Getting Over A Colonial Hangover: Need For More Reform

Posted on April 10, 2013 in Specials

By Fawaz Shaheen:

The Criminal Law Amendment Act 2013 has now come into force. Its merits and demerits continue to be debated, and the events of the past few months have been such that the entire debate has centered wholly and purely around laws relating to sexual offences. Without belittling the importance of this issue, I would like to draw attention to another section of criminal laws in India that needs urgent reform but has been completely ignored by both the legislature as well as the court of public opinion. This includes the entire legacy of British colonialism which we have retained in the name of ‘National Security’, in particular Section 124-A or the law relating to ‘sedition’ in the Indian Penal Code.

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Nearly two years ago, when the campaign for the release of Dr. Binayak Sen — who was arrested on charges of ‘sedition’ — gathered momentum, there was a great furor and many sections of the media and civil society demanded the repeal of Section 124-A. The then Law Minister, Veerappa Moily, had also conceded that the law needed revision. However, after Dr Binayak Sen was released on bail, the clamor calmed down and there has been no activity by the government since. Every time a known figure is booked under this section, such as in the case of cartoonist Aseem Trivedi, or to some extent the Allahabad-based journalist Seema Azad, a section of the media makes noise. But apart from a dedicated band of Human Rights activists, no one seems to be too bothered.

The truth is that we should all be bothered. To understand this requires us to view this issue with a bit of perspective.

The Indian Penal Code (IPC) was enacted in 1860, close after the remarkable events of 1857, popularly regarded as a revolt and widely considered to be the first battle of independence. Although the IPC, like any other criminal law, contains a comprehensive catalogue of criminal behaviour, the shadow of 1857 lies heavy on it. It contains many provisions specially designed to quell dissent, such as the provisions relating to waging war against the state and sedition.

While some of these may be honestly justified on grounds of National security, the language of some is such that by no stretch of imagination can they be acceptable to a free society. Take 124-A (sedition) for instance. It criminalises anything that in anyway “…excited disaffection towards, the Government established by law…”. Almost without exception every freedom fighter who we today remember with reverence was at one time or another charged with this section. Gandhi’s witty quip when he was sentenced to six years under this very section, that affection cannot be regulated by the law, aptly highlights the absurdity of this law.

Indeed, it could be argued that the very point of a democratic setup is to allow people to ‘excite disaffection’ and regulate the reigns of power. Even Nehru as Prime Minister called the law “… most objectionable and obnoxious…” in Parliament. It is a wonder then, that this provision was retained at all.

But the reality is that it was retained. What is even more terrifying is the fact that with it was retained the mentality that created it. The problem is not any single law or specific provision, but an entire colonial mindset that frowns upon dissent and difference.

In any democratic setup, there are bound to be people with different opinions, people who disagree with the status quo. The purpose of democratic politics is to reconcile these differences, to make sure that every spectrum of opinion is provided space.

But when a system begins to be irritated by dissent, when it chooses to do away with disagreement, democracy is perverted and the seed of colonialism is laid. In independent India, the State has shown many evidences of this tendency. It is not just laws within IPC, but a host of special provisions like Armed Forces Special Powers Act (AFSPA), TADA, POTA, more recently Unlawful Activities Prevention Act(UAPA), and many others which demonstrate a marked intolerance to freedom of expression.

Wherever the State has met complicated questions, be it in Manipur or Kashmir or in areas like Kudankulam or movements like Narmada Bachao, the answer has been force over dialogue. It is in these grey areas that the strength of any democracy is tested, and it is here that we have repeatedly failed.

It is high time for the Indian State to overcome its colonial hangover. A good way to start could be by de-colonialising our criminal justice system.

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