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Sedition: ‘The highest duty of a citizen’

October 26, 2010

Sedition: the attempt “to excite disaffection towards the Government established by law in India”, a crime under Section 124 A of the Indian Penal Code, a provision introduced by the British colonial government in 1860.

The only revisions to this colonial legal provision since its passing have been over the years, to remove anachronistic terms like “Her Majesty”, “the Crown Representative”, “British India”, “British Burma” and “Transportation for life or any shorter term”.

But it seems “Disaffection towards the government”, the archaic usage notwithstanding, is a timeless crime. Section 124A, therefore, these few cosmetic changes apart, has remained unchanged for the last 150 years.

(That’s what we mean when we say we are an ancient civilization.)

In 1922 Mohandas Karamchand Gandhi and Shankarlal Ghelabhai Banker, editor, and printer/publisher respectively of Young India, were tried under this section before the District and Sessions Judge, Ahmedabad.

Pleading guilty to the charge, Gandhi said:

“I have no desire whatsoever to conceal from this court the fact that to preach disaffection towards the existing system of Government has become almost a passion with me…” Sedition, said Gandhi, “in law is a deliberate crime”, but it “appears to me to be the highest duty of a citizen.”

Today, almost a hundred years later, the government of “the world’s largest democracy” threatens to invoke this exact same colonial provision instituted to curb resistance to foreign rule,  against a writer whose bright integrity has never faltered, and whose powerful voice has been consistently raised against injustice. Arundhati Roy is tragically right, we can but pity ourselves,  citizens (so-called) of a nation “that has to silence its writers for speaking their minds… that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.”

Disaffection means “the absence or alienation of affection or goodwill; estrangement”.  Does it look like there is a whole lot of goodwill towards the Government of India in Kashmir, which Roy has to work hard towards alienating? All over the North-East and Kashmir, reeling under the military jackboot of the draconian AFSPA, the Government of India is nothing but an occupying army, a spontaneous disaffection generator.

A young Manipuri lecturer in  Delhi University tells of sitting at a roadside dhaba in Imphal with a few friends, when a uniformed Indian Army officer passing by, stopped. Stand up, he barked. Sing the national anthem. They had barely begun, when he slapped one of them. Your accent is wrong, he said. Do it again. They did it again.

No isolated incident this, but simply the routine humiliation of an occupied people. The Indian Nation rampant in all its pride and glory, generating affection.

“Sedition” and “contempt of court” have no place in a modern democracy. No justification whatsoever for provisions that criminalize and silence dissent, critique and ethical challenges to the dominant order. These provisions are unconstitutional, anti-democratic and utterly intolerable.

Sedition is no longer a criminal offence in Uganda after a recent High Court ruling, and the provision is being challenged in Malawi and also in Australia. (The last person prosecuted under Australia’s sedition laws was Brian Cooper, a patrol officer in Papua New Guinea, then under Australian colonial rule. He was charged and convicted in 1960 because “he advisedly spoke and published seditious words” when urging “the natives” to demand PNG’s independence from Australia.)

If disaffection from the government is a crime, who would remain out of jail? Kashmiris, all of the North-East, populations dislocated by dams, corporations, Commonwealth Games, SEZ’s, tribal people in Niyamgiri, Chhattisgarh, farmers in Raigarh, Maoists…

The people, said Bertold Brecht, have lost the confidence of the government.

Therefore the government has decided to dissolve the people, and elect another.

35 Comments leave one →
  1. bhavna sharma permalink
    October 26, 2010 7:50 PM

    Ma’am ,this is really an insightful remark on the manhandling of the issue of Kashmir. The government instead of solving the delicate Kashmir issue is unnecessarily trying to complicate the issue.

  2. Satish permalink
    October 26, 2010 8:37 PM

    Constitution permits reasonable restrictions on free speech on ground of security of the state; the sedition law fall squarely within that exception and there is no apparent reason to hold it to be unconstitutional. The fact that in a few foreign countries it is being challenged changes nothing at all with respect to India.

    Whether the idea of charging her is politically smart is debatable. I doubt that she has made a material difference to the fortunes of any secessionist movement beyond getting them some attention from audiences who may not be altogether sympathetic to their perspective. A gadfly? Yes but has she inflicted significant damage to the integrity of the Union of India? Maybe not.

    B.Raman has expressed similar doubts here.

