LOOKING FOR ENEMIES OF THE STATE
Rati Rao, a retired scientist and a human rights activist based in Bangalore, was flummoxed when the local police informed her on February 26, 2010, that a case under Section 124A of the Indian Penal Code (IPC) was filed against her almost two years back, and that she could be arrested any time.
“I didn’t know what Section 124A meant. But then my lawyer told me that I was being charged with sedition,” she says.
Rao, who is the vice-president of the Karnataka chapter of the People’s Union for Civil Liberties (PUCL), was accused because a PUCL bulletin she had published had allegedly favoured the Naxals. It was charged that the bulletin had indulged in “false propaganda”, fuelled communal disharmony and spread false information against the government. The police eventually withdrew the charges against Rao.
However, Binayak Sen hasn’t been so lucky. The Chhattisgarh-based human rights activist was recently found guilty by a Raipur court under Sections 124A, 120B (criminal conspiracy) of the IPC, and several sections of the Chhattisgarh Special Public Security Act and the Unlawful Activities (Prevention) Act. His alleged offence is that he was involved in abetting the Maoists in their acts against the state.
The verdict has, of course, sparked a national debate on what constitutes sedition and whether or not the law is being abused by the authorities to silence dissent and suppress an individual’s right to freedom of speech and expression.
Section 124A has, in fact, been in the limelight in the recent past. In November last year, the Delhi police filed charges of sedition against Kashmiri separatist leader Syed Ali Shah Geelani and writer-activist Arundhati Roy for their alleged anti-national speeches.
Section 124A states: “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...shall be punished with imprisonment for life…” Explaining the expression “disaffection”, the law says that it includes disloyalty and all feelings of enmity towards the state.
Human rights groups and political activists call this law a “blot” on Indian democracy. “This is a black law. The very notion that a political activity could be declared seditious and people put in jails is against the democratic principles,” says Kavita Krishnan, national secretary, All India Progressive Women’s Association.
Most legal experts admit that this law is one of the most misused in the country. Says Ranjan Lakhanpal, a Chandigarh-based lawyer who has fought many cases for his clients charged under section 124A, “During the militancy days and even later, the Punjab police found this the easiest section to charge people with. All they had to do was to claim that the accused was making a speech or carrying some material that was seditious.”
The basic problem with the law, say experts, is that it is often ends up violating a citizen’s freedom of speech and expression. “Article 19(1)(a) of our Constitution guarantees freedom of speech and expression. Section 124A is against the fundamental rights of the citizens,” says Lakhanpal.
The Supreme Court too has grappled with the problem many times. In 1962, in the Kedar Nath Singh vs the State of Bihar case, it ruled that though Section 124A was not unconstitutional, a citizen had the right to say or write whatever he liked about the government, or its measures, by way of criticism or comment. That is, “so long as he does not incite people to violence against the Government...or with the intention of creating public disorder.”
But the law is rarely applied in this spirit, say experts. “The Supreme Court quite clearly read down the law and that should have been the guiding principle. But governments have been using Section 124A to arrest and prosecute people like Binayak Sen on flimsy charges,” says Prashant Bhushan, senior advocate, Supreme Court.
However, despite its misuse, some argue that doing away with Section 124A is not the solution to the problem.
“We need this law if we want the state to survive,” says Raju Ramachandran, former additional solicitor general of India. While claiming that the maximum sentence was probably not justified in Binayak Sen’s case, Ramachandran says that it doesn’t mean that the law is bad. “Sen can go to a higher court and plead his case.”
In its 42nd report, the Law Commission of India also spoke in favour of the law. However, it also conceded that the law was defective and asked the government to amend it so as to punish only those who committed the offence “knowing it to be likely to endanger the integrity or security of India...”
Others echo that view. S.S. Virk, former director general of police in Maharashtra and Punjab, admits that there are “fault lines” in the system. But, he argues, “I don’t think it is possible to do away with this law. As to whether the police is right or wrong in applying the law, we should let the courts decide that.”
But activists point out that it’s not as simple as that. “What about the harassment that people go through just because the police have filed a case under this section,” asks Rao.
Perhaps the solution lies in amending the law to make it as abuse proof as possible. As Bhushan stresses, “The government should spell out clearly what constitutes sedition as defined by the Supreme Court.” For while one would not like to see the people’s democratic right to express dissent crushed, neither should those guilty of sedition be allowed to go scotfree.
Code sedition
• Section 124A was added to the Indian Penal Code in 1870. It was used mainly against nationalist leaders during British rule.
• Those found to be involved with creating disorder, or inciting violence against the state through speech or written word could be booked under Section 124A for sedition.
• Famous freedom fighters convicted under the law: Bal Gangadhar Tilak in 1897 and Mahatma Gandhi in 1922.
• In 1962 the Supreme Court stated that only those who misuse freedom of speech to directly incite violence against the state can be charged with sedition.
• Recently Kashmiri separatist leader Syed Ali Shah Geelani and writer Arundhati Roy were charged with making seditious speeches.
• On December 24, 2010, human rights activist Binayak Sen was found guilty of sedition by a Raipur court
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