Four years after the case was filed, Arvind Kejriwal’s AAP government in Delhi has given the Delhi Police permission to prosecute CPI member and former JNU Students’ Union president Kanhaiya Kumar on charges of sedition.

Kumar’s case, and of Aseem Trivedi, Binayak Sen and dozens more before him, focussed the country’s attention on the contentious issue of limitations on citizens’ fundamental right to free expression.

Whereas Article 19 of the Indian Constitution guarantees free speech as a fundamental right, the very first constitutional amendment (1951) introduced among other changes the “reasonable restrictions” not originally included, curbing individual freedom of expression in the interest of “the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

The dichotomy of dissent versus sedition, patriotism versus nationalism, government versus State has occupied centrestage ever since the first Modi government assumed office in 2014. The enactment of the controversial Citizenship Amendment Act has only compounded concerns, with a significant spike in the number of sedition cases filed under Section 124A of the Indian Penal Code.

According to National Crime Records Bureau data, as against 47 cases of sedition registered in 2014, the figure had risen to 70 in 2018, the latest year for which data is available. The year 2019-20 is expected to reveal significantly higher numbers, with sedition cases being booked against thousands of anti-CAA protesters as well as farmers agitating for land rights.

Section 124A of the IPC was originally drafted by Thomas Macaulay, the British historian-politician, in 1837 as a means to suppress Indian nationalists. It defines sedition as an offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred, contempt or excites, attempts to excite disaffection towards the government established by law”.

Notoriously invoked by the British to jail Tilak and Mahatma Gandhi, it is an archaic draconian law, its wording dangerously vague and wide, with the concentrated executive discretion built into it permitting blatant abuse, 72 years after independence.

To its credit, the judiciary has through a series of landmark judgements consistently sought to circumscribe the scope of the contentious article, bringing it into greater consonance with the intrinsic tenets of liberal democracy.

In its Kedar Nath vs State of Bihar judgement of 1962, the Supreme Court, while upholding the constitutionality of the sedition offence, added a vital caveat, that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

In other words, mere speech or writings, irrespective of their content, did not amount to sedition unless they demonstrably constituted an incitement to violence. The Balwant Singh case verdict in 1995 went a step further, to qualify that “the casual raising of slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government”.

The State of India would not disintegrate by mere sloganeering. From time to time the Law Commission has also leaned in on the issue, maintaining that “an expression of frustration over the state of affairs cannot be treated as sedition.” More recently, Justices DY Chandrachud and Deepak Gupta have publicly supported citizens’ right to dissent, with Justice Gupta saying that “there is no holy cow when it comes to dissent.”

Even with the restricted scope of the law, Section 124A remains the government’s favourite tool to stifle dissent under the garb of disloyalty and anti-national sentiment. Its indiscriminate use and misuse becomes evident from the innumerable cases where it has been applied, which have nothing remotely treasonable or seditious about them and which stoke neither violence nor hate.

Was the mother and teacher of the primary school in Bidar guilty of sedition for writing and enacting a play allegedly critical of the CAA? Was Nalini Balakumar, an alumnus of the University of Mysore, guilty of sedition for displaying a ‘Free Kashmir’ poster at an anti-CAA rally? Were the 3,300 farmers protesting land acquisition and the 3,000 anti-CAA protesters in Jharkhand guilty of sedition?

In the new narrative of conflating the government with the state, as well as the nation, any criticism of the government is labelled ‘anti-national’ and anybody daring to voice a view opposed to its policies, branded an ‘urban naxal’ or worse.

Two young students, Sharjeel Imam and Amulya Leona Noronha, are being projected as the new faces of sedition to replace Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya.

Imam, engineer turned historian with an M.Tech from IIT and an M.Phil in modern Indian history from JNU, wants an equal space and voice for the Indian Muslim. His call to “cut off” Assam in order to bring attention to the plight of Muslims there was deliberately misrepresented as a call for secession, when in fact he was proposing a blockade, not unheard of in the Northeast.

Did the BJP itself not mastermind an economic blockade in 2008, closing the Jammu-Srinagar highway for weeks and stalling the transportation of goods to the valley? If that was not sedition, then how can Sharjeel Imam’s call be?

The case of Amulya Noronha is even more curious. The 19 year old student activist, at an event organised by the Hindu-Muslim-Sikh-Issai Federation at Freedom Park in Benguluru, took the mike to raise ‘Pakistan Zindabad’ slogans. That these were followed by ‘Hindustan Zindabad’ was conveniently ignored. Immediately charged for sedition and for fostering hate between communities, if only Noronha had been allowed to continue her speech, we would have heard her echo Tagore’s patriotism, rejecting the idea that love for one’s country requires hatred of another. “Zindabad to all countries,” says her Facebook post of the previous day.

According to the Ministry of Home Affairs, between 2014 and 2016, no fewer than 179 persons were arrested on charges of sedition, while only 2 were finally convicted. 70% of the cases have not been produced in court.

It took the Delhi Police four years to file a chargesheet in Kanhaiya Kumar’s case, and then too its timing, with the Bihar elections close at hand, cannot be missed.

Given the abysmal conviction rate, being declared “seditious” is enough, and the punishment is the tedious and time-consuming process of getting acquitted, as cases can drag on for years. Television trials and social media trolling in the meantime allow the government to extract maximum political mileage, irrespective of the final outcome of the case.

The accused, however, in addition to the slander and ostracisation they face, stand disqualified from government employment, cannot acquire a passport and may face a jail term of 3 years to life imprisonment in the event of conviction.

Kapil Mishra, Anurag Thakur and Parvesh Verma, who were all captured on film making incendiary and communally charged hate speeches in the run-up to the Delhi Assembly elections, remain outside the police fold.

No FIR has been registered against Mishra, Thakur or Verma. (Mishra repeated his performance in the run-up to the targeted violence in Delhi, standing beside someone he said was a DCP of the Delhi Police, brazenly posting the video clip on Twitter himself).

The Delhi Police could not however see the direct connection visible to most of us. Within hours, violence had erupted in the area but the police, completely violated the guidelines laid down by the Supreme Court in its Lalita Kumari judgement and has yet to register an FIR against Mishra, despite having received multiple complaints.

Solicitor-General Tushar Mehta’s explanation, that the police had consciously decided to file the FIR only when the atmosphere was more conducive, fails to convince.

As the government continues its cynical game of smoke and mirrors, picking and choosing who will be allowed to speak and who will not, the Republic is in real-time danger of metamorphosing from the liberal democracy it once was, into an Orwellian surveillance state whose citizens are ever fearful.

The midnight transfer of Justice Murlidhar after he instructed the police to let ambulances pass through Delhi’s targeted areas, and asked for an immediate ‘conscious decision’ by the Delhi Police on hate speeches by BJP leaders, only confirms the suspicion.

Notwithstanding the judicial pronouncements constricting the scope of executive discretion under Section 124A IPC, the government continues to use this section as yet another state instrument to regulate opinion and quell opposition.

The true test of a democracy, Justice Chandrachud recently observed, is “its ability to ensure the creation and protection of spaces where every individual can voice their opinion without fear of retribution.” Will the judiciary, as the custodian of citizens’ rights, come down hard on the executive abuse of this abhorrent law?

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