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Sedition and the death of free speech

The repeated use of India’s sedition laws – most recently against human rights activist Dr Binayak Sen -- has made them one of the biggest threats to the freedom of speech and expression. Along with other colonial laws such as criminal defamation, laws dealing with obscenity, and blasphemy laws, sedition laws undermine the right to dissent and the right to criticise state policy. Is it time to seriously re-examine the need for these undemocratic laws in the world’s largest democracy, asks Siddharth Narrain

Recent media attention and public debate around India’s sedition laws have sparked renewed interest in the manner in which these laws have been used to curb free speech in the country. A quick look at some of those facing sedition charges over the last few years is enough to tell us that there is pressing need for a debate on whether we require these archaic provisions at all. The sedition charges against medical practitioner and human rights worker Dr Binayak Sen have provoked outrage amongst a large section of Indian citizens as well as human rights activists globally. Sen’s work, especially in the area of public health, has gained worldwide recognition, which explains why his trial is being followed closely across the world. Unfortunately, his credentials seem to have had little impact on the Raipur trial court, which convicted him with a maximum sentence of life imprisonment in December 2010. Sen’s application to be released on bail was rejected by the Bilaspur High Court. He subsequently filed an appeal in the Supreme Court which granted him bail on April 15, 2011.

While the Chhattisgarh government claims that Sen acted as a courier between an alleged Naxalite leader in Raipur jail and the party leadership in hiding, many believe that he is the target of a systematic campaign to silence dissenting voices in a state which has seen violent conflict between the state-supported vigilante force Salwa Judum and the Naxalites. Sen represented the shrinking group of civil society voices opposed to a military solution to the problem of Naxalism. These groups include Sen’s organisation, the People’s Union for Civil Liberties (PUCL), Chhattisgarh, which has been critical of the state government’s policies of encouraging large-scale investments in mines and minerals and other industries in this resource-rich state without regard to the consequences for the already pauperised tribal population in these areas. 

In another high-profile case, sedition charges were filed in November 2010 against Arundhati Roy, S A R Geelani, Varavara Rao and others for their speeches at a seminar on Kashmir titled ‘Azadi: The Only Way’. The charges were pursued based on a private complaint filed in a trial court in Delhi.

The charges demonstrate how sedition laws are used to harass people even if the government is wary of using them. Facts listed in the following table indicate the manner in which these laws are used to muzzle dissent and target the media. These cases have been reported in the newspapers; there are probably many unreported ones.  

Recent cases at a glance

Person charged with sedition Occupation When Where Nature of charges
Manoj Shinde Editor, Surat, Saamna August 2006 Surat, Gujarat For using “abusive words” against Chief Minister Narendra Modi in an editorial while alleging administrative failure in tackling the flood situation in Surat
Kahturam Sunani Journalist, OTV May 2007 Sinapali, Orissa For filing a report that Pahariya tribals were consuming ‘soft’ dolomite stones in Nuapada district due to acute hunger
Binayak Sen Doctor and human rights activist May 2007 Raipur, Chhattisgarh For allegedly helping courier messages to Maoist leadership. Sen had criticised the Chhattisgarh government’s support to the vigilante Salwa Judum
Bharat Desai and Gautam Mehta Resident Editor, Times of India, Ahmedabad;  photographer,Gujarat Samachar (Mehta) June 2008 Ahmedabad, Gujarat For articles and photographs that alleged links between the Ahmedabad police commissioner and the underworld
Kirori Singh Bainsla Gujjar community leader June 2008 Bayana, Rajasthan For leading an agitation demanding ST status for Gujjars
Lenin Kumar Editor, Nishan Decem- ber 2008 Bhubaneshwar, Orissa For publishing a special booklet on the Kandhamal riots entitled ‘Dharmanare Kandhamalre Raktonadhi’ (Kandhamal’s rivers of blood)
Laxman Choudhury Journalist, Sambadh Septem- ber 2009 Gajapati district, Orissa For allegedly possessing Maoist literature. Chaudhury had been writing about the involvement of local police in illegal drug trafficking
V Gopalaswamy (Vaiko) Politician, MDMK Decem ber 2009 Chennai, Tamil Nadu Remarks allegedly against India’s sovereignty at a book launch function
Piyush Sethia Environmentalist and organic farmer January 2010 Salem, Tamil Nadu Pamphlet distributed during protest against Chhattisgarh government’s support for Salwa Judum
E Rati Rao Resident Editor, Varthapatra February 2010 Mysore, Karnataka Article in Varthapatra alleging encounter deaths in Karnataka
Niranjan Mahapatra, Avinash Kulkarni, Bharat Pawar, and others Trade union leaders and social activists March 2010- June 2010 Gujarat Police allege links with CPI (Maoist)
Arundhati Roy, S A R Geelani, Varavara Rao, Shuddabrata Sengupta and others Writers, political activists, and media theorists November 2010 Delhi Private complaint alleging that they made anti-India speeches at a seminar on Kashmir titled  ‘Azadi: The Only Way’ 
Noor Muhammed Bhat Lecturer,  Gandhi Memorial College, Srinagar December 2010 Srinagar For setting a question paper for English literature students on whether ‘stone-pelters were the real heroes’
Sudhir Dhawale Dalit rights activist and freelance journalist January 2011 Wardha, Maharashtra Police allege links with CPI (Maoist) party

