standard has since become a fixture in democratic practice around the globe.
The British government, the drafters of India’s sedition law, have gone a step further by abolishing the law entirely in 2009.
Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy and the ability of individuals to criticise the state is crucial to maintaining that freedom.Claire Ward, UK’s Justice Minister in 2009
In fact
Ward went on to admit that “the existence of these obsolete offences in this
country has been used by other countries as justification for the retention of
similar laws which have been actively used to suppress political dissent and
restrict press freedom.” In the light of the JNU events, her words seem eerily
prescient.
Burden of an Outdated Law
- Sedition law – in existence since the 19th-century when it was explicitly used by the Empire to
silence dissent against the Crown.
- Most democracies have restricted the applicability of sedition charges in cases
related to violent action.
- Use of the sedition law at JNU is hardly an isolated instance; state governments have resorted
to it with alarming frequency.
- It is
fundamental that we are not hamstrung by colonial laws that have the effect of
encouraging intolerance.
Sedition Law Liable to Misuse
Though India has outgrown British colonialism, it remains trapped by the legacy of colonial law, from Section 377 to Section 124A. Nearly 70 years after independence, sedition remains liable to misuse in India. Section 124A lacks clarity and defines sedition as being an immediate and likely incitement to lawless action. This allows sedition charges under 124A to be used as a political instrument to harass journalists, activists, and politicians. While the Indian Supreme Court has restricted Section 124A to instances aligned with the spirit of the standard put forth in Brandenberg v. Ohio, lower courts mostly ignore these rulings.
The result has been continued misapplication of sedition law for political purposes. The use of sedition at JNU is hardly an isolated instance; state governments have resorted to it with alarming frequency. The targets of the sedition law in recent years have included author Arundhati Roy, due to her comments about Kashmir; cartoonist Aseem Trivedi, for his publishing satirical cartoons condemning corruption; a group of Kashmiri students, for cheering Pakistan during a cricket match; and a Tamil folk singer, for satirising Tamil Nadu Chief Minister Jayalalithaa. An immediate and likely incitement of violence seems, to put it mildly, far-fetched in these cases, and is an anachronistic throwback to the colonial-era rejection of democratic dissent.
Need to Amend Section 124A
I have introduced an amendment of Section 124A in the Lok Sabha, as a private member’s bill of Parliament. News of it was drowned out by the media commotion over the rejection, at the same time, of my bill to amend Section 377. But this one was actually introduced without opposition.
My amendment seeks to update the antiquated Section 124A by redefining “sedition” to only include words and actions that directly seek to incite violence, updating Section 124A to match global legal standards and removing the ambiguity that perpetuates its misuse.
The amendment ensures that the Indian Penal Code will respect freedom of speech and still, of course, punish calls to violence that could threaten national security.
My amendment is about the preservation of democracy, not partisan politics. It would prevent misuse of sedition charges by governments of any political persuasion. The targets of sedition cases are not the only victims; the misuse of sedition law to quell dissent harms us all by undermining the spirit of Indian democracy, which relies on its ability to accommodate and integrate a plurality of voices in the country’s governance. Extinguishing disagreement is antithetical to the public reasoning and deliberation that, as Amartya Sen has pointed out, is fundamental to the survival and success of India’s robust democracy.
Getting Rid of Colonial Era Laws
Governance of India is an exercise in reconciling a wide variety of differences of caste, creed, and conviction. It is fundamental that we are not hamstrung by colonial laws that have the effect of encouraging intolerance of opposing viewpoints. I hope that the Lok Sabha will soon discuss my amendment, in the national interest. The Parliament has a solemn duty to uphold the legacy of the architects of India’s freedom, who saw oppression in the guise of the sedition law as inherently undemocratic. The passage of my amendment to Section 124A will be a strong statement to this effect.
Allowing the continued misuse of Section 124A is to permit the undermining of Indian democracy, now and in the future. Removing one more remnant of India’s unjust colonial history may come too late for JNU’s Kumar. But for India, and Indian democracy, the time to amend the sedition law is now.
(Former UN under-secretary-general, Shashi Tharoor is a Congress MP and author.)
The author acknowledges with gratitude the invaluable assistance of Adam Joseph and Sonakshi Kapoor in the preparation of this article.
Also read:
JNU Under Siege: Guilty of Sedition or Victims of Persecution?
I Am a Student of JNU, I Am NOT a Jihadi John
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