It’s high time to change India’s sedition laws

JNU Students’ Union president Kanhaiya Kumar makes a speech to fellow students after being released on bail at the university campus, in New Delhi. (Photo: PTI)

While on a recent speaking engagement at the University of California, Berkeley, I visited the Free Speech Movement café, homage to the 1960s student protests that changed forever the boundaries of political speech on campuses in the US and elsewhere. It was oddly quiet, even though the US is in the midst of a high-decibel election campaign, with students engrossed with their cellphones and laptops. In contrast, the right to free speech was being debated in India fiercely in television studios, colleges, literary festivals, and Parliament. At the capital’s Jawaharlal Nehru University, students and teachers gathered in protest to talk about freedom of speech. Social media raged, with speakers on all sides of the debate vilified or praised.

At the heart of the debate are the government led by Prime Minister Narendra Modi, of the Bharatiya Janata Party, and a JNU student leader, Kanhaiya Kumar. Both Modi and Kumar are testimony to the possibilities for at least some of the most disadvantaged in India: one is the self-proclaimed son of a tea-seller while the other is the son of a farmer. Both proudly say they have broken through entrenched feudal structures that long denied their communities a voice.

Yet, one used the power of the state to persecute the other. On February 12, the police arrested Kumar after members of the BJP student-wing, ABVP, accused him of sedition for making what they call “anti-national” speeches at a public meeting. During the meeting, some participants protested the February 2013 execution of Mohammad Afzal Guru for a 2001 suicide attack on India’s Parliament in which nine people were killed. Without checking the facts, Modi’s home minister warned that those who shouted anti-India slogans or challenged India’s sovereignty and integrity during these meetings “will not be spared”.

Kumar’s arrest led to a public outcry over government attacks on free speech, attempts to shut down dissent, the role of media in public discourse, the rights of marginalised communities, human rights violations by security forces, vigilante politics, and even the death penalty — crucial issues that need to be debated and addressed.

It also brought into focus, yet again, the urgent need for India to repeal its outdated sedition law. Section 124 A of the Indian Penal Code prohibits any words, spoken or written, or any signs or visible representation that can cause “hatred or contempt, or excites or attempts to excite disaffection” toward the government. India’s Supreme Court has imposed limits on the use of the sedition law, making incitement to violence a necessary element, but the police continues to file sedition charges even in cases where this requirement is not met.

Indian officials often speak of the power of civil society to hold government accountable and force self-correction. However, there needs to be an admission of wrongdoing to correct.

Even after the police admitted they had no evidence against Kumar and the court released him, the Modi government has yet to concede that its arrest of students was wrong. The charges remain against Kumar and others who are still in jail. Nor has the government responded to the issues that have surfaced around these arrests.

The authorities should immediately release all those arrested for engaging in free expression and drop all charges. The government should instead initiate steps to repeal the sedition law, once used to lock up Indian leaders campaigning for an end to British colonial rule but now used against fishermen protesting a nuclear energy facility, against folk singers who address dalit and tribal rights, against cartoonists, agai-nst human rights activists — and against students.

The Berkeley Free Speech Movement served as a crucial milestone in the US struggle for civil liberties. Although the din around the Kumar arrest is dying down, this could well be the start of India’s own movement. Will those who label critics “anti-national” prevail, or will free speech advocates who contend it is patriotic to try to make the country better through peaceful criticism of state policies, win the day

India’s Constitution provides significant protections on paper. Now there is an opportunity for the government, legislature and judiciary to make sure these rights are fully protected in practice. Kanahaiya Kumar, after he was released from jail, spoke eloquently about the freedoms he sought for his generation: for an end to discrimination based on caste, religion, gender or sexual choice. Everyone has the right to denounce these state failures. To do so is not “anti-national”. And it is certainly not seditious. It is the essence of democracy.

Meenakshi Ganguly is South Asia director at Human Rights Watch. Follow her on Twitter at mg2411.