Section 124A And Sedition: The Sword Of Damocles

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Artistic Interpretation of section 124A (Law on Sedition in India) / Image: 7MB
The sedition law in India, set out in Section 124A, is an effective weapon to gag citizens.

Not even the police in India are immune to the nation’s colonial era sedition laws, as former cop Shashidhar Venugopal found when he was arrested in June, 2016. Sedition is a non-bailable offence, and of the seven offences Shashidhar was charged under, it was the most serious. His crime? Calling for police constables of the state of Karnataka to go on strike, demanding better treatment and higher wages.

India’s sedition laws have often been called draconian. Article 19 of the Indian Constitution, which guarantees freedom of speech with ‘reasonable restrictions’ is weakened by the effect of Section 124A of the Indian Penal Code (IPC), which states that:

Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

The IPC was first enacted in 1860, at a time where Government once referred to the Queen and India to British India. The Sedition offence added in 1870 (first mentioned by Thomas Macaulay in his draft Penal Code of 1835). Since then, it has been used to arrest Bal Gangadhar Tilak, Mohandas Karamchand Gandhi, Jawaharlal Nehru – and most infamously in recent times – Arundhati Roy and Kanhaiya Kumar. But the law’s real teeth are bared against the countless not-so-famous citizens who come under it. Everyone comes under this law, even aircraft and ships. And the police don’t require a warrant to execute it.

The irony is that the courts seldom convict people of sedition. The Supreme Court of India has urged the police to adhere to its 1967 judgement in Kedar Nath Singh Vs. State of Bihar. There, the apex court made it clear that it can be called sedition only if you’re calling for an armed rebellion against India. The problem is that this is a consideration for judges. The police are at liberty to arrest anyone and send them to jail on charge of sedition. However, they could simply spend time awaiting trial – and be bound by expensive (at times unaffordable) legal fees.

In Shashidhar’s case, his wife says the police broke into their house in the middle of the night and dragged Shashidhar out like a ‘terrorist’. The police returned again a few hours later to confiscate his belongings – and any material he would have used to instigate the constables against their superiors.

The irony is that the police enjoy even fewer rights than citizens do. Under Section 4 in The Police-Forces (Restriction of Rights) Act, 1966, policemen are not allowed to participate in any trade unions, political or social outfits or talk to the media without the explicit sanction of the Central Government. When Shashidhar set up the Akhila Karnataka Police Mahasangha, his plan was for up to 50,000 police officers to go on Strike on June 4, 2016. Two days before the strike, Shashidhar was arrested. It sent a message – for the strike never happened.

Two months later, Shashidhar was out on bail. The Karnataka High Court referred the Kedar Nath judgement and agreed that 124A could not apply to his actions. But the former police officer still has to win his case. Sedition in the meantime, proved a powerful tool for the government to curb his actions.

Clubbing out dissent

What kind of protests can get you booked for sedition? So far, the list includes shouting slogans (the courts have noted that chanting something like ‘Khalistan Zindabad’ once or twice does not amount to sedition), opposing nuclear-power projects (almost 9,000 have been apprehended for this in Tamil Nadu’s Kundunkulam district), being a student and protesting your college fee hikes, saying Kashmir isn’t a part of India, drawing a cartoon of Parliament (Assam Trivedi).

In most of these, the charges were quashed by the courts – as none of these involved a call for violent overthrow of the state. In the case of Trivedi, the Bombay High Court ruled that the government needed the legal opinion of a district Law Officer before it could prosecute for Sedition from thereon.

There’s another aspect of the law that is seldom applied – Section 125, which states:

Whoever wages war against the Government of any Asiatic Power in alliance or at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.

Who counts as an ‘Asiatic power’ at peace with India – besides every other nation in Asia (India and Pakistan are not formally at war)? Does this mean that calling for war with Pakistan in a glitzy television newsrooms could a punishable offence? It depends on how we are to interpret ‘abet’.

India’s sedition laws are a colonial legacy, but even the former coloniser has abolished their own. India is in a pool of countries that include Saudi Arabia, Iran, Sudan and Turkey, to name a few, who actively use sedition laws against its own citizens. While the United States maintains treason laws, these have been diluted over the years.

While the courts have soundly demonstrated that sedition should be approached with caution, the law remains an unpredictable weapon in the hands of a vengeful government. Indian citizens wishing to express dissent must do so under the constant threat of a Damocles sword. While the courts may take the citizen’s side, it’s the long-drawn and incarcerated journey that makes for the real punishment.

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