The first trial under Section 124A took place... in 1891 when the vernacular press had grown assertive and Indian nationalism was on the rise.
Age-old misogynistic systems against women were going through a change in the nineteenth century in India. The abolition of sati in 1829, the legalisation of widow remarriage in 1856, and the prohibition of female infanticide in 1870 were some of the steps taken by the British government in India towards social reform aimed at ancient practices which victimised women.
At that time, the socio-religious Hindu practice was to have girl children married to older men by the tender age of ten, and they were obligated to be impregnated within sixteen days of the wedding under a custom called garbhadaan, which literally means donating the womb. However, instead of challenging such a patriarchal system, activists of the day looked towards reformation of the system to enable a girl to reach physical maturity which would be just enough for garbhadaan while not harming her health.
The IPC as enacted in 1860 had provided various ages for “intelligent consent” for offences committed upon a person, ranging from ten to twelve to sixteen years. For statutory rape under Section 375 of the IPC the age of consent was fixed at ten years, but this was not extended to marital rape in compliance with socio-religious realities of the day.
The otherwise reluctant British government, which did not want to offend its Hindu subjects, was forced into action by the death of a child bride, Phoolmani, who was all of ten years old in 1889.
She was married to a man named Hari Mohan Maiti who was over thirty years of age. Hari Mohan had sexual intercourse with her on their wedding night which allegedly led to her death that night itself. Hari Mohan was consequently charged for her rape and murder, and the case led to the coinage of the term “Harimaitism” for the practice of consummation of marriage with child brides. Unfortunately, Hari Mohan was acquitted of the charge of rape by the court because the law against rape did not apply to the marital rape of a girl ten years of age.
The British government enacted the Age of Consent Act on 19 March 1891, which amended Section 375 and raised the age of consent from ten to twelve years, thus making sexual intercourse with any girl below the age of twelve, whether with or without her consent, an offence amounting to rape. This law was religion-neutral and applied to all native communities in British India.
A vernacular by the name of Bangobasi was a weekly newspaper which had a large circulation in Bengal; its name meant “Citizen of Bengal”. On 26 March 1891, the newspaper published the first of five articles attacking the Age of Consent Act as being opposed to Hindu traditions and morality. A translated extract of the first offending article goes:
The English ruler is our lord and master, and can interfere with our religion and usages by brute force and European civilisation. The Hindu is powerless to resist; but he is superior to your nation in good morals, in gentle conduct and in good education. Hindu civilisation and the Hindu religion are in danger of being destroyed.
The Englishman stands revealed in his true colours. He has a rifle and bayonet and slanders the Hindu from the might of the gun. How are we to conciliate him? We cannot expect mercy or justice from him. Our chief fear is that religion will be destroyed, but the Hindu religion nevertheless remains unshaken.
We suffer from the ravages of famine, from inundations, from the oppressive delays of the law courts, from accidents on steamers and railways. All these misfortunes have become more prevalent with the extension of English rule in India; but our rulers do not attempt to remove these troubles or to ameliorate our condition. All their compassion is expended in removing the imaginary grievances of girl-wives and interfering with our customs.
We should freely vent our real grievances. We are unable to rebel, but we are not of those who say it would be improper to do so if we could. We have been conquered by brute force, but we are superior to the English in ethics and morality, in which we have nothing to learn from them. You may crush the body but you cannot affect the mind. Others like Aurungzebe and Kalapahar have tried before you and failed. You should not try and suppress girl-marriage because you won at Plassey and Assaye. It is error and presumption on your part to attempt to reform our morals.
As a consequence of publication of the offending articles, the proprietor, editor, manager and printer of Bangobasi were all charged by the government for sedition under Section 124A before the Calcutta High Court in the famous case known as Queen Empress v Jogendra Chunder Bose & Ors.
The defence argued that only the actual writer of seditious libel could be prosecuted under Section 124A, and not the publisher and others who helped in publication of the writing in question. This was based on the fact that Section 124A as originally enacted did not mention that even the publication of seditious writing by anyone other than the original author would amount to an offence. In the present case, the identity of the author of the article in question was unknown.
The defence further argued that the defendants could not be made criminally liable for the acts of the author, who was merely their agent. The defence relied on an English judgment17 to substantiate its arguments. Justice C Petheram, the chief justice of the Calcutta High Court, negated this submission and stated that the essence of Section 124A was the attempt to excite disaffection by words intended to be read, and did not restrict the scope of the offence to the writer alone. Therefore, anyone, including the publisher, who uses such seditious writing to excite disaffection as provided under Section 124A was liable for punishment for sedition.
The defence then argued that the articles published in Bangobasi did not contain any direct incitement to rebellion or use of force against the British government and therefore did not exceed the bounds of legitimate criticism. However, Justice Petheram felt that comparisons with “tyrants” like Aurangzeb18 and Kalapahad was bound to cause feelings of hatred and enmity against the British government which could have resulted in violence.
Justice Petheram summarised the charge to the jury and placed two issues before them. Firstly, they had to understand what an offence under Section 124A would be, and secondly, based on that understanding and the evidence produced before them, they had to determine if the accused were guilty of sedition.
He further explained that the words ‘disaffection’ and ‘disapprobation’ in Section 124A were not synonymous as contended by the defence. He was of the opinion that whenever the prefix ‘dis’ is added to a word, the word formed conveys an idea which would be the opposite of whatever would be conveyed by the word without the prefix. Therefore, he believed that disaffection meant a feeling contrary to affection which would amount to dislike or hatred. On the other hand, he believed that disapprobation meant mere disapproval. He summarised:
If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.
He went on to distinguish between the British government and the administration to which powers were delegated by the government. He asserted that there was a great difference between dealing with government in that sense and dealing with any particular administration which exercised powers delegated to it. He asked, “Were these articles intended to excite feelings of enmity against the Government, or, on the other hand, were they merely expressing, though in strong language, disapprobation of certain Government measures?” The jury was advised to bear in mind that the question they had to decide was whether the articles were published with the intention to commit the offence of sedition or not.
Upon considering the charge and the summation, the jury informed the court that it was unable to return a unanimous verdict. Justice Petheram would accept nothing less than a unanimous verdict and declared that a retrial before a different jury would be held at a future date. The retrial never took place because the accused issued an apology for the articles, due to which the prosecution was terminated.
Excerpted with permission from The Great Repression: The Story Of Sedition In India, Chitranshul Sinha, Penguin Books.