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Overview

The Indian Express, Feb 20, 2016

Written by Deepak Nayyar

It is instructive to remember the fate of the sedition charges pressed by two governments, run by two parties, in the past. Both had happy endings.

The dictionary meaning of sedition is conduct or speech inciting people to rebel against the state. Its legal meaning is inciting violence towards insurrection of established order and lawful authority, including subversion of the Constitution. Section 124A of the Indian Penal Code, which does not use the word sedition, defines it as any action, by words, signs or visible representation, which “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards a government established by law”. It is a draconian law from the colonial era making such an act punishable with imprisonment for life. Though its application is also not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy, it still remains one of the used, if not most, provisions of the Indian Penal Code. What is more, it seeks to negate the very idea of freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy.

Yet, it is not the first time that the sedition law has been used in independent India. And it will not be the last time. It is neither rare nor frequent. But it happens often enough when it serves a political purpose. Governments invoke the law and the opposition cries foul. The irony of double standards is striking. The same political parties when in government cite the national interest and when in opposition wax eloquent about rights or freedoms. In 1986, Krishna Raj, the then editor of the Economic and Political Weekly (EPW), had been charged for sedition by Bombay Police. The reason cited in the charge was a signed article by a contributor in the EPW who had alleged atrocities on civilians in Amritsar, by the army, in the aftermath of Operation Bluestar.

In a meeting with Rajiv Gandhi for a brief 15 minutes, as a concerned citizen, I said that the EPW was an independent, credible voice on economy, polity and society in India and an important, indeed unique, institution in our vibrant democracy. I argued that charging its editor with sedition was totally inappropriate and unjustified. Instead, the government could consider legal action against the author, not the editor, under any other law of the land. He heard me out and asked just one question: “If I agree to what you are suggesting, the army will be unhappy but what will people think?” My answer was simple: “People will admire your sagacity and wisdom in preserving the essential values of democracy.” He smiled. And our meeting was over. The PM had spoken to the CM of Maharashtra communicating the PM’s decision to drop sedition charges against the editor of the EPW.

The second experience was in October 2001. Following 9/11, the United States started its bombing of Afghanistan. At a demonstration in Seelampur, five of our students were arrested for distributing leaflets and shouting slogans. To my dismay, I learnt that they were charged with sedition. I requested an appointment with the deputy PM, who was also the home minister. I met L.K. Advani and told him that five University of Delhi students had been arrested and charged with sedition. There were protests against the US bombing of Afghanistan everywhere in the world. Our students also had the same democratic right to protest. The charge of sedition was totally inappropriate and unjustified. If they had disturbed the peace, they could be charged for that. As vice chancellor, however, it was my duty to ensure that no injustice was done to my students. The DPM listened to me patiently for 15 minutes and said he would let me know. Advani said that he had considered the matter and decided that the sedition charges against the five students would be dropped.

There are some obvious conclusions. First, the sedition charges must be dropped. Second, the colonial law on sedition must be repealed. Third, governments and parties must stop playing politics in universities. Fourth, the time has come for universities to reclaim their freedom and space from intervening governments and intrusive politics: Autonomy is as autonomy does.

Fundamental rights and sedition

The Times of India, Feb 19 2016

Soli J Sorabjee

Sedition law should stay, but its interpretation must be specific and not wide-ranging as in British era 

No fundamental right in our Constitution is absolute. Free dom of speech and expression guaranteed by Article 19(1)(a) can be reasonably restricted on the grounds specified in Article 19(2). It is significant that during the debates in the Constituent Assembly the founding fathers, in view of their bitter experience of the application of the sedition law by the British colonial regime, deliberately omitted `sedition' as one of the permissible grounds of restriction under Article 19(2) on freedom of speech and expression. However sedition as a criminal offence remains in the IPC and provides for inter alia sentence of life imprisonment and fine upon conviction. Section 124A was challenged in the Supreme Court as violative of the fundamental rights of free speech guaranteed by Article 19 (1)(a) of the Constitution.

