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Arrest of Kanhaiya Kumar : A Short Summary of the law of Sedition in India

February 12, 2016

News reports are indicating that an FIR has been registered with respect to a public meeting organized on the JNU campus on the evening of 9th February. These reports claim that the meeting was about the hanging of Afzal Guru, and it is alleged that during its course, some people raised incendiary slogans. According to reports, the FIR has been registered under Section 124A of the Indian Penal Code (sedition), and the Police have already arrested one person.

It is important to note that under the Indian law of sedition, the events at the public meeting, even if completely true, do not even come close to establishing an offence. In Kedar Nath Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this phrase. In Indra Das v State of Assam and Arup Bhuyan v State of Assam, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalized. In Shreya Singhal v Union of India, the famous 66A judgment, the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.

 

Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence. For instance, in Balwant Singh v State of Punjab, the Supreme Court overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.

Thus, words and speech can be criminalized and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.

26 Comments leave one →
  1. Mukul Dube permalink
    February 12, 2016 11:08 PM

    The present dispensation seems to have abandoned the never defined “pseudo-secular” and to have realised that “anti-national” is being weakened through over-use. The need for a powerful term of abuse is met by “sedition”, which has the critical advantage of bringing in the Khaki Sena. What the courts may have said about it matters not a whit.

  2. Nirat permalink
    February 12, 2016 11:57 PM

    If the public oration of any utterances including like violent overthrow of state is not a crime according to IPC unless it leads to disorder, the question we need to ask is: is it necessary? is it unavoidable ?. Are there other constructive ways to pinpoint the flaws of state and criticize it? I think….yes. I, myself, am a strong supporter of freedom of speech. But we must know the limitations and practicality of our ideas. Do you really think we can undone state or capitalism. Is it sensible to waste out time on such futile debates. Yes, state has its brutal flaws, no doubt about it. Then work like Anna Hazar or kailash satiarthi or medha pathkar. Movements and protests are good. very good. But please don’t stretch yourself to an extreme of being an anti-state. ideologically that’s fascinating but not practically.

    Lastly please dont talk about IPC. One hand you are okay being a stateless on other hand you are quoting IPC.

    There is limit to every thing. Please understand.

  3. Savita Patel permalink
    February 13, 2016 12:05 AM

    This really should be shared more. And it’s in simple enough language for even the layman to understand. We shouldn’t let Sanghis set the narrative on this.

  4. February 13, 2016 12:12 AM

    Reblogged this on Rashid's Blog.

  5. K SHESHU BABU permalink
    February 13, 2016 12:35 AM

    Leaving legal questions aside, the actual meaning of ‘national’ and ‘anti-national’ is becoming blurred by the day. What is anti- national when some students express resentment over the questionable verdict in Afzal Guru case? What is national when some BJp fundementalists, alongwith Shiv Sena euologise Nathuram Godse? What is anti-national when students protest against caste discrimination due to which Rohith had to end his life? What is national when upper-caste brahmin kill a dalit boy in UP as he refused to do work assigned by them? What is hindu nationalism and muslim anti-nationalism?
    When it is perfectly right to express that Afzal Guru or Yakub Menon are terrorists and their verdicts are justified, it is also ‘PERFECTLY RIGHT’ to hold the opposite view. The views can be debated and dissent expressed in various forms of protests, but disallowing totally to not to argue is worse than totalitarianism.
    When the right-wing protested against the holding of rally or debate on Afzal Guru, the university and police authorities should have refused to attain their contention. Instead, they should asked the students to uphold democratic values by allowing commemoration of Afzal Guru death anniversary .
    But, the police and the government arrested a student leader on sedition charges! Throwing sensibility and logic, let alone legality, to the winds!!!

    • February 13, 2016 11:28 AM

      If one has the right to express any thing and every thing, why do people crib about personal liberties?

      Look at France. Study the reactions of the people and the Govt. You will realize where you stand. A nation’s pride is undisputed. Look at the INTOLERANCE debate.

      Excess of un-controlled democratic rights is uncalled for. If not, strike out the law from the statute and let the country be ruled by mobs according to the whims and fancies of the individual or the group of individuals.

      When a terrorist, established by law, becomes a martyr, the basic tenets of freedom are challenged.

      Every right is bound by a duty. We talk only about our rights. Duties are confined to the other person. And we call ourselves democratic. Legality is just an excuse.

