As countries across the world have expunged sedition from their statute books, the Law Commission of India has instead recommended that the provision be strengthened further in the interests of safeguarding “unity and integrity”.
In its 279th report, the panel has recommended that Section 124A of the Indian Penal Code that criminalises sedition should be retained on the statute books with an enhanced jail term.
The report, “Usage of the Law of Sedition”, published in April, contradicts the Supreme Court’s position on the matter. In May last year, the Supreme Court had put Section 124A in abeyance instead of analysing its constitutional validity, and referred it to the Union government for scrutiny.
In an egregious act as far as free speech and democratic discourse is concerned, the Law Commission has recommended buttressing the offence of sedition. Even the mere inclination to incite violence or cause public disorder should be sufficient to put a person behind the bars, rather than proof of actual threat to violence, it suggests. The report has suggested amending Section 124A by adding the phrase: “with a tendency to incite violence or cause public disorder”.
It explains “tendency” as “mere inclination to incite violence or cause public disorder rather than proof of actual violence or imminent threat to violence”.
The Law Commission’s recommendation, then, is a leap backwards from democracy and a step towards totalitarianism, unlike other countries.
The United Kingdom abolished sedition in 2009 followed by Australia in 2010. Referring to sedition as “an arcane offence”, the United Kingdom said that its existence in the UK is used as an excuse by other countries to retain sedition law and stifle free speech and political dissent.
The Socratic spirit
Democracy thrives not with laws about sedition, contempt of court and blasphemy but with parrhesia – a mighty verbal weapon. The term means “to speak everything”, and “to speak boldly”. It implies bold speech to a higher authority and therefore involves risks. Parrhesia was the soul of classical Athenian democracy, In the Ecclesia – the assembly of people – Athenian citizens were free to say almost anything.
French philosopher Michel Foucault, while explaining parrhesia, emphasised on the close relationship with the truth, describing it as a verbal activity in which the “speaker expresses his personal relationship to truth…and risks his life because he recognises truth-telling as a duty to improve or help other people (as well as himself)”.
Foucault powerfully notes that in the act of parrhesia, “the speaker uses his freedom and chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy”.
From Greek philosopher Socrates to Mohandas Gandhi, all truth-seekers effectively practiced parrhesia. Socrates exercised parrhesia even at the face of death and became eternal. To British Prime Minister Winston Churchhill, Gandhi was “a seditious…fakir”. When charged with sedition in 1922, Gandhi told the British court that to preach disaffection towards the existing system of government had become almost a passion with him.
Sedition and its twin brother blasphemy are stealthy tools of the powers that be. Sedition and blasphemy are deployed to ensure status quo in political and religious spheres. “Do not blaspheme God or curse the ruler of your people,” says the Bible (Exodus 22:28). God and the king support each other to protect their vanity. Sedition, like blasphemy, is violation of government-sponsored views on religion, society and politics.
In 2012, Russia punished Pussy Riot, a feminist protest and performance group, for a flash concert at the Christ the Saviour Cathedral in Moscow. It was a musical attack on Vladimir Putin’s dictatorship. They chanted: “Virgin mother of God, drive away Putin/Drive away Putin, drive away Putin/ Freedom’s ghost [has gone to] heaven/A gay-pride parade [has been] sent to Siberia in shackles”. The singers were punished for “hooliganism motivated by religious hatred”. Pussy Riot is an instance of parrhesia in our times.
Echoing the colonial voice
The British colonial government incorporated sedition in the Indian Penal Code in 1870, mainly to suppress the nascent Indian nationalist movement. The definition of sedition was vague and even trivial slander against the government could invoke enormous severity as the offence of sedition was punishable with banishment for life and an unlimited fine.
In England, sedition had been rarely applied since 1832 and was limited only to direct incitement of offence and disorder. The early victims of the sedition law in India were newspapers. Freedom fighter Bal Gangadhar Tilak was prosecuted for publishing an article titled “Shivaji’s Utterances” in his Marathi weekly Kesari.
Justice Arthur Strachey of the Bombay High Court issued a controversial charge to the jury in this case. He stated that sedition did not require incitement for mutiny or rebellion, or actual disturbance, great or small. Strachey pointed out that the readers of the vernacular press, like those of Kesari, were ignorant and unintelligent. Tilak was convicted and Strachey’s stance was endorsed by the Privy Council.
Section 124A was amended in 1898 and phrases such as “promoting feelings of hatred”, and “contempt or enmity towards the government” were incorporated. When the amendment bill was discussed by the Select committee, P Ananda Charlu (who presided over the AICC session in 1891), was of the opinion that words like “hatred”, “contempt”, and enmity’ were “vague, misleading and obscure” and they would stifle frank discussion of public questions.
Sir Mackenzie Chalmers, Law Member of the Viceroy’s Council, advocated for a harsh sedition law in India unlike England. He said: “If I smoke a cigar on the maidan it pleases me, and it hurts no one else. If I smoke cigar in the powder magazine of the Fort, I endanger the lives of many and do an act well deserving punishment. Language may be tolerated in England which it is unsafe to tolerate in India, because in India it is apt to be transformed into action instead of passing off as harmless gas”.
The amendment incorporated the pre-1832 English law of sedition in the Indian Penal Code.
The Law Commission’s 279th report echoes the voice of colonial masters like Strachey and Chalmers. Sedition is an anachronic dinosaur in the Indian legal ecosystem that poses a perennial threat to the citizens who seek refuge under the Constitution.
Faisal CK is Under Secretary (Law) to the Government of Kerala. Views are personal.