The insidiously developing use of technology by the government to create a surveillance security regime to monitor and track communication in India has a dangerous relationship with the retention of statutory offences criminalising political speech. In that, their object is the same – of imposing fundamental restrictions to constitutional freedoms.
The latest declaration of the state’s willingness to retain excessive power with impunity was made in the Rajya Sabha on July 1. In response to a written question on whether the government is mulling doing away with the law of sedition, the minister of state for home stated that there was no proposal to repeal Section 124A of the IPC because of its utility to combat “anti-national, secessionist and terrorist elements”.
Interestingly, this official response comes almost five months after a legal opinion sought by the Union government on a “consultation paper” released by the Law Commission had stated that the “law is necessary” and advised against diluting or doing away with the provision. This despite the fact that the ‘consultation paper’ itself had suitably recommended a review or even repeal of the provision because of its unsuitability in a democratic country.
What is particularly striking about this statement is that it exhibits a sheer ignorance of the government’s own official data between 2014-16 released by the National Crime Records Bureau that reflect the disutility of the law for the criminal justice system. The statistics available under the title of ‘Offences Against the State’ in the report show a total of 179 arrests for sedition. Further, it also states that no chargesheet was filed by the police in over 70% of the cases, with only two convictions during this time period.
The above data is revealing because it critically belies the government’s fictitious claim for retaining the provision in parliament. However, more importantly, the data quantitatively vindicates the grounds upon which opposition to a draconian law has been mounted and a review or repeal been demanded.
This opposition is primarily based on the use of this law as a tool to persecute political dissent. Thus, it is the duty of constitutional citizens to consciously ask the question: Why and how are these lawless laws, seamless police powers and a permanent state of exception a continuing feature in our democratic polity?
Markings of a colonised past
In that, the post-colonial Indian state – much like other nation-states in the sub-continent and elsewhere with a shared history of European colonialism – carries with it the indelible legal, political and cultural markings of its terrorising colonised past.
Despite the Indian National Congress leading the anti-colonial struggle, and its prominent leaders being active participants in the drafting process of a sovereign constitution – envisioned to transform its people(s) from oppressed subjects to autonomous citizens – a close analysis of the Indian state’s attitude in the post-constitutional era of a right(s) based order shows a direct and sustained affront under the garb of ‘national interest’ and ‘public order’ by the state to the constitutional guarantees of individuals.
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This is best explained by the early inclusion of sedition as a ground for restricting speech, in both the initial draft of the Bill of Rights and the Draft Constitution of 1948 (but ultimately excluded from the final draft) presented to the Constituent Assembly. Also, the conscious retention and continuous abuse of the broadly defined Section 124A of the Indian Penal Code, introduced by the British to reign in a Wahabi conspiracy. This provision, as it currently exists in the IPC, criminalises the bringing into “hatred or contempt” or exciting “disaffection” against the government established by law with a punishment that can be as brutal as life imprisonment.
Thereby, highlighting a colonial continuity – of a constant disengagement with its peoples, a blanket muzzling of any form of dissent or rebellion to a majoritarian narrative mixed with a vicious hyper-nationalism. This, in addition to an unqualified refusal to address complex questions about itself arising from a deep-seated nervousness of its existence as a separate political and territorial entity – an ‘imagined political community’.
Political use of the law
The explosion of instances in the recent past has gained “a special degree of notoriety” with the othering of human rights activists, university teachers and students and journalists as ‘anti-nationals’. They have been charged with and arrested for the offence of sedition for simply speaking against or criticising governmental action.
This has lead to the creation of a state-sanctioned chilling effect on free speech and has sharply re-introduced serious concerns about the political use of the law in clamping down on an individual’s human rights – foremost among them of the right to freedom of speech and expression, encompassing the right to rebel and protest against the government and the policy of the state. The same right(s), which in its broadest formulation remain unquestionably vital for sustaining a resilient and vibrant democratic political process.
