Ramya doesn't deserve sedition; India must throw the law out

Actor-politician Divya Spandana, also known by her stage name Ramya, recently visited Pakistan to attend the SAARC summit for young parliamentarians. She now faces a case of sedition filed by a lawyer in Karnataka who was "outraged" by her remarks praising the people of Pakistan for their hospitality.

On her return from the country, Ramya had refuted defence minister Manohar Parrikar's remarks last week on Pakistan, saying: "Pakistan is a good country, not hell. Parrikar's comments (that going to Pakistan or hell is the same thing) are not true." She made the statement during a rally in her former constituency of Mandya.

This, and the filing of a sedition case against Amnesty International India in Bangalore on Independence Day, has brought the focus back on a colonial-era law against sedition and its effects on free speech.

Powerful political figures ought to have it in them to take criticism in their stride. They must act to address the underlying grievances rather than use repressive measures. The state's response has been needlessly angry.

According to the National Crime Records Bureau, 58 people were arrested on sedition charges in 2014.

Also read: How ABVP used sedition to silence Amnesty India

In the first three months of 2016, 11 cases were filed against 19 people under section 124-A that criminalises sedition.

Prominent among those slapped with sedition charges were Jawaharlal Nehru University student leader Kanhaiya Kumar for alleged "anti-national" slogans at an event and Tamil folk singer S Kovan for singing songs critical of Tamil Nadu chief minister J Jayalalithaa and her liquor policy.

The law on free speech in India

1) Article 19(1)(a) of the Constitution 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).

2) The purpose of reasonable restrictions is three-fold. First, it protects pre-Constitution laws restricting free speech. Second, it authorises the state to make laws imposing reasonable restrictions on free speech 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.

3) Third, it also places limitations on the state that cannot restrict a citizen's free speech on any grounds other than those specifically mentioned in Article 19(2) - an often-overlooked implication of the provision.

What is sedition?

According to section 124 A of the Indian Penal Code (IPC), a person commits the crime of sedition if he/she brings or attempts to bring hatred or contempt to excite disaffection towards the government established by law in India.

It can be by words, either spoken, or written, by signs or by visible representation or otherwise. The law makes it clear that 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.

Also read: Aaditya Thackeray does a Kanhaiya, will he be charged for sedition?

Offences against the state (under sections 121, 121A, 122, 123 and 124-A of the IPC) and offences promoting enmity between different groups (under sections 153A and 153 B of the IPC) are construed as 'Offences Against the State'.

National Crime Records Bureau data revealed that cases of offences against the state recorded the highest pendency percentage at 78.8 per cent, followed by offences promoting enmity between groups at 69.9 per cent at the end of 2014.

Law on sedition in India

Sedition was not part of the original 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.

According to Section 124-A, a person commits the crime of sedition if he/she brings or attempts to bring in hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.

The maximum punishment for sedition is imprisonment for life. It clarifies that the expression "disaffection" includes disloyalty and all feelings of enmity.

Charged with sedition: The prominent cases

2016

Amnesty International India: The human rights-focused NGO was slapped with sedition charges by the Karnataka Police on August 15 after anti-India slogans were allegedly shouted during a debate on Kashmir organised by it in Bangalore last week.

Kanhaiya Kumar: The JNU student leader is facing sedition charges for organising an event to commemorate hanged Parliament attack convict Afzal Guru, where anti-national slogans were allegedly chanted.

2015

Hardik Patel: The Patel quota agitation leader leader was charged with sedition in two separate FIRs for alleged comments instigating a community to kill policemen last October.

S Kovan: The Tamil folk singer was slapped with a sedition case for singing songs critical of Jayalalithaa.

Also read: Amnesty International India on facing sedition charges

Aamir Khan: A complaint on charges of sedition was registered against the actor at a local court in Kanpur for comments on intolerance in November 2015. Aamir had said he was "alarmed" by incidents of intolerance and his wife Kiran even suggested they should leave the country.

