Rajat Sharma

Sedition law : Baggage of colonial era must be scrapped, once and for all

AKBThe process for bringing an end to the 152-year-old anti-sedition law has begun. With the consent of the Centre, the Supreme Court bench of Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli in their order expressed this hope: “We expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the governments.’

In plain words, no fresh sedition case will be registered in India any more under Section 124-A of Indian Penal code. Those who have been charged under this law can seek relief from courts. The apex court bench said, “if any fresh case is registered under Sec 124A, the affected parties are at liberty to approach the concerned courts for appropriate relief.”

The Supreme Court order is historic. Prime Minister Narendra Modi’s government in its affidavit filed before the Supreme Court had said that the Prime Minister is of the firm view that the baggage of colonial era laws, which outlived their utility must be scrapped at a time when the nation is celebrating 75th year of Independence. The affidavit had said, “The Government of India, being fully cognizant of various views being expressed on the subject of sedition and also having considered the concerns of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this great nation, has decided to re-examine and reconsider the provisions of Section 124A of the Indian Penal Code which can be done only before the competent forum”.

The apex court, while giving time to the Centre to re-examine the sedition law, posted further hearing of petitions challenging validity of Sec 124A to the third week of July. In plain words, the Centre will get nearly two months to re-examine the sedition law.

The moot point is that Section 124A dealing with sedition will no more be there, and there could be some other provision which can replace this section. The most surprising part that has come out of this hearing is that successive governments in India during the last 75 years of independence never tried to scrap the sedition law. India’s first prime minister Pandit Jawaharlal Nehru wanted the sedition law to go, but it continued to remain in IPC. Now that all major mainstream parties want this provision to go, the question is: why was this provision not scrapped soon after independence?

Even the Supreme Court in 1962 has expressed concerns over the misuse of sedition law, while giving its landmark Kedar Nath Singh judgement. In that judgement, a five-judge Constitution Bench of Supreme court, while upholding Section 124A, had defined the limits of sedition. It had then said that this provision can only be used when there is an actual incitement to violence or disruption of public order, but mere criticism of the government does not amount to sedition.

In recent weeks we have seen sedition law used against those who wanted to recite Hanuman Chalisa outside a chief minister’s residence, it was used against people who posted caustic comments on social media, against those who drew cartoons caricaturing Chief Minister Mamata Banerjee, and against those who carried out reporting against the government. But, hopefully, this shall not happen anymore.

On Wednesday, the Supreme Court gave a green signal to the Centre’s move to re-examine the law. The bench said, “There is a requirement to balance both sets of considerations (security interests and civil liberties), a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, pre-dating the Constitution itself, and is being misused. The attorney general had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of Hanuman Chalisa”.

Senior legal experts welcomed the Supreme Court’s order restraining filing of sedition cases. Senior Advocate Geeta Luthra said, “sedition law was enforced by the British rulers, Nehru wanted to scrap this law, but could not do so, and Indira Gandhi made it more stringent by making it a cognisable offence. Sec 124A was widely misused in order to muzzle the voice of critics, only recently independent MP Navneet Rana was slapped with a sedition case by Maharashtra government because she wanted to recite Hanuman Chalisa outside the chief minister’s residence. Several petitions were filed in Supreme Court seeking scrapping of this provision, and it is good that Supreme Court has now stayed its operation following a positive attitude from the Centre. Governments were using this provision as a tool to silence critics, this will now stop”.

The apex court bench has said, “we hope and expect that the state and central governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration”. This means, till the third week of July, no fresh sedition case can be filed anywhere in India, until it is absolutely justified.

In the Supreme Court, Solicitor General Tushar Mehta placed a draft guideline, signed by Union Home Secretary Ajay Bhalla, which said, “…the following directions are issued: (a) The interpretation of Supreme Court in the Vinod Dua judgement, 2021, ought to be scrupulously followed and adhered to, (b) An FIR involving Section 124A will be registered only if an officer not below the rank of Superintendent of Police is satisfied and records his satisfaction in writing that the offence alleged involves Section 124A as analysed by the Supreme Court in the captioned judgement.”

The guidelines sent by the Union Home Secretary to all chief secretaries of state governments and administrators of union territories, all state police DGPs, clearly says, “The Union of India is concerned about the instances of registration of sedition case against citizens of the country in cases when the facts do not justify the registration and invocation of said provision under Section 124A of IPC”.

Let me go into the history of sedition law. In 1860, three years after India’s First War of Independence in 1857, the British brought the Indian Penal Code. In 1870, the colonial rulers, in order to crush revolts in different parts of India, inserted Section 124A in IPC. This sedition provision was widely misused by the British rulers to imprison freedom fighters like Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, Sardar Patel, Pandit Nehru and thousands of others.

