Mark Ulyseas -Abolish Sedition Law Section 124A

Profile Mark Ulyseas LE August 2019

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Abolish Sedition Law Section 124A (1870) of the Indian Penal Code, by Mark Ulyseas.

Mark Ulyseas has served time in advertising as copywriter and creative director selling people things they didn’t need, a ghost writer for some years, columnist of a newspaper, a freelance journalist and photographer. In 2009 he created Live Encounters Magazine, in Bali, Indonesia. It is a not for profit (adfree) free online magazine featuring leading academics, writers, poets, activists of all hues etc. from around the world. March 2016 saw the launch of its sister publication Live Encounters Poetry, which was relaunched as Live Encounters Poetry & Writing in March 2017.  In February 2019 the third publication was launched, LE Children Poetry & Writing (now renamed Live Encounters Young Poets & Writers). He has edited, designed and produced all of Live Encounters’ 163 publications till date (August 2019). Mark’s philosophy is that knowledge must be free and shared freely to empower all towards enlightenment. He is the author of three books: RAINY – My friend & Philosopher, Seductive Avatars of Maya – Anthology of Dystopian Lives and In Gethsemane: Transcripts of a Journey.

When will India finally rid itself of archaic laws inherited from its former colonial masters?

Mahatma Gandhi during his trial for sedition in March 1922
Mahatma Gandhi during his trial for sedition in March 1922

“Citizens in India are free to criticise their governments at the Centre or in the states — which they do quite frequently, and boldly and fearlessly as well; as they must, because that is what a participatory democracy is all about. It behoves the men and women of the law who advise government to impress upon their client that freedom of speech and expression is a fundamental right guaranteed under Article 19(1)(a) of the Constitution — and to remind all governments (present and future) that “sedition” had been deliberately and designedly excluded by the framers of the Constitution from Article 19(2), the exception clause to free speech, only because, as the founding fathers had said, “Sedition is not made an offence in order to minister to the wounded vanity of governments!” – Fali Nariman, constitutional jurist and Supreme Court advocate, wrote in The Indian Express. LINK

In August this year India will be celebrating its 73rd Independence Day. But what does this mean? Has the country emerged as truly independent of its colonial masters? I am referring to the Indian Penal Code that was created by the British in 1860, proceeding the 1857 mutiny, in particular the Sedition Law – Section 124-A, which was added in 1870 to counter the perceived threat from Muslim preachers. There was apprehension that they would wage war against the government.

The first Prime Minister of India, Jawaharlal Nehru, spoke about abolishing the law and yet nothing came of it.

In 1922, Mahatma Gandhi, leader of the Indian independence movement, was tried and prosecuted for “bringing or attempting to excite disaffection towards the British Government established by law in British India”, under Section 124-A.

“Affection cannot be manufactured or regulated by law,” Gandhi said while on trial. “If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence.”

“Sedition was made an offence under the Indian Penal Code of 1860 which was drafted by [British Whig politician] Thomas Macaulay,” Suhrith Parthasarathy, a lawyer and writer based in Chennai, India, tells Index on Censorship. “It was unquestionably a weapon at the hands of the colonial government.” –  India’s sedition law is a dangerous hangover from British colonialism by Arpitha Desai. LINK

Jawaharlal Nehru, said, ““Now so far as I am concerned that particular Section (124A IPC) 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…We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in variety of ways and apart from the logic of the situation, our urges are against it.”

But his sentiments did not match what his government did – the First Amendment strengthened Article 19(2) of the Constitution by adding two expressions -“friendly relations with foreign state” and “public order” – as grounds for imposing “reasonable restrictions” on free speech. LINK

Successive governments thereafter have misused it.

Since India’s independence on 15th August 1947, students, journalists and even intellectuals have faced the wrath of the state for speaking out against the government. Fortunately not all those charged were convicted.

Section 124A of the Indian Penal Code defines the offence of sedition as follows: “Sedition. 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”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Kedar Nath v. State of Bihar (AIR 1962 SC 955), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case. LINK

The Supreme Court has said that all authorities across the country would be bound by the Kedar Nath judgment of the apex court, which limits the scope of filing sedition cases under the provisions of Indian Penal Code. LINK

The Supreme Court of India has clarified its stand on Section 124A. So the constitutional validity is confirmed but the manner in which it is enforced is limited.

It is shameful that the Indian National Congress mentioned the repealing of this Act in its 2019 election manifesto considering that they had been ruling India for decades since independence and could have done this a long time ago.

There appears to be a serious lack of political will since independence to rectify this anomaly. Do all political parties see this as a legitimate weapon to smother criticism of the state, to legally silence dissenting voices with the full force of the state’s security apparatus?

What is the reason for this?

India has never been as vulnerable to hostile outside forces as it is today. It has two nuclear powers on its borders – one promoting terrorism under the garb of Islam and the other financing and promoting disaffection in the north- east States, as well as supporting the deadly Maoist movement (red corridor) that seems to be growing in power. The news of the slaughter of Indian security personnel on a regular basis is evidence of its success as an armed movement whose objective is to overthrow the state. And up north we have the festering Kashmir problem, which should have been sorted in Nehru’s time. Now it has become an inheritance of hate and bloodletting.

