The arrest of several students and president of JNUSU Kanhaiya Kumar under charges of sedition has to be severely condemned. This is one more attempt by the Indian ruling establishment to muzzle voices of dissent and violate the right to conscience of people.
The Sedition law enacted in 1870 by the British colonialists survives to this day in Section 124 A of the Indian Penal Code. It makes creating hatred or contempt for or disaffection towards the government, an act of sedition punishable with imprisonment for life, whether such disaffection, hatred or contempt is created by words spoken or written or by signs or visible representation.
This law was used by the British colonialists to punish those who fought for freedom. Bal Ganghadar Tilak was tried under the Sedition law in 1909. Bhagat Singh and his comrades were prosecuted under the Explosive Substances Act and Sections 121, 121 A, 122 and 123 of the Penal Code relating to sedition in 1929.
After 1947, the Indian ruling elite did not do away with the provisions of the Sedition Act. While the Sedition Act remained in the penal code, several laws such as TADA and POTA were enacted which incorporated the colonial view of sedition. The persecution of people for their views against authority continued post independence. Justice Ajit Singh Bains, former judge of the Punjab High Court and Honorary Chairperson, was charged with secession in 1992 under TADA for his speech at Anandpur Sahib on the occasion of Holla Mohalla. TADA was also used against late Prof Dalip Singh, former vice principal of Khalsa College and former Honorary Chairperson of Lok Raj Sangathan, for his opposition to the Emergency.
While the UK abolished sedition laws in 2010, sedition became an issue for debate in India the same year when noted writer Arundhati Roy, amongst others, was charged with sedition for advocating independence for Kashmir. This is by no means the only instance of Sedition law being used in contemporary India. Many human rights activists have found themselves charged with sedition.
Binayak Sen MBBS, MD; a paediatrician, public health specialist and activist was found guilty of sedition. He is the national Vice-President of the People's Union for Civil Liberties (PUCL).
Sedition laws have been regularly used against artists, political dissenters, students, activists and journalists. In another instance, human rights activist and journalist Seema Azad and her husband Vishvijay Kamal were convicted by an Allahabad court on charges of sedition for allegedly being members of the CPI (Maoist) party. Azad had been in the forefront of exposing fake encounters and atrocities against mine workers in the state.
In September 2012, Aseem Trivedi, a political cartoonist, was sent to judicial custody on charges of sedition over a series of political cartoons against corruption.
Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Article 19 (2) of Indian Constitution says that, every citizen of the country holds the right to air his or her opinion through the printing or the electronic media with restrictions imposed.
After a debate in the Constituent Assembly, sedition was not included in the list of exceptions to Article 19(1)a — the right to the freedom of speech and expression at the time of ratifying the Constitution. But, the sedition law survived constitutional challenges based on the exception pertaining to “public order” in the Fundamental Rights section. This exception was introduced in 1951 through the First Amendment to the Indian Constitution, piloted by Jawaharlal Nehru’s government. The amendment introduced “reasonable restrictions” to the freedom of speech and expression.
The views expressed by those charged with sedition by the colonial government as well as post-independence governments have questioned the meaning of the term “anti-national” - Deshdroha
When Bal Gangadhar Tilak was charged with sedition by the British colonialists he raised the question whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha).
From behind bars in Burail Jail, Chandigarh, Justice Ajit Singh Bains declared “When a private person kills another person it is a crime, declared as such in every civilised country. The law moves against the killer. Each country with a democratic constitutional government has its code of criminal acts and punishes those who violate that code. But what is most agonising in the world today is the prevalence of governments which deny their citizens basic human rights and which, in many cases, use terrorism against their own populace”.
When faced with the allegation of sedition (along with S.A.R. Geelani, Varavara Rao and others) for speaking at a seminar on Kashmir titled “Azaadi: The Only Way” held in Delhi in 2010, Arundati Roy issued a public statement:
“. . . In the papers some have accused me of giving ‘hate-speeches’, of wanting India to break up. What I say comes from love and pride. It comes from not wanting people to be killed, raped, imprisoned or have their finger-nails pulled out in order to force them to say they are Indians. It comes from wanting to live in a society that is striving to be a just one. Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.”
Sedition laws become the armour of those states where the ruling elite is completely alienated from the people, when governments dislike any criticism of their actions, and start treating their own people as the biggest enemies. Justice James Strachey, who presided over the Tilak case, said in his interpretation of the issue, that the amount of disaffection was to be absolutely immaterial in the decision, nor was it important whether any actual feelings of disaffection were created amongst the audience or not. He went further and expanded the scope of the definition of this law, laying down the foundation for the contemporary understanding of sedition law. He held that the term ‘feelings of disaffection’ meant ‘hatred’, ‘enmity’, ‘dislike’, ‘hostility’, ‘contempt’ and every form of ill will to the government. He equated disaffection to disloyalty, and held that the ‘explanation’ that followed the main section which made allowance for acts of disapprobation, would not apply to “any writing which consists not merely of comments upon government measures, but of attacks upon the government itself, its existence, its essential characteristics, its motives, or its feelings towards people.”
In conclusion, though a few individuals in the Constituent Assembly expressed their opinion against sedition as an exception to the right to freedom of speech in the Constitution, it soon became incorporated into it under the garb of “reasonable restrictions” in the Fundamental Rights Section.
People have the right to raise their voice of dissent if they feel that the authority has swerved from its duty to ensure their prosperity and safety as we see in the struggles against land grab, price rise, corruption, displacement, and so on. People have the right to act according to their conscience and express their dissent in any form they wish.
Instead of attacking the people as seditionists, secessionists, terrorists, extremists, and calling it as Rajdroha, the state should respect the human, democratic and national rights of the people. If it fails to do this, then it is the state which should take the blame for Deshdroha.