SEDITION: THE TRUMP CARD OF POLITICS Shajeeda Tajdeen BASICS OF LAW Sat, Apr 20, 2019, at ,12:53 PM ‘Sedition’ as defined in the dictionary means any language or behaviour of a person that has the tendency of persuading others to oppose the Government. In India the term sedition has not been defined in any Statutes, it only appears in the India Penal Code as marginal notes to Section 124-A. This section mandates two requirements. Firstly, the accused must bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government of India. It should be noted that it is not necessary that there should be disturbance or outbreak of violence and hatred, the mere attempt of exciting or influencing hatred or contempt would suffice. Secondly, such act or attempt should be done by words, spoken or written, or by signs or visible representation. The concept of Sedition garnered a lot of attention in the present Government’s regime. It was in the year 2016 when a student from one of the most prestigious educational institutes in the country i.e. Jawaharlal Nehru University (JNU) was charged under this section. The then President of the JNU Student’s Union, Kanhaiya Kumar, along with his supporters namely Umar Khalid and Anirban Bhattacharya were charged under this section on the pretext that they undertook the act of raising anti-national slogans within the campus. The Magistrate had conducted an inquiry in the said matter in 2016 itself and he concluded that in reality no anti-national slogans were raised and videos which were submitted as evidence were found to be unauthentic as they were morphed. Even after this decision from the Magistrate who happens to be a part of the Judiciary, the Delhi Police after a gap of three years filed a new charge sheet. The act of the Delhi Police has questioned by many as to what were they doing for the past three years and what new evidences are available with the Police. This sudden filing of charge-sheet by the Delhi Police has brought the law of Sedition in question too. Time and again, the law of Sedition has been used to quieten or suppress political dissent. And every time this happens a new set of disagreement or controversy relating to freedom of speech and expression arises. The Sedition law also put the State’s power to inflict reasonable restrictions to limit and restrict such freedom under question. It should be remembered that ours is a democratic country, the essence and flavour of democracy lie in giving its people the right to question and criticize the government for its action as and when needed. Actually, the explanations to the statutory provision provide exemptions for criticism on the actions of the Government, however strong if they are within the ambit of the limits provided. Sedition charges are only made applicable in situations when the words or any other visible representations cross the boundaries of fair criticism and along with this they should also be capable of creating a nuisance and public disorder or they should have the tendency of disturbing the law and order in the State. The Constitution Bench of the Apex Court has approved the provisions of Sedition law by stating that the law is within the framework of the Constitution and it was on this basis that it was held to be intra vires. The Apex Court while scrutinizing the Sedition law stated that ‘a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder’. With this statement, the Apex Court tried to strike a balance between the freedom of speech and public order and security of the State. Further, the Bench went on to pronounce that, ‘comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.’ In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.’ Prior to the 2016 incident, it was in the year 2012 that the matter relating to sedition was brought to the headlines, when Aseem Trivedi was pull down under 124-A for expressing his views through cartoons which were found to be ultra vires the Constitution (freedom of speech and expression) and were considered to be offensive and objectionable. However, it was only after Advocate General of Maharashtra stated that the cartoons were within the ambit of freedom of speech and expression, the Mumbai Police dropped the charges against him and subsequently, the Bombay High Court gave some major guidelines which had to be followed by the Mumbai Police before levying charges under this section. The Constitution Bench of the Apex Court had also come up with similar guidelines however, one is still unaware of the fact that where these guidelines of the Supreme Court were duly followed in the Kanhaiya Kumar’s case or not? In the present scenario where society and law are very much interdependent on each other, the law of Sedition plays an important role in changing and molding the perspective of an individual. Post this issue, Mr. Sashi Tharoor had immediately moved a Private Member Bill which was meant to amend Section 124-A. With the help of this bill, Mr, Tharoor wanted to bring in more transparency in the applicability of this section as this bill suggested that only those actions and words which directly provoke or generate violence or incite violence and hatred should be termed as seditious. This move was well-intentioned and it was also capable of removing all the ambiguity which surrounded the term ‘Sedition’, but regrettably, this amendment remained on paper only without coming to life. In August 2018, the Law Commission of India had issued a Consultation Paper on Sedition seeking suggestions and advice from a cross-section of society in order to consider the opportunities and obstacles that are involved in the legal provision. Some major questions on which answers were requested included, the range in which a citizen was allowed enjoy his right of freedom of speech and expression and to what extent he can criticize the acts of the Government and at what stage the right to offend qualify as hate speech? Responses were also sought on whether all the other prevailing law cover the various misdeed against the individual and/or the offence against the society and thus by bringing down the severity of this be damaging or valuable to the nation? The best test of Sedition is to determine the aim and in determining this aim the Judiciary has always stated that the entire speech should be taken into consideration as a whole and while reviewing the same a true and fair view should be given by eradicating and avoiding all the unnecessary details. It is also the responsibility of the accused to prove that his words and action were not harmful and his intentions were virtuous and uncorrupted. In the end, it should be remembered that till the time we have Sedition in our law books, we have to adopt an effect based test, which shall evaluate the text alone. It should also be brought to notice that our Constitution has adopted many features from the US and UK system of governance and in the present scenario the United Kingdom has already deleted the provision of Sedition from its system on the grounds that it was having an unnecessary law, when the same matter was capable of being dealt with under the other legislation in the country it also resulted into confusion and it was also a big let-down for freedom of speech and it had the tendency of sending the wrong message to other nations which maintain and actually use Sedition offences as a means of limiting political debate. And as far as the United States is concerned it still has the Sedition law into existence but with a very narrow meaning. So before we move on with Sedition in our country we should have a detailed look as to whether is this law is serving the right purpose in a country like ours or is it only a medium which is used by the Political parties to suppress the anger of the citizen?