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We are all seditious now, but when did this start?

December 6, 2010

I am afraid that unlike in Sholay, where the reply to Gabbar’s question and in our time, the reply to Nivedita’s question would have to be more than ‘Do sarkar’. But regardless of the rather large numbers, given the extreme nervousness which prompts a law like sedition, hopefully, they will still return to the sarkar, khaali haath.

As a part of the We Are All Seditious series, I am posting three guest posts written by SIDDHARTH NARRAIN which provides us with an overview of the history and the politics of sedition law in India.

These posts have been hosted by The Hoot, a highly recommended site for keeping track of the media in India. The first in the series looks at three major trials,  Gandhi’s trial and those of Tilak and Shiekh Abdullah.

Disaffection and the State: the Law of Sedition in India

The controversy over the demand to slap the charge of sedition against Arundhati Roy, Syed Ali Shah Geelani, Varavara Rao, and others who spoke at a seminar titled ‘Azadi, the Only Way’ organized by the Committee for the Release of Political Prisoners in Srinagar, has once again highlighted the problems with this archaic and anti-democratic sedition law. 

Roy has defended her speech publicly as coming from love and pride for the country and “from not wanting people to be killed, raped, imprisoned or have their finger-nails pulled out in order to force them to say they are Indians”. While the media has reported that the Central Government was not in favour of initiating proceedings in this case, there are reports though of cases having been filed in New Delhi, and threats of cases being filed in other parts of the country against Roy, Geelani and others who spoke at the seminar for their inflammatory statements.

A brief outline of the history of sedition law in India is useful in understanding the scope and limits of the law. Section 124-A of the Indian Penal Code (IPC), as it stands today, reads:

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.

Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3 – 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.

This law was introduced in India in 1870 in response to increasing Wahabi activities between 1863 and 1870., This law was amended in 1898 and, according to Arvind Ganachari the framework of this section was imported from various sources- the Treason Felony Act (operating in Britain), the Common law of seditious libel, and English law relating to seditious words.

Between 1870 and 1898, the British sought to suppress criticism through two legislations ??” the Dramatic Performances Act, 1876 that introduced pre-censorship of theatre, and the Vernacular Press Act of 1878 meant to control publishers and printers of the native press by introducing a system of security.

The section corresponding to s. 124A was originally s. 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. This was a peculiar decision, given the circumstances of the First War of Indian Independence in 1857.

Nationalist press targeted in sedition cases

The first in a series of sedition cases against editors of nationalist newspapers was the trial of Jogendra Chandra Bose in 1891. Bose, editor of Bangobasi, criticised the Age of Consent Bill saying it was dangerous to religion and that this legislation was being force down the throats of Indians. He also commented on the economic impact of British colonialism in this article.

Bose was accused of exceeding the limits of legitimate criticism and inciting religious feelings and prosecuted. The judge rejected the defense’s plea that there was no mention of rebellion in the piece. The proceedings against Bose were dropped after he tended an apology.

The trial of Lokmanya Tilak

The most famous of these cases was the trial of Bal Gangadhar Tilak  for sedition, widely followed across the subcontinent, and by his admirers across the world. The fundamental moral question that Tilak raised was whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha).

Tilak’s first trial began in 1897. The government claimed that some of the speeches that referred to Shivaji killing Afzal Khan, had instigated the murder the much reviled Plague Commissioner Rand and another British officer Lieutenant Ayherst. The two officers were killed as they were returning from the reception and dinner at Government House, Pune, after celebrating the Diamond Jubilee of Queen Victoria’s rule.

Tilak was convicted of the charge of sedition, but released in 1898 after the intervention of internationally known figures like Max Weber on the condition that he would do nothing by act, speech, or writing to excite disaffection towards the government (from: A. G. Noorani, Indian Political Trials: 1775-1947, New Delhi: OUP, 2009). The Anglo-Indian Press (which at that time included the Times of India and the Bombay Gazette) egged the government on to initiate proceedings against Tilak.

Once charges were framed against Tilak, the British government transferred and promoted Justice James Strachey, who was known for his anti-native bias. Strachey, the youngest person on the Bench, was asked to preside over this important case. Living up to his reputation, Strachey rejected the defense’s argument that the articles describing the suffering of people were consistent with loyalty.

He went further and expanded the scope of the definition of this law, laying down the foundation for the manner in which sedition laws is understood even today. He held that the term ‘feelings of disaffection’ meant ‘hatred’, ‘enmity’, ‘dislike’, ‘hostility’, ‘contempt’ and every form of ill will to the government. He equated disaffection to disloyalty, and held that the ‘explanation’ that followed the main section which made allowance for acts of disapprobation, would not apply to “any writing which consists not merely of comments upon government measures, but of attacks upon the government itself, its existence,  it’s essential characteristics, its motives, or its feelings towards people”. The native press condemned this judgement as ‘the Stachey Law’.

In 1898, the law was amended to reflect Stachey’s interpretation. The British included the terms ‘hatred’ and ‘contempt’ along with disaffection. Disaffection was also stated to include ‘disloyalty and all feelings of enmity’. The British Parliament while debating these provisions, took into account the defense’s arguments in the Tilak case, to ensure there were no loopholes in the law. Some of the observations by British officials at this time give us a better idea of their justification for these amendments.

While defending the Bill in Parliament, Mr. Chalmers, in charge of the bill stated:

“Language may be tolerated in England which it is unsafe to tolerate in India, because in India it is apt to be transformed into action instead of passing off as harmless gas” (Ram Nandan v State AIR 1959).

Sir Alexander Mackenzie, Lieutenant Governor of Bengal, while referring to these amendments wrote:

Much of the outcry rests upon its supposed divergence from the law of England on seditious libel, and on the assertion that the law as settled in 1870 was sufficient and ought to be final. Now, I venture to assert these two propositions.

