NEW DELHI: The sedition charges against Amnesty International and Ramya have to be seen beyond the mere legal standing of the FIRs registered. What is currently being seen in India is an attempt by the state to reconstitute the idea of nationalism, and sedition is being used as a coercive tool to legally determine what constitutes an ‘anti-national’ act.

On August 23, BJP President, Amit Shah, stated that those who are anti-national must be isolated and that it is fashionable to question nationalism using the right of free speech. Similarly Finance Minister, Arun Jaitley, has taken the position that shouting pro independence slogans is sedition. In fact, even the former Solicitor General of the NDA regime, N Santosh Hegde, stated that patriotism cannot be questioned and sedition charges have been rightfully filed against Amnesty International.

The Supreme Court of India’s view is not in line with the above opinions on what constitutes sedition. This debate in the political sphere must also be seen in the context to the fact that the Apex Court was recently moved by the NGO Common Cause arguing that the state is charging people with sedition contrary to the law laid down by the Supreme Court in Kedar Nath vs State of Bihar (1962). The law is clear that only in the case where there is incitement of violence or a threat to public order does an act constitute sedition. However, it is most likely that the Central Government’s position in court will be to protect the previous filing of sedition charges as it provides a lawful yet coercive manner of promoting a homogenous construct of nationalism.

Free speech as an individual liberty is recognised as a fundamental right and reflects one of the most important ideals of modern democracy. The leaders of our national movement created the Constitution to reflect the ideals of the freedom movement. The Constituent Assembly in December of 1948 debated on the Right to Freedom of Speech and the issue of seditious speech. An amendment was moved by K.M. Munshi to remove “sedition” as a reasonable restriction to free speech. K.M. Munshi speaking in the assembly expressed the importance of criticism of the Union and when moving an amendment to remove sedition stated :-

“… 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. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is Criticism of Government. The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark.”

Further K.M. Munshi relying on the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what ‘Sedition’ meant when the Indian Penal Code (1860) was enacted and ‘Sedition’ as understood in 1942 :-

“This amendment therefore seeks to use words which properly answer to the implication of the word ‘Sedition’ as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word ‘sedition’ only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I. P.C. or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment.”

Sedition was used by the British Empire against national movement leaders such as Tilak, Gandhi and Nehru to stifle dissent against the State. The experience under colonial rule made the constituent assembly realise that such a draconian law to stifle critical speech would be against the idea of a people's republic. In fact, Jawaharlal Nehru in 1951 while speaking on the issue of freedom of speech specifically argued against sedition and stated that it was obnoxious and objectionable and had no place in modern Indian law.

What unified India during the national movement was the desire for personal liberties and freedom. However, 70 years after independence we find that the State imagines Patriotism as a parochial and limited idea and further - through sedition - wants to impose legal intelligibility on such beliefs. Our Justice system can now allow seeking retribution by law for failure to oblige to the ideological dictate of the State.

Now is an apt time for the Supreme Court to look into the recent sedition charges and whether they are being filed contrary to the Kedar Nath judgement. The petition recently submitted makes a few pertinent points regarding the misuse of the law. First, the point that Kedar Nath has made clear that merely creating disaffection or feeling of enmity is not enough to constitute the charge of sedition and it must involve the incitement of violence or disturb public order. Second, the fact that there have been 47 cases of sedition across 9 states in 2014 and the prosecution has managed only one conviction. This makes it clear that it is not legal principles that guide the filing of such cases but political interests. Third, it corrodes the life of the individual accused as his passport is barred and he can not apply for a government job, etc. There is a complete violation of a person's peace of mind and this is at a stage of just a charge in the form of a FIR.

The Supreme Court has made the legal position on sedition clear; the petitioners have now approached the Supreme Court to ensure that no FIR in a sedition case is filed contrary to the principles laid down by the Kedar Nath Judgement. Hence, the court has been moved to pass an order directing that in all cases of alleged seditious acts, the Director General of Police must in a reasoned order express that there is an incitement to violence made out and only then can a FIR be filed. Further it has also been prayed that the magistrate when taking cognizance of the issue must give a reasoned order stating that incitement of violence or a threat to public order is made out.

The Supreme Court being the final arbiter of the Constitution will now decide on this matter. However, the larger battle is political and social, and that is to promote the constitutional principles of inclusiveness, pluralism and diversity to defeat an ethnocentric vision of nationalism.

(Abhik Chimni is a lawyer in the Supreme Court of India).

(Cover Photograph from the Archives: Confirmation of the execution of Bhagat Singh charged by the British with sedition under the same law operating today)