The Federal Court of (British) India presided over by the distinguished Chief Justice, Maurice Gwyer, ruled that sedition law is not to be invoked “to minister to the wounded vanity of government ... The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency“.The Privy Council did not approve of the Federal Court judgment and placed a wide and literal interpretation of the section.

According to the Privy Council any speech or writing which evinced disloyalty or ill feelings towards the government could be regarded as sedition and persons guilty of such acts could be prosecuted and punished for committing the offence of sedition. Our Supreme Court in its landmark decision in 1962, in Kedarnath versus state of Bihar, dissented from the view of the Privy Council and preferred the view of the Federal Court.

According to the Supreme Court, mere criticism of the government or comments on the administration, however vigorous or pungent or even ill-informed, does not constitute sedition. The Supreme Court limited the application of Section 124A (sedition) to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

Incitement to violence is the essential ingredient of the offence of sedition. That is our law, that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench. Therefore the question whether certain speech or acts constitute sedi tion are essentially questions of fact which have to be determined by a court of law keeping in mind the principles enunciated by the Supreme Court in Kedarnath's case.

Thus shouting slogans like Pakistan zindabad, however deplorable, per se would not attract Section 124A. Criticism of judgment of the Supreme Court upholding the conviction of Afzal Guru on the ground that he did not have a fair trial, is untenable because in my opinion Afzal Guru had a fair trial at all stages of the proceedings.

Nonetheless criticism of the Supreme Court judgment, is again per se not sedition unless there is speech or acts which call for avenging the `injustice' done to Afzal Guru by commission of acts against the government or advocate its overthrow by violent means. If, and i repeat if, a person has said Hindustan murdabad, that the state is tyrannical and it is better to do away with it, necessary to overthrow it, that would constitute sedition.

But these facts have to be established in a court of law by following proper procedure. It is not for lawyers or political workers to prejudge the issue. An accused cannot be denied his or her fundamental right to fair trial by assaulting him or her or their supporters or their lawyers, as that would militate against the rule of law and also disrupt administration of justice by regular courts of the land.

These basic principles must be kept in mind in all cases. Mob rule and mob justice cannot be permitted however strongly one may dislike the accused and his alleged statements. If that happens the very basis of a civil society is undermined and there is no vibrant democracy prevalent in our country .

In my view Section 124A `Sedition' as interpreted by the Supreme Court is necessary . Its misuse is no ground for its deletion.

Sedition and the law (S.124-A IPC)

Criticism of government is not sedition: Bombay HC

The Times of India, Mar 18 2015

Swati Deshpande

`Trivedi toons lacked wit, but not seditious'

A citizen can say or write anything critical about the government, or its measures, as long it does not incite violence or is intended to dis rupt public peace and create disorder, the Bombay HC said while holding that cartoons by Aseem Trivedi in 2011 lacked wit but were not seditious as charged by the police. The HC also directed the police to “scrupulously implement new guidelines issued by the Maharashtra government that place checks on filing frivolous sedition cases.

“Cartoons or caricatures are visual representations, words or signs which are supposed to have an element of wit, humour or sarcasm. Having seen the seven cartoons in question, it is difficult to find wit, humour or sarcasm. The cartoons at a meeting on November 27, 2011, in Mumbai, as part of a movement by Anna Hazare against corruption in India, were full of anger and disgust against corruption in the political system and had no wit, humour or sarcasm, the HC said on Tuesday , holding that the sedition charge was not attracted against Trivedi.

“But for that reason, the freedom of speech and expression available to Trivedi to express indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or tendency or intention to create public disorder, the HC bench of Chief Justice Mohit Shah and Jus tice Nitin Jamdar said.

Trivedi's arrest was for serious criminal life imprisonment attracting charge of sedition, among other offences. But the HC ordered his bail three days after his arrest on September 11 following a plea by a city lawyer, and then state advocategeneral Darius Khambata found the invocation excessive. The Bandra-Kurla Complex then dropped the sedition charge.

