The government of India and some states have been instituting cases of sedition against their political opponents with frenzy. Attempts to muzzle the voice of the opposition by recourse to an antiquated colonial law are obscene.
The National Crime Records Bureau stated in a report that in 2014, 76 cases were registered all across the country for "offences against the state”. Of them, 47 were for sedition. The rake’s progress continued.
Last month, the Delhi Police filed cases of sedition against the president of the Jawaharlal Nehru University in Delhi, Kanhaiya Kumar, and Prof Syed Abdul Rehman Geelani allegedly for raising "anti-India” slogans at a function to mark the hanging of Afzal Guru, in 2014, on the charge of being a member of a conspiracy to attack Parliament House. Geelani was acquitted by the Supreme Court in that case.
Like this writer, not a few believe that Afzal Guru was innocent, had been framed and had not received a fair trial. Recently a former Union home minister, P. Chidambaram, also voiced his doubts on that murky episode.
Both, Kanhaiya Kumar and Prof Geelani spoke on Feb 10; the former at his university where he went on record to denounce some unidentified people who raised truly unacceptable solutions while Geelani, a Kashmiri, spoke at the press club.
The Delhi Police acts at the behest of the central government headed by Narendra Modi; not under Delhi’s Aam Aadmi Party headed by Arvind Kejriwal.
It was rash of the home minister of the central government, Rajnath Singh to denounce people who participated in the events of Feb 10. Three TV channels doctored the videos of the proceedings while some TV anchors, true to form, tried to stir up feelings against Kanhaiya Kumar and Prof Geelani. Both were arrested and put in prison.
What the BJP government failed to anticipate was that its ham-fisted approach would serve only to arouse popular feelings against the very weapon it had been deploying — the offence of sedition.
In recent years, lawyers and human rights activists had pointed out that it was a relic of the colonial era whose shelf life had long expired. The offence of sedition did not figure in the Penal Code as it was originally enacted in 1860. It was inserted by an amendment in 1870 and made even more stringent, in response to a judge’s remarks in 1889.
The very language of the definition of the offence of sedition reveals its colonial provenance. Section 124A of the Penal Code penalises "Whoever … brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India”.
How is it possible to organise by purely constitutional and peaceful methods a campaign against a government in respect of its policies without diminishing whatever ‘affection’ it enjoys? The same is true of moves in parliament. The notion of ‘disaffection’ is out of place in a democracy. It is rooted in British law which placed a premium on loyalty and affection for the ruling monarch.
In the country of its origin the offence of sedition had become obsolete. Media Law a work of encyclopaedic scope and authority by Geoffrey Robertson, QC, one of the foremost counsels in cases of human rights, and a colleague Andrew Nicol, says: "This definition is frighteningly broad and the crime has been used in the past to suppress radical political views. Even in the 20th century it was used against an Indian nationalist and against communist organisers. … There has been no prosecution for sedition since 1947, and the offence now serves no purpose in the criminal law.”
In 2009, the Coroners and Justice Act abolished the offence of sedition. The then justice minister Claire Ward, said at the time of the act’s enactment: "Sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today.
"Freedom of speech is now seen as the touchstone of democracy and the ability of individuals to criticise the state is crucial to maintaining freedom.” Britain’s Law Commission had recommended the abolition of then law of sedition in 1977.
She remarked, "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.”
This caused not even a ripple on the placid lake of the Indian establishment. It relies on a Supreme Court ruling of 1962 which upheld the validity of sedition, relying copiously on English law — now repealed.
Sedition was attacked furiously by every leader of eminence in the freedom movement. Political differences do not diminish the admiration which Quaid-i-Azam’s successful defence of Tilak, on a charge of sedition in 1916, a century ago still evokes in India.
The writer is an author and a lawyer based in Mumbai.
First published in Dawn.