What isn’t sedition

SC stymies the clever dodge of misrepresenting public protest and criticism as crime against the state.

In a wonderfully minimalist case of dental surgery, the Supreme Court has defanged governments and administrations which have been wielding Section 124A of the Indian Penal Code to throttle speech and cow down vocal critics. It has done this simply by refusing to lay down the law — reminding everyone that it was laid down a generation ago, in 1962. It has clarified that mere criticism of the government does not constitute sedition and that, in fact, it should not even attract a defamation charge. This observation should act as a restraining order on governments — particularly the Central government — which have been using the colonial curb of the sedition law as a blunt instrument to bludgeon critics with. The principle invoked was articulated in the landmark case of Kedar Nath Singh vs State of Bihar, in which the apex court had upheld the constitutional validity of Section 124A, but had disabused the government of the politically convenient notion that the draconian law could be applied to words, deeds or actions “intended to or… likely to incite public disorder” or violence. The court had insisted on the centrality of intention, since likelihood is a subjective notion which could invite unconstitutional behaviour from the authorities. Which is precisely what has been seen in recent months — unseemly campaigns to restrain those perceived to be political embarrassments like Hardik Patel and Kanhaiya Kumar, apart from sundry writers, performers, cartoonists.

Now, in a public interest litigation filed by Common Cause, the Supreme Court has recalled the necessity to establish intention. The NGO had argued that ignorance of the law is causing the police to arbitrarily arrest critics of government, and had pleaded for guidelines requiring the clearance of a senior police official before Section 124A could be imposed. The court has declined to intervene in sedition cases past and future, and only required officers of the law to follow the principle of the ruling set down in 1962. Following a basic tenet of criminal jurisprudence, it has elaborated that the merit of a sedition charge must be appraised from case to case.

The law of sedition was designed by a colonial power to prevent fractious citizens from overthrowing it by force. In the way it is used, it is anachronistic in a democracy where governments rule at the pleasure of the people, who are entitled to democratic protest and public criticism to force governments to acknowledge their concerns and opinions. To wilfully misrepresent protest as sedition is an egregious error on the part of government. It has been happening far too often and reflects an ugly paradox — democratically elected governments find democratic protest intolerable.

Source: Indian Express, 7-09-2016