Sedition explained

There has ben much uninformed comment on the law of sedition, as applied in India, and the judgment of the Supreme Court in Kedarnath v State of Bihar (AIR 1962 SC 955).

It has been alleged by Lawrence Liang in Plan B for Free speech (Indian Express, February 16, 2016) that “mere speech no matter how subversive it is does not amount to sedition” (emphasis mine). Another lawyer Colin Gonsalves said (Tribune, February 12, 2016) that an offence will be sedition “only if something said against the State is coupled with a violent act to overthrow it” (emphasis mine). Yet another lawyer, Prashant Bhushan, said that the offence of sedition could be established “only if there is incitement of violence or public order”. And Kapil Sibal said there should be “intent to overthrow the government.”

The purported exposition of law of each of the aforementioned persons is incorrect.

It would be appropriate to first refer to the facts of Kedarnath. Kedarnath in one of the appeals (Criminal Appeal 169/57) had given a “statement” mentioning “dogs of CID” and “Congress gundas” and talking about their “liquidation” said “we believe in the revolution which will come” and “those who loot the country would be reduced to ashes and on their ashes will be established the government of the poor and the downtrodden people of India.” Kedarnath was charged under Section 124A of the Indian Penal Code which punishes sedition.

If Lawrence Lang was right that “mere speech no matter how subversive is not sedition” Kedarnath should have been acquitted. The Supreme Court, however, upheld his conviction. The Supreme Court said that it was not contended before it on behalf of Kedarnath that the words used by him did not “come within the purview of the definition of sedition” and that no argument was advanced that “even upon the interpretation given by it” his case did not come within the mischief of the said section and hence his “Criminal Appeal 169/57 has to be dismissed”.

Before dealing with the interpretation given by the Supreme Court another equally significant aspect of Kedarnath may be referred to. There were two other appeals before the Supreme Court dealing with “speeches” given that “excited the audience with intent to create feelings of hatred and enmity against the Government. The accused were again charged under Section 124A. The High Court of Judicature at Allahabad had set aside the proceedings holding that Section 124A was ultra-vires Article 19(1)(a). If Lawrence Lang’s understanding of sedition is the law the appeals against the said setting aside should have been dismissed. But the Supreme Court instead of dismissing the said appeals remanded the matter to the High Court for consideration in light of its judgment and hence decide whether the speeches were seditious. The case against them, therefore, could not be rejected at the thresh-hold.

It is now necessary to understand what the Supreme Court held. The Supreme Court had before it conflicting decisions of the Federal Court and Privy Council on the meaning of sedition and accepted the interpretation of the Federal Court as to the gist of criminality in Section 124A. The Federal Court had held that “words, deeds or writings constitute sedition” if they create public disturbance, promote disorder or incite others to do so. And the Supreme Court summed up the law thus: “We have no hesitation in so construing the provisions of the section impugned in these cases to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

A “subversive” speech is inflammatory, treasonous and incendiary. The words “subversive” means a tendency to “subvert”. And “subvert” is defined in the New Shorter Oxford English Dictionary as “corrupt, pervert, disturb or overthrow a system” and “weakening or destruction of a country, government or a political regime”. A subversive speech is bound to have “the tendency” to create public disturbance and promote public disorder and hence is liable to prosecution for sedition.

The offence of sedition is made one because it is “in the interest of public order” which is one of the limitations on freedom of speech under Article 19(1)(a) of the Constitution of India. And as the Supreme Court itself held, “This Court as the custodian and guarantor of the fundamental rights of the citizens has the duty cast upon it of striking down any law which unduly restricts freedom of speech and expression. But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law in words which incite violence or have the tendency to create public order.” This is precisely what the Federal Court had also held.

It is thus also wrong to say that sedition can be established “only if there is incitement to violence or public disorder. It is not only causing violence or public disorder which will attract the offence of sedition but independent of the same the tendency to create public disorder which equally attracts liability. Putting it differently it is not an actor’s willful and deliberate stirring of public disorder alone which constitutes sedition but likeliness of disorder because of the quality of inherent in the act which is equally independently seditious. Thus Kapil Sibal is wrong when he says that sedition is justified only when there is “an intent to overthrow the government.”

There is also no requirement as has been suggested by some lawyers that an offence will be sedition “only if it is accompanied with a violent act to overthrow the state.” Stephen’s Commentaries on the Laws of England was cited by the Supreme Court itself and it described sedition thus: “We are now concerned with conduct which on the one hand falls short of treason and on the other does not involve the use of force or violence. The law has to reconcile the right of private criticism with the necessity of securing safety and stability of the State…The seditious conduct can be by words, by deed, or by writing.”

