Sticks, stones and seditious words

The children's adage, “Sticks and stones may break my bones, but words will never harm me” was perhaps not a part of the lexicon in the nursery where Sir James Fitzjames Stephen grew up.  A cousin of the famous jurist Dicey, and a legal scholar himself, Sir James was appointed the legal member of the Imperial Legislative Council in 1869.  The creator of the Indian Evidence Act of 1872, he was also responsible for introduction of the crime of sedition by inserting Section 124A into the Indian Penal Code in 1870.  

The reasons for this insertion are not hard to understand.  The sticks and stones of the events of 1857 were still of recent memory.  A new threat to the empire was emerging in the form of the “words” of an educated Indian middle class imbued with radical ideas from Europe such as the right to self-determination, setting up newspapers and magazines.  This threat, more insidious than open revolt, needed strict and specific measures.  

Chitranshul Sinha's eminently readable book traces, with deftness and well-crafted prose, the history of the law of sedition in India. Starting with the historical origins of the crime of sedition and then tracing its application through the freedom struggle to post independent India and on to recent times, the book is well researched and useful for both the layman and lawyer alike.  

The recent conviction of Vaiko on the charge of sedition, after the book was written, will no doubt re-open the debate on whether sedition should remain on the statute book or not.  However, as the author shows us, this is not a new debate, and was a problem with which the Constituent Assembly members had grappled.  Of course, many members of that body were victims of this law themselves and their antipathy to this restriction on free speech was quite understandable.  The author shows how the original text of Article 19, dealing with freedom of speech contained sedition as a restriction on this fundamental right.  After a debate that lasted over several days, seditious speech was dropped as a restriction on the freedom of speech.  As the author notes, at this stage Section 124A should have been declared void by Parliament, which, however, never happened.

While almost half the book deals with the origins of the law of sedition, and the famous trials under that law in the pre-independence period such as the Jugantar case, and the trials of Lokmanya Tilak, it is the second half of the book that is of greater interest.  After all, how could a repressive colonial law, designed to restrict free speech and the demands for equality and self-determination, be justified in independent India, where the right of freedom of speech was guaranteed under the Constitution?  And that too when the founding fathers of the Constitution had specifically deleted seditious speech as a restriction on that freedom?

In exploring this aspect of the law, the author takes us through the judgments of various high courts and the Supreme Court and the constitutional amendment that led to the insertion of the words “reasonable” in conjunction with the restrictions placed on the freedom of speech, thus giving the crime of sedition a second life.  

The problem with laws in India is more in implementation, than the law itself.  Section 124A is no different.  Although the law is very clear that prior sanction of the Central or the State government is a must when charging a person with sedition, the author shows how the section is used arbitrarily, without any reference to the law or even the parameters laid down by the Supreme Court.  

In the chapter titled “Stories of Sedition”, the author tells us how the law has been used to arrest Kashmiri students in Meerut for cheering Pakistan's victory over India in the Asia Cup in 2014; how Aseem Trivedi, a cartoonist was arrested for publishing cartoons on a website titled “India against Corruption”; the case of the JNU students; the case of a young lad from Kerala who did not stand up when the national anthem was played, and similar stories of excessive and mindless use of the section.  It is hard to imagine how some silly students cheering for Pakistan are a threat to the unity and integrity of India in the manner that Lokmanya Tilak, Veer Savarkar, Pandit Nehru and Mahatma Gandhi were to British rule in India.  In a bizarre application of the law, Arun Jaitley, while he was the Union Finance Minister was suo moto charged with sedition for having written an article criticising the National Judicial Appointments Commission judgment of the Supreme Court.  Mr Bumble, in Oliver Twist, was perhaps quite justified in saying that “If the law supposes that then the law is an ass”.

As the author points out, with the abolition of sedition and seditious speech as a crime in 2009 in UK, on the reasoning that it had a chilling effect on free speech, it is high time that the same course was adopted in India as well.

The front page of the book carries a quote of Justice D Y Chandrachud —“The Constitution fails when a  cartoonist is jailed for sedition.” Apt words indeed

The Great Repression: The Story of Sedition in India
 Chitranshul Sinha 
280 pages; Rs 499

The reviewer is a lawyer practising in Delhi