Repeal Sedition: Demand Before The National Law Commission: Democracy is not another name of majoritarianism

The law commission of India has circulated a consultation paper on “Sedition” on 30th August 2018, which is available in Public domain.
In view of such, we the three activists of Odisha having interest in promotion and protection of Human Rights; do take leave to participate the debate and answering the commission as per its stipulated issues wise and appeal all concerned to urge upon the commission to recommend Govt. of India for repeal of sedition law sooner the better.

(i) The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain s.124A in IPC

Issue no (I)

In the year 1870 sedition was included in Indian Penal Code as an amendment, during British rule. Its objectives were not in the interest of India or its people, but in the interest of British Rulers in India. It was necessary for the very existence of the British Rule at that time, which was established & continued its rule not on the basis of general will of Indians, but on the contrary on the strength of its military occupation.
The U.K. has abolished sedition law since 2009. Given the fact that India is now an independent & sovereign country, should proceed for abolition of such draconian law which was enacted by British Parliament to shield the sovereign ruler i.e. king or queen of Britain against any criticism of the subjects-Indians. Thus, now it is not justified to retain the same draconian provision in the penal statute in independent India where people are sovereign, but not the government.

(ii) Should sedition be not redefined in a country like India – the largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?

(iii) Will it be worthwhile to think of an option of renaming the section with a suitable substitute for the term ‗sedition‘and prescribe punishment accordingly?

Issue No. (II & III)

It is universally recognized that the “Freedom of speech & expression” is a basic human right & accordingly it has been guaranteed as a fundamental right of all citizens. The same human right is not only essential for the personality growth of citizens, but also speech & expression in a free & fearless atmosphere is indispensable to the discovery and the spread of political truth. Without free speech and assembly discussion would be futile and public discussion is a political duty, which is a fundamental principle for any democratic Government.
In a democracy singing from the same songbook is not a benchmark of “Loyalty” or “affection” towards the Govt. and/or towards the country. It cannot be manufactured or regulated by law as Gandhi told in the Court during his trial on sedition. People should have the liberty, to show their affection towards the “Govt./Country” in their way. Affection/disaffection supposed to be shown by the countrymen towards their Govt. is a political state of affairs & it can’t be criminalized as there is no ingredient of “meanse-rea” of an offence in it & thus sedition in a Penal form is not desirable.
Sedition, archaic in its origins & enacted in a particular historical context to silence dissent is totally unnecessary to prevent incitement to violence. Further in silencing dissent it only further fosters people & could just as easily lead to situations of public disorder, which is, what is intended to prevent. Thus such provision in any nomenclature is not only unwarranted but also undemocratic.

(iv) What is the extent to which the citizens of our country may enjoy the ‗right to offend‘?

(v) At what point the ‗right to offend ‘would qualify as hate speech?

Issue No.: (IV & V)

In a democracy like ours the Govt. is “for the people”, “by the people” and “of the people” That means people are source of the whole authority of governance, which is for time being delegated to the Government, which act as a trustee. So the people being the source of authority of Government, they are to decide the Laxman Rekha of their “Right to Offend” their own persons in the Govt.
The UN Declaration of Human Rights in Art-1 speaks that all human beings are endowed with reasons & conscience & thus the Laxman Rekha of Right to offend be left to the reason & conscience of the public without prescribing any definite boundary.
“Freedom from the fear” & “want” is universally recognized as the highest aspiration of the common people & the same highest aspiration of the people cannot possibly be encircled in a definite limit.

Expression of strong condemnation of the Govt. through “free speech” is to be allowed because dissent can be the foundation for an open society. Keeping its significance in view Justice D. Y. Chandrachuda, in urban naxal case, has rightly given remarks that “dissent is the safety valve of democracy. If you don’t allow dissent the valve of democracy will burst. Thus “free speech” be not taken as an “offence”, as it serves in a positive way for strengthening democracy and in other way, it is in the interest of public order and security of the state.

(vi) How to strike a balance between s.124A and right to freedom of speech and expression?

Issue No.: (VI)

The provision under section 124(A) IPC is so constructed that freedom of speech without any tendency to public disorder and the free speech which might have tendency to public disorder cannot be severed. It suppresses free speech as a whole.
The finding of apex court in Kedar Nath Case that it can be severed is not based on reason. Without any discussion on Rama Nandan Case in this regard and the precedence decided in Ramesh Thapper, Dr. Lohia etc. Cases it has come to the conclusion that it can be severed.

