‘The majority of sedition charges today are legally unsustainable’ | India News

Anushka Singh, assistant professor at Ambedkar University Delhi and author of ‘Sedition in Liberal Democracies’ tells Amulya Gopalakrishnan why the widely used law contradicts both liberalism and democracy:
Why did democratic India retain this colonial law even as the UK and other liberal democracies dropped it?
Sedition (Section 124A, Indian Penal Code) was introduced as an offence of inciting ‘hatred’, ‘contempt’ or ‘disaffection’ against the government; ‘disaffection’ was explained as including all feelings of ‘enmity’ and ‘disloyalty’. Given its incessant use against the anti-colonial movement, the Constituent Assembly was divided on the question of retaining the law of sedition. As part of a happy compromise, sedition was dropped from the section on constitutional restrictions imposed on the exercise of fundamental right to freedom of expression, but it was retained as an offence in IPC on the ground that a newly independent nation-state needed such a law to safeguard itself from political reactionaries. This happy compromise became a bone of contention between the executive and the judiciary after Independence.
What are the tensions within a liberal democracy that sedition law illustrates?
The idea of rights-bearing individuals prior to state comes from the liberal tradition, where the state is the guarantor of rights. The right to freedom, which includes free expression, is a foremost liberal right, philosophically connected to core liberal concerns of individual rationality, autonomy, deliberation etc. A democratic tradition, minimally speaking, is based on the idea of popular sovereignty (rule by the people). A liberal democracy which tries to bring both traditions together fundamentally stands in tension with an offence like sedition.
Sedition laws around the world have enabled the ruling authorities to forbid expressions that were unacceptable to them, thereby violating both the liberal right to free expression to individuals as well as the democratic principle of letting people express themselves against their elected representatives.
Successive governments have used sedition law to repress political opposition. What kind of activities have got people booked for sedition?
Journalists, civil rights activists, human rights defenders, students’ organisations, workers’ organisations, Dalit activists, etc.; the pattern is in oppositional politics, change-driven work or anything upsetting the power rhythm. However, it is not always democratic voices that are persecuted. The examples would be few, but consider the sedition charges on godman Rampal who was using his ashram in Haryana as an armoury or on Dera Sacha Sauda chief Gurmeet Ram Rahim. The point is that the law serves as a tool in the hands of the ruling authorities to use at will. Citizens of a democracy should find it disquieting.
Is there a difference in scale or type of activities in cases now charged as sedition? Does merely saying zindabad to all nations including India and Pakistan, for instance, or criticising government officials, qualify as deshdroh?
Judiciary has identified the threshold at which an expression ceases to be free and becomes an offence of sedition by bringing in the clause of violence or disorder. In 1962, the Supreme Court in Kedar Nath Singh vs the State of Bihar interpreted ‘disaffection’ as having the ‘tendency’ to incite violence or disorder, in absence of which an expression would not be seditious. Coming back to the question of the happy compromise — in the early years, charges of sedition levelled by the executive were dismissed by courts because sedition was not a constitutional limitation on freedom of expression. In 1951, through the First Constitutional Amendment, ‘public order’ was inserted as a reasonable restriction on the exercise of free expression. Thereafter, even though sedition was not directly a constitutional restriction, it could indirectly become so if seditious expressions could be proven to be deleterious to public order.
The constitutionality of sedition, however, continued to be debated until the 1962 judgment settled it by linking sedition with violence and disorder through its interpretation of the term disaffection. The word ‘tendency’ however was not defined, and so Kedar Nath laid down an inadequate free speech test. But even with the weak premise set by the 1962 order, the majority of the charges today including the ones you cite, are legally unsustainable.
How does a sedition case play out for those accused?
Between 2016 and 2018, only four out of 156 sedition cases resulted in conviction, but these low conviction rates are nowhere a marker of the chilling effect of law. With the popular interpretation of sedition as deshdroh — as opposed to the literal translation of rajdroh — gaining everyday ascendance, the anti-colonial understanding which linked sedition to political dissent has lost significance. The tag of deshdroh invites delegitimisation, ostracisation, and criminalisation of the ideas and the politics of the persons charged.
In the process, political authorities are further empowered to eliminate political opposition in the name of persecuting the ‘anti-national’.

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