The arrest of JNU Students Union president Kanhaiya Kumar last week for committing an offence under Section 124A of the Indian Penal Code, better known as ‘sedition’, has once again brought into focus this highly controversial clause in our criminal laws.
The sedition law is a legacy of the Raj, which used it to stifle dissent and the national movement for freedom. The first time this section came to be prominently associated with the government trying to curb peaceful dissent was when Bal Gangadhar Tilak was booked under it for waging war against the Queen. The manner in which his trial progressed contained enough pointers to how the law could be misused. The case went up to the Privy Council, and ended in Tilak being held guilty of sedition for writing a piece in his newspaper, Kesari, under the heading “The misfortune of the country”. He was sentenced to six years in prison.
Pre-Independence, among those who were booked included Mahatma Gandhi, Bhagat Singh and Abul Kalam Azad.
Post-Independence, the clause was retained in the IPC, even though, in 1951, speaking in Parliament, Prime Minister Jawaharlal Nehru made a strong pitch for getting rid of it.
“...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,” he said. “The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it.”
And yet, successive governments did nothing to repeal the clause — and it continues to be part of the IPC under the chapter that deals with offences against the State.
However, over the years, judgments by the highest court of the land have ensured that the tendency of the state (read government) to (mis)use this law to curb peaceful dissent is checked to a certain extent.
In Kedar Nath Singh v State of Bihar (1962), a five-Judge Bench of the Supreme Court ruled that while the clause was constitutional, its operation was limited only to activities involving “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
Per the judgment, an allegedly seditious speech will not attract the charge of sedition unless it is established that it incited violence or mooted creating public disorder.
More recently, in 2011, in its judgment in Indra Das v State of Assam, the SC reiterated that all laws, including Section 124A, have to be “read in a manner so as to make them in conformity with the Fundamental Rights”.
“Although according to the literal rule of interpretation we have to go by the plain and simple language of a provision while construing it, we may have to depart from the plain meaning if such plain meaning makes the provision unconstitutional,” the Bench noted.
But, since the main allegation against the JNUSU president is that he organised the rally where slogans allegedly talking about breaking India were raised, the most pertinent case is Balwant Singh and Another v State Of Punjab (1995), in the apex court.
Consider the allegations against the Balwant Singh and his accomplice: On October 31, 1984, the day Indira Gandhi was assassinated by her bodyguards, the duo raised anti-India slogans in Chandigarh. They included “Khalistan zindabad”, “Raj karega Khalsa (Only the believer shall rule)”, and “Hinduan nun Punjab chon kadh ke chhadange, hun mauka aya hai raj kayam karan da (We will drive Hindus out of Punjab; now is the chance to establish our rule)”.
And, the court’s verdict? “It does not appear to us that the police should have attached much significance to the casual slogans raised... a couple of times and read too much into them. The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans... and that in spite of the fact that the appellants raised the slogans a couple of times, the people, in general, were unaffected and carried on with their normal activities. The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government..., Section 124A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case,” the Bench noted.
It then came down heavily on police for exhibiting “lack of maturity and more of sensitivity in arresting the appellants for raising the slogans — which arrest — and act the casual raising of one or two slogans — could have created a law and order situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi.
“In situations like that, over-sensitiveness sometimes is counter-productive and can result is inviting trouble,” the Bench observed, adding, “Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India... (nor) could (it) give rise to feelings of enmity or hatred among different communities...”
The Law Commission in its 42nd report had favoured amendments to Section 124A. While it wanted the scope of actions that would be punishable under the clause to be widened, it wanted the punishment to be fixed at a maximum seven years and/or a fine. At present, a person convicted under the section can be sentenced to a prison term, either up to three years or for life — nothing in between! However, nothing was done to implement those recommendations.
As things stand today, while the Supreme Court has been consistent in what constitutes sedition, the subordinate courts have often strayed from the path.