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Sedition in India - Colonial Legacy, Misuse and Effect On Free Speech
Sedition in India - Colonial Legacy, Misuse and Effect On Free Speech
Since its inception, Section 124A of the Indian Penal Code, which punishes sedition, has
been a tool in the hands of the state to curb criticism and dissent. It has been used by the
colonial British government as well as by successive governments of independent India
against political dissidents.
Six senior journalists—Rajdeep Sardesai, Mrinal Pande, Anant Nath, Paresh Nath, Zafar
Agha, and Vinod Jose—and Shashi Tharoor, member of Parliament from the Congress, had
been booked for “posting tweets and deliberately circulating fake news” about the death of
a farmer during the farmers protests in Delhi on 26 January 2021.
In the first information reports (FIRs) against them, the charges included promoting enmity,
engaging in acts that are prejudicial to the maintenance of harmony between religions,
making statements promoting hatred or ill-will, and sedition.
While arrest in these FIRs has been stayed by the Supreme Court, the filing of cases against
journalists and political dissenters has become increasingly commonplace in recent years. A
new database by Article 14 reveals a 28% increase in the number of sedition cases filed
each year between 2014 and 2020, as compared to the yearly average between 2010 and
2014.
In this reading list, we take a look at the sedition law and discuss why such an offence, with
its colonial roots, has remained in the law books.
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What Is Sedition?
According to Section 124A of the Indian Penal Code,
This means that the law punishes attempts to create “hatred,” “contempt,” or “disaffection”
towards the government as “sedition.”
The law in its wording distinguished between bringing into hatred or contempt,
or exciting or attempting to excite disaffection towards the government
established by law and what is termed in the explanation as expressing
disapprobation against the state (which is permissible). “Disaffection” has been
defined as a feeling that can exist only between “the ruler” and “the ruled”.
The ruler must be accepted as a ruler, and disaffection, which is the opposite
of that feeling, is the repudiation of that spirit of acceptance of a particular
government as ruler.
The Supreme Court has also weighed on the meaning of sedition and given it a narrow
interpretation. Moushumi Basu and Deepika Tandon (2016) highlighted:
… the Supreme Court in the Kedar Nath Singh v State of Bihar Verdict (1962)
established that the charge of sedition can only be sustained in the instance of
incitement to violence in a speech, not for advocacy.
Justice A P Shah (2017), while delivering the M N Roy Memorial Lecture, explained the
Kedar Nath judgment further:
The Court upheld the constitutionality of sedition, but limited its application to
“acts involving intention or tendency to create disorder, or disturbance of law
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The judges observed that if the sedition law was to be given a wider
interpretation, it would not survive the test of constitutionality.
Reflecting on the sedition charges against students of Jawaharlal Nehru University, the
Central University of Gujarat Teachers' Association (2016) summed up:
The Supreme Court has unambiguously stated in previous cases that words and
speech can be criminalised and punished as “sedition” only in situations where
they are being used to incite mobs or crowds to violent action.
Today, sadly, in this country I love, if anyone holds a view that is different from
the government’s “acceptable” view, they are immediately dubbed as “anti-
national” or “desh-drohi”. This marker of “anti-national” is used to intimidate
and browbeat voices of dissent and criticism, and more worryingly, can be used
to slap criminal charges of sedition against them.
Despite the attempts made by the higher judiciary to restrict the understanding of sedition
to an act of incitement to violence, the use of the law in the hands of the state executive
narrates a story of the misuse of law. Commenting on the sedition charges against S A R
Geelani of University of Delhi, Basu and Tandon (2016) specifically emphasised how the law
has been used to target minority voices:
It needs to be recalled that the use of sedition against Muslims in general and
Kashmiris in particular is not sporadic. In March 2014, the police had
registered a case of sedition against 67 Kashmiri students of Meerut’s Swami
Vivekanand Subharti University (SVSU) under pressure from the Bharatiya
Janata Party (BJP) workers for cheering Pakistan’s victory in a cricket match.
In November 2014, 10 schoolgoing boys in the Kushinagar District of Uttar
Pradesh were charged for sedition, when they wore T-shirts of the Pakistani
cricket team during a Muharram procession. In the past, there have been
popular demands to prosecute figures like Arundhati Roy and Prashant
Bhushan under the section on sedition for voicing their opinion in support of a
plebiscite in Kashmir.
In her review of Anushka Singh’s Sedition in Liberal Democracies, Ankita Pandey (2019)
highlighted a similar trend in the practice and deployment on the ground of sedition:
Another facet of the government instituting sedition charges is that irrespective of whether
further prosecution is tenable, the process of the law itself acts as a deterrent against
dissent. The EPW editorial (2016) pointed out:
Save for rare cases, an FIR almost inevitably follows the complaint, the
criminal justice system proceeds to grind down the accused, who no matter
how obviously innocent, is forced to defend herself and run from court to police
station to clear her name. Even when a court ultimately finds that the
complaint and the FIR were entirely frivolous, there is no remedy or
compensation offered to the exonerated for the blatantly illegal acts unless she
wants to once again run from court to court seeking compensation.
