Drafted by Thomas Babington Macaulay, section 124A was added to the Indian Penal Code in 1870 during the colonial era.

Time to get rid of Indias sedition law Demand grows as many anti-CAA protesters booked
news Law Friday, January 31, 2020 - 17:55

The mother of a student and a head teacher of a Karnataka school were arrested and booked for sedition on Thursday by the state police. This was after the school had its students stage a play that was allegedly against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC). Students of Shaheen Educational Institute in Karnataka’s Bidar were questioned by the police. A picture of the police questioning the children had gone viral.

But 26-year-old Nazbunnisa, the mother of a girl who played a role in the play and Fareeda Begum, the head teacher, are among many anti-CAA and anti-NRC protesters who have been booked under section 124A (sedition) of the IPC in Karnataka and across the country over the last two months. This has raised questions on whether the state government is misusing the colonial-era law to muzzle dissent.

Gopal Sankaranarayanan, an advocate at the Supreme Court of India, says that the current government is using section 124A (sedition) on those voices dissenting against governmental policy, when the scope of the law is narrowed down to two types of offences: The law pertains to those whose words leads to a cognisable act of violence or if it tries to overthrow the government. He says that by conflating the government with governmental policy, the ruling party is using sedition to curtail free speech.

“The same law that was used against leaders who fought for our independence is being used on normal citizens of the country. The idea behind section 124A, a British-era law, was that one could not rise against or create a revolution against the government that is running the state. Now, it appears that it is being used for all governmental policy. CAA and NRC are governmental policies and can nowhere be traced to section 124A. Staging a play against governmental policy is not sedition,” he said.

Earlier in January, Nalini Balakumar, an alumna of the University of Mysore, held a placard saying 'Free Kashmir' at an anti-CAA protest. She was booked for sedition. The police booked several protesters for sedition after violence erupted in Mangaluru on December 19, 2019. This was after the police used tear gas shells in a hospital in Mangaluru. They also opened fire at protesters in Bunder, which killed two people.

On January 28, Sharjeel Imam, a student at the Jawaharlal Nehru University (JNU), was arrested by the Delhi police after being booked for sedition. Sharjeel Imam was one of the key organisers of the Shaheen Bagh protest against CAA and NRC. His statement "cut off Assam from India" had resulted in a sedition case being filed against him. Sharjeel had later clarified that he was referring to blocked roads leading to Assam.

Meanwhile, Uttar Pradesh Chief Minister Yogi Adityanath on January 22 said that using the word ‘azadi’ in protests amounts to sedition.

Gopal Sankaranarayanan says that the people have lost sight of the court diluting the scope of this law. “I think people are losing sight of the courts diluting section 124 A and subsequently when it has come to be tested in the Supreme Court, where it has upheld that it can be used only for trying to overthrow the state and the gesture one makes which leads to violence.”

The advocate went on to say he believed Union Minister and BJP leader Anurag Thakur’s statement at an election meeting in Delhi incited violence. The Union Minister had chanted “desh ki gaddaron ko”, with the crowd retorting, “goli maro saalon ko” (shoot down the traitors).

Pointing to Thursday’s incident where a juvenile fired at a crowd of Jamia student protesters, injuring one person, Gopal says, “I think Anurag Thakur’s statement incited violence. We saw a man firing into the crowd outside Jamia. That can be called sedition as there was attack on the ground.”

Curtailing free speech

Speaking to TNM, advocate Pooongkhulali, who practices at the Madras High Court, says that the sedition charge is invoked to harass dissenters and never generally stands scrutiny of law.

“Sedition is a colonial-era statute. It was used to suppress voices against the British. The agenda is the same now. Sedition charge is invoked when there is an incitement to violence— a call to take up arms, for example. The context matters; for example, the influence that the speech is likely to have. Criticising your Prime Minister doesn't amount to sedition,” she argues.

She maintains that by slapping a person with sedition charges amounts to harassment of the accused, which in turn acts as a deterrent to speak out against the government.

“In some cases, subjecting a person to sedition charges can itself amount to harassment, and very few cases will actually go all the way up to conviction. There are several consequences as soon as an FIR is filed, like the person's movement is affected, there is threat of arrest, running around for bail, etc. So the sedition charge acts as a deterrent. More people will be scared to voice their dissent, lesser people will participate. It's very unlikely that it will be pursued to conviction. It won't stand scrutiny of the criminal courts,” Pooongkhulali says.

Sedition should be done away with?

With the police across the country slapping sedition cases against protesters, experts say that the law must be done away with. Drafted by Thomas Babington Macaulay, section 124A was added to the Indian Penal Code in 1870. Gopal Sankaranarayanan says that successive governments have abused section 124A and that it’s about time the law be done away with.

“I think because section 124A has been used to abuse rather than actually for a seditious activity. During Kudankulam protests too, the police arrested thousands of people under section 124A. It is ridiculous how the section is being used and it’s about time we strike it down,” he adds. 

The first ever case of sedition in India was against Bal Gangadhar Tilak in 1897, and later against Mahatma Gandhi. These cases were filed for writing articles against the British Raj. The British used this law to curtail free speech and dissent. 

“Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better,” Jawaharlal Nehru had reportedly said, while introducing the first Constitution of India (Amendment) Bill 1951.

In 1958, the Allahabad High Court had questioned the validity of section 124A in the Ram Nandan vs The State of Uttar Pradesh. Ram Nandan, who was booked for sedition for delivering a speech in front of 200 village residents, called for workers to organise and speak up against the Congress government, which he called oppressive. 

"The whole inquiry before us is whether a restriction on the right to spread disaffection against the government is valid or not. If it is invalid, then only a person has a right to excite disaffection against the government and the provisions of Section 124-A punishing him for it would be unconstitutional," the judgment reads.

Gopal Sankaranarayana says that the 1958 judgement had effectively questioned the validity of section 124A but that it got negated when the SC upheld the law in the Kedar Nath judgement in 1962. He says that the apex court, however, diluted the scope of section 124A. 

In 2015, the Supreme Court, upheld the Kedar Nath judgement of 1962, that section 124A (sedition) of the IPC is only applicable where only if the action of the individual actually leads to violence, and if the action amounts to overthrowing the state. "I think people are losing track of the fact that the scope of the act has been diluted by the law. It is a colonial era law that even the British have got rid of," he says.

In the case of the Bidar school teacher and parent of the student being accused of sedition, Professor Faizan Mustafa, Vice Chancellor of NALSAR University of Law in Hyderabad, argues that section 124A does not apply. This, he says is because the actions of the accused, like in the Kedar Nath case did not result in violence.

"It (Application of the sedition law) will depend on the contents of the play. Unless there is violence, as per the Supreme Court of India's judgements in 1962 with the Kedar Nath Singh case and the Balwant Singh case in 1995, it is not sedition," Professor Faizan Mustafa says.

With inputs from Nitin B and Manasa Rao