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India

Sedition law or harass tool

The Telegraph, Sunday, April 17, 2011 - by SAMANWAYA RAUTRAY

New Delhi, April 16: Sedition, a charge against Binayak Sen that the Supreme Court did not find merit in when the case came up yesterday, remains a harassment tool as it was 150 years ago when it was introduced by the British who have since abolished its use against their own citizens.

Lala Lajpat Rai, Bal Gangadhar Tilak and Mahatma Gandhi spent varying terms in jail under Section 124A of the Indian Penal Code, promulgated in 1860 by Thomas Macaulay who is more famous for teaching Indians English.

Convictions now are few and far between under the law, which minister Veerappa Moily has described as “outdated” while promising a “relook”.

But if only to harass, it is routinely invoked against dissidents: a case against writer Arundhati Roy, filed last October after she called for freedom for Kashmir, will go to trial soon. The Supreme Court, which gave bail to Sen, has repeatedly said mere dissent is not enough to be construed as sedition unless one incites violence, experts said.

In the 1990s, the top court threw out several such cases from Punjab, then a hotbed of unrest, where police routinely slapped sedition charges on youths ostensibly owing allegiance to extremist groups. Reading the speeches of Bhindranwale or raising a Sikh Raj flag per se would not amount to sedition, the court had held.

The law itself exempts “expressing disapprobation of measures of the government with a view to obtain their alteration by lawful means, without existing or attempting to excite hatred, contempt or disaffection”, from the scope of the offence. Disapprobation of administrative or other action is similarly exempt.

In a 1962 ruling, the Supreme Court had clarified that the law is attracted only if words or action have the “pernicious tendency or intention of creating public disorder or disturbance of law and order”.

“Two conditions must be met before sedition charges can be invoked — there must have been some incitement to violence and violence must ensue,” said senior counsel K.T.S. Tulsi, who handled several cases from Punjab.

Sedition charges cannot be brought against anybody merely for spreading disaffection against the government as that would take away the right to freedom of speech and expression, activist lawyer Prashant Bhushan added.

Bhushan quoted Gandhi to say: “Spreading disaffection against an unjust government is not only a right but a duty of every citizen.” Gandhi was convicted of sedition for this.

But despite the rulings, overzealous law-enforcing agencies and lower courts routinely invoke the provision against those dissenting against the state. Arundhati Roy was booked on the directive of a Delhi court, which was acting on a complaint.

After the Supreme Court observations in rights activist Binayak Sen’s case yesterday, law minister Moily said that he would refer Section 124A to the Law Commission, implying it could be toned down through an amendment or done away with altogether. For this the government would need to bring a bill in Parliament and have it passed by a simple majority.

If the law were to be abolished, the government would still be able to invoke the Unlawful Activities (Prevention) Act, which bars support to or membership of a banned outfit. However, in the Vaiko case, the Supreme Court has ruled that even under this law mere moral support is not enough to hold someone guilty.

Historically, the law has often been used against writers — Ben Jonson went to jail, William Blake was tried and acquitted for saying “Damn the King and damn his soldiers”, Thomas Paine was found guilty for his book Rights of Man and Robert Burns was threatened with sedition.

In India, the sedition charge was brought against those who participated in the 1857 war of independence. Gandhi, convicted in 1922, was sentenced to six years. If Aurobindo Ghosh had escaped it, it was only thanks to the legal acumen of Chittaranjan Das.

Years later, Nelson Mandela was tried for sedition in South Africa.

In the US, sedition laws were used by Joe McCarthy during the mid-twentieth century for his infamous witch-hunt against perceived communist sympathisers. The Smith Act, though still in the statute books, is now rarely used and sedition charges are invoked only in the military.

A Briton may have gifted the law to India, but British citizens can no longer be charged with sedition. Since 2010, sedition charges in the UK can be invoked only against citizens of other countries.