AN American scholar, Harry Kalven, said that the existence of the offence of seditious libel is the hallmark of an unfree society. There has been no prosecution for it in Britain since 1947.

In 1997, Britain’s law commission questioned whether there was any need for the offence. Eric Barendt, an authority on media law, remarks “It may now be said with confidence that the ordinary common law of sedition, or any statute formulated along its lines, would be held unconstitutional as a violation of the central meaning of the First Amendment” (the right to free speech guaranteed to every US citizen).

Section 124-A of the Indian Penal Code defines the offence of sedition in very broad terms to punish one who “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law in India.” Explanations exempted comments critical of “the measures of the government” or in “disapprobation” of their acts; but in each case, “hatred, contempt or disaffection” must not be aroused.

Section 124-A has a sordid past. It stood as Section 113 in Macaulay’s draft of the Penal Code in 1837 but was omitted inadvertently when the code was enacted in 1860, but was inserted in 1870. It was shaped in its present form in 1898.

Chalmers, the viceroy’s councillor who piloted the bill, boldly asserted “no one in his senses would contend that because a given law is good and suitable in England, it is therefore good and suitable in India … Language may be tolerated in England which it is unsafe to tolerate in India because in India it is apt to be transferred into action instead of passing off as harmless gas.”

Chalmers said: “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.

The Indian Penal Code defines sedition in broad terms.

“It is impossible in India to accept the test of direct incitement to violence or intention to commit rebellion, and limit the interference of the government to such cases.”

But it is precisely this very test — incitement to violent revolt — which can validate curbs on free speech in a democracy.

Judgements of the Supreme Court of India on Section 124-A do not suffer from an excess of clarity. In 1962, it held that subversion of the government by bringing it into “contempt or hatred or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the government established by law of enmity to it imports ... the tendency to public disorder by the use of actual violence or incitement to violence”.

This ignores the realities of political debate. It was added that the use of

strong language “in disapprobation of the actions of the government” is permissible. But it must not arouse “those feelings of enmity and disloyalty which imply excitation to public disorder or the use of violence”.

This casts a cloud on the citizen’s right to demand for removal of the government itself as distinct from ‘disapprobation’ of its policies. Later rulings did little to inject clarity. However, a couple who shouted ‘Khalistan Zindabad’ were let off because “no disturbance whatsoever was caused by the raising of the slogan”.

In 2003, the Supreme Court held: “Section 124-A deals with ‘sedition’. Sedition is a crime against society nea­rly allied to that of treason, and it frequently precedes trea­son by a short interval. ...

“The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the government, and bring the administration of justice into contempt....

“‘Sedition’ has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the sovereign or the government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.”

It is unfortunate that the court injected the words “bring into hatred or contempt”. It is unreal to expect that denunciation of policies will not arouse “hatred or contempt” for their authors.

As Justice Oliver Wendell Holmes said “Every idea is an incitement … eloquence may set fire to reason”. Was Mark Antony guilty of incitement to murder in his impassioned speech on the death of Julius Caesar? The sound course is to erase Section 124-A from the statute book and confine the offence to explicit incitement to violence.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn, June 6th, 2015

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