  3. sonal permalink
    October 26, 2010 9:43 PM

    interesting that the article is, it is also intriguing that how come a dmeocracy that had been achieved after a long struggle continues with the very same evils like ‘sedition’ and the likes which the ‘freedom struggle’ had been fighting against.

    But i also appreciate this democracy which gives us the space to speak up: arundhati roy as well as those who do not agree to what she says, all of them have their space to speak! What is apprecialble is that ours is nt a country where we cannot speak.

  4. Jhuma Sen permalink
    October 26, 2010 10:24 PM

    @Satish,

    Sedition does not fall squarely within that exception. The Supreme Court in 1962 made it very clear where law of sedition will apply. The case was Kedar Nath v State of Punjab where the Court stated very categorically that nothing would be sedition unless there was a call for armed revolt or the use of violence. http://www.indiankanoon.org/doc/111867/

    • Shohini Ghosh permalink
      October 27, 2010 9:56 PM

      It is Kedar Nath Vs the State of Bihar (not Punjab). The point that you make is correct

      • Jhuma Sen permalink
        October 28, 2010 9:56 AM

        My bad. Yes Kedar Nath v State of Bihar as it also mentions in the judgment.

  5. October 26, 2010 10:46 PM

    The controversy over the two seminars in Delhi and Srinagar, over Geelani and Arundhati Roy calling for Kashmir seceding from India, over whether asking for sedition amounts to sedition… it’s ensured the best patriots of the Indian media can no longer use the word Kashmir without the word azadi. The Psy Ops walas, the IB spin doctors, the security hawks… they need extra whisky tonight

    • October 27, 2010 7:02 PM

      Shivam, Do you think they prefer Aristocrat over Democrat? Or, is the seminar at the LTG somewhat of a Royal Challenge?

      • October 27, 2010 7:59 PM

        What a Royal Challenge Shuddha, they’re declaring war with their Bagpipers!

      • Ruchir Joshi permalink
        October 28, 2010 2:17 PM

        Shudhha, you’ve got me. I was planning to keep off this exchange but you HAD to go and bring in whisky brand-names, didn’t you? I now have to say I suspect you were on a particularly bad batch of Blender’s Pride when you formulated your argument on Kashmir.

        And sitting next to that Old Monk and the Contessa at that rum do, can’t have helped.

  6. ravi nayar permalink
    October 27, 2010 12:31 AM

    A country’s glory is not its politicians or its soldiers or even in its monuments but in its writers and philosophers. Sadly in India any thuggish politician or his grandson can get a book banned, anyone can get on the patriotic band-wagon and threaten a person when he or she questions our long held theories. We ban books, hound away our artists and now we threaten our writers with imprisonment for speaking their minds. It is well to remember that religion and jingoism are the last resort of the scoundrel.

    regards
    ravi

  7. Pheeta Ram permalink
    October 27, 2010 2:08 AM

    I owe you for this post, dear Nivedita.
    Love

    Pheeta Ram

  8. neha permalink
    October 27, 2010 2:44 AM

    and by implication, us all who think roy is not a criminal, would be behind bars on similar grounds?

  9. Satish permalink
    October 27, 2010 3:13 AM

    Jhuma,

    Thanks for the link. I was aware of this case when making the comment. My point was only that s.124(A) is constitutional which is not different from what the judgment holds. Whether Roy’s words involve an “intention or tendency to create disorder, or disturbance of law and order, or incitement to violence” is debatable but the validity of the law itself is not in doubt.

    • Nivedita Menon permalink*
      October 27, 2010 10:12 AM

      Satish, it is not at all clear that S 124 A is constitutional, and a strong argument can be made otherwise. If you define ‘constitutional’ only in terms of what the current legal position is, you are right of course. My point is that the current legal position should be challenged, and can be. The constitution is always open to interpretation.

    • Jhuma Sen permalink
      October 28, 2010 10:21 AM

      Satish,

      I am not sure if I would call it very constitutional. To me it is pretty archaic and has all the potential to curb free speech/speech that criticizes government (in)action and for it to survive the dynamics of a democracy, the wording of the section needs to be altered. That is however a legislative action. But I digress.

      The point is, by the stretch of your logic, 377 would be pretty much constitutional as well but there was a Naz Foundation case that questioned it. In Kedar Singh the question of constitutionality was raised as well. Although under the present very legal regime, it holds its ground, yet, the Court got an yardstick to measure an act alleged to be seditious in 1962. And that is — unless a speech invokes the passion of public disorder or the use of violence it is not liable to be called ‘sedition’.

