On October 2, India celebrated the 150th birth anniversary of Mohandas Gandhi, who is often called the Father of the Nation. Two days later, an FIR was ordered against 49 noted academics and people in the arts, charging them with sedition and various other offences because they had written an open letter to Prime Minister Narendra Modi expressing their concern about the growing incidents of mob lynching around India.

The irony was inescapable. During his life, Gandhi had been an ardent critic of Section 124A of the Indian Penal Code, which deals with sedition. In 1922, Gandhi had been charged under this section for articles he had written in his weekly publication, Young India. In his famous trial that lasted for 100 minutes, Gandhi described Section 124A as the “prince among the political sections of the Indian Penal Code”. He knew the law had been designed by the British to suppress the freedom of speech and expression of fellow Indians.

During the trial, Gandhi stated that affection could not be regulated by law and if a person does not have an affection for the system, he or she should be given the right to express it. He even went on to say that he was privileged to be charged with sedition because some of the most patriotic individuals he knew had faced the same charge.

Among those who had been convicted under the section were freedom fighter Bal Gangadhar Tilak and constituent assembly member Seth Govind Das. During the Constituent Assembly debates in the late 1940s, sedition was fiercely debated. Several members argued against including it in the Constitution. It was due to their efforts that sedition as a restriction to freedom of speech and expression was not added in the Indian Constitution. However, sedition continued to remain an offence under the Indian Penal Code.

Over the years, many leaders and activists have been charged under this archaic law. Words such as “hatred”, “contempt” and “disaffection” that are used under the section have been extended to include a wide array of speeches and expressions to allow the state to take action against inconvenient individuals.

Why does India still have a sedition law?

The constitutionality of Section 124A has faced legal challenges. In 1962, a five-judge bench of the Supreme Court ruled in the case of Kedar Nath v. State of Bihar that Section 124A was valid and constitutional.

The Supreme Court held that “public order”, which forms one of the restrictions to freedom of speech and expression under Article 19, should to be kept in mind while deciding upon the validity of the section. The court stated that laws that are enacted keeping in view of public order could be saved from the “vice of constitutional infirmity”.

Further, it is an established principle, that if a legal provision has multiple interpretations, with one interpretation rendering it unconstitutional while the other one renders it constitutional, the court would favour the latter.

Going by this logic, the court concluded that the objective of Section 124A was to penalise only those actions that have the tendency to breach public harmony. Keeping in view the interest of public order, the court upheld the constitutional validity of the section.

Mohandas Gandhi was tried for sedition in 1922. Credit: PTI

In the US

It must be noted that interpretations of concepts and laws evolve over time. For instance, the right to privacy was not earlier discussed within the ambit of Article 21 (the right to life and liberty) earlier but that changed after the 2017 Supreme Court judgment on the matter. Similarly, interpretations of the restrictions on freedom of speech and expression should evolve over time, until one is left with an impeccable construction – or at a minimum the least flawed one.

In this context, the evolution of free speech concepts in the US is instructive. In the early 1900s, the “bad tendency” test was used to determine the contours of free speech and expression. The test permitted restrictions on speech if it resulted in a bad consequence or affected public welfare.

However, in the landmark case of Schenck v. US in 1919, where some people were were charged for distributing fliers about resisting the military draft during World War I, the court steered away from the “bad tendency test”. Instead, it propounded the “clear and present danger” test to uphold the conviction.

The majority decision was written by Justice Oliver W Holmes, one of the most prolific judges of the 20th century. A similar judgment was delivered in the subsequent case of Abrams vs US, although Justice Holmes dissented, writing one of the strongest opinions. It was in this case, he used the famous term “marketplace of ideas”, a metaphor which indicates that ideas and truth compete against each other in a society, somewhat similar to an economic marketplace.

While in a free economic market, winners and losers are decided through competition, in a marketplace of ideas, the acceptability of truths and ideas are determined by way of free and fair public discourse. The concept finds relevance even in today’s time.

In 1969, it was in the case of Brandenburg v. Ohio where the US Supreme Court, overruled decade-old cases, finally proposing the imminent “lawless action” test to judge free speech and expression. Under the test, the court held that restrictions on free speech and expression could be imposed if it results or is likely to result in an imminent lawless action. The doctrine is still used and has been followed by the Indian Supreme Court in several cases.

Reassess the sedition law

To what extent cases filed in India under sedition law are frivolous needs to be examined. As per the data released by the government, between 2014 and 2016 there were 112 cases registered under Section 124A in which 179 people were arrested by the police. Jharkhand topped the chart in 2014 with most number of cases been filed for sedition, followed by Bihar in 2015 and Haryana in 2016. However, in the three-year period, only two cases resulted in conviction.

Given the low conviction rate and the current misuse of Section 124A, a case for re-examining the law can certainly be established. While there should be reasonable restrictions on free speech and expressions, the constraints imposed by Section 124A need to be revisited.

Last year, 2018, witnessed some of the most archaic and controversial sections relating to adultery and prohibition on same-sex intercourse being get struck down by the Supreme Court Perhaps one day even Section 124A will meet the same end.

I can’t think of a better way to pay tribute to all our leaders who fought this long hard battle, including Gandhi.

Arunav Kaul is an advocate and works in the public policy sphere. All views are personal.