Criticising government is not seditious: Why SC's views matter

The climate of blatant and pernicious use of the antediluvian sedition law - that has been used against a smorgasbord of civilians, such as JNU students Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya, Amnesty International in India, actress-turned-politician Ramya, Patidar activist Hardik Patel, as well as a string of anti-nuclear activists - is likely to come to an end in the country.

The Supreme Court on September 5, Monday, clearly spelt out that law enforcement authorities and lower courts are bound by the landmark 1962 Kedarnath judgement of the apex court, which restricted the use of sedition via Section 124A of the Indian Penal Code to cases where there is definite "violence or incitement to violence" and "tendency or intention to create public disorder".

A bench of Justices Dipak Misra and Uday Lalit made the observation while hearing a petition filed by NGO Common Cause and anti-nuclear activist SP Udayakumar, on whose behalf renowned advocate Prashant Bhushan was appearing in court.

By upholding the Kedarnath case, SC crucially reiterated that criticism of the government, public advocacy, ideological affiliation, organisation of debates and discussions on politically sensitive issues, editorials and cartoons, and other modes of non-violent engagement - do not constitute sedition.

Much abuse about nothing

Sedition - a colonial era relic that the British government used against MK Gandhi and Bal Gangadhar Tilak, significantly - as per Section 124A of the IPC is a law that's unfit for a modern day democracy.

It states: "…whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India, shall be punished with imprisonment for life to which fine may be added or with imprisonment which may extend to three years."

In other words, it's a classic colonial legislation meant to subjugate the non-citizens of a forcibly occupied country, and leave them without rights to political determination of what constitutes a free and fair polity, liberty and rights of individuals, among others.

Moreover, it conflates the institution of the government with those currently running the government - as it was indeed interchangeable in the British Raj - and is therefore no longer valid in the case of a parliamentary democracy that conducts elections to pick its legislators periodically.

But this Orwellian law has been much abused in independent India. Just as sedition was slapped against activists who protested against the setting up of the Kudankulam nuclear plant, including Udayakumar during the UPA regime, under the Narendra Modi government, Section 124A has been arbitrarily used against a variety of civil society members for merely speaking their minds.

Section 124A versus Kedarnath judgement

Since Section 124A, which Congress MP from Thiruvananthapuram, Shashi Tharoor, wanted scrapped as part of his private member Bill in February this year, is in direct conflict with Article 19(1) (a) of the Constitution of India guaranteeing the right to free speech, the Kedarnath judgement was pronounced by the Supreme Court in 1962 to curb the misuse of this draconian law.

It was observed that even Article 19(2), which dealt with "reasonable restrictions" to free speech as a matter of national security and integrity of the nation, did not include sedition, and therefore the law needed close examination so that it didn't interfere with freedom of expression in a liberal democracy.

By limiting the ambit of Section 124A to inclination to cause "public disorder and violence", the apex court clearly allowed for contentious debates and strong criticism of those in the government as a matter of free speech.

The phrase "spark in a powder keg" was used to denote the immediate connotation and tangible effects of a particular speech-act leading to disorder or violence. Hence, a discussion in a university seminar or congregation, no matter how sensitive - such as calling for Kashmir's "azadi", or criticism of organisations such as the RSS - would not amount to sedition.

Subversive free speech is perfectly protected under Article (19)(a), and the Kedarnath judgement curtails the application of Section 124A significantly. Moreover, in the Shreya Singhal case, the scrapping of Section 66A, that was tantamount to online policing of digital expression, ensured that the internet era had its matching edifice in legislative safeguards against hurdles to freedom of expression.

Sedition and democracy

The mushrooming of sedition charges against politically alert and critical individuals, such as the extremely comic but no less dangerous application of the charge against Ramya for her "Pakistan is not hell" comment, under the current regime has been a plague on democracy.

Even the most cursory and benign of opinions have not been free from being dubbed seditious by a frankly illiterate polity and its army of online trolls as well as offline lumpen elements. The climate of intolerance has had its penal impact by incarcerating citizens such as trio of JNU students for merely organising a talk.

This politics of vendetta by the State is deeply disturbing at one level in the short-term and deleterious for the institutions of democracy in the longer term. A liberal democracy, without its criticisms, cannot grow and keep pace with changing times.

If Section 124A is scooped up for those failing an imagined nationalism/patriotism test every time there is a criticism of the government, be it central or state regimes, it would ultimately eat away our delicately held together secular democracy.

Given that the Supreme Court has had to reiterate a 54-year-old judgement to bring home the limits of sedition, it's high time that the lower courts and law enforcement authorities are brought up to date with its real term scopes to avoid the scary and scarring misuse of the law that should ideally cease to exist.

Perhaps, Shashi Tharoor can rise to the occasion, once again?

Also read: JNU crackdown proves Modi sarkar has abused sedition law

Also read: If Ramya can be charged with sedition why not PM and others?

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