'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India

Author(s): SIDDHARTH NARRAIN

Source: Economic and Political Weekly , FEBRUARY 19-25, 2011, Vol. 46, No. 8
(FEBRUARY 19-25, 2011), pp. 33-37
Published by: Economic and Political Weekly

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'Disaffection' and the Law: network of rebels who were part of the
First War of Indian Independence in 1857
and were feared for their extensive net-
The Chilling Effect of Sedition work across the country. They followed a

Laws in India modern organisational technique of com-

bining secret work with mass preaching
set in a politico-religious framework
(Samaddar 2010: 41-49). The framework
SIDDHARTH NARRAIN
of this section was imported from various
sources - the Treason Felony Act (operat-
What recent
place Britain), convic
ing indoes a
the common law of sedi-
tious libel, anda
the English law relating to
which, Sen
in by
its logic, trial
seditious words.
charges The common law
of sediof sedi-
people are bound to
tious libel governed
charges), and both actions anda
for the state,
filed and
words that pertained
against to citizens andme
the s
any rightsgovernment,
enmity, as well as between commu-
activists
contem
turned
hostility nities of the
towards spo
persons (Donogh 1911: 4).
th
law, a The law is placed bang in the middle of
draconian
established by law,
increasingly
Chapter vi of the section in the Indian be
Pe-
modern democratic
across nalthe
Code that deals with "Offences
coun against
India?curb
This question
the
free State", a passage that deals with seri-
speech

heart The
of Supreme
this C
essay,
ous offences including waging war against
commentator
the state. The punishment that this sec- R
examines how these
tion carries
mented on extends up to how
life imprison-
the ability
prime of citizen
ment, and the
example charge is both non-bailable of
express and cognisable.
themselves
imperial All of these indicate the
powers
are seriousness of the crime. The law in its
ability to transformed
construct
of an wording distinguished between bringing
independe
or express dissent a
290). The segme
into hatred or contempt, or exciting or at-
governments.
tion tempting to excite disaffection
124A, the towards la
the the government established
Indian by law and
Penal
tion what is termed
113 of in the explanation
Maca as
expressing disapprobation
1837-39, but againstthe
the
the Indian Penal
state (which is permissible). "Disaffection"
i860. James
has been defined as a feeling that can Fit
ex-
ist onlyof
chitect between "the ruler"
the and "the C
has ruled". The ruler
been must be accepted as a
quoted
the result of
ruler, and disaffection, which is the oppo- a m
site of that feeling,
Another is the repudiation of
explana
that the British
that spirit of acceptance of a particular
adopt more
government as ruler.2 wide
the press includ
Sedition Trials of Tilak
registration (Dh
Section 124A1
Ironically, some of the most famous sedi-
British tion trials of the late 19th and early 20th
governm
the colonial centuries were those of Indian nationalist
gove
section to deal with offence was needed. leaders. Of these, the most well known are
the three sedition trials of Bal Gangadhar
Why Section 124A? Tilak, which were closely followed by his
One of the reasons for this move was admirers across the country and inter-
Wahabi activities in the period between
nationally. The fundamental moral ques-
Siddharth Narrain
1863 and 1870 that posed a challengetion (sid@alt
to that Tilak raised was whether his trials
legalresearcher with the A
the colonial government (Ganachari 2009:
constituted sedition of the people against
Forum, Bangalore.
96-97). The Wahabis were a shadowy
the British Indian government (Rajdrohá)

Economic & Political weekly GEE3 February 19, 2011 vol xlvi no 8 33

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 PERSPECTIVES =

or of the
justify this amendment (Donogh 1911: 70).the viewgover
expressed in Tilak's case to the
The new amendment added(Deshdro
people the words effect that "the offence consisted in excit-

