Criminalising chants of azadi: It's not seditious and Naidu's assertions are mangling the law

Should slogans of azadi be termed seditious in law, and be dealt with by imposing a life sentence ? Should slogans, which in the minds of some, create "divisive" tendencies among a section of the population, be prohibited and proscribed by law? And, in a nation which is already sharply polarised on the questions of who are patriots and who are "anti-nationals", what is likely to happen if the law of sedition was tightened to further restrict the freedom of expression?

These questions assume importance because of the statements of Union Minister Venkaiah Naidu in an interview to India Today. In that interview, Naidu stated that the Centre was mulling upon bringing slogans for azadi within the ambit of sedition (defined under Section 124 A of the Indian Penal Code) because they create a "divisive mindset" and "were always followed by violence".

Twisting words?

Going by the definition of sedition, as stated by law and clarified by the Supreme Court in the Kedarnath Singh case of 1962, how should Naidu’s statement about violence be read and interpreted?

Union Minister Venkaiah Naidu. PTI

Union Minister Venkaiah Naidu. PTI

Section 124A makes it an offence to bring hatred or contempt, or excite disaffection towards the government established by law in India and seeks to punish it with imprisonment for three years or for life and with a fine. The provision qualifies the rigour of the law by adding three explanations. The first explanation worsens the rigour by stating that the expression "disaffection" includes disloyalty and all feelings of enmity. Explanations 2 and 3 exempt from the purview of the law mere criticism of the government or the administration without exciting hatred, contempt or disaffection.

In the Kedarnath Singh case, the apex court, while narrowing the scope of the sedition law, held that words, writings, or actions would cause offence only if they had "the tendency or intention to disturb public tranquility, create public disturbance, or to promote public disorder." Thus , the court was categorically stating that there had to be a clear correlation — a cause and effect relationship — between the words or actions and the ensuing violence that took place in the aftermath.

Even after the incidents at Jawaharlal Nehru University last year, the Supreme Court cautioned the lower courts to adhere by its decision in the Kedar Nath Singh case and not to willy-nilly drag Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya within the scope of the penalising provision.

In this context, and given the present circumstances of violence erupting across college campuses in New Delhi, Naidu's assertion are clear, and deliberate, mangling of what the law actually states.

This is because nowhere does he substantiate his stance by pointing out even a single instance where the demands for secession of Kashmir or Chhattisgarh from India were intended to, or have caused the violence which followed. Rather, it is an indisputable fact that the violence was caused not by those who raised the slogans, but by elements who took umbrage at cries for freedom and the right to self-determination.

Naidu himself is in the best position to clarify whether his assertion was designed to cater to the those self-proclaimed guardians and purveyors of “nationalism” whose sentiments are hurt the moment a person pumps his fist in the air and screams "azadi" at a seminar or gathering in a university campus.

Ironically, his stance in favour of imposing a colonial-era law goes against the grain of a judgment given before independence. In the case of Niharendu Dutt Majumdar versus King Emperor (1942), the Federal Court (now the Supreme Court of India) held that "sedition is not made an offence in order to minister to the wounded vanity of governments, but because governments and law cease to be obeyed… (and then) only anarchy can follow.”

Azadi is Not Seditious

There is another way of proving Naidu wrong and pointing out why the government would be on thin ground were it to broaden the sedition law and further curb the fundamental right to freedom of speech and expression.

This is because the Indian Supreme Court has imported the relevant rulings of the Supreme Court of the United States (SCOTUS) which govern treason and free speech. In the Schenck case (1919), SCOTUS, while dealing with speech critical of the government and its policies, held that in order to be regarded as treasonous, the words used 'should be such that they would pose a clear and present danger of immediate evil or an intent to bring it about. “ (emphasis added).

Then in 1927, in the case of Whitney v California, Justice Louis Brandeis, writing for the majority, drew a prominent line of difference between advocacy and incitement. “The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger, it must be shown that immediate serious violence was to be expected or was advocated, or that past conduct furnished reason to believe that such advocacy was contemplated.”

And, in 1987, India’s Supreme Court, in the case of S Rangarajan versus P Jagjivan Ram held that the words or actions, in order to constitute sedition, must have the effect of “being like a spark in a powder keg.”

Were it to go ahead with widening the sedition law, and if the new law’s constitutionality is challenged in court, the State would be hard-pressed to prove the existence of a single instance where calls for azadi in campuses or elsewhere has caused people to take up arms for the purpose of overthrowing the government or for the purpose of securing the independence of a particular region from India and thus putting its sovereignty and territorial integrity into jeopardy.

In the tumultuous times that we are living in, there has been a surge in the number of instances where the self-designed guardians of patriotism have resorted to vicious name-calling and rampant acts of violence against those they believe are advocating the break-up of India. In such a climate of hostility, Naidu’s comments and the government’s purported action would only galvanise those who believe in violence, not those who are firm-believers in exercising their freedom of speech through peaceful means of campaigning.

Thus, the fundamental question arises — wouldn’t the government itself be providing sparks of violence by criminalising freedom of expression and encouraging belligerent elements ?


Published Date: Mar 06, 2017 04:40 pm | Updated Date: Mar 06, 2017 04:40 pm

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