Any innocuous criticism exciting disaffection etc. against the Government has been arbitrarily made an offence under sedition. Thus there can’t be drawn any balance between the free speech & sedition, but total repeal of the sedition will serve for observance of basic human right of free speech, which will promote diversity of ideas & programmes, that is distinct apart from totalitarian regimes.

(vii) In view of the fact that there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping section 124A in the IPC, serve any purpose?

(viii) Given the fact that all the existing statutes cover the various offences against the individual and / or the offences against the society, will reducing the rigour of s.124A or repealing it be detrimental or beneficial, to the nation?

Issue No.: (VII & VIII)

There are many Draconian provisions laid down under UAPA & other minor criminal Acts including Indian Penal Code. There is no reliable material to show that the sedition provision serves any purpose in the interest of Public order. But use of sedition provision in a prejudicial manner or in other way, non-observance of Rule of law, by the state it-self, is likely to have cause of action for serious protests, which may culminate in public disorder.

So its repeal will provide not only a free breathing space for a healthy socio-eco-political debate in a free & fearless atmosphere & but also ultimately be useful in the interest of the Rule of Law and for ensuring the institutions better responsible to the public.

(ix) In a country, where contempt of Court invites penal action, should contempt against the Government established by law not invite punishment?

Issue No.: IX

The Legislature, the executive & the Judiciary are in three pedestals under the constitution of India. The function of the legislature is to legislate. The executive is to execute & The Judiciary is to interpret & or scrutinize “Legislation” & the “Acts” of the executive. The Legislature consists of the elected representatives of the people & it is subject to the criticism of the people if it goes against the interest of people. Besides it enjoys “Privilege” for its independent functioning. The judiciary enjoys the power of contempt to keep its “independence”. But it is also subject to criticism, if anything goes wrong in it. Similarly the Executive who is to “Execute”, the legislation & other “acts” enjoy protection against any wrongful prosecution as provided U/s-197 Criminal Code. The political executive enjoys power both in executive and legislature. Thus its power is very wide & there is every possibility of its misuse & use in a “Prejudicial Manner”. Further the “Political executive” is the creation of the people & thus the people have every right to “Like” or “dislike” their own elected political executive in the Govt. The public as the wise & good masters have obliged to delegate their power to the so-called ruler, so every member of the public who censures the rulers for the time being exercise in his own person the right which belongs to the whole of which he forms a part. He is finding faults with his servants. The members of the public as the source of the authority have every right to punish their servants, i.e. Government, for their omission & commission. But they are not subject to award of any punishment for their “disaffection” etc. against the Govt.
Further it is added that members of the judiciary are a subject to “impeachment” for their omission or commission. But once it is elected, the “Political Executive” will remain in power till the end of its fixed term & the people enjoy no right to recall it. Thus the people should enjoy immunity to exercise their freedom of criticism to their own representatives in the executive Govt. if the state of affairs frustrates them.
It is also to be added that the power of contempt enjoys by the judiciary is also misused & sometimes it serves as a weapon to suppress “any criticism” to the Judiciary. Thus it is also to be reviewed keeping in view the democratic aspirations of the people, the space of right to speech & expression in a free & fearless atmosphere & for accountability & transparency of the judicial system.

(x) What could be the possible safeguards to ensure that s.124A is not misused?

Issue No.: X

The fundamental moral question that Bal Gangadhar Tilak raised was whether his trial constituted sedition of the people against the British-India Govt. (RAJ DROHA) or of the Govt. against the Indian people (DESH DROHA). There are striking similarities between his question & those raised by contemporary targets of sedition law. The same view was echoed in a public statement issued by Booker prize winner literature Arundhati Roy in 2010 (Delhi) as “What I say comes from love & pride. It comes from not wanting people to be killed, raped, imprisoned or have their fingers nails pulled out in order to force to them to say that they are Indians. It comes from wanting to live in a society i.e. striving to just one”.

Further it can be added that the concern & fear of the constitution drafters that the way in which the sedition law has been used as a convenient medium to stifle any form or expression of dissent or criticism can be misused & abused, has become true in reality & the trend in rise since the central Govt. adopted new economic policy in the early nineties.

