This essay is an extract from the booklet SEDITION LAWS & THE DEATH OF FREE SPEECH IN INDIA. This booklet was an outcome of a one day consultation workshop, “Sedition Laws and Democracy,” organized by the Centre for the Study of Social Exclusion and Inclusive Policy (CSSEIP), National Law School of India University (NLSIU), Bengaluru in association with Alternative Law Forum(ALF), Bengaluru on January 29, 2011. This booklet looks at the history of sedition laws, legal interpretation of sedition laws by Indian courts, and comparative law in other common law jurisdictions.
“124A. Sedition.—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 shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
The section corresponding to section 124A, the law that defines sedition in the IPC, was originally section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the IPC as it was enacted in 1860. James Fitzjames Stephens, the architect of the Indian Evidence Act, 1872, has been quoted as saying that this omission was the result of a mistake.1 Another explanation for this omission is that the British government wished to adopt more wide-ranging strategies against the press including a deposit-forfeiture system and general powers of preventive action.2
Section 124A was introduced by the British colonial government in 1870 when it felt the need for a specific section to deal with the offence. It was one of the many draconian laws enacted to stifle any voices of dissent at that time. Mahatma Gandhi was prescient in recognising the fundamental threat it provided to democracy when he called it the ‘prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.’ 3Prominent persons charged with sedition under this law include Bal Gangadhar Tilak and Mohandas Gandhi.
The framework of this section was imported from various sources- the Treason Felony Act (operating in Britain), the common law of seditious libel and the English law relating to seditious words. The common law of seditious libel governed both actions and words that pertained to citizens and the government, as well as between communities of persons.
The initial cases that invoked the sedition law included numerous prosecutions against the editors of nationalist newspapers. The first among them was the trial of Jogendra Chandra Bose in 1891. Bose, the editor of the newspaper, Bangobasi, wrote an article criticising the Age of Consent Bill for posing a threat to religion and for its co-ercive relationship with Indians. His article also commented on the negative economic impact of British colonialism. Bose was prosecuted and accused of exceeding the limits of legitimate criticism, and inciting religious feelings. The judge rejected the defence’s plea that there was no mention of rebellion in his article. However, the proceedings against Bose were dropped after he tended an apology.4
VICTIMS OF SEDITION
Ironically some of the most famous sedition trials of the late 19th and early 20th century involved Indian nationalist leaders. Of these, the most well known are the three sedition trials of Bal Gangadhar Tilak, which were closely followed by his admirers nationally and internationally. The fundamental moral question that Tilak raised was whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha). There are striking similarities between his question and those raised by contemporary targets of sedition law like Arundhati Roy. When faced with the allegation of sedition (along with S.A.R. Geelani, Varavara Rao and others) for speaking at a seminar on Kashmir titled “Azaadi: The Only Way” held in Delhi in 2010, Roy issued a public statement:
“. . . In the papers some have accused me of giving ‘hate-speeches’, of wanting India to break up. What I say comes from love and pride. It comes from not wanting people to be killed, raped, imprisoned or have their finger-nails pulled out in order to force them to say they are Indians. It comes from wanting to live in a society that is striving to be a just one. Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.”
Tilak’s first trial began in 1897.8 The government claimed that some of his speeches that referred to Shivaji killing Afzal Khan had instigated the murder of the much reviled Plague Commissioner Rand and Lieutenant Ayherst, another British officer, the following week. The two officers were killed as they were returning from a dinner reception at Government House, Pune, after celebrating the Diamond Jubilee of Queen Victoria’s rule. Tilak was convicted of the charge of sedition, but released in 1898 after the intervention of 11 internationally known figures like Max Weber on the condition that he would do nothing by act, speech, or writing to excite disaffection towards the government.5
Once the charges were framed against Tilak, the British government asked Justice James Strachey, who was known for his anti-native bias, to preside over this important case. Living up to his reputation, Strachey rejected the defence’s argument that the articles describing the suffering of people were consistent with loyalty. In his interpretation, the amount of disaffection was to be absolutely immaterial in the decision, nor was it important whether any actual feelings of disaffection were created amongst the audience or not. He went further and expanded the scope of the definition of this law, laying down the foundation for the contemporary understanding of sedition law. He held that the term ‘feelings of disaffection’ meant ‘hatred’, ‘enmity’, ‘dislike’, ‘hostility’, ‘contempt’ and every form of ill will to the government. He equated disaffection to disloyalty, and held that the ‘explanation’ that followed the main section which made allowance for acts of disapprobation, would not apply to “any writing which consists not merely of comments upon government measures, but of attacks upon the government itself, its existence, its essential characteristics, its motives, or its feelings towards people.” The case went on appeal to the Judicial Committee of the Privy Council, however, the Council upheld the interpretation of Justice Strachey. The native press condemned this judgement as ‘the Strachey Law’.
