De Potestate et Timore

"And it is not the people that should fear their governments; but rather the governments that fear people"

By Kuvamjeet Singh

A true democratic state arises only when it is the people that wield authority. Indeed, The States claim legitimacy by the authority of votes however more often than not, they cease to be mere extensions of the will of the people. A vivid transformation from an arm of the masses to an entity of its own. An entity that although a symbolic representative of the people forges its own paths and destiny. This poses a unique conundrum in society. In times of sheer brutality by the government, are the people equally liable?

Do the throats that yelled in support and the hands that voted be held equally liable as those that pulled the trigger?

Sure, it may be argued that the degree of relation is different but it enabled it, did it not? If the government is to be then treated as an entirely different entity then it must be subject to criticism. Criticism can only arise perfectly not as an affront to the people that chose it but rather to the functioning and policy of those that sign the papers.

Criticism can only manifest peacefully when the people have an inherent right to invoke freedom of speech because more often than not the cries of the oppressed manifest as bullets. However, when it comes to freedom of speech a question arises, should there be limitations? It does not necessarily mean control of thought of course but should these thoughts be allowed to exist as spoken words or scribbled texts?

The history of sedition in India goes back to the days of the Raj, a time of political instability. Almost 3 decades had passed since the guns had fallen silent over the battlefields in Punjab. All of India had succumbed to the Union Jack and thus newer laws were being enacted to better control the nation. The Indian Penal Code had existed since 1837 having been drafted by Thomas Babington Macaulay but it strangely omitted the section for sedition. In 1857, After the First War of Independence, the British discovered a new problem. Indian society was very vulnerable to religious notions and thus it could be wielded easily to incite rebellion amongst the masses as understood by the Beef and Pork Cartridge disaster. Therefore in 1870 at the behest of James Fitzjames Stephen, the section was added under the title "Exciting disaffection" with fear of increasing "Wahabbi" Influence across the world.

The first ever case under this law was Queen Empress v Jogendra Chunder Bose fought in Calcutta High Court during the sweltering heat of 1891. This case revolved around an article written by the Accused for the Bengali magazine "Bangobasi". In the article, the accused heavily criticized the Age of Consent Act, of 1891. The act effectively raised the legal age for sexual intercourse from a horrifying age of 10 years to an equally disturbing age of 12. This resulted in a strong backlash from orthodox sections of society who vocalized their opposition through written mediums and the accused was among them. However, this instance was different as the language used by the Accused was too strong. "Forced Europeanisation" was a term used unsparingly and the article goes on to mention it as a British ploy to gag the indigenous people. The Prosecution put forth the notion that the Accused had incited rebellion; in his instructions to the jury, Chief Justice William Comer Petheram enunciated upon the meaning of "disaffection" as "a feeling contrary to affection, in other words, dislike or hatred" and linked it with disobedience towards the government. However, The case was eventually dropped and nothing came out of it and the section fell into obscurity.

This would change soon.

In 1897, Bal Gangadhar Tilak was booked under this very section. Tilak, a lawyer by profession worked on two newspapers, Kesari and The Maharatta in his spare time. In these very newspapers, he published an essay named "Shivaji's Utterances" which was a direct attack on the Colonial Policies of the British Crown. Justice Arthur Strachey who presided over Tilak's case widened the definition that even an attempt to excite "feelings of enmity" against the government was sedition. Bal Gangadhar "Lokmanya" Tilak was thus found guilty and sentenced to 18 months of rigorous imprisonment. Unbothered, Tilak would continue his life as a revolutionary facing case after case for the rest of his life. Despite being held guilty and being actively punished for it, Historian Mithi Mukherjee remarked that "The case marked a fundamental discursive rupture in the history of empire and paved the way for mass anticolonial movements under the leadership of Gandhi."

The Raj would spend its days using the law as a tool to suppress political dissent in favor of freedom. In fact, Mahatma Gandhi called 124 A "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".

On the hot summer night of 14th August, 1947; as the world slept India awoke to freedom. 15th of August, 1947 India finally became a free Republic and thus proceeded to reconstruct itself as a sovereign state with its own Legal framework and Polity. Curiously enough, Indian framers chose to keep British laws to help stabilize the young government as it was "most familiar to us". Thus, The Indian Penal Code of 1898 was adopted with slight modifications to better fit a non-colony nation.

Section 124 A, it would seem was here to stay. However in a slight twist of fate when the first amendment of the Indian Constitution was passed in 1951, Prime Minister Jawaharlal Nehru proposed getting rid of the section entirely and handling instances of sedition by other means. The very same year the Punjab and Haryana High Court declared the section as "unconstitutional". By 1959, even the Allahabad High Court had concluded that "it struck at the very root of free speech".

However, Strangely enough, the section remained and was used consistently against various politicians, authors, and activists. It became a tool for the government to suppress dissent across the nation. Power, in its intoxicating nature, had corrupted those who wished to change the world with it. Former Chief Justice of India N. V. Ramana highlighted the fact that the conviction rate for the offense was disproportionately low. He went on to elaborate that "the purpose of this law is not to convict the charged, but to harass and to silence critics of the government by the means of a long drawn out process."

Between 2014-2019, Out of 326 cases filed for sedition, Only 6 resulted in convictions. The section gained notoriety across political circles during the JNU Protests of 2016. With each passing year, the demand to eliminate the section grows stronger, In 2018 the Law Commission of India published

a consultation paper asking for either a possible amendment or repeal of the law.

During the 2019 General Elections, The section found its way into the Manifesto of the Indian National Congress which promised to abolish section 124 A if given the majority. Ironically enough, the old United Progressive Alliance of 2004 - 2014 was known for using the section to suppress dissent. Kudankulam Nuclear Power Plant Protests in Tamil Nadu between 2012-2013 had around 23,000 citizens in jail for protective custody with nearly 9000 being arrested for sedition.

Critics of the section interestingly and rightfully point out that Great Britain, the very reason the law exists in its current form in India abolished the law within its own borders in 2009. Claire Ward, The then Parliamentary Under Secretary of State at the Ministry of Law said that

"The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

Various organizations across the nation term the law as Draconian in nature and condemn its use. It once again hit the limelight during the recent Farmers Protests of 2020-2021 wherein organizations condemned the use of this law by state governments against various senior journalists for their support of the movement. Currently, The Movement to get the law removed has reached the gates of the Supreme Court itself. Kishore Chandra Wangkhemcha and Kanhaiya Lal Shukla submitted a petition which was admitted by the Apex court and soon enough as of the publishing of this very article, the Law has been put on hold citing re-examination by the court.

What we await to see is whether the legal system of India will finally vindicate those who spent entire decades in jail by striking it down. Or will it fall prey to the seeds of suppression and the intoxicating nature of control?

Whatever it may be, only time will tell.

Will the Sedition Law be:

• Struck Down
• Remain Standing