  6. Diana permalink
    February 13, 2016 1:26 AM

    Nice

  7. February 13, 2016 11:09 AM

    I request all news report channel ,please stop playing with life of students for your selfish propoganda, request students also please do not fall in such activity,please think about your future, parents efforts to bring you,this act ruin your future,donot fall in trap of these so call freedom of speech and act, they project only one side of there interest.

  8. Vinod permalink
    February 13, 2016 4:28 PM

    This is actually a misreading of the case. Refer to (2) for the entire case. The above quote is actually in the judgment as a quotation from a US case – not what the Indian judges had to say.

    Also, point 14 and 15 in the judgement say something completely different! “… under the US Constitution, speech may be abridged, whereas under our Constitution, reasonable restrictions may be imposed. Fourth, under our Constitution such restrictions have to be in the interest of eight designated subject matters – that is any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2).”

    I suggest everyone read the referred judgement and not go by what the article says.

    • Lawrence Liang permalink
      February 13, 2016 7:15 PM

      There is no misreading whatsoever. Please read what follows after the courts cite Brandenburg:

      “We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.”

      The court has effectively incorporated he Brandenburg standards into Indian law. For a detailed discussion see Gautam Bhatia, Extracts from Offend, Shock, or Disturb: Free Speech Under the Indian Constitution discussing the history of the judicial interpretation of sedition law in India

      Extracts from the book on sedition at https://hostb.org/5V

      In Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) the U.S. Supreme Court went further and held that mere “advocacy or teaching the duty, necessity, or propriety” of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed “to teach or advocate the doctrines of criminal syndicalism” is not per se illegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.

      In United States Vs. Eugene Frank Robel, 389 U.S. 258, the U.S. Supreme Court held that a member of a communist organisation could not be regarded as doing an unlawful act by merely obtaining employment in a defence facility.

      We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution.

  9. Sreejith permalink
    February 13, 2016 6:53 PM

    Considering the sequence of events i dont think ‘sedition’ is the real topic. The arrests were not a keen jerk reaction and i don’t think anyone is doing this because of concerns on breech of law.

    When the death of Rohith Vemula could have steam rolled into a polical suicide for BJP, they would have naturally been desperate to create a diversion. The current anti national slogan at JNU presented them with the perfect opportunity. By making the issue bigger with the arrests, a good chunk of people concerned about Rohith Vemula (esp the JNU and it’s alumni ) would lent their time and voice to this new episode. And with BJP projecting themselves as the saviours of this nation, they have killed two birds with one stone.

    If the voices for both issues don’t consolidate, BJP will emerge unscathed at the expense of a few innocent students. No article or speech should forget Rohith Vemula or you are playing into their game.

  10. Sanjay India permalink
    February 15, 2016 11:55 AM

    Probably Lawewnce Liang doesn’t understand meaning of “Bharat tere tukre honge”. Some one should translate it for him and the meaning of it, that without inciting violence, meaning of that words can’t be completed. These writers trying to claim status of intellectual label, by playing in the hand of politicians to ignore such a incidence, is pathetic.

  11. manish permalink
    March 4, 2016 12:29 AM

    I agree and giving due respect to my freedome of speech…when ever there is a terrorist attack we lose some brave men.. god forbid if the next attack is in JNU.. I wish these commited men let the azad students only protect themselves… shame on the idea itself .. oven if the law permits… can making own sister and mother prostitute for money justified… this is what these jnu students support.

Trackbacks

  1. Restore Normalcy in JNU, Release All Detained Students, Delhi Police Quit JNU | Kafila
  2. Restore Normalcy in JNU, Release All Detained Students, Delhi Police Quit JNU | Caravan Daily
  3. After Hyderabad University, Jawarhal Nehru University Becomes the Target of Hindutva Ire | Caravan Daily
  4. JNU Row: Top Indian University Becomes Kernel For Political Slugfest
  5. Notes On A Dissent: From A Former JNU Student | The X Blog
  6. Statement of Solidarity with Student Protests in India, from students of the University of Chicago – Chapati Mystery
  7. Students of University of Chicago #StandwithJNU – Solidarity Statement | Kractivism
  8. Statement of Solidarity with Student Protests in India : Students of the University of Chicago | Kafila
  9. Activists Charged With Sedition as Indian Students Protest for the Right to Dissent | Daily Blue Planet
  10. “Anti-National” Speech Is Not A Crime | Kennedy School Review
  11. University of Texas Students and Faculty stand with JNU | Kafila
  12. Limits of Free Speech II: The JNU “Anti-National” controversy – ThinkerTinker.
  13. Hindustan Zindabad: stifling freedom of expression in the world’s largest democracy | Rights Wire

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