It is in these state of affairs that we constantly turn towards the courts to reclaim and assert the idea of transformative constitutionalism.
This idea dramatically departs from the colonial logic under which the state can brazenly infringe on basic freedoms. Instead, it advances a constitutionally grounded logic of state accountability and reasoned explanation that is subject to judicial scrutiny for every action that takes away fundamental rights.
Failure of the judiciary
However, the judiciary – and especially a polyvocal Supreme Court – whenever given an opportunity to knit into the constitutional cloth a robust free speech jurisprudence in relation to sedition, has consistently failed to account for the enormously rich tradition of civil liberties. At the same time, it has also criminally abandoned its role as a counter-majoritarian institution that ought to stand between the terrifying asymmetrical relationship of power between the nation-state and its dissenting peoples.
The Supreme Court, in its majority opinion in the two successive cases it decided in 1950, exhibited exemplary courage in examining the relationship between the Article 19(2) restrictions and ‘public order’ by noting that “not every instance of public disorder reached the level of undermining the security of the State.” This, and its discussion on the speech protective vision of the drafters laid the foundation for various high courts in Tara Singh and Balwant Singh to hold Section 124A to be unconstitutional, and that if there was no incitement to violence even ‘revolutionary speech to overthrow the state’ was permissible as per Article 19(1)(a).
A signboard is seen outside the premises of Supreme Court in New Delhi, India, September 28, 2018. Photo: Reuters/Anushree Fadnavis
The First Amendment to the constitution, 1951 did two important things to 19(2): first, it replaced ‘security of the State’ with ‘public order’ and added ‘incitement to offence’. Second, it included the requirement of reasonableness. In this context, despite its apparent initial disposition to broadly interpreting constitutional protections to free speech, the SC in Kedar Nath vs State of Bihar (where the constitutionality of sedition was challenged) on the first part, did re-state the test of ‘incitement to violence’.
However, at the same time – and more importantly – the court also ignored a direct precedent that was laid down in Superintendent, Central Prison, Fategarh vs Ram Manohar Lohia, wherein it had formulated a strict test of proximity between speech and consequence to instead harshly reaffirm the speech restrictive standard of mere ‘intention or tendency’ to public disorder for prohibiting speech alleged to be ‘seditious’.
Thereby, the court in Kedar Nath upheld the law on the basis that this power was required by the state to protect itself, and engaged in a troubling act of judicial pragmatism. It thus remarkably failed to perform its responsibility as the sentinel qui vive of dissent in a democracy when presented with a glorious opportunity to consign sedition to the annals of the colonial past.
Particularly, in relation to Section 124A, what must be noted is that it is wholly unconstitutional not only because of the wide and concentrated executive discretion that is in-built into them which permits the blatant abuse but also because it negates the central principle in a constitutional democracy: of every state action to be measured against reasonable limiting principles laid down by the founding document.
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Although, before the just-concluded general elections, it was encouraging to notice that the official manifesto of at least one major political party had promised to repeal Section 124A. The biggest irony remains that the UK and Australia have written the offence of sedition out of the common law through a statutory enactment, and the constitutional courts of Uganda and Kenya (also former colonies) have struck down its criminality. And yet, the police and courts in India validate the existence of an almost dead law in their misuse, misapplication and misinterpretation of the law.
Recent instances
For clearer enunciation, a redrawing of attention to two judicial opinions rendered in the recent past is essential: Firstly, the bail order, (that was riddled with banal rhetoric) pronounced by Justice Pratibha Rani of the Delhi high court after the politically surcharged sedition incident at the Jawaharlal Nehru University in 2016.
The order itself was infamous because it unduly compared the alleged “anti-nationalism” of Kanhaiya Kumar, a PhD scholar at the university, to an “infection in the society that risks turning into a gangrene”. Even more so, for the disconcerting infidelity it displayed to the same constitutional text that she solemnly swore to uphold and protect.