First, that the law of England built up by judicial rulings to meet the circumstances of a homogenous people directly interested in and sharing in its own government, is not necessarily a norm to which the law of India ought strictly to conform; and second, that the conditions of the country have themselves so altered since 1870 that what was adequate then is not necessarily adequate now.

He further went on to state:

“It is clear that a sedition law which is adequate for a people ruled by a government of its own nationality and faith may be inadequate, or in some respects unsuited, for a country under foreign rule and inhabited by many races, with diverse customs and conflicting creeds.”

In supporting this amendment during the debates, Lord Elgin, identified himself with the government and made a strong and weighty appeal to the following effect;

“All that we, the Government, can say is that we desire the powers necessary to put down sedition. We ask for nothing more, but we can be satisfied with nothing less.”

The Bill amending Section 124-A, Indian Penal Code was then passed as Act IV of 1898. Amongst other changes, the new amendment added the words ‘hatred or contempt’ to the word ‘disaffection’. These amendments also brought in section 153-A and section 505 of the IPC. The colonial government, particularly the Bombay government, followed the changes in the law with a spate of prosecutions against native newspapers.

In 1908, after the political situation created because of the partition of Bengal, the British enacted the Newspapers (Incitement to Offences) Act, a law that enabled District Magistrates to confiscate printing presses that were used to publish seditious material.

The colonial government also enacted the Seditious Meetings Act to prevent meetings of more than 20 people from assembling. These moves came in from severe criticism from Tilak. After the Muzaffarpur bomb incident, in which the wife and daughter of Pringle Kennedy, a leading pleader of the Muzaffarpur Bar were killed, the Kesari carried an editorial, pointing to the effects of government repression. In 1908, Tilak was prosecuted once more for sedition.

The case was committed to the High Court by Justice Aston Jr. and it came up before Justice D.D Davan, who was elevated just before this case. The majority of the judges in the case were European and non-Marathi speaking. The judges sentenced Tilak to six years rigorous imprisonment with transportation.

In 1916, the DIG of Police, Criminal Investigation Department (CID) J.A. Guider moved the District Magistrate, Pune, alleging that Tilak was orally disseminating seditious information. He cited three of Tilak’s speeches in 1916, one given in Belgaum and two in Ahmednagar. B.D. Binning appeared for the Crown in this case, and Mohammad Ali Jinnah, one of the most prominent faces of the Bombay bar, Jinnah led a large team of defense lawyers.

Jinnah skillfully argued that since Tilak had attacked the bureaucracy through his speeches, and not the government, he could not be charged with sedition. The judge in charge of this case, Justice Bachelor, held that while the effect of the words in the speech would not naturally cause disaffection, i.e. hostility, enmity or contempt, they would create a feeling of disapprobation (which would not amount to sedition).

In terms of the legal definition of the scope of sedition, there was a difference in opinion between the Federal Court in India and the Privy Council in Britain. The Federal Court had, in defining sedition in the Niharendu Dutt Majumdar case in 1942 held that in order to constitute sedition, “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”.

However, the Privy Council, in the Sadashiv case in 1947, overruled that decision and emphatically reaffirmed the view expressed in Tilak’s case to the effect that “the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small”.

The trial of Gandhi

The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. Gandhi was charged, along with Shankerlal Banker, the proprietor of Young India, for three articles published in the magazine.

The trial, which was attended by the most prominent political figures of that time, was followed closely by the entire nation. The trial was presided over by Judge Strangman.  Gandhi explained to the judge why from being a staunch royalist, he had become an uncompromising disaffectionist and non-cooperator, and why it was his moral duty to disobey the law.

In a stunning statement, Gandhi commented on the law that was used to try him.

..Section 124 A 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. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime. I have studies some of the cases tried under it, and I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section. I have endeavoured to give in their briefest outline the reasons for my disaffection. I have no personal ill-will against any single administrator, much less can I have any disaffection towards the King’s person. But I hold it a virtue to be disaffected towards a Government which in its totality has done more harm to India than previous system

The trial of Sheikh Abdullah

The trial of Sheikh Abdullah in 1946 by the Raja Hari Singh in Kashmir is another example of the use of sedition laws before independence to muzzle political opinion. Abdullah had begun to challenge the validity of the historical basis of British rule in Kashmir. Specifically, he questioned the manner in which Kashmir had been ‘bought’ from the British by Raja Gulab Singh through the infamous Treaty of Amritsar of 1846.

Abdullah recalled the revolt of Sheikh Immamuddin, the Governor of Kashmir appointed by the Sikh rulers at the time, who had refused to hand over the valley to Gulab Singh. The British had to intervene militarily before the transfer took place. Abdullah sent a wire to the Cabinet Mission, which was visiting India then to work out the modalities of British withdrawal from the subcontinent, saying that the sale deed to Gulab Singh could not be equated to a treaty, and that Kashmir was a unique case where the people could claim freedom on the withdrawal of British forces.

Abdullah also delivered a series of speeches at the time linking these to the ‘Quit India’ movement. Hari Singh had Abdullah arrested as he was making his way to New Delhi. The defense in this case was led by Asaf Ali, a prominent lawyer at the time, but was convicted by the court. Abdullah’s arrest and subsequent led to a surge in popular opinion in his favour.

(Siddharth Narrain is a legal researcher with Alternative Law Forum, Bangalore, Karnataka, India)

6 Comments leave one →
  1. Sadman2901 permalink
    December 6, 2010 6:31 PM

    Independence does not mean freedom. The old colonial law to suppress the subjects have become incorporated to rule them.

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