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Is It Still Necessary To Continue Sedition Law Which Was Used By British To Suppress Our Freedom Movement Even After 75 Years Of Independence?: CJI NV Ramana

 

“Section 124A…… is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence .”

–      Mahatma Gandhi

Nothing on earth can give us greater solace to see than this that the new CJI NV Ramana has voiced his extreme displeasure with the way this most abused and most misused sedition law still continues in the penal laws even after 75 years of independence even though England which created it has long back abolished it in 2010 by Section 73 of the Coroners and Justice Act 2009 and came into effect from 12 January 2010 even though sedition by an alien (resident but not a national of the country) however is an offence and so has US and many other countries. Sedition has been declared as “unconstitutional” in Indonesia. Similarly, South Korea has done away with its sedition law in 1988. We also saw how in Australia also following the recommendations of the Australian Law Reform Commission, the term sedition was removed and replaced with references to ‘urging violence offences’.  Same is the case with many other countries around the world. It should have been abolished a long time back or at least some safeguards inserted to prevent its abuse or at least punishment term should have been reduced but till now we see nothing has been done on this score! A plea to abolish sedition saying that, “Sedition is a colonial law which was used expressly to suppress dissent by the British in India” which has been filed through Advocate Prashant Bhushan on behalf of former IT Minister Arun Shourie and NGO Common Cause was filed before the Supreme Court challenging the constitutional validity of Section 124-A of IPC as being violative of Articles 14, 19(1)(a) and 21 of the Constitution. The plea states that though the provision was upheld by the Supreme Court in Kedar Nath v. State of Bihar in 1962, the position of law has hence changed and the matter requires consideration. A Bench headed by Justice UU Lalit is also hearing a plea as well as Intervention Applications, challenging the constitutional validity of Section 124A of IPC.

Needless to say, the Bench headed by CJI NV Ramana and comprising Justice AS Bopanna and Hrishikesh Roy while issuing notice on a plea moved by Army veteran Major General SG Vombatkere (Retired) and the Editors Guild of India challenging Section 124A of IPC for being ‘vague’ and creating a ‘chilling effect on free speech’ observed without mincing any words that, “This dispute about law is concerned, its colonial law, it was meant to suppress the freedom movement, the same law was used by British to silence Mahatma Gandhi, Tilak etc. Still is it necessary after 75 years of independence?” He indicated that continuation of these types of laws after 73 years of independence is unfortunate. CJI wondered that, “The Government is taking out many laws. I don’t know why they are not looking into this.”

Most brilliantly, the CJI NV Ramana then waxed eloquent to observe in simple, straight and suave language as also powerfully, pragmatically and penetratingly that, “If we go see history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item uses it to cut the entire forest instead of a tree. That’s the effect of this provision.” Adding more to it, the court added that, “Our concern is misuse of the law and no accountability of the executive.” CJI Ramana said that, “A factionist can invoke these types of (penal) provisions to implicate the other group of people,” adding that if a particular party or people do not want to hear a voice, they will use this law to implicate others.” CJI NV Ramana has rightly questioned that, “Is it still necessary to continue sedition law which was used by Britishers to suppress our freedom movement even after 75 years of independence?”

To be sure, the CJI then further clarified that he is not blaming any state or government for misuse of the provision but, “Unfortunately, the executing agency and particularly the authorities misuse it. Take example of 66A which was struck down but people were arrested. There is misuse of these provisions, but there is no accountability.”

Let me come straight to the key point. It is high time that the draconian law of sedition which was enacted in colonial days by the Britishers more than 150 years back is amended to meet the present era. I really wonder why no serious attempt has been made till now to amend the law of sedition even after more than 75 years of independence. Why those men in uniform who misuse such laws as we saw in case of serving Army Officer Lt Col Prasad Shrikant Purohit who was jailed for nearly 9 years on charges of being involved in Malegaon bomb blast case without even charge sheet being filed against him are not held accountable and punished severely? Laws misuse will go down significantly if those who misuse them are taken to task and punished most severely and not just superficially by suspending them for a short span of time meant just for public consumption!

