Sedition: Criminalising Dissent

During a January 22 rally in Kanpur, Uttar Pradesh chief minister, Adityanath, threatened strict action against anyone raising azadi slogans during protests. Raising slogans of azadi, he said, amounts to sedition. Section 124A of the penal code defines sedition as an offence against the government established by law in India and penalises expressions that “bring” hatred or disaffection against the government. Azadi slogans are popular today, being raised all over the country in the protests against the Citizenship Amendment Act and the National Register of Indian Citizens.

The charge of sedition is a common response of the authorities in India faced with any act of dissent. In the last month there have been many reports of sedition cases being filed against people protesting against the CAA, NRC and NPR. Early in January, sedition charges were filed against 3000 people for protesting against CAA in Jharkhand. A sedition case was also filed against a student in Karnataka and a woman in Mumbai as they were holding placards carrying the message “Free Kashmir” during protests against CAA. A JNU student, Sharjeel Imam, is facing sedition charges in six states for his speech condemning CAA and violence in Assam.

Sedition as a Response to Dissent

The practice of targeting protestors through charges such as sedition has grown in recent years. In 2017 and 2018 around 19 cases of sedition were filed in Jharkhand that listed names of 10,000 Adivasis who were part of the Pathalgadi Movement –in which village communities put up signboards reasserting control over their land. In 2012 around 8000 people in Tiruneveli distirict of Tamil Nadu were booked for sedition, for participating in peaceful protests against the installation of the Kudankulam nuclear power plant.

Apart from people participating in protests, sedition is also used to target students, activists, artists, intellectuals and other citizens. In a report titled “Stifling Dissent: The Criminalisation of Peaceful Expression in India”(2016),Human Rights Watch states that sedition is a colonial-era law in India that is frequently used to curb dissent and is “often used against dissenters, human rights activists, and those critical of the government.”

The Supreme Court has clarified through various landmark judgements that a speech would be considered seditious (under Section 124A) only if there is an incitement to violence or intention to create public disorder. And yet, peaceful dissent against the government is frequently attacked by invoking sedition. In October 2019, a sedition case was filed against 49 artists and intellectuals who wrote a letter to the Prime Minster expressing concern at the increasing cases of lynching in the country.

History of Sedition Law

Listed as an offence against the state, sedition penalises any expression that “brings or attempts to bring hatred or contempt”, or “excites disaffection” against the government established by law in India. Criminalising certain kinds of speech, this section of the Indian Penal Code comes into direct conflict with the right to freedom of speech and expression guaranteed under the Constitution.

Since its inclusion in the Indian Penal Code in 1870, sedition has served as a tool in the hands of the government, to curb freedom of speech. It was added to the penal code in 1870 to check the growing anti-colonial movement in India. Despite being at crosspurposes with the basic tenets of the Indian Constitution, it has flourished in the 70-year history of post-colonial India.

The language of section 124A is often criticised for being vague and sweeping in its scope. It criminalises not only a successful act of “exciting disaffection” or “bringing hatred” but even the attempt to do so. Over time, the provisions have been diluted somewhat. In the immediate aftermath of the adoption of the Constitution, the section was declared unconstitutional by the Punjab High Court in 1950. However, that judgement was overturned in 1962 by the Supreme Court, in the context of a different case. The Kedar Nath judgment of 1962 is one of the landmark cases in the story of sedition in India. Although it interprets section 124A as a valid restriction on freedom of speech and expression, it also strictly restricts the application of the law. It lays down that any words or expressions would become seditious only if they were spoken with an intention to incite violence or cause disturbance in public order.

Through subsequent judgments, the scope of this section has been further narrowed down. In a 1995 case, where two individuals had raised slogans of “Khalistan Zindabad” and “Raj karega Khalsa,” the Supreme Court held that raising slogans without any intention to create violence does not amount to sedition, particularly when it did not lead to any law and order situation.

In the case of Nazir Khan vs. State of Delhi(2003), the Supreme Court stated that to have one’s “own political theories and ideas and work towards their establishment” is a fundamental right of every citizen. In 2015, Arun Jaitley narrowly escaped going on trial for sedition. In a Facebook post, he had criticised the Supreme Court for shooting down the government’s proposed National Judicial Appointments Commission. In response, a judicial magistrate had ordered that he be booked under Section 124A. The Allahabad High Court came to his rescue, stating that for any words to become seditious they should have a “pernicious tendency” to create public disorder. Despite such restrictive interpretations of the section, the sedition law continues to be invoked in situations where even the prerequisites of such a charge are not met.

Tool for Harassment

Recent data from the National Crime Records Bureau shows a sharp increase in the number of sedition cases, particularly since 2014, when the Modi-led BJP government came into power. In a period of two years from 2016 to 2018 the number of sedition cases in India doubled. The number of cases registered under section 124A was 35 in 2016 and went up to 70 in 2018.

What makes sedition a valuable tool for harassment is not necessarily the conviction of an accused. The conviction rate under the section is very low. The problem lies in the fact that it places wide powers in the hands of the police. Sedition is classified as a cognisable offence, which means that police have the power to make arrests without any warrant and can also start investigation without securing approval from a magistrate. It is also a “non-compoundable” charge – where the accused and victim may not reach a compromise – and non-bailable. In the ongoing case in Bidar, Karnataka, where a school is facing charges of sedition, the police has also subjected the students to questioning, along with the teachers and school authorities.

The process of a criminal case is itself a form of harassment, evident from the lives of thousands of people charged with sedition in 2012 for protesting against the Kudankulam nuclear power plant. Today, eight years after the filing of FIRs, the cases are still pending in court. Meanwhile, those booked in the process continue to suffer due to the criminal cases against them. They cannot move away from their village for jobs, as they have to be present for the hearings every few months.

Addressing the issue of how sedition is misused in India to target journalists, students and social activists, the NGO Common Cause filed a petition in the Supreme Court in 2016. The petition demanded that police should always get an order from the Director General of Police or Commissioner certifying that a seditious act led to incitement of violence or public disorder. The court held that the guidelines issued in Kedar Nath judgment should be followed by police while investigating sedition.

It is a disgrace that a law like sedition survives in our statute book 70 years after the adoption of the Constitution. In Britain, the Law Commission had recommended the abolition of the country’s sedition law in 1977, and the recommendation was carried out in 2009. At the time, one of the reasons given for its removal was the misuse of the colonial-era law in several Commonwealth countries. It was hoped that Britain’s example might persuade other countries to view their sedition laws as a baleful effect of the colonial legacy and get rid of them. That is yet to happen in India, and, as long as a law such as sedition exists, the possibility of the fullest realisation of civil liberties for any citizen remains bleak.