      ” In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies…..” (from Kedar Singh)

      More matured democracies have repealed acts that punish ‘sedition’ or has barely used them, technically resulting in moratoriums. Dissent is the strongest fabric of a democracy and a democracy that doesn’t let itself be criticized is a danger to the governed.

  10. October 27, 2010 7:53 AM

    Unfortunately we are living in the times, when those who have mortgaged the country’s sovereignty and natural wealth to imperialist to plunder are proclaiming themselves as ultra-nationalists, while those who are fighting resolutely against this are being charged with sedition. Thumbs up to Arundhti & her associates for boldly speaking out the truth on Kashmir & Operation Green Hunt.

    • October 27, 2010 6:52 PM

      explain “when those who have mortgaged the country’s sovereignty and natural wealth to imperialist to plunder are proclaiming themselves as ultra-nationalists”

      • October 28, 2010 7:45 PM

        INDIAN GIRL, I am referring to the Indian rulers of all varieties, who are shamelessly implementing the World Bank-IMF dictated new economic policy (i.e. Privatization, liberalization & Globalization)

  11. Gowhar Fazili permalink
    October 27, 2010 8:55 AM

    Democracy in India has become a poor joke. The worse is the corporate media’s help in making the joke dumber.

  12. October 27, 2010 3:00 PM

    Interestingly, s.124-A was struck down as unconstitutional by several High Courts after the Constitution came into force, prompting Nehru’s government to amend the constitution to provide an exception to the freedom of speech

  13. October 27, 2010 4:49 PM

    dear writer you said “Sedition” and “contempt of court” have no place in a modern democracy(….) These provisions are unconstitutional, anti-democratic and utterly intolerable.

    I would like to respond to the unconstitutional bit.
    A.19(2) of the constitution justifies it as being constitutional.
    And contempt of court has a big place in democracy because as it is you know, court orders take so much time to get implemented and sometimes don’t get implemented at all and this provision safeguards the judiciary under the checks and balance under separation of the three organs of state in India.
    Rest of your view points also I do not agree to but to each his own and I can understand that the one who suffers in troubled areas of the country thinks differently from one who is in a secured peaceful area.

  14. Nivedita Menon permalink*
    October 27, 2010 6:24 PM

    Indian girl, I should clarify that when I said “contempt of court” is anti-democratic, I did not mean the civil provision, which ensures compliance with court orders. I meant the second type of contempt of court, the criminal one, under which any form of expression that “Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court” becomes a criminal offence.
    This latter provision is used to stifle and punish public criticism of judgements, or charges of corruption against judges and so on. For example, advocate Prashant Bhushan is currently facing contempt of court proceedings for the latter.

  15. smriti suman permalink
    October 27, 2010 7:22 PM

    Ma’am i m great fan of ur yours and completly agree with u on and on this view that democracy flourishes when it give its citizen right to dissent.But ma’am dont u think dat in this partcular moment people of kashmir their problem their greef thier sorrow and our response towards them is more important than anything else.either it is mis roy or her statement or indian media response towards her.In this partcular moment we need to think abt people of kashmir and that is more important than any thing else.Lastly mam i just want answere of a question that can we equate secession with revolution.lastly i want to appeal to all of you that in this moment we need to show our solitary response against the injustices which people of Kashmir are facing

  16. Nivedita Menon permalink*
    October 28, 2010 6:59 AM

    Thank you Smriti for your kind words, and do drop the ma’am :)
    I absolutely agree with you that the focus has been shifted by the mainstream media to personalities, and away from the issue of Kashmir and the predicament of all Kashmiris.
    I would not equate secession with revolution, because the former is narrower, it relates to refusal to be part of a nation-state, most often to set up another one. The idea of revolution on the other hand, implies turning the world upside down, radically transforming all social economic and political relations, alothough all revolutions may not have historically achieved this.
    Of course, the terming of movements as ‘secession’ is the nation-state’s way of delegitimizing the often justified grievances expressed from the margins.

