Sedition: Enemy of the State
Between the State and an individual there are nuances that only an informed deliberation can shed light on their grey areas, but this is more of a nightmare, with respect to the Government of India resorting to sedition laws to exercise their power and control over the heterogenous public for reasons that are sometimes too gross or completely absurd in others.
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| Fascism, Nazism and all forms of authoritarian systems come with a limited shelf-life. |
Prologue
Sedition: ‘attempts to excite disaffection towards the Government established by law in India.’ (Section 124A of the Indian Penal Code, 1860)
When the National Crime Records Bureau (NCRB) released the Crime in India 2021 report early September 2022, Assam tops the list of recording the highest number of sedition cases, with 69 cases or 14.52% of the total number, in India. Around the same time, there were also similar cases in Pakistan and Hong Kong. Out of the other oddities that are related to sedition cases, observers have always used the same explanation to describe its existence: that it is colonial and that it is used for supressing dissent. Of course, for the authorities—as in the Indian union Ministry of Home Affairs that is responsible for the NCRB—they have their own reasons. Why is it an issue in the first place?
In the colonial era, a section on sedition was first drafted by Thomas Babington Macaulay in 1837, albeit its origin can be traced back to 13th-century England. Meanwhile, he is the same guy related with the education system in India and who nobody likes. However, because of an oversight, the section was excluded in the Indian Penal Code that was enacted in 1860. A decade later in 1870, though, the section was inserted through an amendment under the present Section 124A and law-membership of James Fitzjames Stephen of Governor-General’s Council. Historical records show that the first case to be tried under the law of sedition in British India took place in 1891—the same year Manipur lost its sovereignty to the British colonial power.
This is not a justification, but it was completely understandable for its existence in the colonial era. Just as fascism and far-right ideology go together, sedition and colonialism are closely appropriate for each other. As a matter of fact, the then colonialists used this law of sedition as a tool to silence criticism of the colonial administration as well as contain the issues raised by Indian freedom fighters.
When MK Gandhi was charged with sedition in March 1922, he pleaded guilty and wrote it in the Young India mouthpiece:
Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite violence (Source: Panel Discussion on Free Speech and Sedition in a Democracy, The Hindu; text emboldenment is mine).
After half a century of draconian imposition, several discussions and amendments in the Constitution of free India, sedition is clearly defined though its execution is open to interpretation. If we look back in independent India, the first person to be convicted under the section on sedition (Kedar Nath v State of Bihar) owes to the fact that he criticised the ruling Congress party. As the saying goes, the legacy continues to the present day. Use it for empty political rhetoric as well as a means to silence those who are critical of the government. By now, democracy has left the chat a long, long time ago.
According to a report by the Bangalore-based Article14, as many as 10,938 people have been charged with sedition from 2010 till date, out of which a whopping 65% from 2014 onwards after the incumbent regime came to power. The professions of people who are charged vary from journalists to academics, yet the reason is common: they have spoken out against the right-wing government. No wonder, words and expressions such as Anti-national and Go to Pakistan have gained new currency.
In a nutshell, what started as a colonial power's attempt to subjugate the natives while protecting the crown and government has been given a new avatar by the same people, read the same Indians, who fought against it. Perhaps, a long time ago, this kind of phenomenon had definitely given rise to the axiom that power corrupts, and absolute power corrupts absolutely. It is noteworthy to mention here that England had endorsed the complete removal of this law from its jurisprudence and repealed its sedition law in 2009 under Section 73 of the Coroners and Justice Act, 2009. To name a few countries, Scotland, South Korea and Indonesia have also done away with it. While India drifts away, it is now more in proximity with Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey, when it comes to this colonial legislation.
Meantime, this reminds us of the anonymous saying that ‘Slaves dream not of freedom, but of becoming masters’. Yes, we are referring to the neocolonial pursuits of India.