These are dangerous times for India.

None of these problems can be wished away or controlled by merely enforcing an archaic sedition law. It has to be confronted and solved at the ‘people level’ by empowering the common folk to work with one another to bring about a peace that prevails, and not just a lull in hostilities.

Those charged under the sedition law include students, journalists, film actors and intellectuals. No one has been spared. Is there a pattern to this as some people claim? Perhaps those in government are concerned about the threat levels to the state and therefore have attempted to stifle all free speech.

But are these accusations against the government entirely true?

Is verbal support for the bloody Maoist cadres, anti-state?

Is applauding the Pakistan Cricket team by Muslims in India, anti-national?

Is speaking out about State improprieties undermining the legal authority of the state, seditious?

Is there a pathological fear that free speech may digress into armed rebellion and hence the suppressing of free thinkers? Does this arise because of the activities of The Students’ Islamic Movement of India that seeks to overthrow the Indian Government and make India an Islamic country? Does this arise from The Naxalite–Maoist insurgency? And what about The United Liberation Front of Assam and other armed insurgents in the north east of the country that are watered and fed by the People’s Liberation Army of China? And what about the Islamic State returnees and those gentlemen in Kashmir supported by that Islamic country to the west?

Much has changed since the time of Mahatma Gandhi, the apostle of peace. During his time there was one enemy – the cursed colonial. Now there are many within the country and at the borders waiting to enter. This enemy does not have a face but an ideology of hate and violence. And by continuing to alienate freedom loving Indians with the imposition of a 150-year-old colonial law the government is creating a dangerous situation for all. Perhaps it is time to abolish this law.

The people make a country, not a political party or religion. It is the people that vote a government into power because they seek redressal of their daily problems like jobs, clean drinking water, affordable transport, education, medical facilities and above all, social justice. Often when these are not redressed, they resort to the only weapon they have, their voices. And it is here that they are in danger of being incarcerated for breaking a law which was created by a colonial for just this very purpose, a colonial that Mahatma Gandhi kicked out of India over seven decades ago.

Perhaps the present government will have the wisdom to abolish the Sedition Law 124A of the Indian Penal Code and replace it with a more effective one to deal with the burgeoning armed groups across India that are supported by its neighbours, and those elements in the country that seek to divide communities based solely on religious or regional affiliations.

Success in this will rest solely on the involvement of the people. Inclusiveness is the way to peace.

‘In my humble opinion,’ wrote Gandhi, ‘every man has a right to hold any opinion he chooses, and to give effect to it also, so long as, in doing so, he does not use physical violence against anybody.’ –  Mahatma Gandhi

Unfortunately the Mahatma didn’t have to contend with the beast of social media where a word out of place to deliberately distort or to present a toxic version of the truth has resulted in bloodshed.  India is at political cross roads and in the cross hairs of dissent, both legitimate and illegitimate, where free speech is mired in subjective interpretation, both by government and the people. The foolproof security for the state is the citizen who seeks social justice in all its forms to live a peaceful productive life. Attending to the common person’s needs guarantees security for the state because divisive forces cannot infiltrate and/or cause harm to the social integrity of the country. Regrettably divisive forces are among us, feeding off the insecurities of the people who are stuck between free speech and incarceration. Hence, it is vital that the intelligentsia and government work together to abolish the sedition law so as to prevent the criminalisation of the common person’s right to free speech; but at the same time must provide adequate safe guards for the state against hostile forces within and outside the country who are using this anomaly to their advantage.

How Section 124A has been used by governments:

In 2012 and 2013, an astonishing number of 23,000 men and women who protested against a nuclear power plant in Tamil Nadu were held for “waging war against the state” and sedition (when the Congress-led UPA government was in power at the Centre). Ironically, none other than then Home Minister P. Chidambaram and Law Minister Kapil Sibal are now most vociferous against the anti-sedition penal provision. LINK

While the figures of sedition cases for 2017 onwards are not available, the National Crime Records Bureau (NCRB) shows a a spike in arrests for sedition between 2014 and 2016 – 179 arrests, 112 cases filed, 2 convictions. While the figures of sedition cases for 2017 onwards are not available, the National Crime Records Bureau (NCRB) shows a a spike in arrests for sedition between 2014 and 2016. LINK

Final word from Soli Sorabjee, Former Attorney General of India 

“Sedition, the Supreme Court has said, are the acts which have a tendency and intention to disturb law and order or incite violence. After all, it is a section which gives you life imprisonment, has very serious consequences. So the Supreme Court has construed it in that fashion and said it very clearly that even if you use words that vigorously criticise the government or comment on the actions of the government, that is not sedition. That is our law, that is how Section 124A was interpreted and upheld as constitutional by a Constitution Bench.”LINK



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© Mark Ulyseas