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To Silence Free Speech, This One Law Has Been Used By The State All Through History

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By Anirudh Belle

The legal legacy of free speech and expression is a prolific site to assess a nation’s democratic reality with its constitutional imagination. In present times, where forms or criticism, protest or dissent are dubbed as “anti-national”, seditious or offensive – where censorship and suppression tend towards the norm rather than the exception – such a study is crucial in the interests of nuance and the prevalence of the rule of law.

This article lays its focus on the law on sedition as it stands in India today (Section 124A of the Indian Penal Code, 1860) and its operation within the realm of restrictions to free speech and expression in Article 19(2) of the Constitution of India. The object is to understand the nature and contours of sedition through the doctrinal standards and tests employed by the Indian judiciary.

A History

Section 124A was not included in the original enactment of the IPC in 1860. It found its utterance only in 1870. The reason, possibly, was to contain “surging Wahhabi activities in the subcontinent” and was a law against “exciting disaffection”. The first hallmark case of sedition was against the nationalist leader Bal Gangadhar Tilak in 1897. Justice James Strachey, who delivered the judgement, bracketed “disaffection” with “disloyalty”. He said that “feelings of disaffection” implied enmity, contempt, dislike, hostility, hatred, and all forms of ill will towards the government. Whether such expressions led to substantial consequences was immaterial. The mere expression of disaffection was enough to constitute an offence. In subsequent years, Strachey’s interpretation was applied and affirmed in cases trying Indian nationalists, including M. K. Gandhi in 1922. It is clear that the purpose behind 124A was to silence dissent and stem revolution against the government of British India. It was central to the unfettered enforcement of colonial supremacy.

In the Constituent Assembly Debates, India’s founders were conscious of the political misuse of sedition laws and their incompatibility with a democratic republic. This is why the word ‘sedition’ was absent in the wording of Article 19(2). However, the colonial character of speech-restraints informed the design of Articles 19(1)(a) and 19(2), albeit in a ‘social’ frame. The reluctance to make free speech and expression an absolute right – as is the case in the United States’ First Amendment – is a case in point.

The assumption of colonial rule affects a split, as Lawrence Liang puts it, between the “universal speaking subject” (the enlightened European) and the “infantilised native subject” (tagged with an extra-sensitive excess). This view resurfaces in our Constitutional scheme in terms of literacy, class, sensitivities pertaining to religion and caste, etc. The compulsions of the Indian polity are not seen to be compatible with an absolute right to free speech and expression. In fact, in as early as 1931, the Indian National Congress’s ‘Karachi Resolution’ – considered the “spiritual antecedent” to the Directive Principles of State Policy – stated the right of free speech as qualified by law or morality.

Therefore, the postcolonial understanding of free-speech did not start on an entirely fresh slate. In his seminal work, ‘Working a Democratic Constitution: A History of the Indian Experience’, Granville Austin describes the Indian Constitutional experiment as captured in three strands that form a “seamless web”: “building a strong state, establishing the institutions and spirit of democracy, and fostering a social revolution.” Though the colonial context affecting Section 124A no longer stands, the postcolonial imperative behind the law, to use Austin’s description, gets its cue from the conflict between the first two strands – i.e. between the competing claims of national unity, integrity and sovereignty on the one hand and democracy (free speech and expression) on the other.

Sedition – A Postcolonial Portrait

In its initial construction, Article 19(2) employed the words “undermines the security of the State or tends to overthrow the State.” Two Supreme Court judgements, deciding on this clause, sparked the first Constitutional crisis of independent India. The first case pertained to ‘objectionable’ content in the ‘Organiser’, a Rashtriya Swayamsevak Sangh (RSS) publication and the second in a left-leaning magazine titled ‘Crossroads’. In the latter case (Romesh Thappar), the question was if a law banning books for the purpose of “public safety” or “public order” violated Article 19(2), since the Article did not contain these phrases. The Court held that “public safety” had a wider implication than “security of the State” and that the former included a host of trivial concerns that did not necessarily square with State security. A similar view was held in the earlier case (Brij Bhushan).

These decisions were remarkable as, at the very outset of the Republic, the judiciary rejected the colonial interpretation of laws restricting free speech and expression.

The Government of India viewed these decisions as an impairment to State sovereignty and quickly introduced the First Constitutional Amendment in 1951. The Amendment included “public order” as a ground for restricting speech and placed “reasonable” before the word “restrictions”. The latter gave Courts the authority to test the reasonableness of restrictions imposed on speech and expression. The ensuing Court battles, from here, explored the relationship between speech and expression on the one hand and their effect(s) on the other. Surrounding this exercise, a nebulous scope for the use of Section 124A evolved.

In Kedar Nath Singh v State of Bihar – a case which challenged the Constitutional validity of Section 124A – a Constitution bench of the Supreme Court held that speech and expression are punishable only if they are an “incitement” to “public disorder” or “violence”. “Indra Das v State of Assam and Arup Bhuyan v State of Assam” stated in clearer terms that only incitement to “imminent” lawless action could amount to a criminal offence. “Incitement” was distinguished from “advocacy” in “Shreya Singhal v Union of India” – the popular 66A judgement – where the Supreme Court held that only the former could be punished.

The Supreme Court even overturned convictions of alleged Khalistani separatists under Sections 124A and 153A in “Balwant Singh v State of Punjab” as their statements did not stand the tests of inciting ‘imminent’ violence nor violence, as such.

Conclusion – The Character of State Power

The colonial State was not answerable to those it governed; its exercise of power was not democratic. Power was purposed to maintain English supremacy and human behaviour that threatened this objective was subsequently silenced. The use of Section 124A, in these circumstances, however undesirable, demonstrated a consonance between State law and the human behaviour it sought to address.

Section 124A was inherited by independent India in its original form. The democratic character of State power, however, altered its application. At the foundation of a democratic society is the freedom of speech and expression. Restrictions on human behaviour must, therefore, be minimal and reasonable. The contemporary application of Section 124A has been driven, primarily, by State or ‘public’ concerns (Austin’s first strand, as discussed earlier) and political opportunism. State power in these cases alternated between the questionable application (though arguably justifiable in rare situations) and mischief. The judiciary has played a crucial role in harmonising the use of State power and the democratic impulse that must guide it.

In “S. Rangarajan Etc v P. Jagjivan Ram”, the Supreme Court summarised that restrictions on speech and expression must be real and proximate to the danger that is sought to be prevented – like a “spark in a powder keg”. The essence of this message is that democracy demands high standards. Curbs on speech and expression that flout these standards shall amount to nothing less than a definite denial of democracy.


Image source: The India Today Group/Getty Images

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