However, in an enthusiastic attempt to become masters, a section of mainland Indians have let all hell breaks loose. This is okay as long as you are in the ruling class in India. This is also okay if you are historically, culturally and geographically related to the present-day India or specifically, in recent times, if you are a Hindu fighting for Hinduism to make the grand old Bhāratavarṣa. The only sensible thing for them to do, at the outset, would be to change the names of India and its primary religion, both of which were coined by outsiders. However, there is a blunder here. With even a lack of necessary imaginative power to have original names (just like Bollywood is), it is no wonder that the present-day India was created by the Muslims and further consolidated by the colonial White people despite the numbers in land areas and of the population.
The present-day witch-hunting of anti-nationals, leave alone the misuse of sedition laws to silence the critics of the Hindutva government, also reveals the frustration of the people in right-wing politics. They can change the names of important places and cities in India, like they have been doing; and they can also set the agenda for discussion with so many nationalistic media outlets cheerleading for them. Still, you cannot ignore the fact that the nation-building process in many parts of this nation-state is still a WIP even after seven decades of independence; and add to this, the heavy militarisation in its frontiers such as Kashmir, Manipur and Nagaland. It is not really a surprise, if we look at the political realities and the ceaseless armed movements for the right to self-determination from this perspective.
☑ A Moment for Manipur
The maximum cases of sedition were reported from Andhra Pradesh (29) followed by Manipur and Nagaland (7 each), Haryana (5), Delhi (4), and Uttar Pradesh and Assam (3 each). The maximum cases of UAPA were reported from Manipur (157) followed by Assam (95), Jharkhand (86), Uttar Pradesh (83), Jammu and Kashmir (289). Delhi lodged five cases of UAPA in 2021.
The Problem with Sedition in India
If colonial and authoritarian government are a generic keyword to define anything that is seditious, the ruling government has found a gem of a substitution in it. Their argument is that nobody must speak against India under any condition. Never dare to question the concept of the Indian nation especially if you don't belong to the Hindutva fold but if you do endorse right-wing views, then you can be pardoned or ignored conveniently. Beyond the present-day India, their goal is to create an Akhand Bharat (or Undivided India), which will include the present-day India of course; and Pakistan, Afghanistan, Bangladesh, Nepal, Bhutan, Tibet, Sri Lanka and Myanmar; and which is as well the mainstays of the Hindutva politics. How much is this absurd is a different story. See the map below:
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| A map of the concept of Akhand Bharat, depicting India, Pakistan, Afghanistan, Bangladesh, Nepal, Bhutan, Tibet, Myanmar and Sri Lanka (Image source: Wikimedia Commons) |
For the sake of argument, the goal of an undivided India is still attainable, but nobody can deny the fact that the politicians have been playing with the emotions of citizens in the entire history of politicians. In fact, that's their USP of staying in power or the ruling class. The loftier the ideals the easier it is for them; for it is more rhetorical than it is about executing the idea. To bring in the legality of this issue, here, entails an unnecessary nosedive into the details of the law, particularly those that are related to sedition and how complex the structure is already. The International Covenant on Civil and Political Rights for example, which India ratified in 1979, mentions: Everyone shall have the right to hold opinions without interference.
In retrospection, the Indian apex court has been imposing restrictions on using the sedition law, the government and its left and right hands have been flouting it with impunity. At best, the law only strengthens despotism; and incidentally this is also one of the main arguments against the present Indian Prime Minister, Narendra Modi with his coterie of ministers and their system of governance built on sheer loyalty, conformism and inimitable sycophancy.
As noted above, people in the legislature who know how to bend the rules have always been using sedition as a tool. In the NCRB report, two years after the regime came to power, the number of cases had increased by 160% between 2016 and 2019—and it is not getting any better in the second half of 2022, even if only common thing in all these cases is the negligible number of convictions. Those in the ruling class might be using the law for their personal and political beliefs as well as for an adventure into their power trips. Yet, it insinuates that they see citizens as their enemy who cannot ever think for the nation-state. For that matter, 99% of Indians, irrespective of whether they support right-wing politics or not, swear by the Constitution and a symbol like the Indian tricolour. So, there's a grave issue here. Sycophants and foot soldiers of the government cannot simply categorise these 99% mainland people under a single unit, though they have always been trying to do it.