There are
"hatred or contempt" to the word "disaf- strik
ing or attempting to excite in others cer-
this fection".
and These amendments also brought
tain bad feelings towards the government
question
in Sections 153-A5 and 5056
targets ofof the ipc. The
and not in exciting or attempting to excite
seditio
colonial government,
When faced particularly the
mutiny or rebellion, orwith
any sort of actual
(along with
Bombay government, followed disturbance, great or small".
the chang- SA
and others)
es in the law with a spate of prosecutions for
Sedition Trial of Gandhi
Kashmir
against native newspapers. titled
held in
In 1908, after the political Delhi The most famous sedition trial after in
situation cre-
ated because of the partition of Bengal, the wasin
statement Tilak's the trial of Mohandas Gandhi
wh
...In British
the enacted the Newspaperspapers
(Incite-
in 1922. Gandhi was charged, along with s
giving 'hate-speec
ment to Offences) Act, Shankerlal Banker, the proprietor of
a law that enabled
break up.
district magistrates What
Young
to confiscate printing India, for three articles published I
pride. It comes fr
in the magazine. The trial, which was at-
presses that were used to publish seditious
be killed, raped,
material. The colonial government also en-
fingernails pulled
tended by the most prominent political
to acted the Seditious
say they Meetings Act to pre-
figures of that
aretime, was followed closelyIn
ing to
vent meetingslive by the
of more than 20 people from in entire nation. Ita
was presided over
soc
just one. Pity
assembling. These moves came in for by the
se- judge Strangman. Gandhi explained n
writers for
vere criticism from Tilak. After the Muzaf- speak
to the judge why from being a staunch
nation that needs
farpur bomb incident,7 while
justice, royalist, he had become an uncompro-
in which the wife com
and daughter of Pringle
derers, mising "disaffectionist" and non-co-
Kennedy, a leading
corporate
and those who
operator,
pleader of the Muzaffarpur Bar, the Resati pr
and why it was his moral duty to
poor,carried roam disobey free.3
an editorial, pointing to the effects the law. In a stunning statement,
of government repression.
Tilak's first Gandhi commented on the tria
In 1908, Tilak law that was

ernment used to try him and demanded that the

was prosecuted once more for sedition.
claimed
es that referre
Despite a spirited defence from judge give him the maximum punish-
Moham-
Khan,
mad Ali Jinnah, one had ment possible. insti
of the most prominent
faces of the Bombay
much Bar, the judges sen-
reviled ...Section 124A under which I am happily Pl
and another British officer Lieutenant charged is perhaps the prince among the po-
tenced Tilak to six years rigorous imprison-
litical sections of the ipc designed to sup-
Ayherst, which occurred a week later. Thement with transportation.
press the liberty of the citizen. Affection
two officers were killed as they were In 1916, the dig of Police, Criminal In-
cannot be manufactured or regulated by the
vestigation Department (cid) J A Guider
returning from the reception and dinner law. If one has no affection for a person, one
at Government House, Pune, after cele-moved the district magistrate, Pune, al-
should be free to give the fullest expression
to his disaffection, so long as he does not
brating the Diamond Jubilee of Queenleging that Tilak was orally disseminating
Victoria's rule. Tilak was convicted of the seditious information. He cited three ofcontemplate, promote or incite to violence.
But the section under which Mr Banker and I
charge of sedition, but released in 1898 afterTilak's speeches in 1916, one given inare charged is one under which mere promo-
the intervention of internationally knownBelgaum and two in Ahmednagar. Jinnah
tion of disaffection is a crime. I have studied

