A Law in Locks

By Amjed Ashraf

THE law of sedition has never failed to garner opprobrium from myriad quarters, ever since its enactment in the Indian legal system. Due to its iron-fisted nature, coupled with historical and socio-legal intricacies, it has been termed by many as a colonial vestige; a draconian device that arms the government to cripple any fraction of dissent, hurled their way. Interestingly, the voices that had fiercely been casting aspersions on this law, for long, have now once again been rejuvenated after the vociferous remarks of the Hon'ble Chief Justice of India, NV Ramana, on 15th July, this month, against it. While hearing a plea challenging the constitutional validity of the said law, the CJI termed it as a colonial law and strictly questioned its relevance in contemporary India and termed the sweeping misuse of it by the authorities as unfortunate. Inarguably, the remarks of CJI serve as a banquet for all the defenders of free speech and ostensibly conjure up a picture of the times–devoid of the outmoded sedition law.

Nevertheless, it is a well-known fact that the Indian legal system is profoundly influenced by the British legal system. The roots of English rule are palpably embedded in the Indian legal arena. Sedition, inter alia, is such a law that continues to linger in the statute books in the post-colonial period with the same vehement intensity. Though Britain itself abolished the law way back in 2009, in India it continues to stand the test of the time.

The history of sedition law in India dates back to the colonial-era. When the Indian Penal Code was introduced in 1860, on the recommendation of the first law commission headed by Thomas Macaulay, the sedition law per se, was not a part of it (although a similar kind of provision was present in the earlier draft of 1837).  It was inserted later in 1870, under Section124-A, with a view to unnerve the then rising Wahabi movement and to muzzle every form of dissent against the British rule. It had intrinsically stemmed from The Sedition Act of 1661, which penalized anyone who printed, published, or wrote anything against the King therein.

In British India, the first case tried under the sedition law was of Queen-Empress vs. Jogendra Chunder Bose & Ors.,(1892), wherein the editor of a Bengali magazine named, Bangobasi was held liable under this law, for mere criticism of the British policies. The Calcutta High Court in this case elucidated the meaning of the words ‘disaffection’ to mean, as ‘a feeling contrary to affection’ and ‘disapprobation’ to mean ‘disapproval’. It was later in the famous case of Queen-Empress vs. Bal Gangadhar Tilak (1897) that the ferocious nature of the law attracted wide public attention. Afterwards, in the case of, Emperor vs. Bal Gangadhar Tilak (1916), the section was given a broader scope, by interpreting disaffection to mean disloyalty and all feelings of enmity or hatred, or hostility or contempt towards the government.

However, in the post-independence era, the Punjab-Haryana High Court struck down the law, in the case of Tara Singh Gopi Chand vs. The State 1950, on the grounds of being in contravention with the fundamental right of freedom of speech and expression. Similarly, the Allahabad High Court, in the case of Ram Nandan vs. State 1958, declared the law as unconstitutional. Nonetheless, the Supreme Court in the landmark case of Kedar Nath vs. State of Bihar (1962) upheld the law, but concomitantly restricted its application as well. It held that only those acts are penalized under the section that involve intention or incitement or tendency to create public disorder or violence.

The law of sedition as today is a cognizable, non-bailable, and non-compoundable offence.  It comes under Section 124-A of IPC 1860, under Chapter VI (offences against the State).  The language of the section ex facie is open-ended, thus the interpretation is of the widest amplitude. It allows the government to cast the net too wide to suit their needs. Even after the apex court restricted its ambit and made its language amply clear, the implementation at ground level has been in abeyance. The recent cases of Disha Ravi, the activist and Vinod Dua, the journalist, are vivid examples of it, whereby the courts had to remind the state about the guidelines laid down in the Kedar Nath Case, before invoking charges under Section 124-A of IPC. Notwithstanding this, the vague hollowness of it continues to consume the voices of activists, journalists, political rivals, and all those who dare to dissent, hitherto. Many times the fundamental rights of citizens enshrined under Article 19(1) of Indian Constitution, suffer an unreasonable casualty due to arbitrary and whimsical use of this law. Besides, it persists to strike at one of the vital pillars of Democracy, dissent, with a heavy hand. As revealed by the National Crime Records Bureau (NCRB) data, the number of cases registered under this section has increased by 160% in 2019, while the conviction rate has been less than four percent. The CJI, in the same plea aptly described this plight as ‘‘...the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree. That is the effect of this provision.’’

At present, a bunch of petitions lie before the apex court, challenging the constitutional validity of the law. The ball is now in the court to either tone down the law or declare it entirely unconstitutional. I, unequivocally, cheer for the latter one.

Views expressed in the article are the author’s own and do not necessarily represent the editorial stance of Kashmir Observer 

  • Amjed Ashraf pursues law at Central University of Kashmir, and can be reached at [email protected]

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