Eminent panelists debate issues related to the draconian provisions of Section 124-A
The Ramya controversy and the Amnesty International incident have once again triggered volatile reactions on sedition laws in India. However, have sedition laws, a legacy of the British Raj, been used by political dispensations to throttle criticism or suppress strong but unwelcome opinions? The recent cases relate to JNUSU president Kanhaiya Kumar and Patidar leader Hardik Patel.
The recent India Legal show debated extensively sedition laws in India, their relevance and whether they need to be amended or revoked. The panel comprised Justice N Santosh Hegde, former judge of the Supreme Court; Justice RB Misra, former chief justice, Himachal Pradesh High Court; Vivek Sood, senior lawyer, Delhi High Court; KK Manan, Ex-Chairman, Delhi Bar Council; Editor-in-Chief, India Legal, Inderjit Badhwar; Dr MP Singh, Chancellor of Central University, Haryana; and BJP leader Subramanian Swamy.
Section 124-A, IPC, deals with sedition which says that “whoever, by words, either 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.”
It further elucidates that the a) the term “disaffection includes disloyalty and all feelings of enmity”; b) “comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”; c) “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”
Inflammatory slogans are seditious
Arguing on the issue of interpretation of sedition laws, Justice N Santosh Hegde said: “The provocative slogans raised at the February rally this year at JNU can’t be condoned by any patriotic person. What is freedom of speech? There is no such thing as absolute freedom of speech in the constitution; every freedom of speech is subject to reasonable restrictions…”
Hitting out at those who endorse freedom of speech under the garb of liberalism, Justice Hedge said: “You can’t justify JNU comments on the pretext of being a liberal person. When it comes to security and unity of the country, you can never allow these types of comments to surface. Similarly, in the case of Amnesty International, you are calling for ‘aazadi’, what ‘aazadi’ are you fighting for?”
Explaining Section 124-A of the Indian Penal Code, Justice RB Misra said: “When one incites or tries to incite contempt or hatred towards the government or invokes or tries to invoke disaffection, he/she is liable to imprisonment. The disaffection here includes disloyalty and the feeling of enmity.”
Explaining further, he continued: “Article 19 (1) (a) of the constitution mentions freedom of speech which comes along with Article 19 (2) which talks about reasonable restrictions like the integrity and sovereignty of India, friendly relations with foreign countries, maintenance of public order, decency and morality, etc.”
Referring to persons convicted of sedition, he said: “Dr Vinayak Sen, Arundhati Roy, Udit Kumar, Aseem Trivedi and Hardik Patel have all been punished under this provision.” Batting for sedition laws, he averred: “The constitutional bench had mentioned in Rajnath Singh vs State of Bihar that the speech should not incite public disorder. Even, in case of Shreya Singhal, it was mentioned by the apex court that if a statement is annoying or offensive or disturbs public order, action needs to be taken.”
Agreeing with Justice Misra, Inderjit Badhwar said: “In 1870, the law was included in the Indian Penal Code to silence the then freedom fighters of India. Gandhiji had rightly said that it is the ‘prince’ of all laws to forbid freedom of speech. But you are not that free to incite violence by your words and deeds and try to overthrow the government through violence or treason.”
Criminalization or decriminalization of sedition
While explaining the judiciary’s response on the issue, KK Manan said: “The latest judgment by the Supreme Court states that if a statement, verbal or non-verbal, which is anti-national, incites violence among people and is against the country or state, Section 124-A is applicable. But, if someone is unintentionally criticizing the functioning of the government, in a positive manner then, it will not be considered as sedition.”
However, Vivek Sood had a different view. He said: “We must understand the relevance of sedition in this day and age. We live in the age of Internet, wherein the common man has found his voice in the media. However, we also tend to be irresponsible while speaking. Therefore, Section 124-A needs to be examined.”
