“It is better to risk saving a guilty man than to condemn an innocent one“.
For decades, we have known “Punishment is justice for the unjust” but does this justice get delivered justly? Well, this is a question of great intensity. In India, a strict punishment system has been in practice since the historical ages and across diverse cultures. IPC (Indian Penal Code) was drafted in the 1860s but certain advances in it were just included to accommodate oppression and to date wears the same characteristics, Sedition is one such law under IPC.
What Is Sedition?
Section 124(A) of IPC popularly known as Sedition Law states: “Whoever by words Spoken/Written is creating – 1)hatred 2) contempt 3)dissatisfaction against Government established by law shall be punishable”. Hence Sedition lies discrete and clear about its effect, then why is it seen from the vision of Controversy? Post-February 9th 2016, Sedition had made its way into the mainstream gossip of every Indian class but the consequential question that remains attached to it – is how efficiently did the Indian class really grip the understanding of Sedition?
Kanhaiya Kumar’s arrest for sedition brought about many questions and debates around the law.
To add a little complexity to it, if Sedition can be justified over Kanhaiya Kumar on the grounds of some videos (alleged to be doctored) then why the same sedition is unable to contain certain elements on the same ground as Kanhaiya, clearly calling for violence in videos. Considering the historical context of Sedition, we see that throughout the British Raj, this section was used to suppress activists in favour of national independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned. The section kept drawing criticism even in independent India as well for being a hindrance to the right to free speech.
In fact, Sedition became a part of IPC a decade after it was drafted, around the time when the Wahabi Movement was at its peak and if we consider the arguments of critics then, ‘The British government feared that Muslim preachers on the Indian subcontinent would wage a war against the government. Particularly after the successful suppression of the Wahabi Movement and so the need was felt for such a law“.
So in contemporary India, is Sedition a challenge to its democratic nature, and can Sedition be justified with the same set of Politicization as done with the Nationalist Indians during the British Raj?
The picture of Sedition in India before Kanhaiya Kumar was different. During the drafting of the Constitution, Sedition was added by the Fundamental Rights Committee in the supervision of Sardar Vallabhbhai Patel but was hugely criticized in the Parliament when included in the draft constitution. One such critical comment is, “Previously there was fear from the British Government, Now do we need to fear from the government of the nation established by law and elected by People”.
According to Article 13 – if any Law is in agreement with Part 3(Fundamental Rights) of the Constitution it is valid but if it violated Fundamental Rights, it’s unconstitutional. So where did the controversy of Sedition set in?
The Free Speech Argument
As we are aware that the Constitution ensures Freedom of Speech and Expression under {19 (1)(a)} but what is rare to the knowledge of many is that, ‘it is not absolute’ and that’s why this right cannot be justified for cases like that of Sharjeel Imam. There are restrictions to this Right. Clause (2) of Article 19 enables the legislature to impose certain restrictions on free speech under certain grounds. In the simplest of language Sedition is, ‘the check on the Freedom of Speech‘ and this check has always been imposed from the beneficial point of politics, be it any party at-rule.
The accuracy of this claim can be figured out with the fact of the low conviction rate of the accused.
According to NCRB data between 2016 and 2018, 332 people were arrested under the Sedition Provision but only four were convicted. So more than a national threat it has been used as a political threat and that’s what makes it controversial. To understand the politicization of Sedition in the hands of power, let’s examine the difference in approach of the Delhi Government under Arvind Kejriwal – who once criticized the Central Government for slapping Sedition on Kanhaiya and appreciated his release from jail but after a span of four years, the same Kejriwal Government granted permission to prosecute Kanhaiya on the same grounds.
The accommodation of Freedom of Speech and Expression and Sedition in the same Constitution isn’t a problem that arose only after 2016 but a deep clearance on the same has been met earlier too. In the Kedarnath Singh vs State of Bihar case (1962), the Supreme Court mentioned that Sedition law under IPC has to be narrowed down in the interpretation as we can’t have Sedition law and Freedom of Speech and Expression in the same bread and will give precedence to Freedom of Speech and Expression.
So the punishment ground for Sedition was decided upon only when there’s a clear instinct of inciting people to violence, which violates Public Order.
Political Threats Vs National Threats
Hence it became clear that you can say whatever but not incite violence, asking people to raise arms or overthrow the government in power.
In the landmark case of Shreya Singhal vs Union of India, the Supreme Court mentioned that- Speech can a) Advocate b) Propagate but not Incite because slogan and public speech is basic to democracy and have been thoroughly used in the Freedom Struggle, so how could the same dissent be jeopardized today when staged against the contemporary ills of India.
Hence, slogans no matter how impartible or cringe-worthy cannot be booked under Sedition but even a slight instinct of incitement is to be severely punished. Freedom of Speech and Expression, ‘Is a right to give every man his due‘ and shouldn’t be confined.
However, the developments after nationwide protests against CAA and farm laws have again landed Sedition in controversy. School children were booked for a play against CAA and were arrested under Sedition in Karnataka, RTI activist Akhil Gogoi and writer Hiren Gohain were booked under Sedition for protesting against CAA in Assam and the innumerable arrests from politician Ishrat Jahan to environmental activist Disha Ravi does question the implication of Sedition today and how is it being used as a weapon against the critics of Government.
The Constitutional validity of Sedition is intact so it has to be narrowed down. The judiciary has another set of challenges to implementing Sedition Law as “the best way to get a bad law repealed is to enforce it strictly” and in establishing so it’s bound that no convict should be punished without being proved guilty.