In 1898, section 124A was amended to reflect Strachey’s interpretation. The British included the terms ‘hatred’ and ‘contempt’ along with disaffection. Disaffection was also stated to include ‘disloyalty and all feelings of enmity’. While debating these amendments, the British Parliament took into account the defence’s arguments in the Tilak case and the decisions in two subsequent cases to ensure loopholes did not exist in the law. The debates in Parliament demonstrate how ‘diverse customs and conflicting creeds’ in India were used to justify the amendments. These amendments also introduced section 153-A and section 505 of the IPC. The colonial government, particularly the Bombay government, followed the changes in the law with a spate of prosecutions against native newspapers.
In the aftermath of the partition of Bengal, the British enacted the Newspapers (Incitement to Offences) Act in 1908, a law that empowered District Magistrates to confiscate printing presses that published seditious material. The colonial government also enacted the Seditious Meetings Act to prevent more than twenty people from assembling for meetings. These measures came in for severe criticism from Tilak. After the Muzaffarpur bomb incident, in which a bomb meant for Mr. Kingford, the District Magistrate of Muzaffarpur, killed the wife and daughter of Pringle Kennedy, a leading pleader of the Muzaffarpur Bar, Tilak’s paper, Kesari, carried an editorial pointing to the effects of governmental repression. The majority of the judges in the case were European and non-Marathi speaking and Tilak was once again prosecuted for sedition. Despite a spirited defence from Mohammad Ali Jinnah, one of the most prominent faces of the Bombay bar, the judges sentenced Tilak to six years rigorous imprisonment with transportation.6
In 1916, the DIG of Police, Criminal Investigation Department (CID) J.A. Guider moved the District Magistrate, Pune, alleging that Tilak was orally disseminating seditious information. He cited three of Tilak’s speeches in 1916, one given in Belgaum and two in Ahmednagar. Jinnah skillfully argued that since Tilak had attacked the bureaucracy through his speeches and not the government, he could not be charged with sedition. The judge in charge of this case, Justice Bachelor, held that while the effect of the words in the speech would not naturally cause disaffection, i.e. hostility, enmity or contempt, they would create a feeling of disapprobation (which would not amount to sedition).
Another famous decision was Annie Besant v. Advocate General of Madras. The case dealt with Section 4(1) of the Indian Press Act, 1910, that was framed similar to Section 124A. The relevant provision said that any press used for printing/publishing newspapers, books or other documents containing words, signs or other visible representations that had a tendency to provoke hatred or contempt to His Majesty’s government…or any class of subjects (either directly or indirectly, by way of inference, suggestion, metaphor, etc.) would be liable to have its deposit forfeited. In this case an attack was levelled against the English bureaucracy. The Privy Council followed the earlier interpretation of Justice Strachey and confiscated the deposit of Annie Besant’s printing press.
The most famous sedition trial after Tilak’s was the trial of Mahatma Gandhi in 1922. Gandhi was charged, along with Shankerlal Banker, the proprietor of Young India, for three articles published in the weekly. The trial, which was attended by the most prominent political figures of that time, was followed closely by the entire nation. The trial was presided over by Judge Strangman. Gandhi explained to the judge why from being a staunch royalist, he had become an uncompromising disaffectionist and non-cooperator, and why it was his moral duty to disobey the law. In a stunning statement which also highlights the fact that the sedition offence is that it is best suited to a colonial regime based upon strict control over any possible criticism of the regime, Gandhi commented on the law that was used to try him and demanded that the judge give him the maximum punishment possible:
. . . Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studied some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavoured to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it a virtue to be disaffected towards a Government, which in its totality has done more harm to India than previous system. India is less manly under the British rule than she ever was before. Holding such a belief, I consider it to be a sin to have affection for the system. And it has been a precious privilege for me to be able to write what I have in the various articles tendered in as evidence against me.