There are so many examples to show the absurdity of this law in itself. Earlier this month (Sep 2022), Union Minister for Women and Child Development and Minority Affairs, Smriti Irani levelled charges against the Congress leader Rahul Gandhi, arguing the latter has been in the company of people who chant anti-India slogans! What’s even worse is, obviously, how the ruling government is trying to not only suppress the freedom of expression but also put an end to dissent like it is 1621CE. The world has come a long way from those days of the Peace of Westphalia in 1648 that sowed the seed for the ideas of modern nation-states and democracy.
In this Kafkaesque world of sedition, there is one thing that is completely different in the several parts of India. Jharkhand, Uttar Pradesh, Haryana, and Tamil Nadu, amongst others, have their share of cases under sedition but at the end of the day, the majority of these people are going to swear by the imaginary Bhārat Mātā and how they are as nationalist or patriotic as any other mainland Indian would be. Take the well-known example of the research scholar Kanhaiya Kumar of the Jawaharlal Nehru University in New Delhi. Once he was charged for sedition, and now he is comfortably on his way to becoming an elected representative today (by the way, he moved from CPI to INC and nobody cares about defection in India despite having all the laws, rules and decorous parliamentary processes). In this context, there is a way to do away with the colonial way: that it is not relevant anymore while politicians and political parties must stop using it for political mileage.
Just imagine the cases with the people who have been waging guerilla warfare against the Union of India. With the utter lack of a pan-Indian national consciousness plus the innocence of the masses, it is a given that the issue will have implications for what Benedict Anderson termed as the imagined communities. This implies there are going to be more unnecessary cases, with the present government already hell-bent on capturing the power in 2024 when the next general election is due in this country.
Throughout contemporary history across the world, the idea of We, the People has built the foundation for modern governance and administration. Then, the power lies with the people—and discussions and deliberations are the cornerstone of a true democracy. However, in a Third-world country like India, the ideal seems to be too abstract for the masses while the ruling class just knows how to bank on it. On the ground, sedition cases are not an end but a means for authoritarianism and of religious nationalism to build a nation-state considering as noted earlier, that the 21st-century India is still a work-in-progress project.
Disloyalty, Disaffection & Determination
With the existing politico-media complex in India, it is no surprise that the fourth estate is completely polarised, and so are the people. The concepts of objectivity and impartiality have gone down the drain. However, it does not change the fact that sedition laws are archaic long past its expiry date. These laws are an antithesis to the ultimate democratic principles of the freedom of speech and expression, though many people are still arguing that it is, no wonder, a valid constitutional exception to free speech. It will also not be a surprise if the State negates this view in the name of national security and what not. Perhaps the State knows too well that the public is inherently passive, a follower and is conditioned deeply by a herd behaviour.
Many critics hold the view that the only requirement is to make a difference between individual rights and the interest of the State. However, this is critically out of balance because of one sole reason. The State enjoys more privileges in any corner of the world. For that matter, the State can uphold its interest without resorting to an archaic law. It goes without saying that a democracy works better when there is a smooth relationship between the ruler and the ruled, and as we have seen earlier, the latter is supposed to exercise and enjoy more rights than the State does. Of course, that is so open to interpretation.
Elsewhere two areas are closely related to sedition: treason and espionage. Well, this is way too above the public interest. This is still the trend across the globe and is rarely on the issues of personalised and politicised perspectives of sedition that are seen in India. People who swear by India and Hindutva propaganda will find it hard to believe this, but the government has been resorting to other colonial legacies as well. One of the most controversial laws has been the Armed Forces (Special Powers) Act of 1958. When India is mimicking the colonial system of governance and administration, it is no wonder that this country has often been labelled as a neocolonial power in many pockets especially in the frontier regions. Nobody seems to know whether this has been a conscious effort or just blind affection or loyalty in the name of the vaguely defined Nation.
The sedition laws belong to the previous centuries though the people who are obsessed with power and power trips might have a different opinion. Unless the politically conscious citizens come together, this rot is seemingly going to stay, much to the delight of the elected representatives in the so-called democracies. The latter, as they enjoy unrestricted access to the state exchequer, would gladly keep the people divided on the issue, as much as they would do with barking and commanding orders. If not, they will gag the unruly people with sedition charges. Things cannot be easier and more convenient than this for the government whose worldviews are shaped by their ideals of power and control that are legal, ethical or otherwise.