Maharasthra circular of 2015

The Times of India, Sep 05 2015

Maharashtra issues fresh norms on sedition, draws oppn's ire

People trying to bring change in government through legal means will not face sedition charge in Maharashtra, but those attempting to bring into “hatred or contempt, dissatisfaction and provoking violence“ against the central or state government will be slapped with sedition charges. These provisions are part of a fresh set of guidelines issued to police by the Maharashtra government with regard to invocation of the IPC Section (124-A) pertaining to sedition.

The circular containing these guidelines says sedition clause can be invoked against “whoever, by words, either spoken or written, or by signs or by visible representation, is critical of politicians, elected representatives belonging to the government“.

They were issued in compliance with an assurance given to the Bombay high court by state government while dropping sedition charge against cartoonist Aseem Trivedi, arrested in 2012 for drawing cartoons that allegedly insulted the national emblem and Parliament. The guidelines were issued on August 27 in accordance with assurance in the HC that the government would come out with a circular indicating limitations and parameters of 124-A of IPC, additional chief secretary (home) K P Bakshi said.

“Powers to invoke different sections of IPC are with the station officer. Government can issue guidelines, hence, we have done so to avoid confusion among different police stations,“ he said.

The circular drew flak from the opposition parties.Leader of opposition in legislative council Dhananjay Munde of NCP said the move indicated an “Emergency like” situation.

"Sedition, defamation cannot be invoked for criticism": SC

The Hindu, September 6, 2016

Sedition or defamation cases cannot be slapped on anyone criticising the government, the Supreme Court said on Monday. “Someone making a statement to criticise the government does not invoke an offence under sedition or defamation law. We have made it clear that invoking of section 124(A) of IPC (sedition) requires certain guidelines to be followed as per the earlier judgement of the apex court,” a bench of Justices Dipak Misra and U.U. Lalit said.

The observation came as advocate Prashant Bhushan, appearing for an NGO, said sedition was a serious offence and the law on it was being grossly misused for stifling dissent. He cited the examples of sedition charges being slapped on agitators protesting against Kudankulam Nuclear Power Project and cartoonist Aseem Trivedi, among others.

To this, the bench said, “We don’t have to explain the sedition law. It’s already there in the five-judge constitution bench judgment in Kedar Nath Singh vs state of Bihar of 1962.”

The court, while disposing of a petition filed by NGO Common Cause alleging misuse of the sedition law, refused to pass a direction on the plea that a copy of this order be sent to all Chief Secretaries of states and the Directors General of Police.

“You have to file separate plea highlighting if any misuse of sedition law is there. In criminal jurisprudence, allegations and cognisance have to be case specific, otherwise it will go haywire. There can’t be any generalisation,” the bench said.

Mr. Bhushan said law has not been amended after the Kedar Nath Singh judgment by the apex court and that a constable does not understand the judgment, but what he understands is the section in the IPC.

“Constables don’t need to understand. It is the magistrate who needs to understand and follow the guidelines as laid down by the apex court while invoking sedition charges,” the apex court said. The court was hearing a plea seeking the apex court’s intervention to address the “misuse” of section 124(A) of the IPC contending that such a charge was being framed with a view to “instil fear and scuttle dissent.”

The NGO’s plea said “there has been an increase in the number of cases of sedition against intellectuals, activists, students, with the latest being the sedition charge on Amnesty India for organising a debate on Kashmir.”

“In this regard, a petition has been filed to address the misuse and misapplication of Section 124A (sedition law) by the Centre and various State Governments leading to routine persecution of students, journalists and intellectuals engaged in social activism. It is submitted that these charges are framed with a view to instill fear and to scuttle dissent.”

Acting on a complaint by the ABVP on Saturday, Bengaluru police had slapped sedition charges against Amnesty International India after an event it had organised on allegations of human rights violations and denial of justice in Jammu and Kashmir.

Referring to a National Crime Records Bureau report, the plea said that 47 cases of sedition were filed in 2014 alone and 58 persons arrested in connection with these cases, but the government has managed only one conviction so far.