More often than not, it has been misused to a great extent but what a supreme irony that this draconian Section whom even Mahatma Gandhi, the father of our nation treated with open contempt and anger describing it as “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen” is still continuing unabated. What is even worse is that our political class has never thought it fit to amend this draconian Section to meet the present circumstances by inserting adequate safeguards to check its gross abuse leave alone abolishing it altogether. I agree that national interest is paramount and no citizen can be above it but that should not be a ground to give a dangerous weapon to the police to use this most abused Section against anyone voicing the slightest amount of criticism against the government of the day as we see in case of anti terror laws like UAPA.

It merits no reiteration that the draconian offence of sedition was actually imported as Section 124A of the IPC from the English law into Indian law in 1870 to perpetuate the British colonial rule and crush the birth right of citizens of India to criticize the British government in any manner which could brew the slightest amount of disaffection against them! This Section was amended in 1891 and explanations were inserted in it .

Section 124A which defines sedition runs as follows: “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 established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with fine, which may extend to three years, to which fine may be added, or with fine .

Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity .

Explanation 2 – Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section .

Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”

Sedition signifies nothing but libel (defamation) of the established authority of law, i.e., Government. The purpose of the person indulging in sedition is clear: to arouse hatred, contempt or disaffection by words that may be either spoken or written or by signs or by visible representation or by any other means as spelled out in the definition itself against the Government of India. Life imprisonment for sedition cannot be ever justified.

The first case in which Section 124A of the IPC was invoked was Queen Empress v Jogendra Chandra Bose , also known as the ‘Bangobasi’ case. ‘Bangobasi’ was the name of the weekly vernacular newspaper in which the alleged seditious matter was published. In this case, the proprietor, editor, manager and printer of the said newspaper ‘Bangobasi’ were accused of committing the offence of sedition. Let me point out here that some articles were published in this newspaper in which the Age of Consent Bill, which had been passed only a week before the publication of the said articles, was lambasted for posing a threat to Hindu religion and its civilisation. The articles went on to accuse the British of conquering and Europeanising India using brute force and causing an adverse impact on India economically. All the 4 accused were put on trial. In this landmark case Queen v Jogendra Chandra Bose, ILR 19 Cal 35, Chief Justice of the High Court of Calcutta – Sir Comer Petheram explained ‘disaffection’ to mean as a feeling contrary to affection; in other words dislike or hatred. Disapprobation means simply disapproval. If a person uses either spoken or written words calculated to create in the minds of the person to whom they are addressed a disposition not to obey the lawful authority of the government, or to subvert or resist the authority, if and when the occasion should arise and if he does so with the intention of creating such disposition, among his hearers or readers, they will be guilty under this section .It was also held that, “It is not mandatory that some disturbance or disaffection be produced as a result of his words and it is sufficient that such words were “calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.”  The jury, however, failed to arrive at a consensus. The accused meanwhile tendered an apology and the proceedings were dropped.

In the famous case of Queen v Balgangadhar Tilak, ILR 22 Bom 112 , Strachey, J, agreed with this above ruling, holding that, “a man must not make or try to make others feel enmity of any kind towards the Government”. It also held that, “Disaffection in the context of sedition means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. Disloyalty is perhaps the best general term, comprehending every possible form of bad feeling to the Government…the amount and intensity of disaffection is absolutely immaterial except perhaps in dealing with the question of punishment … if a person excites or attempts to excite feelings of disaffection, great or small, he is guilty of sedition.” Tilak in this case was held guilty under Section 124-A and his conviction was upheld by the Privy Council .

In Niharendra Dutta Majumdar v Emperor , AIR 1942 FC 22 at 26, Sir Maurice Gawyer said: “The first fundamental duty of every government is the preservation of order , since order is the condition precedent to all civilization and advance of human happiness. This duty has no doubt been sometimes performed in such a way as to make the remedy worse than disease, but it does not cease to be a matter of obligation because some on whom the duty rests have performed it well. It is the answer of the State to those who for the purpose of attacking or subverting it try to disturb its tranquility, to create public disturbance or to promote disorder or who incite others to do so. Words , deeds and writings constitute sedition if they have this intention or this tendency. Public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.”