A bad tendency alone is enough to attract the offence of sedition. The charge in Kedarnath’s case itself shows that the test for invocation of the offence of sedition is neither “imminence” of disorder nor “a clear and present danger of it”. Notwithstanding there being no immediate prospect of “revolution” which Kedarnath mentioned nor the immediate possibility of the existing dispensation “being reduced to ashes” as he desired the “bad tendency” of what he spoke was itself sufficient for his prosecution for sedition. The judgment in Shreya Singhal’s case is sometimes referred to for reliance on “clear and present danger” test as the basis of justification on any speech but what is ignored is not merely that the Bench Strength of the said case was two judges only (Kedarnath was five) but also that it specifically mentioned Kedarnath and other cases to affirm that restrictions on freedom of speech can be justified on the ground of their having a “tendency” to cause harm, the test applied in Kedarnath. In any event hatred, contempt or disaffection cannot never get constitutional protection.

Mr Sorabjee added a new twist to the whole issue. In an interview he suggested that Pakistan zindabad is not sedition but Hindustan murdabad might be sedition. This creates a piquant situation. Please consider the consequences. An Indian (according to Mr Sorabjee) is immune against action if he shouts Pakistan Zindabad but if he shouts Hindustan Murdabad its impropriety needs to be debated. And debate is protected! But if debate is protected how can that which is being debated (Hindustan Murdabad) be the cause of arrest? Arrest thus will be unwarranted in both cases whether one shouts Pakistan Zindabad or Hindustan Murdabad! Indians can thus travel the length and breadth of the country either shouting Pakistan Zindabad or Hindustan Murdabad and not be tried for sedition. But if one protests against this he is liable to be arrested for objecting to legitimate political action!

Four other aspects need to be noted here.

It is, firstly, said that Section 124A has been used to imprison Tilak and Mahatma Gandhi and the very use against such outstanding Indians shows abuses inherent in the provision. The criticism however misses the fact that interpretation of the said section as used to prosecute Tilak has been rejected by the Supreme Court which not only followed the Federal Court’s interpretation instead of that of the Privy Council but also rejected challenge to its legality for violating Article 19(1)(a).

The repeal of sedition in the UK is next referred to as necessitating a similar repeal in India. Such comments ignore the fact that the balance between unfettered right to speak and the necessity of national security is clearly affected by historical events and cannot be viewed in vacuum ignoring the effect national and international developments on the political atmosphere in the country. The conditions prevailing in India mandate retention of the offence of sedition notwithstanding the repeal in the UK.

It is next said that “sedition” was not included in Clause (2) of Article 19 – a fact mentioned by Mr Nariman in a recent article. The reason for its exclusion was the expansive interpretation put on the section by the Privy Council which at the time the Constitution was enacted was the law but which is no longer the law now. In any event the Supreme Court itself has held that the prosecution for sedition is “in the interest of public order” and “public order” was added to Clause(2) of Article 19 by the First Amendment.

Finally Balwant Singh’s case is relied upon for suggesting one can raise anti-India slogans and yet not be prosecuted for sedition. In so doing those relying on Balwant Singh confuse the findings peculiar to that case with the law it declared. The approach is flawed because what is binding in a judgment is the law it declares and not the conclusion it reaches. And in declaring the law the Supreme Court in Balwant Singh’s case applied literal interpretation of Section 124A (not limited by purpose or mischief of the provision) to hold that the application of the offence of sedition will be attracted “when the accused brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India, by words either written or spoken or visible signs or representations.” The Court therefore expanded the reach of Section 124A. And the only reason it did not hold the accused guilty in that case was because the slogans were raised by a lone individual that too only a couple of times and evoked no response.

Uninformed criticism has little evaluative merit and no social purpose. Public discourse to be meaningful must be educated. It can otherwise lead to complete irrationality and would violate of Laws of Thoughts, the axiomatic rules on which rational discourse is based.

RAHUL GANDHI at JNU -Some questions

“Dont let these bullies push you around. They are terrified of poor, weak Indian people getting a voice. Question them at every single step.” Thus spoke the Original Wise Man (Rahul Gandhi) at JNU.

I took the sage advice given by Rahul Gandhi. I am not “poor” or “weak” but I am an Indian and I feel a right to question is available to all. Rahul Gandhi being an original thinker will surely agree with this proposition.

