Why BJP and Congress love to hate sedition (till they come to power)

File photo of PM Narendra Modi and former PM Manmohan Singh | PTI

Every political party questions the wisdom of retaining the sedition law, but only when they are in opposition.

The sedition cases against former JNU students, including Kanhaiya Kumar and Umar Khalid, and Sahitya Akademi awardee and Assamese scholar Hiren Gohain show that Section 124A of the IPC has become the preferred weapon of the country’s political establishment – be it the BJP or the Congress – to crush dissent.

While the Congress has, time and again, questioned the Narendra Modi-led government’s motive behind the sedition charges against former JNUSU president Kanhaiya Kumar, Umar Khalid and others, its own UPA regime holds the dubious record of using section 124A against a staggering 9,000 citizens in one instance.

The section, first added to the IPC by Sir James Stephen on 25 November 1870, was meant to deal with the dissenting voices of Indian freedom fighters. While the British India police used it sparingly, often levying just fines to curb dissent, post-Independence, its use has become widespread.

In fact, the use of the sedition law has been at its peak in recent decades.

Crushing colonies – and Indian democracy

To understand how the law has been used in British India and in post-Independence India in later years as a political tool to clamp down on dissent, let us look at a few examples.

1897 & 1917: Freedom fighter Bal Gangadhar Tilak, who also published popular Weekly Kesari, was booked for two articles that he wrote criticising the treatment of Indians at the hands of the British. Years later, he was again booked for three speeches that he made against civil servants in British India.

March 1922: Mahatma Gandhi was booked under the sedition law for writing against the British in Young India, his newspaper.

May 1953: At a village in Bihar’s Munger district, political activist Kedar Nath Singh referred to CID officials and government servants as ‘dogs’, and the Congress leaders as ‘goondas’. He also asserted that the Forward Communist Party did not believe in democracy and supported a revolution.

October 1984: The day Prime Minister Indira Gandhi was assassinated by her bodyguards, Balwant Singh, an assistant in the office of Punjab education department and his associate Bhupinder Singh, a senior clerk in the Punjab School Education Board, were arrested in Chandigarh.

Their crime: Upon leaving their respective offices after work, the two raised slogans like ‘Khalistan Zindabad’, ‘Raj Karega Khalsa’ and, ‘Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da’. The last one, roughly translated, means: “Now we will rest only after Hindus are driven out from Punjab, time has come to bring back Sikh dominance in the region.”

And then there were dozens in post-90s India

January 2011: Human rights activist and paediatrician Dr Binayak Sen arrested in Chhattisgarh’s Bilaspur and booked for sedition.

His crime: He was an alleged conduit between jailed Naxalite leader Narayan Sanyal and businessman Piyush Guha. Dr Sen was sentenced to life and it was claimed that he met Sanyal 33 times at the Raipur Central Jail.

The Supreme Court, in April 2011, dropped the draconian charge against the doctor and held that while Dr Sen could be a Maoist sympathiser—and there could be many others like him—this alone would not amount to ‘sedition’.

September-Dec 2011: 3,500 Tamil Nadu citizens from Idinthikarai and surrounding villages were booked for ‘sedition’ and/or ‘waging war against the state’.

Their crime: They held an unarmed, peaceful protest against the Kudankulam nuclear power plant which, according to them, threatened their lives and livelihoods.

February 2016: Some students allegedly raised anti-India slogans at an event in Delhi’s JNU, and participated in an event to commemorate the hanging of Parliament attack mastermind Afzal Guru. Among those who allegedly led the march and remained silent when the slogans were raised were then JNU students’ union leaders Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya.

9 January 2019: The Assam Police booked an 80-year-old scholar Hiren Gohain and some others for allegedly saying there would be demands for sovereignty if the BJP-led NDA government continued to forcibly push the Citizenship (Amendment) Bill.

Now, in each case, if convicted, these citizens would face maximum punishment of life imprisonment.

Some would essentially lose their prime years for speaking their minds.

Out-of-power politicians hate sedition

When in the opposition, every political party questions the wisdom of retaining the offending section in the IPC. But the moment that party comes to power, it happily uses the draconian law to curb dissent.

Starting with country’s first Prime Minister Jawaharlal Nehru, who, in a speech in Parliament in 1951, spoke against retaining it in the IPC, to modern-day politicians, everyone has spoken out against its gross misuse.

Nehru, incidentally, had said, “…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.”

Yet, it still survives in our statute books, even though in the Kedar Singh case, it was read down by a Constitution bench of the Supreme Court.

In its judgment, the top court held that “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression”.

The court said, “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Supreme Court, in this instance, emphasised that apart from clause two of Article 19 that calls for reasonable restrictions, section 124A is itself violative of Article 19 (a)—that guarantees freedom of speech and expression.

But our governments seem to have interpreted criticism of the government as an attempt to break the country.

What else can explain the mounting cases despite the Supreme Court’s decision in the Kedar Singh judgment?

Last year, in a consultation paper, the Law Commission weighed in on the possibility of doing away with Section 124A or reading it down.

The commission also said criticism of the government couldn’t be treated as sedition, adding, “Every irresponsible exercise of right to free speech and expression cannot be termed seditious. For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section”.

It noted that expression of criticism over leading social problems does not target the idea of a nation: “Expression of frustration over the state of affairs, for instance, calling India ‘no country for women’, or a country that is racist ‘for its obsession with skin colour as a marker of beauty are critiques that do not threaten’ the idea of a nation”.

“Berating the country or a particular aspect of it, cannot and should not be treated as sedition. If the country is not open to positive criticism, there lies little difference between the pre- and post-independence eras. Right to criticise one’s own history and the right to offend are rights protected under free speech,” it argued.

It also pointed out that the UK too had done away with this offending section 10 years ago. If the Britishers used the sedition law to check dissenters back then, India’s political class now seems to be using it to crush anyone questioning its actions.

Nobody knows what action, if any, the Indian government plans to take to realise the recommendations made by the Law Commission.

For now, the guillotine of sedition threatens to silence our very basic freedom and right to be heard.