By Gyanant Singh
There is a raging debate over the arrest of JNU Students’ Union President Kanhaiya Kumar for sedition. While it is necessary to debate on the relevance of section 124A which stifles dissent, the deliberation over innocence of Kanhaiya may have overshadowed the bigger debate on the need to do away with sedition which continues to be an offence despite not finding favour with the founding fathers of our constitution.
Though our society has never shied away from openly expressing views following invocation of the colonial provision by democratically elected governments, the focus invariably has been on the merits of the cases at hand. Kanhaiya’s case is no exception. The case has divided the society. The irony is that both sides may be right, but the debate is futile and unending with both groups holding trial, one based on ‘what law is’ and the other on ‘what law ought to be’.
While the resentment over invocation of section 124A of IPC to stifle free speech is justified, police may well have been within its right to slap the charge. In fact, a look at the trial of freedom fighters would show that it was difficult to defend against arrest and detention on merits without questioning the law. The broad ambit of the colonial provision has enabled police book people for reading or mere possessing certain literature, speaking ones’ mind, drawing cartoons, writing or even singing songs which may annoy the state. The list is not and cannot be exhaustive. Even if one keeps in mind Binayak Sen’s case to suppress the urge to know about naxal philosophy, Aseem Trivedi’s case to avoid cartoons, Kovan’s case to avoid singing songs and cases against journalists to avoid writing articles which could annoy the government, one can still be booked for the offence “otherwise”.
Sedition, according to section 124A, is promoting or attempting to promote — through words, visible representation or “otherwise”— hatred, contempt or disaffection towards the government. The Supreme Court read down the section in the Kedar Nath Singh case in 1962 by holding that section 124A would be attracted only if the act was such that it could cause "public disorder" by acts of violence.
The 1962 judgment may have helped in minimizing the rate of conviction but there is no end to harassment with the law enabling arrests while investigating the charge. There can be no convincing basis to refute the claim that the act could threaten public order while probe was on. Media reports on reactions by political leaders, commentators and experts show that the resentment is against the arrest of Kanhaiya for whatever happened during the 9 February function in JNU to protest against the hanging of Parliament attack convict Afzal Guru in 2013.
The resentment is sought to be justified primarily by questioning the merit of the case rather than section 124A which has a chilling effect on free speech. There may be nothing wrong in questioning the government’s decision to back the charge of sedition for expressing opinion on hanging of Afzal. But it is not ‘what law ought to be’ but ‘what law is’ that is crucial when discussing the merits of a case. To state with conviction at this stage that no case was made out against Kanhaiya only falsifies the fact that section 124A was unreasonably titled in favour of the state leaving little scope for accused to defend against harassment within the confines of law.
While the discourse outside the court should be restricted to justification for continuing with sedition which was rejected by the Constituent Assembly as a ground under Article 19(2) to curb the freedom of speech and expression, a decision on the merits of the case should be left to the court.
The predominant argument in Kanhaiya's case is that mere anti-India slogans does not amount to sedition. Undoubtedly, this is the legal position after the 1962 judgment. But stating the law is different from applying it to a case without being privy to the evidence on record or testing the merits even before the probe was over. Though the court would draw conclusions from whatever evidence is placed before it, mere slogans can be enough if they incite or are such as could cause public disorder with violence. Forget about speech and slogans. Merely attending or organizing an event could also satisfy a court in certain circumstances as hatred towards government can be not only through words and visible representation but even “otherwise”.
In this regard, it needs to be noted that the 9 February function was to protest hanging of Afzal whose body was not handed over to the family for cremation during the Congress-led UPA regime, apparently fearing breach of public order with violence. Though Rahul Gandhi also opposed the arrest of Kanhaiya over the pro-Afzal function, the decision against handing over Afzal’s body to the family for cremation would only strengthen the argument over such functions threatening public order. A seminar for studied criticism of the judgment against Afzal is one thing, to raise slogans of the kind allegedly raised is another.
The crux of the matter is that the fate of the case against Kanhaiya depends on the conclusions drawn by the police after probe and subsequently by the court after hearing both sides. The debate on merits may thus be premature and futile. The real concern should be over the provision, in the form it exists, leaving scope for harassment of those writing against the government, organising mass movements, indulging in legitimate protests or sympathising with the cause of the downtrodden. Cases like the one registered against Kanhaiya should give occasion to call for testing section 124A afresh on the touchstone of freedom of speech and expression. With sedition in the penal code, most cases registered under the provision — though backed by courts — would continue to draw protests as such serious penal action for criticising the government is against the basic ethos of democracy.
It was not without reason that those who shaped the Constitution of independent India opposed sedition as one of the grounds to curb free speech. KM Munshi, while opposing the move in the Constituen Assembly, said if the provision was allowed to stay, "an erroneous impression would be created that we want to perpetuate 124A of the IPC or its meaning which was considered good law in earlier days.''
The JNU case should act as a catalyst to take forward the debate on repeal of sedition which started with the independence of the country. Our penal code can easily do without the provision as there are several other offences like waging and even attempting to wage war — in the chapter dealing with ‘offences against the state’ — in the penal code to deal with threats to the unity and integrity of the nation.
The draft IPC had sedition as an offence but it was not considered necessary and was dropped before the enactment of the code in 1860. It was, subsequently, introduced by the colonial government in 1870 and was given a broader meaning through an amendment in 1898.