Given the widespread nature of its use, there is an urgent need to re-examine the history of this legislation. Sedition laws are found in the following laws in India: the Indian Penal Code, 1860 (Section 124 (A)); the Code of Criminal Procedure, 1973 (Section 95); the Seditious Meetings Act, 1911; and the Unlawful Activities (Prevention) Act (Section 2 (o) (iii)). Common to these laws is the idea of ‘disaffection’ that we have inherited from the British. ‘Disaffection’ has been defined as a feeling that can exist only between ‘the ruler’ and ‘the ruled’. The ruler must be accepted as a ruler. Disaffection is the opposite of that feeling, and manifests a lack of, or repudiation of acceptance of a particular government as ruler.

Ironically, some of the most famous sedition trials of the late-19th and early-20th century were those of Indian nationalist leaders including Tilak, Gandhi, and Annie Besant. In 1898, the law was amended by the British. Disaffection was now stated to include ‘disloyalty and all feelings of enmity’. The new amendment added the words ‘hatred or contempt’ to the word ‘disaffection’. These amendments also brought in Section 153-A  and Section 505 of the IPC.

The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. Gandhi was charged, along with Shankerlal Banker, the proprietor of Young India, for three articles published in the magazine. The trial, attended by the most prominent political figures of that time, was followed closely by the entire nation. It was presided over by Judge Strangman. Gandhi explained to the judge why from being a staunch royalist he had become an uncompromising disaffectionist and non-cooperator, and why it was his moral duty to disobey the law. In a stunning statement, Gandhi commented on the law that was used to try him, and demanded that the judge give him the maximum punishment possible.

 “…Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavoured to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it a virtue to be disaffected towards a Government which in its totality has done more harm to India than previous systems. India is less manly under the British rule than she ever was before. Holding such a belief, I consider it to be a sin to have affection for the system. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in as evidence against me.”

The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the statute books of independent India was not lost on those drafting the Constitution. The draft Constitution included ‘sedition and the term ‘public order’ as grounds on which laws limiting the fundamental right to speech (Article 13) could be framed. However, the final draft of the Constitution eliminated sedition from the list of exceptions to the freedom of speech and expression (Article 19 (2)). This amendment was the result of the initiative taken by K M Munshi who proposed these changes in the debates in the Constitutional Assembly.

The sedition laws were successfully challenged in two high court cases in the 1950s, when the courts held that they violated the right to freedom of speech and expression guaranteed by the Constitution (1). However these judicial developments received a jolt when, stung by two court decisions in 1949 that upheld freedom of speech with regard to opinions from the far left and the far right, Nehru asked his Cabinet to amend Article 19 (1) a. The two cases that prompted Nehru to do this were the Romesh Thapar case, in which the Madras government, after declaring the Communist Party illegal, banned the left-leaning magazine Crossroads for being overly critical of the Nehru government. The court held that banning a publication because it would endanger public safety or public order was not supported by the constitutional scheme since the exceptions to 19 (1) a were specific and had to entail a danger to the security of the state. The second case related to an order passed by the chief commissioner, Delhi, asking the RSS mouthpiece Organiser to submit all communal matter and material related to Pakistan to scrutiny.

