British colonial era laws continue to have relevancy in the legal systems of India and Pakistan. Ironically, a sedition law used by the British colonial government to suppress nationalist dissent in the subcontinent during the 19th and early 20th centuries is being applied today to curtail what some critics feel are reasonable criticisms of the government. In addition, the United Kingdom abolished its own sedition law in 2010.
Recently, the controversial case of cartoonist Aseem Trivedi has sparked a heated debate in India about restrictions on free speech and expression. Trivedi was arrested by Mumbai police on charges of sedition for allegedly mocking India’s constitution and national emblem in a cartoon during an anti-corruption protest and for posting the cartoons on a social network website.
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
The Indian Penal Code was originally framed in 1837 by the First Law Commission, chaired by Thomas Babington Macaulay, and it included similar wording to section 124-A in what was then section 113 of the draft law. However, after subsequent revisions, the final draft of the Penal Code was enacted in 1860 with section 113 omitted. It was not until 1870 that the British Colonial government introduced section 124-A in Chapter VI of the Indian Penal Code (“Of Offences against the State”). The section was said to be introduced to deal with “increasing Wahabi activities between 1863 and 1870.” The section was amended in 1898 in order to expand the scope of the law by including the terms “hatred” and “contempt” along with disaffection.
In the 19th and early 20th centuries the sedition offense was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters. The first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891. More prominent examples include the trials of Indian nationalists Bal Gangadhar Tilak and Mahatma Gandhi. Gandhi, who was charged under the sedition law in relation to the publication of three articles in a magazine, commented on the law during the proceedings, saying:
Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.
In the post-independence era, human rights groups assert that the provision is still being used to stifle political dissent and peaceful criticism of the government and is impairing freedom of speech in the country. In 1961, in the case of Kedar Nath Singh vs The State of Bihar, the Supreme Court of India upheld the constitutionality of the law. However, the Court distinguished clearly between speech or writing which “excites people to violence or have the tendency to create public disorder” and strong criticisms of the government which speak “in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.” The later type of speech was found to be outside the ambit of the sedition law.
In other words, as asserted by a report by the Centre for the Study of Social Exclusion and Inclusive Policy and the Alternative Law Forum, the Court upheld the constitutionality of the sedition law, but at the same time was “curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”
However, the ruling has not prevented charges from being filed against writers, journalists, media personalities, and human rights activists. In 2010, award winning novelist Arundhati Roy was accused of sedition after showing support for an independent Kashmir during a seminar. In addition, doctor and activist Binayak Sen was convicted of sedition by a trial court in 2010 and sentenced to life imprisonment, but was granted bail in 2011 with the final verdict still pending.
Critics have long asserted that the lower trial courts have disregarded or ignored the interpretation of the law as laid out by the Supreme Court of India. Moreover, it is asserted that state authorities have misused the law to target critics and activists who, rather then inciting violence against the state, are simply expressing legitimate criticism of state activities. The central government is reported to be considering amendments to the law that would better reflect the distinction established by the Supreme Court of India.
The Law Library of Congress and Library of Congress hold a number of items relating to the sedition law in India, for example:
- Gopalakrishna D. Sastri, The Law of Sedition in India (Bombay, 1964).
- The Historic Trial of Mahatma Gandhi (Mulk Raj Anand ed., New Delhi, 1987).
- The Great Trial of Mohatma Gandhi and Mr. Banker (Madras, 1922)
- The Trial of Mr. Gandhi; with a foreword by Earl Mountbatten of Burma (London, Macmillan, 1969).
- Trial of Tilak (New Delhi : Publications Division, Ministry of Information & Broadcasting, Govt. of India, 1986).
- Walter Russell Donogh, The History and Law of Sedition and Cognate Offences, Penal and Preventive, with a Summary of Press Legislation in India and an Excerpt of the Acts in Force Relating to the Press, the Stage, and Public Meetings (1917).
- Correspondence between His Excellency Lord Minto and certain ruling chiefs regarding measures to be taken for the suppression of sedition, and extracts from speeches during His Excellency’s recent tour (Calcutta, Superintendent Govt. Print., 1910).