Sedition under Section 124A of IPC has been defined as under: “Whoever by words, spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Bal Gangadhar Tilak was the first freedom fighter who was charged with sedition in 1897 for an article he wrote in his newspaper ‘Kesari’. He was sentenced to one year in jail. In 1908, he was sentenced to six years’ imprisonment and sent to Mandalay jail in Burma (Myanmar) for writing in support of Bengal revolutionaries. He again faced charge of sedition in 1916. Similarly, Mahatma Gandhi was charged with sedition in 1922 and sentenced to six years in jail for taking part in anti-government protest in Mumbai. Pandit Nehru was charged with sedition in 1930 for addressing farmers in Allahabad, and spent two years in jail. In 1934, he was again charged with sedition for giving speeches in Bengal and was imprisoned for two years.

You will be surprised to know, Punjab High Court in 1951 and Allahabad High Court in 1959 held Section 124A (sedition) as unconstitutional, but in the Kedarnath Singh case in 1962, the Constitution Bench of Supreme Court laid several conditions to prevent misuse of this provision. The basic idea of the apex court bench was flouted more in practice in subsequent years, mainly during the regime of former PM Indira Gandhi.

On Wednesday, former Attorney General Mukul Rohatgi, commenting on the Supreme Court order, said that Modi government has taken a big, historic step, which should have been taken 75 years ago. Rohtagi said, “In independent India, why should we bear the burden of a law framed by the British to enforce slavery?” Even Britain has scrapped its sedition law in 2009. USA has a sedition law, but it is rarely used. The word ‘sedition’ has been removed from Australian laws. Small countries like New Zealand and Singapore also scrapped sedition laws, but it is not only being enforced, but widely misused in India.

Let me state some facts here. There are presently 13,306 persons in jails across India charged under Section 124A, in more than 800 cases. Between 2010 and 2021, sedition charges were proved only against 13 accused. The conviction rate was less than 0.1 per cent. According to National Crime Records Bureau, 548 people were arrested for sedition in India from 2014 till 2019, but charges could be proved only against six persons.

Soon after the Supreme Court gave its historic order, the Congress tried to take credit by taking a moral stand. Congress leader Rahul Gandhi tweeted: “Speaking the truth is patriotism, not treason, Speaking the truth is love for the nation, not treason. To listen to truth is ‘rajdharma’, and crushing the truth is ‘raj-hath’(arrogance). Do not fear.”

Law Minister Kiren Rijiju gave a stinging reply to Rahul Gandhi’s jibe. Rijiju tweeted: “Empty words by Rahul Gandhi. If there is one party that is the anti-thesis of freedom, democracy and respect for institutions, it is the Indian National Congress. This Party has always stood with Breaking India forces and left no opportunity to divide India”. And who brought in the First Amendment? None other than Pandit Jawaharlal Nehru! It was S. P. Mookerjee and the Jana Sangh which stood in opposition to this measure aimed at curtailing freedom of expression. Nehruji also dismissed the democratically elected government in Kerala. And when it comes to trampling over free speech, Mrs Indira Gandhi Ji is a Gold Medal winner! We all know about the Emergency, but do you also know she imposed Article 356 over 50 times. She came up with the idea of a ‘committed judiciary’ to weaken the Judiciary, our 3rd pillar.”

There is no doubt that the law for sedition needs to be changed. I can cite two glaring examples of how this provision is being misused. A Congress MLA Shailesh Pandey in Chhattisgarh demanded that a sedition case be slapped against the Collector of Bilaspur, because the Collector did not send him the official invitation to the Chhattisgarh Day celebrations. In Delhi, a passenger was going to miss his train and he made a fake bomb call to the police in order to delay the departure of his train. Police nabbed the man and slapped sedition charge against him. There are hundreds of such frivolous cases. That is why there is the need to change this law.

While going through the Supreme Court order, one must understand that the Supreme Court has not put a brake on filing of sedition cases under Section 124A of IPC. The apex court has only said, that it “expects” that no state or central government will file case under Sec 124A till the time the Centre completes re-examining the sedition law. The Solicitor General had suggested on behalf of the Centre, fresh FIR can be filed only if a serious offence is clubbed with the sedition charge. The apex court agreed to this suggestion.

Secondly, the Supreme Court in its order quoted at several points, the Centre’s affidavit against the ‘baggage of colonial laws’. This reflect Prime Minister Narendra Modi’s views. Modi had been saying that sedition law is a colonial baggage since British rule and it must end. On behalf of the government, the Attorney General had cited the case of independent MP Navneet Rana, who faced sedition charge, when she announced her intention to recite Hanuman Chalisa outside the chief minister’s residence. The apex court mentioned this case in its order too. At one point, the apex court had to tell lawyer Kapil Sibal not to put forth arguments in air.

A sedition law cannot be struck down in a day. History is witness to what Jawaharlal Nehru said in his speech in 1951 on sedition law. Indira Gandhi made it a cognisable offence. But Modi has offered to re-examine and review the sedition law. You can say this is Modi’s masterstroke. Supreme Court has accepted Modi government’s contention about misuse of this law. It is now Modi government’s responsibility to ensure that British period law is scrapped whenever it is re-examined. The new law must provide strict safeguards so that it cannot be misused as a tool by any government to crush opposition and dissent.

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