Sedition law: Why disaffection towards govt should not be a crime in a democracy

New Delhi: Why should disaffection towards government be a reason for charging a citizen with sedition in a democracy? When under our Constitution, there is a provision of holding elections for change of power, it automatically follows citzens in a democracy may not find a government’s conduct up to mark and so may develop disaffection towards it, and change it, so why should this be a crime?

This is the basic question a group of former civil servants of All India Civil Services have posed to the government and the Supreme Court in a statement issued here today.

Signitories to a petition include rights activist Aruna Roy, Supreme court lawyer Prashant Bhushan, retired IAS officers Ashok Vajpaye, Jawahar Sircar, Wajahat Habibullah, Rahul Hullar, Vibha Puri Das, Vijaya Latha Reddy, IFS Former Deputy National Security Adviser, former ambassadors Deb Mukharjee, Prof Jayati Ghosh, Prof Prabhat Patnaik and journalist P Sainath and several other distinguished figures from various fields.

They have quoted Mahatma Gandhi in this context: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence.”

Yet this disaffection is what Section 124A treats as criminal. Sixty years ago, in Kedar Nath Singh vs. State of Bihar, a five-judge bench of the Supreme Court upheld Section 124A IPC, but qualified their decision as follows:
. . . we propose to limit [the] operation [of Section 124A] only to such activities …. involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

The former civil servants said that this limiting of Section 124A to activities which involve incitement to violence or public disorder has, however, been by and large ignored in practice by the police and by the courts. As against the thousands of cases charged by the police under Section 124A and similar draconian provisions/laws, the low rate of conviction casts serious doubt about the genuineness of claims made during investigation and prosecution. It shows that the real purpose of such laws is to provide autocratic rulers a powerful weapon to suppress their rivals and control public opinion.

However, whether or not Section 124A is finally deleted or altered, it will make little difference to the common citizen insofar as freedom of speech and expression as spelt out in Article 19(1) of the Constitution is concerned. This is because, apart from Section 124A of the IPC, there are several other provisions in the IPC and other Acts which shackle this fundamental right of citizens and leave them open to arbitrary arrest and prosecution by the government. The only way that the citizen’s right to freedom of speech and expression can be protected is if the Supreme Court examines Article 19 under the “basic structure of the Constitution” principle with reference to all existing laws and provisions that put curbs on this freedom.

The armoury of arbitrary weapons used to suppress dissent and opposition and control the free formation of public opinion has expanded over the years to include a number of offences similar to those under Section 124A. Prominent amongst these offences are Section 153A of the IPC (promoting enmity between different groups on ground of religion, race, place of birth, etc.), Section 153B (imputations, assertions prejudicial to national integration), Section 505 (statements conducive to public mischief) and Section 505(2) (statements creating or promoting enmity, hatred or ill-will between classes). These provisions are today widely and routinely misused by the police and their political masters with the same objective as in the case of Section 124A.

Over the years, slowly and surreptitiously, the substance of the offence of sedition has been “snuck” into the Unlawful Activities (Prevention) Act, 1967 (UAPA), defined more elaborately, and with more draconian consequences, than in Section 124A. Significantly, no political party is blameless in this regard and governments of all political complexions have been trampling upon human rights and the freedom of expression .

While lauding the Supreme Court interim order to keep in abeyance Section 124A, and all related pending trials, appeals and proceedings until further orders, the former civil servants said deserves only a muted cheer.

The Supreme Court’s order, inasmuch as it results in immediate relief against arrest, investigation or under-trial detention under Section 124A, is certainly laudable (provided it does not adversely affect the persons already charged). Not so laudable is the impression it gives that the suspension is a response to the union government’s statement that it is reviewing Section 124A and considering its revision and reform. Review and revision by the executive cannot be a substitute for judicial determination of the constitutional limits of the power of the executive to restrict freedom of speech and expression. It is important for the Supreme Court not to get sidetracked by the executive and instead to answer the fundamental issue raised by the petitioners, viz. is Section 124A of the IPC constitutionally valid?

—INDIA NEWS STREAM