It cited a series of recent examples of activists being slapped with sedition charges, including Arundhati Roy in 2010 for alleged anti-India remarks at an event in Kashmir, cartoonist Aseem Trivedi in 2012 for allegedly insulting the country through his cartoons, doctor and human rights activist Binayak Sen, JNUSU President Kanhaiya Kumar and DU professor S.A.R. Geelani.

The plea sought a direction that either Director General of Police or Commissioner of Police be asked to give a report before registration of an FIR for the offence of sedition that the act has led to violence or there was an intent on the part of the accused to create public disorder.

It also sought a direction that the investigations and prosecutions be dropped in cases where such a reasoned order was not provided and the act in question involved peaceful expression or assembly.

The constitutional validity of section 124(A) rests upon either an intention to create public disorder or incitement of violence, it had said.

Mere criticism of govt or policies not sedition: SC

The Times of India, Sep 06 2016

AmitAnand Choudhary

The Supreme Court clarified that sedition charges cannot be brought against a person merely for raising a voice against the government or its policies. The clarification became necessary in view of the controversy generated after sedition charges were slapped in a number of cases recently , sparking demands for the colonial-era law to be scrapped.

A bench of Justices Dipak Misra and U U Lalit said that the apex court had settled the controversy on sedition law way back in 1962 and had clarified under what circumstances the penal provi sion could be used.

“We are of the opinion that the authorities, while dealing with offences under Section 124A of the Indian Penal Code, shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs State of Bihar,“ the bench said. Refusing to re-examine the issue afresh, the bench said the guidelines framed by the Constitution bench 54 years ago were good enough in the present circumstances.

The SC clarified in its 1962 verdict that a “citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder“.

The court had pointed out two essential ingredients required to establish the crime of sedition -the acts must be intended to have the “effect of subverting the government“ by violent means, and the acts must be intended to create disorder or disturbance of public peace and order by re sort to violence and must incite violence. It had clarified that comments, however strongly worded, expressing disapproval of government actions, without exciting those feelings which generate the inclination to cause public disorder by acts of violence was not sedition.

Seeking the court's intervention to stop misuse of IPC Section 124A, advocate Prashant Bhushan, appearing for NGO Common Cause, contended that it was high time the court examined the issue as the law was misused de spite the apex court's order.He said police personnel were not aware of the 1962 verdict.

The law has not been amended after the Kedar Nath Singh judgment by the apex court and a constable does not understand the judgment, what he understands is the section in the IPC, he said.

Referring to an NCRB report, the plea said 47 cases of sedition were filed in 2014 alone and 58 people arrested in connection with these cases. The bench, however, was not convinced and refused to pass any direction.

Sedition: Time for new laws to shield free speech

The Times of India, Feb 17 2016

N S Nappinai

The polarised views ranging from the politically correct positions on free speech, including from politicians who did nothing to remedy excesses whilst in office, to the inexplicable support for this uncalled for police action against students, with misconceived notions and you get a picture more confusing than Picasso's Guernica.The voice of reason cautioning against coercive restraints on free speech or the populist Bajirao Singham V .2's deep-toned perorations against turning students into criminals are lost in the cacophony of self-righteous indignation supporting labelling of slogan -shouting students as seditionists and criminals.

Seditious Dissensions

S.124A IPC militates against inciting hatred or contempt or creating disaffection (i.e., disloyalty feelings of enmity) towards the “government established by law“ in India. Despite the patent infirmities in the provision, sedition, as a criminal offence, continues in our statute books, owing to political whim and politics at play . The constitution bench of the Supreme Court in Kedarnath's case set the threshold for applying “sedition“ at actual violence or incitement to violence (“spark to a powder keg“) or subverting government, by violent means, through words written or spoken.

This threshold definitely did not extend to punishing slogan-shouting. In Balwant Singh's case, where slogans including “Khalistan Zindabad“ were raised, the SC struck down the prosecution case and came down heavily on what it termed as immature and insensitive police actions, which could have created a law and or der situation. Whilst the JNU incident could be termed obnoxious or offensive, it is still insufficient, as decided in Shreya Singhal's case (striking down S.66A of the Information Technology Act) to scuttle free speech on these grounds and definitely does not warrant tagging students as criminals.

