It’s Groundhog Day – the Sedition Edition.
At a rally in Kanpur on 22 January, Uttar Pradesh Chief Minister Yogi Adityanath warned those protesting against the controversial Citizenship Amendment Act (CAA) that if they raise slogans of ‘Azadi’, this would lead to sedition cases against them.
“I want to say that if in the name of protest, anyone raises slogans of ‘azadi’ like in Kashmir, then it would be considered an act of sedition, and the government will take very strict action. It can’t be accepted. People cannot be allowed to conspire against India from Indian soil.”Yogi Adityanath, UP CM
This is not the first time a public official has come out to say that raising slogans can get you booked under the draconian, colonial Section 124A of the IPC. From the whole JNU row to more recent comments by the ADG of Meerut, who admitted to arrests of people raising ‘Pakistan Zindabad’ slogans, it seems like it is only a matter of weeks before such a claim is made.
And just like the claims made previously, this one is also incorrect when it comes to the law.
This is because there are years – no, decades – of Supreme Court precedent that should make this clear by now.
What is Needed to Establish a Charge of Sedition?
Section 124A of the Indian Penal Code punishes those who attempt to cause hatred, contempt, or disaffection towards the “Government established by law in India”. However, this is not a charge that is supposed to be bandied about carelessly for mere criticism.
In the landmark Kedar Nath Singh judgment in 1962, a Constitution Bench of the Supreme Court noted that Section 124A had been worded in such a way as to “indicate clearly that strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section.” (emphasis supplied)
The judges clarified that for speech to become seditious, it needed to incite “public disorder by acts of violence”. They reiterated this several times, making it clear that without a connection to some form of violent public disorder, the offence of sedition would not be attracted.
The reason for this is important to understand.
Article 19(1)(a) of the Constitution recognises the fundamental right to freedom of speech and expression of every citizen of this country. This fundamental right can only be restricted – using criminal laws, for instance – in accordance with Article 19(2), which sets out the “reasonable restrictions” which are permitted.
Under Article 19(2), a law can impose reasonable restrictions on the right to freedom of speech in the interests of:
- The sovereignty and integrity of India;
- The security of the State;
- Friendly relations with foreign States;
- Public order;
- Decency or morality;
- Contempt of court, defamation or incitement to an offence.
The speech in question has to rise to the level of one of the grounds permitted in Article 19(2), otherwise it is unconstitutional.
Sedition is not one of the grounds under which freedom of speech can be restricted; this was in fact a conscious decision, as previous drafts of this clause included it as such, before being removed.
For sedition to be a valid criminal offence, therefore, it had to be tied in to one of the other grounds specified in Article 19(2) – hence the interpretation settled on by the Supreme Court in the Kedar Nath case, which tied it to public order, which in turn needs an incitement to violence or actual violence.
It’s important to note that the judgment expressly rejected a formalistic, literal interpretation of Section 124A which would allow even the chanting of slogans which seem anti-government without inciting violence to be a criminal offence, which was how the courts during the colonial era had viewed it. It is quite ironic that a nationalist like Adityanath would seek to espouse such a view on what would be seditious.
The threshold for sedition laid down in the Kedar Nath judgment remains in force and has been upheld in numerous cases, like the 2011 Arup Bhuyan case. In the Section 66A judgment in 2015, which also affirmed the need for a link between violence and the speech, the Supreme Court drew a distinction between advocacy and incitement.
It is also important to note that this must be an imminent incitement to violence, not some vague idea of a revolution in the future, or a need for societal reform.
Lest anyone suggest that instead of using Section 124A, the UP government could instead utilise the ‘lesser’ charge of Section 505 of the IPC, which deals with statements that amount to public mischief, the court emphasised that this was a constitutional provision because it covered incitement of actual offences as well.
Azadi = Sedition?
So would the chanting of ‘Azadi’ slogans satisfy the Kedar Nath test?
It is difficult to see how, given the context in which the slogan has been used in public speeches, where the sloganeer chants for freedom from the many systemic problems in India, not from India itself.
“In this case the slogan of ‘Azadi’ is more about change in society by doing away with ills of communalism, corruption, oppression etc, and has nothing to do with attacking the integrity of the nation,” argues Supreme Court advocate Chitranshul Sinha, author of The Great Repression (a book dealing with the history and jurisprudence of the sedition law in India). In his opinion, “it cannot be considered 'desh droh' by any stretch and will definitely not attract Section 124A IPC.”
One of the ways in which Adityanath could try to argue that it could still be sedition is by emphasising that he was talking about raising slogans of azadi “like in Kashmir”. The exact line used by him in Hindi was: “Dharna pradarshan ke naam par Kashmir mein jo kabhi azadi ke naare lagte they”.
This could be used to say that he’s only talking about those raising slogans about freedom from India in terms of secession, not freedom from social constructs or in a philosophical sense.
However, even slogans advocating for independence or secession from India cannot in themselves be sufficient to constitute the offence of sedition. In the 1995 Balwant Singh case, the Supreme Court had to deal with a case where two men had been convicted by the lower courts for sedition for raising the following slogans:
- “Khalistan Zindabad”;
- “Raj Karega Khalsa”; and
- “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da.”
The first of these slogans was clearly secessionist and advocated the creation of Khalistan – an independent nation – out of India.
Despite this, the apex court noted that the mere raising of slogans is not enough to satisfy the charge of sedition, saying:
“Keeping in view the prosecution evidence that the slogans as noticed above were raised a couple of times only by the appellant and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded.”
The court was very clear, that for the raising of slogans to amount to sedition, there had to be some effect to this, there had to be some disturbance or some violence that actually arose out of such sloganeering.
It’s not even about the intent or whether such slogans could lead to violence – there actually has to be some violence for sedition to be attracted.
In light of this judgment, it is clear that the mere raising of an ‘Azadi’ slogan, even if this were meant to be in the same context as how that slogan has been used in Kashmir by separatists, would not amount to sedition.
The statement by the UP chief minister is an incredibly dangerous one, because his assertion is a blanket one.
A blanket assertion by not just some random person, but the chief minister of a state, that raising a slogan would amount to a criminal offence has a dangerous chilling effect.
Even if he intends this to be mere rhetoric, that he doesn’t really expect this to be used against people raising the slogan in an inoffensive context, this is not something which the police in UP will have understood – their own response to the protests over the last month has made it clear that they are not quite operating on the basis of the letter of the law.
As Sinha points out, this is exactly why it is dangerous for such a law to remain on the statute books at all, despite the Supreme Court’s attempts to prevent it’s misuse:
“Unfortunately administrations and law enforcement simply do not understand what sedition is, which makes it very important to repeal it to prevent abuse and injustice.”
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