Rahul Gandhi did not include himself in the category of “bullies” but the exclusion notwithstanding he can yet be questioned. Rahul, being wise, can have no objection.

And as the question can be raised at every single step I am definitely not late in questioning. Rahul Gandhi is surely man enough to accept it.

Using Rahul Gandhi repeatedly can be tedious and Original Wise Man though appropriate is too long so I will substitute both expressions with the pronoun “you” – an expression which will assume significance for different reasons later in this article.

You asked a question about “who anti-national people are” and answered yourself that they are the ones “suppressing the voice of JNU”. What according to you is the “voice of JNU”?  Is it of the students who eulogise Afzal Guru and pray for India’s disintegration or those who oppose this point of view? Why did you not address this question while dealing with a very pertinent issue of defining “anti-national people”?

You talked about the “real Indian people” but chose not to elaborate about who constitutes this class. Why did you fight shy of developing the concept? Were you afraid of un-personing those who do not share your point of view or are only those people “real Indians” whom you approve and certify. I feel Kanhaiya who is accused, among other things, of shouting anti-India slogans can justifiably  be tried for sedition under the Indian Penal Code. Does that take me out of the category of a “real Indian”?

You said that in “crushing you” they will make “you stronger”. Who is the “you” here and who are “they”? “You” is a pronoun and refers to the ones being addressed. Does it follow only those who listen to you and cheer you are the ones who should be empowered and made “stronger”? Was the free and enthusiastic crowd (the “you”) cheering you (without inverted commas) yelling approval to what you (not the other “you”) spoke a “crushed” people?  I will not cheer you for what you did in JNU but will roundly condemn you. I am part of “they”. Are you suggesting I am for that reason any less Indian?

You also said “they feel fear”.  It is obvious in your scheme of things I am “they”. But I feel no fear when you talk the way you do. I feel disgust. And I feel pain. And while I am not “crushed” – not because you have spared any effort but because my spirit is vigorous than your resolve – I will yet be strong to secure my country which for you is merely a slogan.

If anyone is “terrified” its not “they” (I mean me) but you (not the “you”) and the speech appears only an attempt by you to rationalise for yourself your own rejection. You claim to speak for the “real Indian people who have a voice”. It is a false claim. The real Indian people voted your party out of power. Or is it that you feel they are not “people” or are they not “real people” or that they are a people who should be denied a “voice”? 

There is an essay “In Praise of Folly” which was a attack on certain traditions of the European society and Church in which “Folly “praises itself. “Folly” in that essay is nursed by “ignorance” and has “flattery”, “self-love” and “madness” as companions with “intemperance” as God. I feel you read it for the literal meaning. The essay was meant to be a satire. And being a satire the expression was meant to be different from if not opposite to what was suggested.

Which brings me to the final question. Will we now have an encore? Or do you feel you are not to be questioned!

 

MOVING NOT SHOVED : KIRAN’S QUESTIONABLE QUESTION

“KIRAN asked me if we should move out of India.” The question did NOT strike AAMIR! HE was obviously NOT hit by that sense of “insecurity” and “fear” to ask KIRAN that question.
And what was Aamir’s answer? Should he NOT have wondered if that question did not strike HIM – a seemingly reasonable, sensitive, intelligent and articulate INDIAN – was KIRAN justified in asking it? But he did not wonder and instead ran to the press.
KIRAN not AAMIR “fears” about the atmosphere around them and feels “scared” to open newspapers. An intelligent person feeling differently from his companion despite both being in an identical situation should have felt either he or his companion are suffering from some disorder – one for feeling uncontrollable anxiety and the other not feeling it at all- and should have gone to a psychiatrist for medication and therapy not the Press for making a statement.
And if leaving the country is an option please leave.
Go to the UK where Barclay Primary School in East London which sent a letter to its students banning fasts in Ramazan.
Or go to the U.S. where FBI has authority to map and investigate communities based on ethnic behaviour and cultural traditions.
France is also a good option where if you say “I am not Charlie” (Charlie Hebdo had racist cartoons) you are looked upon as a terrorist. Denmark where the Prophet was depicted as a terrorist with a bomb may be considered too.
Australia will be welcoming too. The Islamic cleric talking of racial profiling said it was causing “severe stress and unwanted inconvenience.”
There are several oceans available for a plunge too. Or you can join the Eskimos in Arctic or add to the settlements in the Antarctica.
If you do not love a country enough to live in it please leave. India will NOT be in any manner worse off!