Aseem Trivedi’s cartoons don’t constitute sedition

Sedition laws were the favourite instruments of colonial powers to curb freedom movements. Section 124A of the Indian Penal Code (IPC) was frequently used in India to arrest freedom fighters and to suppress dissent. Gandhiji picturesquely described Section 124A as the prince of the IPC. Actually, the expression ‘sedition’ does not occur in the IPC except as a marginal note to Section 124A. In the draft Constitution, one of the heads mentioned for restricting freedom of expression was ‘sedition’. K M Munshi moved an amendment for its deletion. In the course of the debate in the Constituent Assembly, Munshi stated that “even holding an opinion against, which will bring ill-will towards government, was considered sedition once. … now that we have a democratic government a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. … As a matter of fact the essence of democracy is criticism of government.” Munshi’s amendment was accepted and sedition did not disfigure the Indian Constitution. Section 124A, however, continued to be in the IPC. Pandit Nehru in one of his public speeches had called for its deletion but the section retains its pride of place in the IPC.

The constitutionality of Section 124A was challenged in the Supreme Court on the ground that it violated the fundamental right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Our Supreme Court in its landmark judgment in Kedar Nath’s case in 1962 dissented from the Privy Council judgments which had construed sedition to include any statement that was liable to cause ‘disaffection’, namely, exciting in others certain inimical feelings towards the government, even though there was no element of incitement to violence or rebellion. The Supreme Court limited the application of the section to acts or expressions which have the tendency to create disorder or incitement to violence, and on that premise upheld its constitutionality. Accordingly, raising slogans against the government or uttering abusive words at a meeting or dubbing the government corrupt or inefficient and seeking its removal and replacement by a different political party is not punishable as sedition so long as there is no advocacy of overthrow of government by force.

Despite the clear pronouncement of the Supreme Court, there has been widespread and persistent abuse of Section 124A which is frequently involved against political opponents and vociferous critics of government and recently against a cartoonist, Aseem Trivedi, for his alleged vulgar cartoons in bad taste. Whether these cartoons violate any other provisions of law like the Prevention of Insults to National Honour Act is debatable. But it is indubitable that the same do not at all constitute sedition as interpreted by the Supreme Court. Offence under Section 124A carries the penalty of life imprisonment and that is the attraction to the law enforcement agencies for its invocation to make grant of bail difficult to the accused. Binayak Sen’s case is an instance in point apart from the case of cartoonist Trivedi.

It is suggested that Section 124A should be scrapped. In that event, what would happen in case of inflammatory speeches and articles which incite violence and disturb public order and which according to the Supreme Court would be covered by Section 124A. A better course would be to repeal Section 124A and replace it by another provision enacted in conformity with Supreme Court’s judgment in the Kedar Nath case. The newly enacted provision should by means of explanations expressly state that certain acts will not be covered by the Section. Most important, there should be no mention of the eight-letter dirty word, sedition, anywhere in the newly enacted Section. Prosecutions for sedition should become bad dreams of the colonial past which have no place in a liberal democracy.

solisorabjee@gmail.com

Sorabjee is a former Attorney General of India