we have mocked the State and its constituents, we have written, drawn or participated in a protest to express our discontent — it is a feature that allows us to be citizens of the world’s largest democracy and keep it healthy and vibrant.
The case of sedition has been withdrawn but Trivedi’s ordeal reveals how tenuous is the health of our democracy and how, in some ways, we are still bound to a subjugated past by the chains of archaic laws available to the police and politicians.
So it was a lifetime ago, when Mahatma Gandhi and Balgangadhar Tilak found themselves convicted in some of colonial India’s most famous sedition cases.
Tilak was convicted in three sedition trials — one on the accusation that a speech praising the great Maratha Shivaji’s killing of rival Afzal Khan led to the murders of two British officers — but released after agreeing that he would not stir disaffection against the government. Tilak was defended by a Bombay lawyer, Mohammed Ali Jinnah, later to be the father of Pakistan.
Gandhi’s 1922 trial was focused on three articles he wrote for a weekly called Young India and was memorable because he questioned the law itself by proclaiming his guilt.
“Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” 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 to violence.” Gandhi was imprisoned but released after three years.
The cornerstone of the sedition law, section 124A of the Indian Penal Code, is largely unchanged since it was introduced 142 years ago, except for the words “hatred” and “contempt”, added in 1898.
This is how it reads today: “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…disaffection towards the government…shall be punished with imprisonment for life.”
The key word is disaffection, explained as “disloyalty” and “all feelings of enmity towards the State”.
After Independence , the sedition law was retained, though the Constitution affirmed the right to free speech. The word ‘sedition’ was included in a draft of the Constitution but was eventually removed.
Although Jawaharlal Nehru strongly criticised the sedition law, the Congress government was frequently lambasted in Parliament for allowing the use of the law. To understand how little has changed in Indian public discourse and how innocuous dissent was and is classified as sedition, read this excerpt from a 1956 public speech by a Bihari political activist called Kedar Nath Singh. “You play with the people and ruin them by entangling them in the mesh of bribery, black-marketing and corruption,” said Singh. “Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of Nawabs sitting on the chairs...”
The charges against Singh led the Supreme Court in 1962 to clarify the sedition law was not unconstitutional and that a citizen could say whatever he or she wanted to about the government, but “so long as he does not incite people to violence against the government… or with the intention of creating public disorder”.
This narrow interpretation of sedition was to ensure it did not clash with the fundamental right to free speech. In practice, state authorities freely use its wide and vague colonial avatar. Trivedi’s arrest is only the latest example.
“How is it that so many cases and FIRs continue to be registered against mediapersons and others for their speeches and writings?” asked a paper written last year by experts at the National Law School of India University, Bangalore, and the Alternative Law Forum.
The paper notes that countries such as Britain have abolished the crime of sedition, and in the US (and Nigeria), “prosecutions for sedition have largely fallen into disuse”.
Of course, the State can always stifle dissent if it wants to, using a raft of laws, such as those relating to hate speech, inciting religious violence or defamation. That is how West Bengal chief minister Mamata Banerjee could order the arrest of a farmer who questioned her and a professor who lampooned her.
So, while removing the sedition law is an important first step, it is perhaps more important to question why the process of the law itself becomes a punishment. That is a larger question requiring judicial reform.
However, discarding the sedition law, a recommendation of the National Law School paper, is a low-hanging fruit. It would be a landmark for free speech, as groundbreaking as the striking down of the anti-homosexuality law was to moral legislation. “There is something very symbolic about the sedition law because it deals with nationhood,” one of the paper’s authors, Siddharth Narain told me.
He is right. If you are charged with sedition, the implication is that you are a traitor. That is a label endured by the internationally acclaimed doctor Binayak Sen, found guilty of sedition in 2010 and convicted to life imprisonment before being released by the Supreme Court. Trivedi’s arrest — for drawing a cartoon — was too foolish to attract such a label. India would do well to end the crime of sedition. Gandhi would approve.
Samar Halarnkar is a Bangalore-based journalist
The views expressed by the author are personal