In practice, whether it was British rule or present rule, the sedition continues to hunt those persons who have love for country and countrymen and feel it as their national duties to oppose the government-corporate exploitation and repressions. As per example Tilak, Gandhi etc. freedom fighters during British Rule and A. K. Gopalan, Harddik Patel, Khuturam Sunani, Arati Majhi, Rabi Murmu, Kanheya Kumar, Ummar Khalid, Anirbana, Dr. Binayak Sen, Sai Baba etc. during the present Government faced sedition charges for their known dissent views. There are such numbers of examples to show that sedition charge was invoked against those who raise their strong voice in the interest of the country and countrymen, constituting 99% of the entire population including tribals, dalits, minorities, women, peasants, workers etc. The present central and state Governments invoke sedition as a political weapon to silence any dissent. Thus the activists who were imprisoned or now in jails, they are not “DESH DROHI”, but they may be termed as “RAJ DROHI”.

In spite of narrowing down the definition of sedition by the constitution of bench of Supreme Court in Kedarnath Singh Case (1962), the same draconian political weapon is misused and abused in a growing trend.
Thus, in view of such above discussions “RAJ DROHA” an offence cannot be cured, even if some safeguard are prescribed against misuse of section in the form of amendments to the said section.

Moreover it is to be added that “exciting disaffection” etc. against the Govt. established in a parliamentary democratic system is “political” in nature & the citizens who deliver “militant speech” against the Govt., it is not their mense-rea to commit any offence, but to oppose the system / policies / programs of the govt. in power. Their objective is not for breach of peace, but on contrary for social-economical-political justice and fraternity, which are the basic pre conditions for a just and peaceful society.

As long as sedition is seen as a reasonable restriction on free speech & expression on the ground of preserving public order & security of the state, it will be impossible to contain its mischief & in consequence speech & expression in a free & fearless atmosphere will always remain under a threat as the “Sword over the head of Damocles”.

CONCLUSION:
Democracy is not another name of majoritarianism, It is a system to include every voice where though of every person should be counted irrespective of the number of people backing that idea. Free speech should be protected because it is necessary to achieve some greater often ultimate social good.

J. S. Mill defends free expression by saying as “The peculiar evil of silencing the expression of opinion is that it is robbing the human race ……… If the opinion is right, they are deprived of the opportunity of exchanging error of truth; if wrong, they lose what is almost as great a benefit the clearer perception & livelier impression of truth produced by its conclusion with error.” Progress is dependent upon advance of truth as per J. S. Mill, and this in turn dependent upon the right of men to give free expression to any view they entertain.

If we examine some important judgments across of the world in this regard, it is found that there are conflicting views on free speech-vis-à-vis sedition.
In Branden burg case (1969) the U.S Supreme Court allowed free speech in the form of advocacy to use of the force or low violation except Where such advocacy is directed to inciting or producing imminent lawless action & is likely to inciting or producing such action In “Yates” case the U.S “Supreme Court distinguished advocacy to overthrow as an abstract doctrine from any advocacy to action” In “Schench” case the U.S Supreme Court examined the validity of sedition Act, 1918 & laid down the “clear & present danger” test for restricting freedom of expression. But in other cases the U.S. Supreme Court ruled out such views on free Speech”. The definition of sedition law is narrowed down & has become disused.
In Nigeria – it was held by the court in Ivory Trumpet publishing company case that the greater the important of safeguarding the community from incitements to overthrow of our institutions by force & violence, the more imperative is the need to preserve inviolate the constitutions rights of free speech, free press & free assembly in order to maintain the opportunity for free political discussion to the end that Govt. may be responsible to the will of the people & that changes if desired may be obtained by peaceful means.

Therein lies the security of the republic the very foundation of Constitutional Govt.
In Newzeland the sedition was not felt necessary for a particular crime to be retained in the statute books.In Australia the sedition law was abolished & replaced with reference to “urging violence offences”. In India – the Decision of Apex Court in Kedarnath Singh Case followed the doctrine of severability vis-a-vis the fundamental right is sought to be supported on the basis of the wording of Art-13(1) of the Constitution, in the case decided in RMD Chamarbaugwalla (AIR 1957 S.C. 628), but ignored the precedence decided in Ramesh Thapper Case & Chintamani Rao Case.

