Thursday, August 18, 2022

Taming Criticism, Colonial Style

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Maharashtra recently expanded the scope of sedition. When this charge was first introduced, India was under colonial rule. But today, there is freedom of speech and the law should protect it.

By Justice Narendra Chapalgaonker

A controversial circular issu-ed by the Maharashtra government on August 27 explaining and thereby expanding the scope of sedition punishable under Section 124(a) of the Indian Penal Code (IPC) was withdrawn as per a statement made by the Advocate-General of the state before a Bench of the High Court. The Court was hearing a challenge to that circular in a PIL. This circular would have enabled the police machinery to interpret any criticism of the central or state government, their officers or holders of office under them, to be an act of sedition.

Section 124(a) is one of the most ill-famous provisions in our IPC. When the IPC was enacted, this provision was kept out. The 1857 Mutiny was a recent past. The colonial government did not want to give the impression that it was a measure of repression. The provision was later inserted in the IPC.

It was first used against a journalist in Bangbasi’s case (ILR 19 Cal 35). The second journalist to become a victim of this provision was Lokmanya Bal Gangadhar Tilak, editor of Kesari and a respected national leader. In Kerari’s June 15, 1897, issue, there was a short piece titled, Shivaji’s Utterances, and also an account of a public meeting to commemorate the Coronation Day of Chhatra-pati Shivaji. Both these articles were alleged to be seditious.

When Tilak came to know that the government was planning to prosecute him for sedition, he, a law graduate and a teacher of law, wrote an article titled, What is meant by sedition?, in the Kesari on July 20, 1897. He argued that no amount of criticism of any government functionary or his acts or omissions and also the policies of the government would amount to sedition, however harsh the words used might have been. It is only when a legally established government is sought to be overthrown by unlawful means or the people are incited to do so, that an offence of sedition would be there. Tilak very well knew that an interpretation of law by a journal would not lead to the courts.

He was educating his readers about law and also about the unjust attitude of the government. The same arguments were advanced on behalf of Tilak in the court. However, as expected, Justice Strachey who heard that case did not accept it and held him guilty.

CHENNAI, AUG 15 (UNI):- Tamil Nadu Chief Minister J Jayalalithaa salutes after hoisting the National Flag on the occasion of 69th Independence Day at Fort St George, in Chennai on Saturday. UNI PHOTO-101U
Tamil Nadu CM J Jayalalithaa

Barrister Pugh who was arguing on behalf of Tilak, wanted to rely on the speeches made in the legislative assembly by government re-presentatives while introducing the amendments to show the intention of the legislature. But the learned judge held that such speeches were inadmissible. Justice Strachey, while addressing the jury, had defined disaffection as absence of satisfaction. When the motion for certificate of fitness for appeal was being heard, the Bench admitted that this was misdirection to the jury; but even then, the leave to appeal was refused. Lokmanya Tilak had to undergo a sentence.

Justice Mahadeo Govind Ranade, a liberal patriot and a visionary, was a judge in the Bombay High Court then. Tilak’s case was not heard by him. However, it appears that he held the same view as Tilak about interpretation of Section 124A. However, a judge can speak about judgments only as long as he is in office and only if required. Ranade had to wait for the opportunity. The wait wasn’t too long.

Within two months, another case of sedition came up before a full Bench of Chief Justice Farran, Justice Parsons and Justice Ranade (ILR Bom 1897 p.152). The accused was the editor of Pratod Weekly published from Islampur (dist. Satara). The sessions judge who had heard the trial, had sentenced the editor for transportation of life and the other accused, the printer and publisher, to seven years rigorous imprisonment. Though the conviction of the appellants was confirmed, the sentences were considerably reduced. In this case, though Justices Parsons and Ran-ade concurred with the chief justice, both chose to write separate but concurring judgments. It gave Ranade an opportunity to ex-press his views about the scope of the offence of sedition.

Justice Ranade traced the history of the introduction of Section 124A in the IPC and pointed out that the principles of the English statute and common law were followed. Thus, having pointed out a connection between English law and the new provision, he contended that the words “exciting” or “attempting to excite feelings of disaffection” used in this Section can best be ascertained by a study of the corresponding English statutes and the decisions of English judges. Referring to some precedents, including Bangbasi’s case, he ruled: “Disaffection, as thus judicially

paraphrased, is a positive political distemper, and not a mere absence or negation of love or good-will. It is a positive feeling of aversion which is akin to disloyalty.” Justice Parsons was more clear. He held “the word disaffection used in S. 124A … in its special sense as signifying political alienation …. and feeling of disloyalty …”

Lokmanya Bal Gangadhar Tilaknew
Lokmanya Bal Gangadhar Tilak

When these cases were tried, India was under colonial rule. Criticism of public conduct of an official was saved, but prosecutors could smell disloyalty in any writing. But today, we are a free country. The constitution has granted freedom of speech to every citizen and to the press. Criticising the public conduct of officials is a fundamental right. Section 124A will have to be read in the light of this changed situation. Unless somebody resorts to armed rebellion or advocates it, it would be difficult to book him for sedition.

Justice Mahadeo Govind Ranade new
Justice Ranade

Our public life has become more and more intolerant. Baseless charges, irresponsible utterances, hate speeches, defamatory statements and abuses are hurled every day. The law cannot teach civility or soberness but it can control offences. If penal provisions are inadequate, they can be replaced or amended as charging alleged offenders with palpably inapplicable provisions of IPC would be misuse of executive power.

Recently, the Tamil Nadu government presented such an example of total disregard of fundamental rights of citizens. Kovan, a folklore singer was booked for sedition for alleged derogatory presentation of chief minister Jayalalithaa in a street play. Left leaning Kovan was canvassing for prohibition in
the state.

Clearly, Section 124A, a relic of the colonial days, needs revisiting.

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