2011

Aseem Trivedi: Arrested for displaying cartoons allegedly depicting the national emblem and Parliament in a bad light during the Anna Hazare protest in Mumbai.

2010

Seema Azad: The journalist-activist and her husband were arrested by the UP Police in 2010 after being charged with sedition for alleged Maoist links. The editor of the bimonthly magazine Dastak and her husband were released on bail in August 2012.

Arundhati Roy: The novelist was booked on charges of sedition by the Delhi Police for an "anti-India" speech at a seminar.

2007

Binayak Sen: He was accused of sedition by the Chhattisgarh government for allegedly supporting the outlawed Maoists.

2003

Praveen Togadia: Charged by the Rajasthan government for violating a ban order on possession of sharp-edged weapons.

It's objectionable: Father of the Nation and India's first Prime Minister

India's first PM Jawaharlal Nehru - a votary of free speech - had described Section 124-A as "highly objectionable and obnoxious" and told Parliament "the sooner we get rid of it the better".

But what he did was just the opposite. In May 1951, he piloted the first amendment to the Constitution. The statement of objects and reasons of the amendment bill read: "The citizen's right to freedom of speech and expression… has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the state from punishing or preventing abuse of this freedom."

This gave more teeth to Article 19(2) that provides a licence to the government to curb free speech.

Among other things, the amendment added "public order" to the list. It was on this point that the Supreme Court upheld the validity of the sedition law - now being invoked against activists.

His government strengthened the restrictions in 1963, when it brought in the 16th amendment that added "the sovereignty and integrity of India".

Since then, Article 19(2) has been used to justify laws on defamation, contempt of court, obscenity, official secrets and hate speech.

Many say had Nehru not brought in the first amendment, the sedition law could have been struck down 54 years ago.

Father of the Nation Mahatma Gandhi had said in 1922: "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."

But even non-Congress governments of Morarji Desai, Atal Behari Vajpayee and Narendra Modi chose not to amend the sedition law.

Global perspective

The UK abolished the sedition law in 2009. Britain's law commission had recommended its abolition in 1977. "Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech," Claire Ward, Britain's former parliamentary under-secretary of state at the ministry of justice, had said while abolishing the law.

Scotland followed in 2010. South Korea did away with its sedition laws during legal and democratic reforms in 1988.

In 2007, Indonesia declared sedition as "unconstitutional", saying it had been derived from its colonial Dutch masters.

Also read: How can Delhi Police use doctored videos for another crackdown on JNU?

In contrast, in October 2015, the Malaysian federal court dismissed a challenge to its colonial-era sedition law - with the same origin as India's - often used to quell political opposition.

Saudi Arabia executed Shiite cleric and political dissident Sheikh Nimr al-Nimr for sedition in January this year.

Among the countries that hold on to sedition as a criminal act are Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey . The US has a sedition law, promulgated 218 years ago, but with many parts struck down over two centuries. Germany keeps a sedition law on its books largely because of post-Nazi sensitivities.

SC interpretation

After commencement of the Constitution in 1950, some high courts declared Section 124-A of the IPC unconstitutional, as it violated Article 19(1)(a). However, the Supreme Court upheld its validity in the Kedar Nath Singh versus State of Bihar case in 1962.

A five-judge constitution bench said though the section imposed restrictions on freedom of speech and expression, it struck the correct balance between individual fundamental rights and the interest of "public order".

The SC, however, restricted the scope. "It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order, that the law steps in to prevent such activities in the interest of public order," it said.

In Balwant Singh's case in 1995, the apex court acquitted two men accused of shouting anti-India slogans on the day PM Indira Gandhi was killed. The court said the chanting of a slogan only a couple of times - which neither evoked any response nor any reaction from the public - couldn't attract the sedition law.

Courts have deprecated the tendency to invoke this grave charge for mere expressions of critical views. The Supreme Court said that even words that indicate disaffection towards the government cannot be termed seditious, unless there is actual incitement to violence and intention to cause disorder.

Given its repeated misuse, it is time this unwanted, outdated, pre-colonial provision was jettisoned altogether.