I am bewildered the more because India's sedition law is an apparition from another time, another ideology and another paranoia. We must bear in mind that sedition was not classified as a crime when the British wrote the Penal Code into the statute books in 1860, a mere two years after they suppressed the 'sepoy mutiny'. This did not mean that voices of dissent died immediately. Probably the most troublesome of these voices was that of the Wahabis, a home grown jihadi movement of armed resistance seeking a return to the glories of the Mughal Empire. The sedition law was added to the Penal Code in 1870, a statute already well capable of dealing with violence. This explains why sedition is about outlawing speech, rather than any overtly violent act. This law was then used ruthlessly in the following two decades to repress Wahabi and similar dissent.
By the turn of the century, British rule in India was well established but new dissenters were finding their voice. As you would expect, our sedition law now found new customers. In history repeating itself as tragedy, those seeking the same freedom as their colonial masters - Mahatma Gandhi, Bal Gangadhar Tilak, Anne Besant and countless others - were accused of sedition. Given this history, would you have expected such a law to survive our independence?
I would not have thought so. Clearly, section 124A goes against the tide of the times in prescribing jail for "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…" Given our democratic underpinnings, this makes little sense. Democracy thrives on accommodating divergence of opinion. It is premised on the basis that people will disagree. It leaves governance to those who constitute the majority view. How can we ever hope to discover what the majority want if voicing that opinion results in a three-year jail term?
The judiciary has always been cognizant of this problem. A mere 11 years after independence, the Allahabad High Court held this provision unconstitutional [Ram Nandan vs. State, AIR 1959 All 101] because it attacked the very roots of free speech. The state appealed and it wasn't till 1962 that the Supreme Court took up the issue [Kedar Nath Singh vs State Of Bihar; 1962 AIR 955]. It was a historic moment, occurring at the wrong time. The post-independence honeymoon with home grown politicians had ended and disillusionment had set in. The border dispute with China was at its high-pitched verbal best. India felt besieged, and very alone. In a classic case of middle-roading, the court used some creative reasoning to interpret the law in a way its framers could not have foreseen. First, it said that "the Government established by law" has to be distinguished from the persons for the time being engaged in carrying on the administration." This means that it is okay to hate this or that political party or the Governments they run. So long as you don't try to overthrow the Union of India, you are okay. Second, the court said, "the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence." So long as you don't extol your friends to break India up by taking up arms and stuff like that, you should be okay.
This landmark ruling has not served to restrain the enthusiasm of the police to book trouble makers in a rising vortex of increasing absurdity. Thus when two emotional noisy oysters shouted pro-Khalistan slogans in front of (what else!) a movie hall in the wake of Indira Gandhi's assassination [Balwant Singh v State Of Punjab (AIR 1995 SC 1785)], the Supreme Court declined to magnify the trivial, observing that since "the slogans…were raised a couple of times only…and that neither the slogans evoked a response from any other person of the Sikh community or reaction from people of other communities, we find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever, the charge of sedition can be founded."
The court has not changed its mind since. When Aseem Trivedi was arrested for a cartoon he drew for the website "India Against Corruption" [Sanskar Marathe Vs. State of Maharashtra and Ors. (2015 Cri LJ 3561)], the court held on a PIL that "there can be no real freedom unless thought is free, not free thought for those who agree with us but freedom for the thought we hate". Similarly, when our finance minister posted an article criticising the NJAC, the Judicial Magistrate, Kulpahar, Mahoba, U.P summoned him to answer the charge of sedition amongst others. The Allahabad High Court did not agree. In Arun Jaitley Vs. State of U.P. (2016 92 ALLCC 352), it held "The article merely seeks to voice an opinion and the view of the author of the need to strike a balance between the functioning of two important pillars of the country. It is surely not a call to arms."
The consistency of the courts in its thinking on this subject is matched by the consistency of the police in booking politically active people under it. Recently, the Gujarat reservation riots by the Patidar Patel community led to the filing of a rash of FIRs against its leaders. Were these speeches seditious? In Hardik Bharatbhai Patel Vs. State of Gujarat and Ors (2016 CriLJ 225), the Gujarat High Court observed that The offence of sedition is the resultant of the balancing of two contending forces: namely, freedom and security. Freedom and security in their pure form are antagonistic poles: one pole represents the interest of the individual in being afforded the maximum right of self-assertion free from Governmental and other interference while the other represents the interest of the politically organized society in its self-preservation. It is impossible to extend to either of them absolute protection for as observed by Mr. Justice Frankfurter, "absolute rules would inevitably lead to absolute exceptions and such exceptions would eventually corrode the rules". Wise words indeed, as you would expect from our judiciary. In the result, it held that sedition was prima facie made out.
Even more recently, we have watched JNU erupt in what appears to be a storm in a teacup. A 'cultural meeting' called to protest against 'the judicial killing of Afzal Guru and Maqbool Bhat' and in solidarity with 'the struggle of Kashmiri people for their democratic right to self-determination' degenerated into a slugfest between two students unions. Anti-national slogans were raised by persons unknown. As the farce unfolded, the JNUSU president was arrested to be later beaten up by my learned friends in Patiala House. Consequently, my learned friends - whose job it is to uphold the law - now face charges of being in contempt of court before the Supreme Court! We wait with baited breath for the court to go where no court has gone before and decisively rein in these august members of the bar. Meanwhile, the rest of the nation, including but not being limited to Parliament, is now receiving some insightful lessons into what constitutes sufficient and appropriate nationalism by its righteous self-appointed thekedaars. Thus, a law designed by the British to suppress those who sought freedom is now being used to suppress those who think they have won their freedom. For good measure, a "masked man" raising anti national slogans has also retrospectively entered stage left in the JNU meet. Do I hear you laughing derisively, Karl Marx?
Even if a farce such as this did not play out, you cannot but be sceptical of such a law. If you watch news TV, you will know that we are a nation with very low incitement thresholds. India lives on the edge of its nerves, because we are a stressed-out, distrustful society with overwhelming daily provocations. Road accidents routinely transform into bus burning mobs. Disagreements over parking space instantly degenerate into hockey stick battles. This does not happen because someone makes a speech. Indeed, I would argue that words in isolation do nothing without material provocation, and where there is sufficient provocation, people don't need words. Indeed, the very ideas that people are dumb cattle easily incited by speech flies in the face of the idea that Indians are smart and understand their self-interest well enough to elect their leaders every five years. People react with violence because they are beside themselves with frustration and don't know what else to do. To fail to understand this is to miss the wood for the trees. It follows then that it is acts of violence against which India must act, not the verbiage that floats about in the environment. Instead, in the aftermath of most riots, we don't identify and convict the rioters who destroy public property. Instead we jail those who make those pathetic opportunistic speeches. That is not just missing the flaming forest for the single burning tree; it's thinking that the poor little tree is all there is to the problem. Which is only a convoluted way of saying that by definition, sedition doesn't just throttle democracy: it misses the whole damn point.
The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose' of the real world of Indian courts "Legal Confidential", released in November 2015.