By Karan Kumar Khaitani
“It shall be the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom.”[1]
The recent spate in instances of invoking sedition laws against human rights activists, journalists and public intellectuals in the country have raised important questions on the undemocratic nature of these laws, which were introduced by the British colonial government.
While sedition laws are part of a larger framework of colonial laws that are now used liberally by both the central and state governments to curb free speech, the specificity of these laws lie in the language of ‘disaffection’ and severity of the punishment associated with them. Sedition laws were used to curb dissent in England, but it was in the colonies that they assumed their most draconian form, helping to sustain imperial power in the face of rising nationalism in the colonies including India. Targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant. It is ironic that these laws have survived the demise of colonial rule and continue to haunt media personnel, human rights activists, political dissenters and public intellectuals across the country.
In the Universal Declaration of Human Rights, 1948 (UDHR), Article 19 states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Restrictions on the freedom of expression can be justified if they are provided by law or if they are in pursuance of a legitimate aim in international treaties such as the protection of national security, public order, public health or morals. There needs to be a necessity to restrict the right in the form of a pressing social need and there needs to be a strict scrutiny regarding the justification of the restriction. What needs to be seen is not just the necessity of the law that seeks to restrict the freedom but also the individual measures taken by the State. When a law restricts freedom of expression by reference to national security or public order imperatives, and that law is couched in general terms, specific justification needs to be provided by the State in prosecution (for compliance) with Article 19 of the ICCPR.
A colonial legacy like sedition law, which presumes popular affection for the state as a natural condition and expects citizens not to show any enmity, contempt, hatred or hostility towards the government established by law, does not have a place in a modern democratic state like India. The case for repealing the law of sedition in India is rooted in its impact on the ability of citizens to freely express themselves as well as to constructively criticise or express dissent against their government. The existence of sedition laws in India’s statute books and the resulting criminalization of ‘disaffection’ towards the state is unacceptable in a democratic society. These laws are clearly colonial remnants with their origin in extremely repressive measures used by the colonial government against nationalists fighting for Indian independence. The use of these laws to harass and intimidate media personnel, human rights activists, political activists, artists, and public intellectuals despite a Supreme Court ruling narrowing its application, shows that the very existence of sedition laws on the statute books is a threat to democratic values.
Section 124A should be scrapped in my view and the following law should be debated, discussed and enacted:
“Unlawful activity”, in relation to an individual or association, means any action taken by such individual or association
(i) Which directly incites through violent means, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union,
(ii) Which has, as a direct consequence of such action, the result of disrupting the sovereignty and territorial integrity of India;”
It is time we come out of the narrow closet of ideas of ‘nationalism’ and ‘Indian Culture’, and prevent ourselves from putting the larger goals such as upholding the principles of democracy at stake. For it will be a dangerous delusion if we continue to believe that the use or rather, the abuse of a law as arbitrary as Section 124-A of IPC cannot drive the people of the nation into a revolution and a dreadful retaliation against the state.[2]
At this juncture, it is important to point out that the democratic edifice of our country is not fragile to be easily shattered by ways of speeches in public places or by printing an article in the print media. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as weak as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.[3]
With this, I would like to conclude with the words of Gandhi Ji:
“Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”
[1] Article 51(b), Constitution of India, 1950
[2] India’s Democracy in great Danger, Youth ki awaaz, 3rd March 2016
[3] Sedition Law and Indian Democracy, Law Teacher, 2016