So why is the court silent? Once retired, judges have spoken out, but those still sitting on its benches have kept their lips sealed. (File Photo)
So why is the court silent? Once retired, judges have spoken out, but those still sitting on its benches have kept their lips sealed. (File Photo)

Institutions have failed citizens on sedition

In a nutshell, sedition can only apply if there is clear and imminent incitement to violence. Not otherwise. But have our police and various governments recognised this? Or, if they have, do they care?
UPDATED ON MAR 07, 2021 08:17 PM IST

I haven’t kept count but the available facts suggest an alarming increase in cases of sedition.

The website, Article 14, claims 65% of the sedition charges against 10,938 individuals since 2010 were brought after 2014. Within that category, 96% of sedition cases “for criticising politicians and governments over the last decade” were registered after 2014.

According to Article 14, this means “a 28% increase in the number of sedition cases filed each year between 2014 and 2020… compared to the yearly average between 2010 and 2014”. Finally, the National Crime Records Bureau seems to confirm these figures with its own, which show a 165% increase in cases of sedition between 2016 and 2019.

Mahatma Gandhi would be appalled. He called Section 124A of the Indian Penal Code, which is the sedition law, “the prince amongst the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.

As for “attempts to excite disaffection against the government”, which the law penalises, he said: “I hold it as a virtue to be disaffected towards the government … one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite violence.”

The fact that, in recent years, sedition has been used against cartoonists, students, journalists, historians, authors, actors, directors and, even, threatened against little children would have reduced the Mahatma to tears. Not of anger, but shame. This is not the future he envisaged for his country.

Yet, the truly perplexing bit is not that our rulers have ignored Mahatma Gandhi — they’ve been doing that ever since he died — but they also refuse to heed the Supreme Court (SC). And even more bizarre is the fact the court has not complained.

In 1962, in the Kedar Nath Singh judgment, the court upheld Section 124A, but restricted its use to “such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”.

In other words, it read down the law. It’s no longer what the language seems to suggest. Today, it has very limited application. Equally importantly, the court reiterated this in the Balwant Singh case of 1995, the Bilal Ahmed Kaloo case and the Common Cause case and reaffirmed as recently as September 2016.

In a nutshell, sedition can only apply if there is clear and imminent incitement to violence. Not otherwise. But have our police and various governments recognised this? Or, if they have, do they care? Clearly, the answer is no.

They blithely accuse of sedition men who complain of power cuts, people who write to the prime minister criticising mob-lynching and journalists who’ve tweeted about the death of protesters. Yet there was no hint of incitement of violence in any of these cases.

We have even reached the point where a junior judge has admonished that “the offence of sedition cannot be invoked to minister to the wounded vanity of the government”.

But it is. That’s the only credible explanation for the blatant and frequent misuse of Section 124A. It’s become the favourite weapon of government retribution against people who say things it doesn’t like or act in ways it disagrees with. This is not simply disregard of the SC. Not just disrespect of it. It’s defiance.

So why is the court silent? Once retired, judges have spoken out, but those still sitting on its benches have kept their lips sealed.

Yet, I would argue our police and governments are guilty of contempt. And this is far more serious than a comedian or cartoonist mocking the judges or the court. Across Indian states and irrespective of party in power, governments, which take oath to uphold the constitution, are repeatedly dishonouring and disobeying it.

Last month, a junior judge in Delhi spoke out. Is it not time for the elderly brethren who adorn the apex of our judicial system to find their voice? I, for one, am aching to hear it.

Karan Thapar is author of Devil’s Advocate: The Untold Story

The views expressed are personal

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