  17. amar permalink
    November 1, 2010 12:17 PM

    निसार मैं तेरी गलियों के ऐ वतन, कि जहाँ
    चली है रस्म कि कोई न सर उठा के चले
    जो कोई चाहनेवाला तवाफ़ को निकले
    नज़र चुरा के चले, जिस्म-ओ-जाँ बचा के चले

    है अहल-ए-दिल के लिये अब ये नज़्म-ए-बस्त-ओ-कुशाद
    कि संग-ओ-ख़िश्त मुक़य्यद हैं और सग आज़ाद

    बहोत हैं ज़ुल्म के दस्त-ए-बहाना-जू के लिये
    जो चंद अहल-ए-जुनूँ तेरे नाम लेवा हैं
    बने हैं अहल-ए-हवस मुद्दई भी, मुंसिफ़ भी
    किसे वकील करें, किस से मुंसिफ़ी चाहें

    मगर गुज़रनेवालों के दिन गुज़रते हैं
    तेरे फ़िराक़ में यूँ सुबह-ओ-शाम करते हैं

    बुझा जो रौज़न-ए-ज़िंदाँ तो दिल ये समझा है
    कि तेरी मांग सितारों से भर गई होगी
    चमक उठे हैं सलासिल तो हमने जाना है
    कि अब सहर तेरे रुख़ पर बिखर गई होगी

    ग़रज़ तसव्वुर-ए-शाम-ओ-सहर में जीते हैं
    गिरफ़्त-ए-साया-ए-दिवार-ओ-दर में जीते हैं

    यूँ ही हमेशा उलझती रही है ज़ुल्म से ख़ल्क़
    न उनकी रस्म नई है, न अपनी रीत नई
    यूँ ही हमेशा खिलाये हैं हमने आग में फूल
    न उनकी हार नई है न अपनी जीत नई

    इसी सबब से फ़लक का गिला नहीं करते
    तेरे फ़िराक़ में हम दिल बुरा नहीं करते

    ग़र आज तुझसे जुदा हैं तो कल बहम होंगे
    ये रात भर की जुदाई तो कोई बात नहीं
    ग़र आज औज पे है ताल-ए-रक़ीब तो क्या
    ये चार दिन की ख़ुदाई तो कोई बात नहीं

    जो तुझसे अह्द-ए-वफ़ा उस्तवार रखते हैं
    इलाज-ए-गर्दिश-ए-लैल-ओ-निहार रखते हैं
    फैज़

  18. Jagat permalink
    November 1, 2010 1:02 PM

    Great thought – totally agree, except with your views on Ms Roy. The fact remains she has always been free, and still remains to, to voice her dissent – and her voice is carried to the people via our newspapers without censure or penalty :)

    Here’s another point of view, if you’re open to it: http://blogs.timesofindia.indiatimes.com/clicklit/entry/don-t-pity-us-arundhati-not-yet

  19. Nivedita Menon permalink*
    November 23, 2010 10:12 AM

    But what about the little guys
    A HOOT editorial

    When you raise your voice a little too stridently against injustice in India’s districts you invite charges of sedition. Arundhati Roy’s high profile case should not obscure the truly vulnerable victims of the law of sedition…

    But we urge that the charge of sedition which came up so vociferously, not be lost sight of. For there are several faceless victims today who have this particularly sword hanging over their heads. Police in different parts of the country slap on sedition charges with alacrity, and then don’t withdraw them. Stringers, activists and radical writers, found in the districts of this country where people lack both livelihoods and civil liberties, have been charged with sedition. They are ordinary people who feel as strongly about issues as Roy does, but they have no high profile defenders…

    Read the full editorial here

  20. January 30, 2011 4:04 PM

    Section 124 A was not part of the original IPC of 1860 but was introduced some ten years later in 1870. In fact in independent India the CrPC is more dangerous as far as curbing of freedoms is concerned than the IPC. Under sections 107, 109, 116 and 151 of CrPC political activists are routinely stuffed into jails and there is very little one can do about it. I myself have lost count of the number of times I have been incarcerated under these sections. While I have managed to retain my critical attitude towards the government despite this persecution, many others have called it a day, especially the poor and marginalised who have neither the political conviction nor the legal acumen and economic power to withstand such repeated harassment. Arundhati is lucky to have got away with only being charged under 124A and not under 307 or 506 which is what the Police routinely use to criminalise political activism. The Constitution itself at the time of its original adoption in 1950 had as many as 250 articles out of 395 taken either verbatim or with minor changes in phraseology from the 1935 Government of India Act. Even though over the years due to PILs and amendments the Constitution has become more people friendly it still has a long way to go before it becomes a truly democratic document.

Trackbacks

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