Time to scrap sedition

A heartening aspect of the grant of bail to Dr Binayak Sen is the comment made by Union law minister Veerappa Moily, seeking a re-think regarding the law on sedition. The comments are perhaps the first admission by the ruling class that something is seriously wrong with the sedition law. From here, one hopes the re-think will extend to the concept of sedition itself!

In an interview with NDTV, the minister admitted that the case highlighted the need to review the existing sedition law. One slender comment indeed but important enough to raise the hope that the administration is ready to admit that there is no place for sedition in a democracy. It is time we jettisoned a law that we have inherited from our colonial rulers. The British, by the way, scrapped sedition in 2009.

On April 15, Justices Harjit Singh Bedi and C K Prasad granted bail to Binayak Sen. In their observations, the judges have said that there is no case of sedition made out against Sen. At worst, he could be termed an active sympathiser of Naxals. Besides, mere possession of literature would not amount to sedition, the judges said.

The observations of the learned judges are of a piece with another judgement by Justices Markandeya Katju and Gyan Sudha Mishra of the Supreme Court in February this year, who said that mere membership of a banned organisation would not make a person a criminal unless he/she resorted to an act of violence. “In our opinion, Section 3(5) cannot be read literally as otherwise it will violate Articles 19 9(free speech) and 21 (liberty) of the Constitution. It has to be read in the light of our observations made above. Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence,” said the judges, who passed an order upholding the appeal filed by Arup Bhuyan, an alleged activist of banned ULFA challenging his conviction by a designated TADA court in Guwhati for being a member of the organisation.

These orders and the observations made by the judges in the Binayak Sen bail application case are of course at variance with the judgement of the division bench of Justice T.P. Sharma and Justice R.L. Jhanwar of the Chhattisgarh High Court. In a 34-page judgement, the judges rejected Sen’s bail plea and upheld the prosecution’s argument that Sen was associated with ‘hardcore Naxalites’ and possessed literature and documents about the Naxalite movement, thus proving his association with the banned organisation!

Sedition (Sec 124A, Indian Penal Code) was a handy weapon used by the British to curb political dissent in pre-independent India, with notable leaders like Tilak and Gandhi being charged with sedition.

(For more on sedition law, read Siddharth Narrain’s three-part series in the Free Speech Hub).

 Gandhi was clear that sedition had no place in a democracy. During his trial for sedition in 1922, Gandhi said :"[it] is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or thing, one should be free to give the fullest expression to his disaffection so long as he does not contemplate, promote or incite to violence...”

Civil liberties activists are conscious that the sedition provisions can be used so easily to directly attack freedom of speech and expression Over the years, sedition has been used with impunity to curb all manner of dissent. In 2010 alone, there were five cases of sedition in India – political activist Piyush Sethia was charged with sedition for distributing pamphlets against Operation Green Hunt on Republic Day in Salem, Tamil Nadu and respected scientist and civil liberties activist, Dr E Rati Rao, was charged with sedition by police in Mysore, Karnataka, for publishing a journal of the People’s Union for Civil Liberties that has been defunct for the last four years!

Others who were charged with sedition last year included celebrated author Arundhati Roy and Kashmiri separatist leader SAS Geelani and a Kashmiri college lecturer Noor Mohammed Bhat, for setting a question paper that appeared to ask students their views on the summer agitation in the Valley.

Patriotism is a tricky issue. And the law on sedition, which equates disaffection with disloyalty to a government, can just as easily stoke jingoistic fires. Law minister Moily had earlier criticised Arundhati Roy for her comments on Kashmir, stating that her right to freedom of expression could not go against the patriotic sentiments of people. On her part, Roy said that she was privileged to keep the company of some of India’s most loved patriots who were charged with sedition!

In the numerous cases of sedition in the country since Independence, the higher courts have held that the validity of this provision would depend on whether there was any act disturbing order or any incitement to violence. Mere criticism of the state, however trenchant, cannot be sedition. A mature democracy needs to be able to stomach criticism of itself without fearing dissent. Allowing freedom of speech, even if it is unpleasant and unpalatable, is essential for a democracy. It is time we scrapped sedition.