This decision was, however, subsequently over-ruled by the Privy Council decision in Emperor v Sadashiv Narayan Bhalerao , (1947) 74 IA 89 (PC). In this landmark case, the Privy Council held that the rule of English law that public disorder in some form or other is an essential ingredient of sedition has no application in India. Therefore, merely exciting or attempting to excite feelings of disaffection, hatred, contempt will not be sufficient to constitute a seditious conduct in India and it is immaterial whether public disorder followed in result or not .

The first major landmark case where the Supreme Court went on to decide the constitutional validity of Section 124-A was in Kedar Nath v State of Bihar , AIR 1962 SC 955. In this landmark case, the appellant – Kedar Nath Singh, who was a member of the Forward Communist Party in Bihar, had been convicted of offences under Section 124-A and Section 505(b) of the IPC. He had referred to members of Congress as ‘goondas’ and ‘tyrants’ and had said that the Congress was in power due to a mistake of the people and should be driven out like the British. He further stated that the Forward Communists Party would expose the wrongdoings of the Congress and accused them of indulging in corruption, black-marketing and targeted Vinoba Bhave’s attempts to redistribute land. In this landmark case, the Constitution Bench comprising of Justice BP Sinha, CJ and Justices AK Sarkar, JR Madholkar, N Rajagopala Ayyangar and SK Das upheld the constitutionality of the Section but narrowed down the meaning, application and scope of the Section to cover only those activities which intend or tend to create disorder or disturb public peace by resorting to violence. By limiting the scope and application of Section 124-A of the IPC, the Court brought this Section in conformity with the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

This liberal view taken continues to be the trend till date even though time and again the executive has exploited wrongly on many occasions its unbridled power to prosecute even innocent persons for the offence of sedition as in the case of Binayak Sen who stayed in jail for years for no fault of his but was ultimately acquitted by the Supreme Court. Binayak is a doctor , civil right activist and national Vice-President of the People’s Union for Civil Liberties who was sentenced to life imprisonment for sedition. In December 2010, the Chhattisgarh government filed a case against him and others for helping Maoists in their fight against the state. But Binayak was acquitted as there was no credible evidence to sustain the serious charges levelled against him and senior , eminent and veteran criminal Lawyer Ram Jethmalani fought his case free of cost as he was convinced of his innocence and was proved also as innocent! He rightly said that, “Before independence sedition punished every speech or action if it produced disaffection against the British Crown. The post  independence judgments of the Supreme Court have now made sedition a civilized offence only imposing punishment when the amount of hatred, contempt or disaffection preached leads to tumult or grave public disorder.”

Needless to say, this draconian Section should have been repealed immediately after independence or at least suitably amended to check its gross abuse as a potent weapon in the hands of police to harass innocent citizens! But sadly, that has not been done till now even after more than 68 years of independence nor any safeguard inserted and in the name of safeguarding national interest it is continuing unabated and unchanged which is a matter of profound concern!

It is a very sad commentary on the state of affairs prevailing in our country! The noted Left leader Prakash Karat had just recently publicly aired his anger at Section 124A which he feels should have no place in a liberal and democratic country like India. Those who stoutly advocate retaining it on the ground of protecting national interest so that nobody in our country openly shout anti-India slogans like “Pakistan Zindabad or Pervez Musharraf Zindabad”! They have a point certainly but safeguards must be inserted and also if any police cop is found to have deliberately framed an innocent person, he/she must be not only dismissed from service but also jailed for a minimum of at least ten years so that they can learn from their own experience what it means to be in jail!