The nature of its use by the government indicates that the government has used it to muzzle
dissenters even when its action would not stand judicial scrutiny at a later stage. Justice
Shah noted:
Citing the Supreme Court’s observations in a case related to a Kashmiri youth, Bilal Ahmed
Kaloo, in 1997, Narrain wrote about “the mechanical process of the state filing sedition
charges against persons they want to target, and judges refusing bail, and in some cases,
convicting accused persons of sedition based on flimsy evidence.” “Successive central and
state governments in the country” have continued to use charges of sedition against
“journalists, media practitioners, human rights activists and anyone who dares express
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dissent.”
Another dimension of the filing of sedition charges is the inevitable, often unfavourable,
media attention that follows. Adfer Rashid Shah (2016) wrote:
Sedition laws were enacted around the 17th Century in England in a bid to
protect the Crown and the State from any potential uprising. The premise was
that people could only have a good opinion of the government, and a bad
opinion was detrimental to the functioning of the government and the
monarchy. It was subsequently introduced in the Indian Penal Code in 1870.
Recounting the British-era sedition trials against Tilak and Gandhi, he noted:
The first major case was when Bal Gangadhar Tilak was brought to trial for
sedition in 1897 for his lectures and songs at the Shivaji Coronation Ceremony.
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This colonial intent of the law is part and parcel of what continues to constitute “sedition” in
modern-day India. Siddharth Narrain (2011) wrote:
The Supreme Court lawyer and legal commentator Rajeev Dhavan has
commented on how sedition provisions are a prime example of the manner in
which the imperial powers of a foreign government are transformed into the
normal powers of an independent regime (Dhavan 1987:290).
In his review of the book, Challenging the Rule(s) of Law: Colonialism, Criminology and
Human Rights in India edited by Kalpana Kannabiran and Ranbir Singh, K S Subramanian
(2009) wrote about the “strong continuity between colonial and independent India’s
discursive practices with regard to specific laws, trials and the ideology of punishment.”
From Bikram Jeet’s essay in the book, he summarised:
Interestingly, the United Kingdom (UK), from whom we have inherited the offence of
sedition, has repealed the offences of “sedition” and “seditious libel.”
Referring to Singh’s “comparative study of sedition within the legal regimes of four
countries: the UK, the United States (US), Australia, and India” in her book Sedition in
Liberal Democracies, Pandey (2019) wrote:
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It turns out that India is the only country to continue using the same definition
of sedition that was introduced in British India in 1870. The other three
countries have either abolished, restricted or modernised their sections on
sedition.
“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....
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.”
The law … is quite clear on the distinction between strong criticism of the
government and the incitement of violence, with only the latter being related to
sedition. Thus, regardless of whether the JNU students’ slogans were anti-
national, hateful, or an expression of contempt and disdain against the
government, as long as they did not incite violence, it does not get covered
under sedition.
politicians.
She emphasised that even statements in support of secession would not constitute sedition:
Taking it a step further, Thapar highlighted the contested meanings of “nationalism” and
“anti-national:”
… there are those who, because they are critical of some aspects of the nation,
are immediately condemned as anti-national. Nationalisms have a history and
one has to be familiar with this, as familiar as one has to be with what is
defined as the nation and as anti-national. Taken literally it could apply to a
large number of Indians who are critical of various aspects of events in India.
Governments have described people as anti-national, but the frequency of this
accusation has increased in the last couple of years. It has been applied so
often now that the word has become virtually meaningless, but not harmless,
because it can be used to politically persecute a person.
Criticising the arrest of Uttarakhand activist Prashant Rahi, Harish Dhawan and Nagraj
Adve (2008) noted that his activism on issues of forest rights and land rights is an extension
of the history of people’s movements in Uttarakhand. They wrote:
Forty-eight year old Prashant Rahi is the product of and a participant in this
history, and has consistently used his pen to inform people both within and
outside Uttarakhand about these people’s demands and concerns. All these
struggles, all unarmed and with mass participation, comprise the democratic
traditions of the people of this region.
Justice Shah reiterated Upendra Baxi’s distinction between “constitutional patriotism” and
“statist patriotism.” He quoted Gandhi as saying:
Commenting to the conviction of Binayak Sen, Piyush Guha and Narayan Sanyal for treason
and sedition, an EPW editorial (2011) also took a similar stance:
The chilling effect of these laws threatens to undermine, and gradually destroy,
the legitimate and constitutionally protected right to protest, dissent or
criticise the government.
Yet, the law of sedition has continued to stay in the statute. Thapar (2016) observed:
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The debate on sedition goes back to the early years of independence when the
attempt to silence free speech was successfully resisted by the Supreme Court
(Brij Bhushan v State of Delhi (1950) and Romesh Thapar v State of Madras
(1950)). Nehru was in favour of expunging sedition as unconstitutional. Those
were the days when democracy was valued and was nurtured. We should
familiarise ourselves with the many occasions when sedition has been objected
to and on valid grounds, and therefore consider its removal from the body of
laws. Laws that can be easily misused should be reconsidered.
“Take again Section 124-A of the Indian Penal Code. 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, if you like, in
any body of laws that we might pass. The sooner we get rid of it the better.”
As secretaries of the People’s Union for Democratic Rights (PUDR), Basu and Tandon (2016)
wrote:
PUDR reiterates that laws like sedition would be subjected to misuse for the
very fact that they exist on the statute books.
Read more
Stand with JNU-II: This Is Not Sedition | Malavika Kasturi, Aparna Vaidik and Dhiraj Nite,
2016
References:
Dhavan, R (1987): Only the Good News: On the Law of the Press in India (New Delhi:
Manohar Publications).
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