The Article 19 (2) of the Indian Constitution argument warranting reasonable restrictions was insufficient to save S.66A. Whilst so, the more draconian S.124A IPC has continued, probably as it is pitched at protecting the State as opposed to individuals.

Nation Vs Government

The genealogy of the colonial hand-me-down, as a tool of suppression, is clearly contrary to even remote concepts of democracy and ought to have been discarded with the empire. Substitution of “Her Majesty“ with “government established by law“ did not take away the oppressive flavour but has in fact lent itself to further abuse. “Government“ and “Nation“ neither mean the same nor are they interchangeable. A nation is distinct from the persons administering it i.e., the government, vested with powers and duties to ensure cohesive functioning of the nation.

Referencing “sedition“ to the “government established by law“ instead of a much narrower application of “national security“ was and continues to be a recipe for disaster. The SC stopped short of holding the provision unconstitutional by interpreting “government established by law“ to mean the visible symbol of the State.

Given the propensity for abuse, S.124A IPC could be relooked to narrow its applica tion to protecting “national interests“, if it cannot be done away with completely . After all, aren't controversial or offensive ideas and their expression as much a part of democratic freedoms as being politically correct? And are we not otherwise relegating the people, who have surren dered some freedoms in the hope of protection of those recognised as fundamental to their existence being punished by the very representatives they have elected? Criminal provisions have to also be explicit and should certainly not be left in the hands of police to interpret and apply . Neither can a person raising his voice in anger nor the police trying to pre vent violence, pause to ponder the fine balance between freedoms and social order. Judicial review also cannot be the remedy for correcting the imbalance between guaranteed freedoms and police excesses. Dissensions to protect the rights of dissenters after police action are essential reminders of our freedoms but have proven to be futile diatribes.

Make in India

The US appeals court held in Garcia vs Google that suppression of speech, however offensive or obnoxious, merely to avoid violence was an intolerable fetter on free speech.

India has consistently drawn inspiration from existing laws in formulating its legal framework. It may now be time for India to make its own laws in India to suit Indian socio-legal requirements and in particular to protect the bastions of democracy-free speech and expression. Indian democracy craves and is entitled to the culture of open dialogue and free flow of opinions and meaningful governance.

Until such affirmative action is taken, the Supreme Court's words of restraint in Rangarajan vs Jagjivan Ram, that remote, conjectural or far-fetched anticipated danger, is not used as an excuse to scuttle free expression ought to guide and protect our paths to free speech.

Sedition cases/ Offences against the state registered in

2015

30 sedition cases registered in 2015; 17 less than in 2014, By Neeraj Chauhan Aug 31 2016 : The Times of India (Delhi)

At a time when a polarising debate on the use of sedition laws was being played out, a total of 30 sedition cases were registered in 2015 with nine being registered in Bihar, followed by three each in Haryana, Karnataka and Kerala. Nationally , there were 17 less such cases in 2015 compared to that in 2014.

Data released by National Crime Records Bureau (NCRB) also say that 571 cases of `offence against the state' were registered all over the country in 2015 with Uttar Pradesh topping the list with 60 such cases, followed by southern states of Telangana (54, Karnataka (49) and Kerala (45).

While the use of the sedition law against JNU students' union president Kanhaiya Kumar for a meeting that allegedly eulogised Parliament attack convict Afzal Guru became a heated political controversy , the number of cases registered have been limited. In Jammu & Kashmir, only one case of sedition was reported despite incidents of unrest and anti-India demonstrations.

`Offences against the state', which was listed by NCRB for the first time last year, include waging or attempting to wage war or abetting waging of war against the government (Section 121of IPC), conspiracy to commit offences punishable by Section 121 (Section 121A) and collecting arms with intention of waging war against the government (Section 122), among others.

2016

Damayanti Datta , A joke called sedition “India Today” 8/9/2016

People charged with sedition charges , India Today , September 8,2016

See also

Freedom of speech: India

Information Technology Act, 2000: India