Why should any ordinary Kashmiri or any Indian be booked under Section 124A for shouting ‘Musharraf Zindabad’ or even ‘Pakistan Zindabad’ as long as violence is not incited or law and order is not threatened? Is it not a fact that our former PM Atal Bihari Vajpayee, former deputy PM LK Advani etc and leading media houses like ‘India Today’ and ‘Hindustan Times’ all welcomed Gen Musharraf who himself master minded Kargil war in which we lost more than five hundred soldiers if not thousands of soldiers and entered deep inside Indian territory about 14-15 km to personally supervise the slaughtering of our soldiers and not stopping here even paid Rs 1 lakh as cash prize to Iliyas Kashmiri, the dreaded Al Qaeda terror leader in 2000 for presenting him with a severed head of an Indian soldier which gladdened him to no extent as reported in various English daily newspapers and who even threatened to nuke India if India dared like Pakistan did in Kargil and stepped even one step inside Pakistani territory! As if this was not enough, he ordered that Captain Saurav Kalia and 5 soldiers of 4 Jat Regiment be tortured for nearly a month, eyes be burnt with hot iron rod and then gouged out, ears chopped off, fingers crushed and not even their private parts spared. Their dead body bore signs of cigarette torture and other gruesome torture also and yet India never raised this horrendous torture cum killing in any international forum rather decided to lavishly honour Musharraf, recognized his illegal regime which acquired power through coup and treated him like a God! Similarly Pakistan is repeatedly sending terrorists to attack our Parliament, Red Fort, and all places of public importance since last more than 30 years and openly patronizing underworld don Dawood Ibrahim who masterminded 1993 Mumbai bomb blast in which more than 300 people were killed, Hafiz Saeed, head of Lashkar-e-Taiba, Maulana Massod Azhar, head of Jaish-e-Mohammad, Syed Salaluddin, head of Hizbul Mujahideen etc yet our leaders say “We can’t change our neighbours. We have to live with them.” When we can be so tolerant towards a Pakistani army invader like Pervez Musharraf and hostile nations like Pakistan then why should our government not be tolerant towards its own people?

It merits no reiteration as we all know very well that time and again our political class has been accused of hobnobbing with terror outfits and receiving money from hostile countries like Pakistan! Don’t we know all too well that how in the famous ‘Jain Diaries Case’ some very senior political leaders of major political parties were named as receiving a lot of unaccounted money through hawala from countries like Pakistan! This alone explains why they believe in holding ‘talks and dialogues’ with terrorists (who get training in hostile nations like Pakistan by ISI , their army etc on how best to destroy India), Pakistani army and Pakistani invader generals like Gen Musharraf and not with rapists , murderers or other ordinary criminals who never receive such training on how best to destroy India and care a damn even as thousands of our soldiers and many innocent people are massacred by them and above all even our highest temple of democracy – Parliament is not spared! Why is it that when they hold ‘talks and dialogues’ with ‘terrorists’ or hostile nations like ‘Pakistan’ and declare ‘ceasefire’ for them which has always been misused for killing innocents, never ever has ‘sedition’ or any other anti terror law been imposed on them but an ordinary citizen even on suspicion of harbouring terrorist or saying ‘Musharraf Zindabad or Pakistan Zindabad or Khalistan Zindabad’ is immediately booked under not only Section 124A of IPC but also under POTA and other anti terror laws? This was what once a Kashmiri asked me when I went for a trip there in Srinagar in 2005!

Let me illustrate one very relevant and landmark case which will prove to the hilt the pertinent point that I am trying to make in the above paragraph. In Balwant Singh v State of Punjab, AIR 1995 SC 1785, the accused persons were alleged to have shouted some seditious slogans on the day Smt Indira Gandhi who was the then PM was assassinated in a crowded place . They shouted the slogan twice but public response was muted as no one paid any heed to it. It was held by the Supreme Court that mere raising casual slogans once or twice by two individuals, cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the Government established by law. The Court reprimanded the police for “reading too much” into the slogans which showed their lack of maturity and sensitivity in arresting the two accused who were government servants. Similarly, in Bilal Ahmed Kaloo v State of Andhra Pradesh , AIR 1997 SC 3483, the accused was a Kashmiri young man who was arrested by the Hyderabad police on the charges of sedition. He was alleged to be spreading rumours that the Indian army-men were indulging in torture and atrocities against Kashmiri Muslims. He was convicted by the trial Court and his conviction was upheld by the Andhra Pradesh High Court. The accused appealed against the conviction. The Supreme Court expressed surprise as to how the Courts below had recorded conviction when no evidence of sedition and even the charges framed did not contain the essential ingredients of the offence of sedition. The Court expressed dissatisfaction as to the mechanical manner in which the trial Court passed the order which resulted into unwarranted interference with the liberty of a citizen.

