If they’re not deliberately abusing the law, it can only mean one other thing -- that neither the police nor ministers know what sedition is
Accusing people who say things you don’t like or act in ways you disagree with of sedition has become the favourite weapon of governmental retribution. In recent years it’s been used against cartoonists, students, journalists, historians, authors, actors, directors, and even little children. Yet every time it’s been misused, and on each occasion the concerned government has allowed this to happen. If they’re not deliberately abusing the law, it can only mean one other thing -- that neither the police nor ministers know what sedition is. It’s about time they found out. If they read on, they will.
Section 124A of the Indian Penal Code, which is the sedition law, refers to: “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”. This, I accept, is pretty sweeping. It could cover practically anything spoken or done. But -- and this is the point the police and governments seem to be ignorant of -- that is not how the law stands today.
In 1962, in the Kedar Nath Singh judgment, the Supreme Court limited the application of Section 124A to action or speech that “clearly and imminently provokes violence”. In doing so, the court explicitly distinguished this from “very strong speech” or “vigorous words” critical of the government. In other words, Section 124A has been read down. It’s no longer what the language seems to suggest. Today it has very limited application.
Equally important, since 1962 the Supreme Court has repeatedly adhered to this interpretation. In 1995, in the Balwant Singh case, it ruled that “Khalistan Zindabad” is not seditious. Remember, this ruling referred to slogans raised the very day Indira Gandhi was killed. Despite that the Supreme Court’s position was clear and forthright: “Raising some slogan only a couple of times … which neither evoked any response nor any reaction from anyone in the public cannot attract the provision of Section 124A.” And then the court significantly added: “The police officers exhibited lack of maturity and, more, of sensitivity in arresting the appellants for raising the slogans … (the slogans) did not constitute any threat to the government as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religions or other groups.” The court could not have been clearer.
However, when both the police and various governments continued to disregard its ruling, the Supreme Court forcefully repeated it. In September 2016, the court explicitly reaffirmed its stand: “We are of the considered opinion that the authorities, while dealing with offences under Section 124A of the Indian Penal Code, shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh versus State of Bihar.”
Frankly, after this, the status of the law of sedition has been so clearly explained that it is beyond any doubt. There are absolutely no grounds for any police force or any government not to know it. Yet last week Shashi Tharoor, Rajdeep Sardesai, Mrinal Pande and several other journalists were charged with sedition because they tweeted about how a protesting farmer had met his death. Tweets, that in many instances, were speedily corrected and/or deleted.
Now, even if they got their facts initially wrong -- which may or may not be the case -- there’s no way anyone can claim that Mr Tharoor and the others were clearly and imminently provoking violence. Even if their tweets were mistaken -- or outright wrong -- these did not and cannot amount to sedition. And the police know this well. Of that there can be no doubt. Which means they are using sedition to harass people they don’t like, not prosecute alleged wrongdoers. And this is proven by the fact that similar cases have been filed in five different police jurisdictions -- right across the country.
Actually, so ludicrous is this charge of sedition that it brings the police themselves and the concerned governments into ridicule. Yet preposterous as this application is, I can think of worse occasions when sedition has been even more manifestly wrongly used. In 2019 the chief judicial magistrate in Muzaffarpur ordered the Bihar police to charge 49 persons, whose only act was to write to the Prime Minister expressing concern about mob lynching, with sedition. They promptly complied. At the time Justice A.P. Shah, former Chief Justice of the Delhi and Madras high courts, said: “Leave alone sedition, no criminal offence is made out”. Fortunately, the Bihar police dropped the charge. Let’s hope the five police forces show similar but belated good sense with Mr Tharoor, Mr Sardesai and the others.
The blunt truth is that it’s time this law is repealed. As far back as March 18, 1922, writing in Young India, Mahatma Gandhi made his position crystal clear. He called Section 124A “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. As for attempts “to incite disaffection towards the government”, this is what he had to say: “I hold it as a virtue to be disaffected towards the government … one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence”.
If our police forces or governments find this hard to accept, it’s time someone reminded them how easily it’s followed in other democracies. Incidentally, these are democracies we believe we are the equivalent of. When American university students rose in protest against the Vietnam war, including rallies in support of Ho Chi Minh and the burning of the Stars and Stripes, Lyndon Johnson didn’t charge them with sedition or arrest them. Instead, he let them spend their passion, knowing it would eventually diminish. Similarly, in 1968, when Tariq Ali, then a Pakistani citizen, claimed he was leading a revolution, the British didn’t slap sedition charges or even deport him. They simply advised him against travelling to France where the authorities might not be so tolerant! A few years later they made him a British citizen as well.
If our claim to be the largest democracy in the world is about the quality of that commitment and not merely the size of our population, it’s time we learnt a few lessons from the Brits and the Yanks!