But the dissent is based on no reason.
Further in Ram Nandan Case the full Bench of Allahabad High Court decided that the provision U/s-124A IPC is so inextricably mixed up that is not possible to apply the doctrine of sever-ability so as to affirm the validity of a part of it & reject the rest But the apex court in Kedar Nath did not deliberate it & came to the conclusion in favour of sever-ability & consequently decided the provision in favour of Intra virus. The Apex Court in Kedar Nath Case also did not discuss the principles decided by the same strength members Bench of S.C. in Dr. Lohia Case that the limitation imposed in the interest of public order to be a reasonable restriction should be one which has a Proximate connection or nexus with Public order but not on far-fetched, hypothetical or too remote in the chain of its relation with the public order.

It referred Full Bench decision of the federal court in Basudeva reported in AIR-1950 FC67. The provision U/s-124(A) is so wide that even innocuous “exciting disaffection” etc. has been made an offence. The fundamental right to free speech has been controlled on hypothetical & imaginary considerations that exciting disaffection against the Govt. established by law may create public disorder or it has tendency for public disorder. The Constitution bench in Kedar Nath case gave no reason why it dissented from the principle decided in Dr. Lohia Case i.e. “unless there is a appropriate connection between instigation & public order. It is neither reasonable, nor in the interest of Public order. On the contrary the Constitution Bench in Kedarnath Case accepted the logic in Bal Gangadhar Tilak Case exciting disaffection etc. have tendency for public disorder as valid which were decided by the courts during imperial rule in India.

In this context the statement of father of nation, i.e. of Gandhi during his trial constituting sedition offence is relevant, as, “Section 124 A under which I am happily charged is perhaps the prince amongst the political sections of the IPC designed to suppress the liberty of the citizens.

x x x x x x x

I have studied some of the cases tried under it & I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege therefore to be charged under that section.

x x x x

But I hold it a virtue to be disaffected towards a Govt. which in its totality has done more harm to india than provisions system.

X x x x x x x xx x x x x x x x
Holding such a belief, I consider if to be a sin to have affection for the system”
The constituent assembly debate unanimously deleted “sedition” as restriction on freedom of speech & expression which was a part of draft Art-13. A part of the statement of Sri M Ananantha Sayanam Ayyanger is quoted as follows:-
The word “Sedition” has become obnoxious in the British regime. We had therefore approved the amendment that the word sedition ought to be remained, except in cases where the entire state itself is sought to be overthrown or undermined by force or otherwise leading to public disorder; but any attack on the Govt. itself ought not to be made an offences under the law. We have gained that freedom & we have ensured that no Govt. could possibly entrench itself, unless the speeches lead to an overthrow of the State Altogether. As a result of the vehement opposition in the Constituent Assembly, the word sedition does not find a place in fundamental right chapter of our constitution to “restrict freedom”.
In regard to sedition the statement made by the first prime minister of India on the floor of parliament in course of 1st constitutional amendment in 1951 – is relevant.

The same is as follows:-

“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. The sooner we get rid of it the better.”

In view of the above narrations it may be concluded as follows:-

•The section is vague & in uncertain terms.

•This offends fundamental principles of criminal jurisprudence.

• In any case it refers to a particular historical context “sovereignty lies in the person of king, but now the people are sovereign under democratic constitution” no longer holds.

• While certain political views may be unreasonable or unpopular, they cannot be criminalized. This offends democratic values.

• The definition of sedition offends fundamental freedoms of speech & expression which are universally recognized. In practice the law is used to silence political-economic discourse or criticism of the Govt., This has a “Chilling effect” on free speech.

• The sedition as construed is RAJ DROHA, but not DESH DROHA, which is permissible under the democratic, republic constitution.

• Sedition law is against the ethos of Indian freedom struggle. Thus “sedition” offence is liable to be struck down on the legal as well as democratic considerations & above all to cherish & follow the noble ideals which inspired our national struggle for freedom.

• The International trend is more in favour of free speech & expression & free press, than keeping sedition as an offence in statute.
Thus it is more appropriate to end the British enacted sedition, which is contrary to the basic principles of criminal jurisprudence and democratic norms.

In the last but not the least, we may recollect the saying of Charles brad laugh as “Better a Thousand fold abuse of free speech. The abuse dies in a day, but the denial slays the life of the people & entombs the hopes of the race.”

Mr. Biswapriya Kanungo ,

Advocate,

Mr. Bijaya Kumar Panda
Advocate,
Narendra Mohanty,

Campaign Against Fabricated Cases(CAFC), Odisha
Email: campaignodisha@gmail.com

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