Kanhaiya Kumar at the JNU campus on March 3, 2015. Photo: Reuters
This judicial surplusage is worrying – especially when you confront the fact that despite being held to be guilty rather immediately by a state-fueled media, the police did not file a chargesheet for almost three-and-a-half years after the incident, and is also yet to obtain the sanction to prosecute from the government of NCT Delhi.
Secondly and more recently, Vaiko, the MDMK leader in Tamil Nadu, was convicted for sedition and sentenced to one-year imprisonment by a sessions court in Chennai for an address that he made in 2009 after the death of LTTE leader Prabhakaran. The allegations made here was that in his speech, he accused the Indian state of being complicit in the atrocities meted out to the Tamil people in Sri Lanka during the Civil War. The sessions court bizarrely held that the enquiry of if and whether a consequential violent act resulted from the alleged ‘inflammatory speech’ of Vaiko was “immaterial” to convict him.
The sessions court was not and it won’t be the first court to be guilty of constitutional impropriety for principally relying on the long-abandoned textualist and literal application of Section124A. In doing so, it disregarded the accumulated force of the law laid down by the SC that requires the state to establish the proximity between speech and violence or disorder caused.
The subsistence of a tyrannical criminal provision penalising subversive speech in this manner – as explained by Anushka Singh in her book Sedition in Liberal Democracies – is possibly due to the discord within the official institutional discourse of sedition. It, however, has the unwarranted effect of detrimentally altering the relationship between the citizen and the state. It also goes against the very grain of judicially recognised/accepted test that is to be met for an individual to be convicted for the offence of sedition and of constitutionally protected values and international human rights obligations. This despite the increasing weight of the many setbacks to the exercise of free speech and a visible slipping away of rights over the years especially with a review or repeal of the provision being only illusory.
The hope that the dissenting people(s) in India continue to hold for their freedom of speech and expression and of civil liberties, albeit with forceful challenges from powerful members of the ruling government, firmly finds resonance in the recent judicial reaffirmation(s) of the settled doctrinal standard of ‘incitement to violence’ by the SC in Common Cause, in Shameer by the Kerala HC and the bail order of the chief judicial magistrate, Imphal in Thokcom Veewon.
More radically, the decisions of the SC in Arup Bhuyan vs State of Assam and Shreya Singhal vs Union of India, progress towards establishing a similar test of ‘imminent incitement to lawless action’ for deciding protectable speech, as evolved by the Supreme Court of the United States in Brandenburg vs Ohio.
These decisions, in their assertive repudiation of unbridled executive supremacy and a fierce endorsement of constitutional supremacy, also vividly illustrate a transformative potential and vision of the constitution under which there is a recognition of the abundant duty of the state to aid the enjoyment of fundamental rights and freedoms – through narrowly defined restrictions, a strong regime of accountability for the political executive and fearless commitment to the rule of law.
These decisions, taken collectively, lay down a judicial philosophy and a spirited foundation for a rare form of resistance to unchecked and limitless executive action while also firmly positioning an individual and his right to dissent at the nucleus of liberal democratic constitutional order.
At the same time, it equally accords legitimacy to citizens and enables them to effectively resist the erosion of our foundational civil rights and liberties. Further, this jurisprudence of resistance significantly assists in enforcing the already existing larger checks and balances architecture erected against attempts to create a near totalitarian society through the normalisation of oppressive structures and regimes of coercive state power.
Being citizens in a democracy entails a responsibility upon us to continuously re-negotiate with the state the guarantees one can give away and also employ our constitutional document to effectively limit state violence over its peoples. In the same way as noted Indian civil rights lawyer, K.G. Kannabiran, asked us to recognise: “It is a very long journey from being a slave to being a subject and to finally being a citizen”.
John Simte is a 5th-year B.A., L.L.B (Hons) student at the National Law School of India University, Bangalore. He was previously Research Assistant to Dr Chintan Chandrachud and has also interned with Senior Advocate, Shyam Divan and Dr Usha Ramanathan.