On 12 February 2016, two policemen in plain clothes arrested the president of the student union of the Jawaharlal Nehru University (JNU), Kanhaiya Kumar. On 9 February, students from JNU had allegedly shouted slogans at an event marking the death anniversary of Mohammad Afzal, who was convicted in the 2001 terror attack on the parliament. On Tuesday, 23 February, Umar Khalid and Anirban Bhattacharya, two of the alleged organisers of the event, surrendered themselves to police custody following an eleven-day-long manhunt. Kumar, Khalid and Bhattacharya have been charged under the Indian Penal Code (IPC) Section 120B, which deals with criminal conspiracy against the state, and 124A, which contentiously attends to sedition.
Though few have ever been convicted by the Supreme Court for sedition, many have been booked under Section 124A. Most recently, before Kumar, Khalid and Bhattacharya, section 124A was invoked against Hardik Patel from Gujarat, who has been asking for reservations for the Patidar community. Sedition in India is a cognizable (not requiring a warrant for an arrest), non-compoundable (not allowing a compromise between the accused and the victim), and non-bailable offence. The penalty can range from a fine to three years or life imprisonment. But these penalties would be awarded after the judgement, which can take a long while to come. Meanwhile, a person charged with sedition must live without their passport, barred from government jobs, and must produce themselves in the court on a loop. All this, while bearing the legal fee. The charges have rarely stuck in most of the cases, but the process itself becomes the punishment.
Section 124A did not make it into the IPC until 1870 (although a section corresponding to it was present in Thomas Macaulay’s Draft Penal Code in 1835). It was brought in 10 years after the IPC was introduced, possibly, to counter the surging Wahabi activities in the subcontinent. At that point, it was a law against “exciting disaffection.” The first case was registered, in 1891, when the editor of a newspaper called Bangobasi was booked for publishing an article criticising an “Age of Consent Bill.” The jury could not reach a unanimous verdict and the judge, in that case, refused to accept any verdict that was not unanimous. The editor was released on bail, and, after he issued an apology, charges against him were dropped.
The trial that changed the effect of section 124A was that of Bal Gangadhar Tilak in 1897. The British government claimed, according to an article in the Economic and Political Weekly, that Tilak’s speeches on the killing of Afzal Khan by Shivaji, had prompted the murder of two British officers in Pune. Newly promoted Justice James Strachey presided over this trial, and broadened the scope of section 124A in the proceedings by equating “disaffection” to “disloyalty.”He interpreted that the term “feelings of disaffection” meant hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government. Tilak was charged with sedition. He was released a year later, following German economist and jurist, Max Weber’s intervention. But on the basis of Strachey’s interpretation, the section was used repeatedly against nationalist leaders by the colonial government. Tilak himself went on to face the same charge again, twice, and ended up spending six years in prison for an editorial published in his newspaper, Keasari.
In 1922, Mohandas Karamchand Gandhi was brought to court for his articles in Young India magazine. Gandhi famously denounced the law against sedition in the court: “Section 124A under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
The issue of sedition was anxiously discussed during constituent assembly debates. On 29 April 1947, when laying out the Rights of Freedom, Vallabhbhai Patel—who went on to become the home minister of India—made an exception for “seditious, obscene, blasphemous, slanderous, libellous or defamatory” language. The Communist Party of India leader, Somnath Lahiri opposed the use of the word seditious. “As far as I know, even in England, a speech, however seditious it may be, is never considered a crime unless an overt act is done,” Lahiri said. The members continued debating, coming back to the question of sedition intermittently. Finally, an amendment was moved to drop the word and not allow it to infringe upon the freedom of speech and expression. On 2 December 1948, senior Congress leader, Seth Govind Das spoke jubilantly in the house:
The restriction imposed later on in respect of the extent of this right, contains the word ‘sedition.’ An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word ‘sedition.’ I believe they remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section. In this connection many things that happened to me come to my mind… I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word ‘sedition’ is also going to disappear.
The word did indeed disappear from the constitution when it was adopted on 26 November 1949, but section 124A stayed in the Indian Penal Code. Then, in 1950, two Supreme Court judgements led the government to introduce the much-maligned first amendment. The first case involved objectionable material in Organiser, a magazine run by the Rashtriya Swayamsevak Sangh; the second was against a magazine called Cross Roads, for criticising the government. In both the cases, the Supreme Court sided with the government. It asked the editor of Organiser to clear provocative content with a regulating authority, and banned Cross Roads. In light of these judgements, Jawaharlal Nehru brought in the first amendment.
Later, speaking in the parliament, Nehru specified that the amendment does not validate laws such as sedition. “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better,” he said. Even as the section stayed in the IPC, these words of Nehru guided the courts. Three judgements regarding section 124A were passed in the 1950s in high courts, and all of them acquitted the accused.
In post-independence India, however, the judgement with the most impact came in January 1962. In the case of Kedarnath versus the State of Bihar, the constitutional bench of the Supreme Court defined the scope of sedition for the first time and this definition has been taken as precedent for all matters pertaining to Section 124A since. Until Independence, there were broadly two views on Section 124A: that of the judgements given by the Federal Court, and that of the judgements passed by the Privy Council (the highest court of appeal for commonwealth countries, they were abolished in India following the passing of abolition of privy council jurisdiction act, in 1949). The former asserted that public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence; the latter said that the speech itself, irrespective of whether or not it leads to an incident, could be an offence. Taking in account Article 19A (the freedom of speech and expression) of the constitution, the bench observed in the judgement’s headnote, “If the view taken by the Federal Court was accepted, Section 124A would be constitutional but if the view of the Privy Council was accepted it would be unconstitutional.” Later, it states that it stands with the Federal Court, and the constitution.
Kedarnath Singh was convicted by the high court for his speech that lampooned the Crime Investigation Department and the Congress party. “To-day the dogs of CID are loitering around Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi.” He accused the Congress of corruption, black-marketing and tyranny and talked about a revolution that would overthrow capitalists, zamindars and Congress leaders. The constitutional bench upheld the punishment given to Kedarnath by the high court but at the same time limited the section’s scope. Towards the end, the judgement states that the section penalises words that reveal an intent or tendency to disturb law and order or that seem to incite violence. And then, it draws a line: “It has been contended that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But, in our opinion, such words written or spoken would be outside the scope of the section.”
With this case, the court upheld the constitutionality of the sedition law, but also curtailed its scope in its application. The “anti-nationalism” that the three JNU students are accused of may be perceived as such, but as Fali Nariman, the constitutional jurist and senior advocate to the Supreme Court, points out, “mere expressions of hate, and even contempt for one’s government, are not sedition.”
Atul Dev is a staff writer at The Caravan.