figures like Max Weber on the conditionskilfully argued that since Tilak hadsome of the cases tried under it, and I know
that some of the most loved of India's patri-
that he would do nothing by act, speech,attacked the bureaucracy through his
ots have been convicted under it. I consider
or writing to excite disaffection towardsspeeches, and not the government, he
it a privilege, therefore, to be charged under
the government (Noorani 2009: 122). could not be charged with seditionthat section. I have endeavoured to give in
In 1898, the law was amended to reflect(Noorani 2009: 163-184). their briefest outline the reasons for my dis-
affection. I have no personal ill-will against
Stachey's interpretation. The British in- In terms of the legal definition of the
any single administrator, much less can I
cluded the terms "hatred" and "contempt"scope of sedition, there was a difference in
have any disaffection towards the King's
along with disaffection. Disaffection wasopinion between the Federal Court in person. But I hold it a virtue to be disaffected
India and the Privy Council in Britain. The
also stated to include "disloyalty and all towards a government which in its totality
Federal Court had, in defining sedition inhas done more harm to India than previous
feelings of enmity". The British parlia-
system. India is less manly under the British
ment while debating these amendments the Niharendu Dutt Majumdar case8 held
rule than she ever was before. Holding such
took into account the defence's argumentsthat in order to constitute sedition, "the a belief, I consider it to be a sin to have affec-
acts or words complained of must either
in the Tilak case, and the decisions in two tion for the system. And it has been a pre-
subsequent cases,4 to ensure there were incite to disorder or must be such as tocious privilege for me to be able to write
what I have in the various articles tendered
no loopholes in the law (Dhavan 1987: satisfy reasonable men that that is their
in as evidence against me (ibid: 235).
287). The debates in the British parliamentintention or tendency", but the Privy
demonstrate how "diverse customs and Significantly, Gandhi, in his statement
Council, in the Sadashiv9 case overruled
before the court, refers to the nature of
that decision and emphatically reaffirmed
conflicting creeds" in India were used to

34 February 19, 2011 vol XLVi no 8 EZS3 Economic & Political weekly

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 == PERSPECTIVES

political trials that were ongoing

or publicat
order, was not supported by the
that time.
My unbiased examination of the Punjab
Martial Law cases had led me to believe that
at least ninety-five per cent of convictions
were wholly bad. My experience of political
cases in India leads me to the conclusion that
in nine out of every ten the condemned men
were totally innocent. Their crime consisted
in the love for their country (ibid: 234).
Judge Strangman, in a remarkably re-
spectful response, acknowledges the stat-
ure of Gandhi and his commitment to non-
violence but says he is bound by the law to
of one Ram Nandán, for an inflammatory
constitutional scheme since the excep-
speech given in 1954. In this speech Ram
Nandán criticised the Congress regime
tions to 19(1) (a) were much more specific
for not being able to address extreme pov-
and had to entail a danger to the security
of the state. The second case related toerty
an in the state and exhorted cultivators
and labourers to form an army and over-
order passed by the Chief Commissioner,
throw the government if needed. He also
Delhi asking the rss mouthpiece Organiser
to submit all communal matter and accused Nehru of being a traitor for divi-
material related to Pakistan to scrutiny. ding the country into two.13 The court
Nehru's government decided to amend overturned Ram Nandan's conviction and
the Constitution inserting the words "pub- declared Section 124A to be unconstitu-
lic order" and "relations with friendlytional. Justice Gurtu said,
states" into Article 19(2) and the word As a result of the conventions as has been

hold him guilty of sedition, and sentences
him to six years imprisonment (Noorani
2009: 236). The irony of the sedition law
used against nationalists like Gandhi and
Tilak continuing in the statute books of in-
dependent India was not lost on those
drafting the Constitution. While in their
Draft Constitution, the Constitutional
framers included "sedition" and the term
"public order" as a basis on which laws
could be framed limiting the fundamental
right to speech (Article 13),10 in the final
draft of the Constitution both "public or-
der" and sedition were eliminated from
the exceptions to the right to freedom of
"reasonable" before "restrictions", which remarked of parliamentary government,
there is a concentration of control of both
was meant to provide a safeguard against
legislative and executive functions in the
misuse by the government. In the debates
small body of men called the Ministers and
that followed in Parliament, Nehru clari- these are the men who decide important
fied that he was not validating existing questions of policy.
laws like sedition through this amend- The most important check on their powers is
ment. While addressing the Parliament on necessarily the existence of a powerfully or-
ganised Parliamentary opposition. But at the
the Bill relating to the First Constitution of
top of this there is also the fear that the gov-
India Amendment 1951, Nehru said, ernment may be subject to popular disap-
Take again Section 124-A of the Indian Penal proval not merely expressed in the legisla-
Code. Now so far as I am concerned that par- tive chambers but in the marketplace also
ticular Section is highly objectionable and which, after all, is the forum where individu-
obnoxious and it should have no place both al citizens ventilate their points of views.
for practical and historical reasons, if you If there is a possibility in the working of our
like, in any body of laws that we might pass. democratic system - as I think there is - of
The sooner we get rid of it the better. We criticism of the policy of Ministers and of the

