By Hasnain Khawja
The law of sedition has once again come into the limelight, this time after the arrest of Kanhaiya Kumar, President of the Jawaharlal Nehru University Students Union, by the Delhi police on the command of the Indian Home Minister. Different newspapers have given a different twist to the news; from this being an issue of freedom of speech to sedition. The (fake) news that the LeT chief was backing the protests at JNU also made the rounds. The arrest came after members of the right wing ABVP complained that Kanhaiya Kumar was part of a protest against the hanging of parliament attack convict Afzal Guru .
A series of inquiry commissions have been set up, from internal university ones to magisterial commissions. Similarly, many probes have been ordered into the matter. But at the end of the day, one knows that the buck stops at the door of the judiciary. Serious charges of high-handedness were levelled against the government and its enforcing agencies for crushing the freedom of speech of the students.
Part III of the Indian Constitution has guaranteed to the citizens of the country the freedom of speech, freedom of association and freedom of expression. The architect of the Indian Constitution has called these sections the heart of the constitution. But it seems that this part of the constitution has been forgotten by the present government. And it is time to remind the holders of constitutional and legislative posts that when they hold such offices they have to keep their personal political ideologies aside and strictly work within the constitution of India under which they take oath. However, the government has sidelined the fundamental rights enshrined in the Constitution and has tried to use the shield of Section 124A of the Indian penal code. This section deals with sedition and is punishable by life imprisonment.
The section was drafted and introduced by the British in the late 1860s. The only reason behind this section was to crush the voice of the Indian media and Indian freedom fighters. Bal Gangadar Tilak was an early victim of this law. The judge in the said case used the word “absence of affection” towards the government. So, the court at that time interpreted sedition as disaffection towards the government.
MK Gandhi was also victim of this lawless law, during his trial, Gandhi said, “Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite violence”. In 1946, Sheikh Abdullah was also tried on sedition charges by Maharaja Hari Singh.
During British rule, there was a common consensus among Indians that the section was intended to suppress the liberty of the citizen. The policies of the government could only be criticised if that didn’t excite hatred, contempt or disaffection. It was for the first time in 1942 that Indian courts questioned the excessive use of this law to crush all innocent forms of disobedience. Sir Maurice Gwyer was the first to question the law.
In the post-independence period, most Indian leaders realised the dangers Section 124A posed to Article 19 of the Constitution. India’s first prime minister is on record saying in the parliament house that, “Now as far as I am concerned (Section 124-A) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it the better it is.”
The Supreme Court of India has also made efforts to reduce offences under Section 124A. The SC has tried to ensure that the section does not harm the fundamental right to free speech. It was laid down in Kedarnath Singh vs State of Bihar that “strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penalised.” This landmark judgement of the Supreme Court came to the rescue of free speech by reducing the ambit of sedition.
Similar observations were laid down in the case of Balwant Singh And Others vs State of Punjab , in this case the court held that mere sloganeering against the government does not amount to sedition. Supreme Court has shown similar views in the case of Bilal Ah Kaloo vs State of AP. It is pertinent to mention here that the British, who gave birth to the sedition law in India, have themselves stuck down the law in 2007, saying that the law is a barrier for free speech.
Despite the higher judiciary’s best attempts to strike down the law as it has done with of 66A of IT Act, sedition continues to remain part of the IPC and people are still booked under this law. Kanhaiya Kumar and SAR Geelani were just the latest target.
—The writer studies at the Department of Law, University of Kashmir