The arrest of Jawaharlal Nehru University Student Union (JNUSU) president Kanhaiya Kumar on charges of sedition has triggered an intense debate on the limits of free speech in India.
Kumar was arrested on Friday for allegedly raising anti-India slogans during a demonstration on the campus to mourn the hanging of parliament attack convict Afzal Guru and Jammu Kashmir Liberation Front (JKLF) co-founder Maqbool Bhat.
Delhi Police have also registered a separate case of sedition against SAR Geelani in connection with another meeting held on Wednesday at the Press Club of India in Delhi where also anti-India slogans and placards were raised.
Geelani - who faced trial as Guru’s co—accused in the Parliament attack case - was acquitted by the Delhi High Court in 2003 and the acquittal was upheld by the Supreme Court in 2005. But the top court had said the needle of suspicion pointed towards him.
Law on free speech in India
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression to all citizens. It says, “All citizens shall have the right to freedom of speech and expression.”
But this freedom is not absolute and can be subjected to reasonable restrictions as mentioned in Article 19(2) of the Constitution. The purpose was two-fold. First, it protects existing laws restricting free speech. Second, it authorises the State to make laws imposing reasonable restrictions on the right given under Article 19(1)(a) in the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Interestingly, many of these restrictions were added to the constitution in May 1951 by the very first amendment piloted by Jawaharlal Nehru -- considered to be a liberal. Since then Article 19(2) has been used to justify a host of laws -- including those on sedition, defamation, contempt of court, obscenity, official secrets, hate speech etc -- that impinge on free speech.
Law on sedition
Sedition was not a part of the original Indian Penal Code (IPC) that came into force in 1862. It was added to the IPC in 1870 and its scope and ambit was broadened in 1898 to deal with the freedom movement that was gaining ground.
According to Section 124A, a person commits the crime of sedition if s/he brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise. The maximum punishment for sedition is imprisonment for life. Explanation 1 to Section 124A clarifies that the expression “disaffection” includes disloyalty and all feelings of enmity.
Condemning government action not sedition
Explanation 2 and 3 to Section 124A make it clear that comments expressing disapprobation of the measures of the Government or an administrative or other action of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not amount to sedition.
Criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.
After the commencement of the Constitution in 1950, some of the high courts had declared Section 124A IPC unconstitutional as being violative of Article 19(1)(1)(a). However, the Supreme Court upheld its validity in Kedar Nath Singh versus State of Bihar in 1962.
A five-judge Constitution Bench headed by then Chief Justice of India BP Sinha said though the section imposed restrictions on the fundamental right to freedom of speech and expression, the restrictions were in the interest of public order and were within the ambit of permissible legislative interference with the fundamental right.
The law struck the correct balance between individual fundamental rights and the interest of public order, the SC said.
The apex court said sedition law would be attracted only if the offence was such that it could cause “public disorder” by acts of violence.
JNU Sedition row
JNU is known as the bastion of the left. In December 2015, the JNU administration canceled Yoga guru Ramdev’s talk after JNUSU opposed him being invited as a keynote speaker at the valedictory ceremony of the “22nd International Congress of Vedanta”.
Free speech means allowing everyone to express their views within the boundaries set by law.
While Ramdev was not welcome on the JNU campus, JNUSU extended the courtesy to those who wanted to hail Parliament attack convict Afzal Guru as a martyr. Surely, leftists are not followers of French philosopher Voltaire who said, “I do not agree with what you have to say, but I’ll defend to the death your right to say it.”
Law must take its own course
If anti-India slogans were raised at the event and complaints lodged, the Delhi Police were bound to register an FIR. Arrests that followed were only natural and necessary to take the probe to its logical conclusion. To expect the police not to act in such matters is an open invitation to anarchy.
There is nothing wrong in criticising the Prime Minister, his government, the ruling party or its mother organization RSS. But to exhort people to destroy India as a nation certainly transgresses the legally permissible limit of free speech.
Let’s not forget that Gujarat Patidar leader Hardik Patel -- arrested on charges of sedition for allegedly instigating his community youth to kill policemen – has not been given bail by courts so far.
Those shouting anti-India slogan on JNU campus are giving a bad name to the prestigious university and vitiating the academic environment for ideological and political reasons. Politics should take a back seat. Law must take its own course.