speech and expression (Article 19 (2)). might deal with that matter in other ways, in execution of their policy, by persons un-
This amendment was the result of the more limited ways, as every other country trained in public speech becoming criticism
does but that particular thing, as it is, should of the government as such and if such criti-
initiative taken by К M Munshi who pro- cism without having any tendency in it to
have no place, because all of us have had
posed these changes in the debates in the enough experience of it in a variety of ways bring about public disorder, can be caught
Constituent Assembly.11 and apart from the logic of the situation, our within the mischief of Section 124-A of the
urges are against it. Indian Penal Code, then that Section must
Sedition Laws in I do not think myself that these changes that be invalidated because it restricts freedom
we bring about validate the thing to any of speech in disregard of whether the inter-
Independent India
large extent. I do not think so, because the est of public order or the security of the State
Jawaharlal Nehru was aware of the prob-whole thing has to be interpreted by a court is involved, and is capable of striking at the
lems with the sedition laws in independ-
of law in the fuller context, not only of this very root of the Constitution which is free
ent India. In the debates that surrounded
thing but other things as well. speech (subject of limited control under
Suppose you pass an amendment of the Article 19(2)).
the First Amendment to the Indian Consti-
Constitution to a particular article, surely This decision was overruled in 1962 by
tution, Nehru came under severe flak
that particular article does not put an end
from opposition leaders for compromisingto the rest of the Constitution, the spirit, the
the Supreme Court, which held that the
the right to free speech and opinion.languages, the objective and the rest. Itsedition law was constitutional.14 This
Stung by two court decisions in 1949 thatonly clarifies an issue in regard to that par- case involved Kedar Nath, a member of
ticular article.12 the Forward Communist Party in Bihar,
upheld the right to freedom of speech of
opinions from the far left and the far rightHowever, sedition laws remained on
the statute books post-independence and
of the political spectrum, Nehru asked his Economic&PoliticalwEEKLY
were used repeatedly by both central and
Cabinet to amend Article 19(1) (a). The two
state governments to stifle political dis-
cases that prompted Nehru to do this were available at

sent (Singh 1998). The first major consti-

the Romesh Thapar case, in which the Ganapathy Agencies
tutional challenge to sedition laws arose
Madras government, after declaring the 3/4, 2 Link Street
in 1958, when the constitutional validity
Communist party illegal, banned the left Jaffarkhanpet, Ragavan Colony
of Section 124A of the ipc was challenged
leaning magazine Crossroads as it was Chennai 600 083

very critical of the Nehru government.in an Allahabad High Court case that Tamil Nadu

involved a challenge to a conviction and Ph: 24747538

The court held that banning a publication
because it would endanger public safety
punishment of three years imprisonment

