Sedition Law A Relic of the Past, But Can’t be Repealed At Will

Public outcry can’t be a reason to repeal the sedition law, writes Nandita Saikia.

(Photo: TheQuint/LijumolJoseph)

The law against sedition has once again come into focus with an FIR being registered against the human rights group Amnesty International India by the student group ABVP. The complaint is said to be in relation to the making of allegedly anti-national statements at an event organised in Bangalore by Amnesty to highlight human rights concerns in Kashmir.

Amnesty, unsurprisingly, appears to have denied the allegations against it, and the issue is currently being investigated by the police according to reports. Considering that the facts are far from clear, it would be inappropriate to comment on the rights and wrongs of this specific episode – all that one would have at one’s disposal to do so is speculation and prejudice.

That said, what is of concern is that sedition has, in recent years, repeatedly made the news for supposedly having been misused. Each time this has happened, there almost seems to have been reams written against the law of sedition which was introduced in 1870 by the British with the blithe and breezy argument being:

It is a colonial law, once used to suppress Indian moves towards independence, which deserves to be scrapped especially in light of its allegedly rampant misuse. Unfortunately, this particular argument is not supported by historical fact regarding the law’s genesis, nor is it supported by empirical evidence regarding the invocation of the law.

ABVP activists stage a demonstration against Amnesty International India in New Delhi on 17 August 2016. (Photo: IANS)

Relic of Colonial Past

Sedition could, in essence, be considered to be speech which defames the state and for which one could be held criminally liable even if the speech is truthful.

It is undoubtedly a limitation on free speech which is not explicitly listed in Article 19(2) of the Constitution as one of the grounds on which laws limiting free speech may be deemed legitimate. Nonetheless, Section 124A of the Indian Penal Code (which defines the offence of sedition in terms far more specific and narrow than mere ‘defamation of the state’) has been held to be constitutional.

The offence was considered by Thomas Macaulay when he drafted the IPC although it did not make an appearance in his 1860 version of the statute. Instead, sedition finally appeared as IPC Section 124A in 1870, as legal researcher Siddharth Narrain has pointed out, to counter Wahabi activities that challenged the colonial government.

The first version of the provision differentiated between ‘disaffection’ and ‘disapprobation’, and effectively decriminalised disapprobation ‘compatible with a disposition to render obedience to the lawful authority of the Government’ – in fact, it was this understanding of the law that was seen in the first known sedition case, that of Jogendra Chandra Bose, an editor who criticised the Age of Consent Bill (which raised the age of consent for sexual intercourse for girls from ten to twelve years) on socio-religious grounds.

Patidar Anamat Sanghursh Samiti leader Hardik Patel on being released from Lajpore Central Jail being welcomed by his followers in Surat on 15 July 2016. (Photo: IANS)

Tool to Suppress Anti-Govt Voice

In later colonial times, IPC Section 124A was used as a tool against Indian freedom fighters through creative interpretation of the existent law and the enactment of subsequent suppressive amendment to the provision itself.

Consequently, by the time India finally gained independence, the law of sedition as it had been applied in the country was susceptible to being used to suppress almost any activity deemed to be against the government – trials of leaders such as Bal Gangadhar Tilak and MK Gandhi during the Raj had proved this.

Despite this, early legislatures of independent India did not specifically repeal the law, and although an argument could be made that Article 13 of the Constitution has had the effect of repealing IPC Section 124A, making such an argument could well require impossible feats of interpretational legerdemain.

Repealing Sedition Law

Article 13(1) of the Constitution, among other things and in essence, states that laws which are inconsistent with fundamental rights, and which were in force in India immediately before the commencement of the Constitution, are void. However, at the time that the Constitution was framed, and immediately after, there is no possibility of credibly claiming that sedition was not considered by law makers.

And despite having been abused from the Indian point of view during the Raj, it is likewise challenging to argue that the framers of the Constitution had intended to repeal IPC Section 124A through Article 13 of the Constitution, or that there is a case for repealing the law because of historical misuse.

Preventing Indiscriminate Use

If there is a case for the repeal of Section 124A of the IPC, it is a case that must be made without superimposing historical injustices on to current circumstances and with the support of current evidence. That evidence could exist, but it does not appear to have been collated except in scant fashion through reportage of the occasional well-publicised case.

Such collation almost certainly makes the case for strengthening safeguards to prevent the possibly indiscriminate and unreasonable invocation of the law. What it does not do, in and of itself, is make for a convincing argument for the repeal of IPC Section 124A.

We have had an unfortunate history in a number of areas of seeing issues entirely in black and white, and of proposing policy based on rhetoric rather than on evidence. Doing so has not served us well, and it would appear that the time has come to change this.

There is little doubt that the world we live in is volatile, to say the least, and what we likely need is not knee jerk reactions to perceived problems, but clearly thought-out solutions on the basis of sound study and empirical evidence. So far, there is a clear lack of convincing evidence that what is required is the repeal of IPC Section 124A.

(The writer is a Delhi-based media and technology lawyer. She can be reached at @nsaikia)

Also read:
Sedition Crimes First Recorded After BJP Rose to Power in 2014
Sedition, Really? A Panelist At the Amnesty Debate Speaks Up