Epilogue
Discourses on sedition have clearly shown that the colonial Britishers enacted the sedition law for its own self-interest. In the meantime, the present elected representatives in India have seen it as a tool for subjugating any critics and opponents as well as to redefine their power trips. As we have seen here, there are some inherently problematic areas in this phenomenon. On one side, many nationalists held a view that it is a matter of national affection, loyalty and nationalism; yet a lot of people can also see that nothing could be further from the truth here. For those who are on the other side of the fence who trust this law, they should reconsider how much, or rather how much not, has the uninvited imposition made a difference in both the philosophy and ground reality of India as a nation-state.
At the heart of the democracy are the people; and what defines this system of governance is the voice of the people. It is, therefore, downright contradictory that a government could silence them, often on flimsy grounds by using antiquated laws. However, this is the realpolitik in this part of the world, and it is likely to continue until the present government loses its power, which is inevitable because we do not live in the eras of feudal lords and monarchs anymore. More than anything else, India needs to relook into the concepts of freedom and independence that it has been enjoying after the departure of the British Raj. These will not only be meaningless but also too irrational. In the name of Lord Krishna, Lord Ram and the other 33 crore gods, it will do everyone good if there is a rule of law and some sense of sanity with the people behind the execution of this Indian sedition law on sedition.
Instead of targeting comedians, writers, journalists, activists, social media users and politicians from the opposition, India can become a lot more civil in the truest sense of the word. Being civil is much closer to humanity than planning and executing orders based on other identities such as those of castes, nationalities and religions; albeit it is sad but true that the foundation has been firmly laid for the present regime in India. This is also one reason why people's representatives are chosen regularly once in a few years. Only an informed public can get rid themselves of this rot; and only time can tell when this would materialise in present-day India. It is just not about Assam or Manipur leading the tally of people arrested on the charge of being disloyal or anti-national. As histories have also shown us, fascism, Nazism and all forms of authoritarian systems come with a limited shelf-life.
— Concluded.
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FURTHER READING
1. Sedition in the Common Law Jurisdictions: UK, USA and India
On the 30th of April 2021, the Supreme Court admitted a writ petition challenging the constitutionality of Sedition under Section 124A of the Indian Penal Code, 1860. The petitioners (,) Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla are journalists from Manipur and Chattisgarh respectively. They have both been charged under Section 124A on different occasions for posts made on social media. (Source: Supreme Court Observer)
2. How Various Countries Have Junked Sedition Law
The Supreme Court has put a stay on India's sedition law until it is reconsidered by the Centre. Across the globe, many democratic countries have in the past either eased or completely removed their sedition laws. The SC (10 May 2022), in a historical decision, put a stay on the 152-year-old sedition law under Section 124A of the Indian Penal Code till the Union government reconsiders the provision. (Source: India Today)
3. Sedition Law: Why India Should Break from Britain’s Abusive Legacy
Courts in several former British colonies have already ruled that colonial-era sedition laws violate the right to freedom of expression. In 2010, the Constitutional Court in Uganda struck down the law as unconstitutional. In 2018, the Community Court of Justice of the Economic Community of West African States (better known as the ECOWAS Court) held that the offense of sedition in Gambia violated the right to freedom of expression under African regional and international law. The Court of Appeal in Nigeria, when ruling the sedition law unconstitutional in 1985, said: “Let us not diminish from the freedom gained from our colonial masters by resorting to laws enacted by them to suit their purpose.” (Source: Human Rights Watch)
4. Why India Needs to Get Rid of Its Sedition Law
In India, you can be charged with sedition for liking a Facebook post, criticising a yoga guru, cheering a rival cricket team, drawing cartoons, asking a provocative question in a university exam, or not standing up in a cinema when the national anthem is being played.... The law is purely used now to instill fear and intimidate people who protest against authority. (Source: BBC)
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