Economic & Political weekly пггн February 19, 2011 vol xlvi no 8 35

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 PERSPECTIVES - -

who Kannada news bulletin

While
accused the the Varthapatra S
the scope
black-marketing of
because the magazine had carried an article
ed Vinobha
time criticising
uphold theBhave
government for carrying out
ute land. He
fake encounterstalked
cessive cent
and accused the state gov-
would overthrow
the country
ernment of being casteist and communal.16
and Congress
sedition lead
aga
The Supreme Court's observations in a
victed Nath unde
case related to a Kashmiri youth
tioners, hum Bilal
1PC,15 and
one who senten
Ahmed Kaloo dar
in 1997 puts things in per-
prisonment.
amples spective. The Court upheld
of charges
Ked s
media demonstrate how the law is mis-
decision. The Patn
against Kaloo based on a violation of the
his appeal, obser
used. In 2008 sedition charges were filedArms Act but overturned charges under
against the
by the Ahmedabad police against Times ofSections 124A, 153A and 505(2) of the
appel
India resident editor Bharat Desai, reporterIndian Penal Code. The
vilification of Court at the end th
was full
Prashant Dayal, and of
photojournalist incitem
of its decision said,
thatGautam
the
Mehta over articles publishedspeech
Before parting with this judgment, we wish
the to observe that the manner in which convic-
in the newspaper which questionedseditious
certainly
tions have been recorded for offences under
The appointment
case as the city police chief and was th
Sections 153 A, 124 A and 505(2), has exhibit-
alleged that he was linked to anCourt,
Supreme erstwhile an
ed a very casual approach of the trial court.
underworld don. In 2008 Lenin
Division Bench Kumar, Let alone the absence of any evidence which
in
tutional Bench
editor of the quarterly magazine Nishan, may attract the provisions of the sections, as in
stitutional Bench
was arrested under sedition charges from already observed, even the charges framed
against the appellant for these offences
the Orissa government after a specialthis
examined madid

booklet on the Kandhamal riots entitled not contain the essential ingredients of the
of related appea offences under the three sections. The
"Dharmanare Khandamalre
These appeals Raktonadhi" in
appellant strictly speaking should not have
Ishaq
(The rivers of Ihahi, wh
blood in Kandhamal) was been put to trial for those offences. Mecha-
having delivered
published in the magazine. In 2010, the nical order convicting a citizen for offences
of such serious nature like sedition and to
Chairman
Tamil Nadu police arrested environmen- of the
promote enmity and hatred etc does harm to
theAll-India
talist Piyush Sethia in Salem under charges Mus
the cause. It is expected that graver the
of sedition for distributing pamphlets
Another appeal offence, greater should be the care taken so w
of the
condemning state Bolshevik
-sponsored violence in that the liberty of a citizen is not lightly
in a Chhattisgarh.
village In 2010, the Karnataka interfered with.17 name
district against E Rati This statement
police filed sedition charges of Basti, reflects the mechanical
the Rao, the editor of the Pucx-Karnatakaprocess of the state filing sedition charges
members we
people to open re
ernment. Another
Parasnath Tripath
in the village
Man
Applications are invited for Faculty
Faizabad, in positions1955
in the Public
have Policy and Management Group.
exhorted th
volunteer army an
Applications are sought in the area of Health and Transport
and its servants by
In management.
its Ability to teach courses in the areas such as
decision, th
economic history, sociology,
tinguished andclearly
environment and
the government
development is desirable. The candidates should have Ph.D.
the measures of t
in the appropriate discipline, with first class in the previous
inciting public dis
The degree, and an excellent academic
Court and research record.
upheld
the Interested candidates may apply to Director,
sedition lawIndian
curtailing
Institute of Management Calcutta, its
Joka, me
Diamond Harbour
application to act
tendency
Road, Kolkata 700104 (emaikdirector^imcal.ac.in).
to crea
Application
bance of should be received
law within one month
and from
the date of this advertisement.
violence. The For full details on the
judg
application procedure
sedition law and format, pleasewas
visit our website t
pretation, it wou
at http://www.iimcal.ac.in/ipc/
of constitutionalit