Significantly, Gandhi, in his statement before the court, refers to the nature of political trials that were underway at that time:
My unbiased examination of the Punjab Martial Law cases had led me to believe that at least ninety-five per cent of convictions were wholly bad. My experience of political cases in India leads me to the conclusion that in nine out of every ten the condemned men were totally innocent. Their crime consisted in the love for their country.
Judge Strangman, in a remarkably respectful response, acknowledges the stature of Gandhi and his commitment to non-violence but expresses his inability to not hold him guilty of sedition under the law, and sentences him to six years imprisonment.
SEDITION IN THE CONSTITUENT ASSEMBLY
The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the statute books of independent India was 15 not lost on those drafting the Constitution. While in their Draft Constitution, the Constitutional Framers included ‘sedition’ as a basis on which laws could be framed limiting the fundamental right to speech (Article 13)7, in the final draft of the Constitution sedition was eliminated from the exceptions to the right to freedom of speech and expression (Article 19 (2)). This amendment was the result of the initiative taken by K.M. Munshi, a lawyer and an active participant in the Indian independence movement. Munshi proposed these changes in the debates in the Constituent Assembly.19 The way in which the sedition law has been used as a convenient medium to stifle any form or expression of dissent or criticism mirrors the fears and concerns expressed by some of the constitutional drafters regarding the ease with which the sedition law can be misused and abused. As K.M. Munshi said:
I was pointing out that the word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of Law all over the world. Its definition has been very simple and given so far back in 1868. It says “sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government”. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards Government, was considered sedition once. Our notorious Section 124-A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore, the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is Criticism of Government. The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions.
Echoing similar sentiments, TT Krishnamachari, a member of the Madras Legislative Assembly said:
Sir, in this country we resent even the mention of the word ‘sedition’ because all through the long period of our political agitation that word ‘sedition’ has been used against our leaders, and in the abhorrence of that word we are not by any means unique. Students of Constitutional law would recollect that there was a provision in the American Statute Book towards the end of the 18th Century providing for a particular law to deal with sedition which was intended only for a period of years and became more or less defunct in 1802. That kind of abhorrence to this word seems to have been more or less universal even from people who did not have to suffer as much from the import and content of that word as we did. Just all the same the amendment of my honourable Friend Mr. Munshi ensures a very necessary thing so far as this State is concerned. It is quite possible that ten years hence the necessity for providing in the Fundamental Rights an exclusion of absolute power in the matter of freedom of speech and probably freedom to assemble, will not be necessary. But in the present state of our country I think it is very necessary that there should be some express prohibition of application of these rights to their logical end. The State here as it means in the amendment moved by my honourable Friend Mr. Munshi as I understand it, means the Constitution and I think it is very necessary that when we are enacting a Constitution which in our opinion is a compromise between two possible extreme views and is one suited to the genius of our people, we must take all precautions possible for the maintenance and sustenance of that Constitution and therefore I think the amendment moved by my honourable Friend Mr. Munshi is a happy mean and one that is capable of such interpretation in times of necessity, should such time unfortunately come into being so as to provide the State adequate 17 protection against the forces of disorder.
Seth Govind Das, a freedom fighter and, subsequently, a distinguished Parliamentarian, was another supporter of removing ‘sedition’ from the Article. He said:
I would like to recall to the mind of honourable Members of the first occasion when section 124A was included in the Indian Penal Code. I believe they remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section. In this connection many things that happened to me come to my mind. I belong to a family which was renowned in the Central Provinces for its loyalty. We had a tradition of being granted titles. My grandfather held the title of Raja and my uncle that of Diwan Bahadur and my father too that of Diwan Bahadur. I am very glad that titles will no more be granted in this country. In spite of belonging to such a family I was prosecuted under section 124A and that also for an interesting thing. My great grandfather had been awarded a gold waist-band inlaid with diamonds. The British Government awarded it to him for helping it in 1857 and the words “in recognition of his services during the Mutiny in 1857” were engraved on it. In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great- grandson by seeking to uproot it. For this I was prosecuted under section 124A and sentenced to two years rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word ‘sedition’ is also going to disappear.
Thus the framers of our Constitution were clearly aware of the tainted history of sedition laws and did not want the right to free speech of independent Indians restricted by these draconian provisions. By removing sedition from the terms included in Article 19(2) the Constitution makers signaled their wish to move away from the colonial order where legitimate dissent was denied to Indians.
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