Nehru’s government decided to amend the Constitution, inserting the words ‘public order’ and ‘relations with friendly states’ into Article 19 (2); and the word ‘reasonable’ before ‘restrictions’, as a safeguard against misuse by the government. In the debates around this amendment, Ambedkar supported the move which he saw as a way of tackling social boycott and incitement to offences against vulnerable communities in contexts of extreme inequality. Nehru saw it as a way of dealing with what he called ‘irresponsible journalism’, and with dangers to the state -- widely understood to be linked to the ongoing armed rebellion in Telengana. Of those who disagreed with the move, Anglo-Indian leader Frank Anthony was the most prescient. In the debate on the amendment in Parliament, Anthony warned that state legislatures might use this power to crush political opposition, especially at a local level. This can be seen happening in states across India today.

Despite the First Amendment, in 1958 the Allahabad High Court did follow the previous two cases and held Section 124 A of the IPC to be unconstitutional (2). However, the defining moment came in 1962 when in the landmark Kedar Nath Singh judgment the Supreme Court upheld the constitutionality of Section 124 A, at the same time circumscribing its meaning. In its decision, the Supreme Court distinguished clearly between disloyalty to the government and commenting upon the measures of the government without inciting public disorder by acts of violence. The court upheld the constitutionality of the sedition law, whilst also curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

While the Supreme Court has limited the scope of the sedition law (at the same time upholding its constitutionality), successive central and state governments in the country continue to file charges of sedition against journalists, media practitioners, human rights activists and anyone who dares express dissent. For many, it is the process of being dragged to court that is the punishment. So even if someone charged with sedition is acquitted along the way, he faces punishment by being put through a torturous legal process. Trial courts have been increasingly guilty of entertaining sedition charges (and sometimes even convicting) at the initial stages. Some of this can be attributed to the local pressures that judges in the trial court face and the larger atmosphere of the so-called ‘war against terror’. The problem is aptly described in the Supreme Court’s observation in a case concerning a Kashmiri youth acquitted of charges of sedition in 1997 (3):

“Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Section 153 A, 124 A and 505 (2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences. Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred, etc, does harm to the cause. It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.”

The repeated use of sedition laws has made these laws one of the biggest threats to the freedom of speech and expression in this country. Along with other colonial laws such as criminal defamation, laws dealing with obscenity, and blasphemy laws, sedition laws undermine the right to dissent and the right to criticise state policy in large parts of the Commonwealth. It is time we followed the lead of modern constitutional democracies such as the United Kingdom, the US, and New Zealand and seriously re-examined the need for these undemocratic laws in the world’s largest democracy.

Endnotes
1 Tara Singh Gopi Chand v The State 1951 CriLJ 449 and Sabir Raza v The State, Cri App No 1434 of 1955, D/-11-2-1958 (All) cited in Ram Nandan v State, AIR 1959 All 101
2 Ram Nandan v State, AIR 1959 All 101
3 Bilal Ahmed Kaloo v State of Andhra Pradesh, AIR 1997 SC 3483

i Section 153 A as it reads today:

Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony

(1) Whoever

(a) By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) Commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, 2 [or]

(b) 2 [(c) Organises any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence of knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,]

Shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Offence committed in place of worship, etc -- (2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

ii Section 505 (as it stands today) reads

[505 Statements conducing to public mischief

[(1)] Whoever makes, publishes or circulates any statement, rumour or report,

(a) With intent to cause, or which is likely to cause, any officer, soldier, [sailor or airman] in the Army, [Navy or Air Force] [of India] to mutiny or otherwise disregard or fail in his duty as such; or
(b) With intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquillity; or
(c) With intent to incite, or which is likely to incite, any class or community or persons to commit any offence against any other class or community;

Shall be punished with imprisonment which may extend to [three years], or with fine, or with both.

[(2) Statements creating or promoting enmity, hatred or ill-will between classes: -- Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(3) Offence under sub-section (2) committed in place of worship, etc: -- Whoever commits an offence specified in sub-section (2) in any place of worship or in an assembly engaged in the performance or religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]

Exception -- It does not amount to an offence, within the meaning of this section, when the person making, publishing or circulating any such statement, rumour or report, has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it [in good faith and] without any such intent as aforesaid.]

(Siddharth Narrain is a legal researcher and lawyer with the Alternative Law Forum, Bangalore. His research interests include media laws and censorship, sexuality and gender rights, and the politics of the Supreme Court. He has previously worked as a journalist with Frontline magazine and The Hindu newspaper in New Delhi)

Infochange News & Features, July 2011