36 February 19, 2011 vol XLVi no 8 ПЕЕЗ Economic & Political weekly

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 PERSPECTIVES

and such activity for any reason whatsoever caus- 10 Clause 13 cited on p 7 of the Draft Constitution of
against persons they want to target, and
es or is likely to cause fear or alarm or a feeling of India prepared by the Drafting Committee. Con-
judges refusing bail, and in some cases,
insecurity amongst members of such religious, stituent Assembly Debates of Wednesday 30-4-
racial, language or regional group or caste or 1947, Vol III, No 3 at p 445 where Clause 8 referred
convicting accused persons of sedition
community, shall be punished with imprisonment to above is reproduced cited in Para 81, Ram
based on flimsy evidence. The chilling ef-
which may extend to three years, or with fine, or Nandán vs State AIR 1959 All 101, 1959 CriLJ 1.
with both. 11 Constituent Assembly of India Part I Voi VII, 1
fect of these laws threatens to undermine,
Offence committed in place of worship, etc- December 1948, available at http://parliamen-
and gradually destroy, the legitimate and (2) Whoever commits an offence specified in sub- tofindia.nic.in/ls/debates/vol7p16b.htm accessed
section (1) in any place of worship or in any as- on 3 February 2011.
constitutionally protected right to protest,
sembly engaged in the performance of religious
12 Parliamentary Debates of India, Vol XII, Part II
dissent or criticise the government. worship or religious ceremonies, shall be pun- (1951) P 9621 cited in Para 81, Ram Nandán vs
ished with imprisonment which may extend to State AIR 1959 All 101, 1959 CriLJ 1.
five years and shall also be liable to fine. 13 Ram Nandán vs State AIR 1959 All 101, 1959 CriLJ 1.
notes
6 Section 505 (as it stands today) reads [505. State- 14 Kedar Nath Singh vs State of Bihar 1962 AIR 955
i ments conducing to public mischief.]
Section 124
1962 SCR Supl (2) 769. A,
Whoever,(1) Whoever makes, publishes or circulates any by
15 This clause relates to the publishing or circulating w
by statement, rumour or report - (a) With intent to any statement, rumour
signs, or or report (a) with intent to by
wise, cause, or which is likely to cause, any officer, sol- cause or which is likely to cause any member of or
brings
dier, [sailor or airman] in the Army, [Navy or Air the Army, Navy or Air Forceor
contempt, to mutiny or other- e
fection Force] [of India] to mutiny or otherwise disregardtoward
wise disregard or fail in his duty as such; or (b) to
law or[in
fail in his duty as such; or India], cause fear or alarm to the public or a section of the
ment (b) With intent forto cause, or which is likely to publiclife],
which may induce the commission of an of- t
imprisonment
cause, fear or alarm to the public, or to any sec- fence against the State or against public tranquil-
to which
tion of the public whereby any person may be in- lity;fine or (c) to incite or which is likely to incite one m
duced to commit an offence against the State or class or community of persons to commit an
Explanation 1 of- -
cludes
against the public tranquillity; or disloya fence against any other class or community. The
Explanation
(c) With intent to incite, or which is likely to in- Supreme Court upheld the validity of this section. 2
bation
cite, any class or community of 16 See Nivedita
or persons to commit theMenon, "Kithne Aadmi The? We are m
hatred, contem
any offence against any other class or community; All Seditious Now" available at http://kafila.
tute an offence
Shall be punished with imprisonment which may org/2010/12/02/kitne-aadmi-the-we-are-all-se-
extend to [three years], or with fine, or with both. ditious-now/ accessed on 1 February 2011. See
Explanation 3
bation of the ad
(2) Statements creating or promoting enmity, ha- also "Sedition, Free Speech and Dissent" availa-
government
tred or ill-will between classes. Whoever makes, ble at http://www.thehoot.org/web/freetracker/ w
excite hatred,
publishes or circulates any statement or report story.php?storyid=2i5&sectionld=i4 accessed on
constitute an o
containing rumour or alarming news with intent 2 February 2011.
2 Emperor
to create or promote, or which is likely to create17 vs
orBilal Ahmed Kaloo vs State ofAndhra Pradesh AIR
8BOMLR421,
promote, on grounds of religion, race, place of 1997 SC 3483. M
3 "Arundhati
birth, residence, language, caste or community or R
Case",
any other ground whatsoever,
available
feelings of enmity,
india/sedition
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8 Niharendu Dutt Majumdar vs The King Emperor (29) 1942 F С 22: (43 Cr L J 504).
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Economic & Political weekly CEES February 19, 2011 vol xlvi no 8 37

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