Sood felt that sedition laws were archaic. “The law is vague and amenable to abuse in every possible way. Words like ‘disaffection’, ‘disloyalty’, etc, can be misconstrued. Even fair criticism may attract sedition charges. Therefore, we are seeing a flurry of cases coming up in courts. We need a sedition law which is much tighter and specific. We must clearly define and classify what is ‘legitimate’ and ‘illegitimate’ speech. Section 124-A needs to be re-examined.”
Badhwar agreed to disagree: “We don’t want to become Pakistan. Our strength, our nationhood, the rights provided to us by the constitution are not there to be misused.” But even he agreed that irresponsible statements may lead to trouble. “When people like Prashant Bhushan talk about plebiscite, they get so insensitive and immature, they don’t even bother that these statements may incite violence as plebiscite is something which talks about a choice between Pakistan and India which comes under the UN resolution,” he said.
Explaining the plebiscite background, Badhwar said: “In 1948, Pakistan had sabotaged the UN resolution, by not withdrawing its troops and thus India was given complete and absolute freedom to stay in Jammu and Kashmir and maintain peace, law and order and force against Pakistan, and at the same time maintain a force within Kashmir which can carry out the process of plebiscite. As an Indian citizen, you should think about the consequences while speaking on issues like plebiscite.”
Sood was all for appropriate safeguards in the sedition law as “the law is vulnerable to misuse and could be used as a vendetta against any innocent person.” He said: “There are many instances where laws have been misused, like the dowry harassment law. It has been misused for 20 years, after which we had a Supreme Court judgment which stated that before an FIR is registered, a preliminary enquiry must be done.”
Referring to sedition, he continued: “The section is very broadly worded in today’s context. I think the law needs to be more specific and should be tightened, especially post the Shreya Singhal case. There must be checks and balances before a person is prosecuted.”
Badhwar argued that there are checks and balances against frivolous and discriminatory use of legal provisions that tended to clash with fundamental rights. To prove his point, he substantiated: “If we take the example of Supreme Court, it had in 2011 granted bail to Piyush Guha, Narayan Sanyal and even to cartoonist Aseem Trivedi.”
Sood wanted alleged sedition offense should be bailable at the outset. “Let the offense be proved in the court and then convict him/her and award a sentence. Why can’t the concerned person get anticipatory bail? The Section 124 like 376 and 302 looks very serious.”
Dr MP Singh said: “The country is forever, but the government is elected only for five years. One can criticize the functioning of government, and until and unless it doesn’t disturb the law and order it should not be considered sedition.”
On the referendum on Kashmir, Manan said: “These people talk about referendum on Kashmir while sitting in ACs. Do they have any clue how many people are killed there every day? Do they know the ground reality of the valley? In fact, the soldiers are being martyred frequently. Aren’t elections over the years a referendum? Isn’t the government of Mehbooba Mufti elected or for that matter wasn’t Omar Abdullah’s government elected?
Pointing out the legality of referendum, Badhwar said: “When you are talking about referendum on Kashmir, you are legalistically taking an anti-India position. Because referendum is to decide over the choice between India and Pakistan and plebiscite is widely supported in Kashmiri politics as there are three to four kinds of mindsets running. The special status given to Kashmir is based on Article 2 of the constitution, which states the Indian union can accommodate any state under the term prescribed by parliament. Thus, we can give this special status to anyone with a pact to join us. However, we need to change according to the time but, restrictions are also required. There should be a balance between what to say and what not to say.”
BJP leader Subramanian Swamy said: “There is no place for referendum in our constitution. As far as fundamental rights are concerned, Jawaharlal Nehru, in 1951 had said that there shall be some restrictions on freedom of speech and expression. The extent of these restrictions will be decided by the court, it should not affect the integrity of the nation. Whatever happened in JNU was totally unconstitutional. You wanted to overthrow the government with an unethical procedure, which was thus considered sedition. But, before applying sedition charges, the prima facie of the case must have been investigated properly by the police.”
— Compiled by Srishti Sonewal
Lead picture: ABVP activists staging a protest rally against Amnesty International India, in Bengaluru. Photo: UNI