Needless to say,  this blatant abuse of Section 124A and other anti-terror laws happening with impunity must now stop forthwith so that no innocent citizen suffers for no fault of theirs! To say the least, it should either have no place in a democratic country like India or be suitably amended so that innocents like Binayak Sen and many like him don’t have to go to jail without any reasonable cause! Even the Law Commission of India in its 42nd Report made in 1971 strongly recommended to bring down the maximum punishment under Section 124-A from life imprisonment as is the case right from 1870 when it was enacted till now to seven years! However, most unfortunately, even after more than 50 years of the landmark recommendation made by the Law Commission, it is still gathering dust as it lies unimplemented! In its 39th report (1969), the Law Commission of India had rejected the idea of repealing the section.

Let me also further suggest here that I very strongly feel that the punishment should not exceed five years at the most. Also, Section 124-A should be amended to include what was held in the landmark Kedar Nath Singh case. It should be made mandatory that mens rea i.e. the intention to create public disorder or disturb law and order should be present and the Section should be amended to include the words “both intend and tend to create public disorder or disturb public peace by inciting to violence.”

Let me also reiterate here that the undefined terms like ‘disaffection’, ‘contempt’, ‘hatred’ and ‘disapprobation’ must be clearly defined so that there is less scope for wide discretion which has often been misused. There must be some act committed which disturbs the public peace and not just the threat to public disorder or security should be made an essential ingredient to attract Section 124-A of IPC. There should be an exception made in favour of a truth of a statement or allegation made.

Last but not the least, the sanction in all such cases which pertains to sedition should be obtained in writing from an officer who should not be below the rank of a Joint Commissioner of Police or an Inspector General of Police who too must mention the specific reasons for the same! If all such safety measures are inserted in Section 124-A, then I am sure that the gross abuse of this Section will most certainly be checked and at the same time if anyone poses a threat to the unity and integrity of our great nation will not escape unpunished. Even if quantum of punishment is not reduced  which ideally should be reduced from life to at least  seven years never mind but at the least some safety clauses can be inserted to check its arbitrary misuse and those police cops who are found to be misusing it must be also mandatorily dismissed from service and a minimum jail term also must be in store for them so that its misuse in future is deterred to a great extent.

Needless to say, there were no such safety clauses in Britishers time as they ruled India like slaves but now in a free and liberal democratic country like ours, there must be some checks and balances imposed on such oft abused Sections and laws as they cannot be allowed to punish wrongly its own citizens! One fervently hopes that the CJI NV Ramana led Bench will ensure that sedition is no more used as a potent weapon to harass, harangue and humiliate opponents on one pretext or the other and so also in case of UAPA and other anti terror related laws as we saw how Lt Col Prasad Shrikant Purohit was made to rot in jail without even charge sheet not being filed against him for nearly 9 years despite being a serving senior army officer and having won commendation card from Army Chief and so also many other citations and this is nothing but a “complete mockery” and “brazen trampling” of “personal liberty” as guaranteed to all citizens under Article 21 of the Constitution and it is not “due process of law” but “due murder of law”! Judiciary should not watch everything like a silent spectator but speak out as CJI has spoken out just recently so valiantly against sedition! Only then can we call ourselves “truly democratic”! Guilty cops who torture, indulge in fake encounters, frame false cases must be punished most strictly so that no one dares again to indulge in taking for granted the personal liberty of any citizen and holding it to ransom without being held accountable in any way as we see in so many cases! Only then will we see that “rule of law” prevails!

Sanjeev Sirohi

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