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Why should Indians continue to live under the shadow of sedition?

Indian democracy must consider whether the offence of sedition itself must be abolished.

After the closure of the Muzaffarpur sedition case against 49 eminent citizens, Indian democracy must consider whether the offence of sedition itself must be abolished.

The law is 149 years old. When it was introduced in 1870 (10 years after the Indian Penal Code came into existence), Sir Barnes Peacock, an English jurist, explained that it was left out by oversight.

Colonial vestige

This 'oversight' was used as a powerful weapon against Bal Gangadhar Tilak and other leaders of India's Independence Movement.

Perhaps, it was in this sense that Indian lawyers told eminent Malaysian lawyer, Param Cumarswamy, who was tried for sedition for his defence of civil liberties, that it is was an "honourable offence" used by dictators.

Democracy has no use for 'catch all' offences like sedition. It is housed in Section 124A of the Indian Penal Code and is invocable by any written, spoken words or gestures or "otherwise" which bring into hatred or contempt or excite or attempt to excite disaffection against the lawful "government" to attract punishment ranging from fine to life imprisonment, it being made clear that "disaffection" includes disloyalty and all feelings of enmity but not disapprobation of administrative or other action of government. Apart from the key words 'hatred', 'contempt' or 'disaffection', it protects 'government' at all levels. Are the words "I hate a minister or a civil servant or a Panchayat" enough? Apparently so, according to the British interpretation.

The framers of the Constitution originally wanted to exclude 'sedition' as a basis for infringing free speech and expression, but it was brought back. Ironically, even Ireland, which had suffered the use of sedition in its freedom movement, had permitted use of restrictions in the name of "undermining public order and the authority of State." Why on earth are post-colonial nations apeing imperial laws against their own people?

There is so much that our Constitution's framers have to own up to. Why does our Constitution permit administrative preventive detention without criminal trial? After the Emergency, the arrest and detention provisions of the Constitution were amended. The truth is that these salutary post-Emergency features have not been brought into effect by successive governments. The house arrest detentions in Kashmir are a constitutional scandal.

Judicial stand

When Indian judges of Federal Court tried to soften the 'sedition' provisions in 1942 to insist that it would be criminal only if there was an incitement to violence, it was promptly over-ruled by the Privy Council in l947.

It is true that in l962 the Supreme Court in Kedar Nath's case took the view that 'sedition' must have a "a pernicious tendency to create public disorder or disturbing law and order". Although Kedar Nath's case is much feted as an improvement on the Privy Council's view, I believe it does not go far enough. Incitement to public disorder is still too wide.

There must be a clear intent or imminent threat of violence. Unfortunately, although the Supreme Court claimed to balance the government's needs and civil liberties, it was not so. Some jurists and politicians are so delirious that the Supreme Court found the right balance that they are willing to permit sedition to remain on the statute book. Even if we accept this 'statist' view, there is a good case for abolition of the offence of sedition.

Firstly, in addition to 'sedition', there are a number of provisions that deal with intent to wage war or collect arms, mutiny, deserters and impersonating armed forces (Section 121-140), offences against public tranquillity (Section 141-160) including sections creating enmity amongst groups (153A), knowingly carrying arms or being in mass drills (153AA) or against national integration (153B), outraging religious feelings (295A) apart from preventive action. In fact, an authoritarian could not ask for more. To super-add, 'sedition' is a spoiler.

Process is punishment

Second, the process is the punishment - a theme so eloquently described by Berkeley Professor Malcolm Feeley. If proof were needed, we just have to note that the offence is cognisable enabling police arrest and non-bailable by the police. True, the previous sanction of the Central or state government before a court can take cognisance (Section 196 Criminal Procedure Code) is a safeguard. But can we trust these governments when they target politicians and critics? Consider the person who filed the complaint against the eminent citizens in Muzaffarpur before the magistrate.

The punishment of the process began except that it should not have and was contrary to law. A frivolous complaint was filed for which police say he can be punished, but will never be. The magistrate could not possibly have taken cognisance. Will he be punished? Our eminent letter writers are made of sterner stuff, but there was 'Ojha ka bojha' hanging over them.

There are alternatives: First, to take the issue to the Supreme Court. Even if it decides to take on this task, it would have to go to a seven-judge bench to overrule the five-judge Kedar Nath decision. The second is to depend on the Modi government to repeal the offence of sedition. Third, a public campaign.

(Courtesy of Mail Today)

Also read: More loyal than the king: Those protesting liberals' letter to PM Modi have had their brains turned to mush

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