Sedition
Introduction
“We have to uphold a free press and freedom of speech- because in the end, lies and misinformation are no match for the truth” -Barack Obama
It is highly condemnable that sentence uttered in the past related to the status of Kashmir in India by the press had evoked an impassioned hyper-patriotic anger and resulted in demands for invoking harsh sedition laws. In October 2010, Indian writer and Social Activist Arundhati Roy, was slammed for making comments on the strife-torn and troubled valley. The Bhartiya Janata party slaps a case against her under article 124(A) of the Indian Penal Code which states that,
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.” This behaviour suggests that, all the writers and speakers should be locked up or should be threatened to silence for speaking their minds. Why is it criminal to state that Kashmir’s status in India is not settled despite the accession? Aren’t so many others in Jammu and Kashmir saying as much? Didn’t Chief Minister Omar Abdullah recently remark that the state had only requested to, and did not merge with, Indian Union? In his classic defence of free speech, on Liberty, John Stuart Mill laid down what is known as the ‘harm principle.' It postulates that the only justification for silencing a person against his will is to prevent him from causing harm to others. It is to this powerful libertarian mid-19th century principle that we owe the idea that free speech cannot be proscribed merely because we find it disagreeable, and that curbs may be imposed only if such expression constitutes a direct, explicit, and unequivocal incitement to violence. There is no such nexus in Ms Roy's statements on Kashmir, which are shaped around the theme of gross human rights violations and “fundamentally a call for justice.” It is tragi-comic that there is talk of ‘sedition' at a time when it is regarded as obsolete in many countries. Courts have ruled that laws that aim to punish people for bringing a government into hatred or contempt are frighteningly broad and risk being used to suppress radical political views. In Britain, the last completed trial in a sedition case dates back to 1947. In the United States, Supreme Court rulings have rendered toothless the most recent sedition law, the Smith Act enacted in 1940. The controversy over Ms Roy's remarks is essentially much ado about nothing.
According to the oxford dictionary sedition is defined as, “Conduct or speech inciting people to rebel against the authority of a state or a monarch. According to the Black’s Law Dictionary in Scotch Law sedition is defined as, “the raising commotions or disturbances in the state, it is a revolt against legitimate authority.” the book also mentions about the definition according to the English Law, “Sedition is the offence of punishing, verbally or otherwise, any words or documents with the intention of exciting disaffection hatred or contempt against the sovereign, or the government and the constitution of the kingdom or either house of parliament or the administration of justice, or exciting his Majesty’s subjects to attempt otherwise than by lawful means, the alteration of any manner in church or state, or of exciting feelings of ill will and hostility between different classes of his Majesty’s subjects. The recent spate in instances of invoking sedition laws against human rights activists, journalists and public intellectuals in the country have raised important questions on the undemocratic nature of these laws, which were introduced by the British colonial government.
The Bilaspur High Court’s decision to reject the bail application filed by Dr. Binayak Sen in the face of widespread public criticism of the trial court decision to indict him on charges that included those of sedition has raised serious questions about the validity of these laws in a modern constitutional democracy. While sedition laws are part of a larger framework of colonial laws that are now used liberally by both the central and state governments to curb free speech, the specificity of these laws lie in the language of ‘disaffection’ and severity of the punishment associated with them. Sedition laws were used to curb dissent in England, but it was in the colonies that they assumed their most draconian form, helping to sustain imperial power in the face of rising nationalism in the colonies including India. Targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant. It is ironic that these laws have survived the demise of colonial rule and continue to haunt media personnel, human rights activists, political dissenters and public intellectuals across the country. Sedition is overt conduct, such as speech and organisation, that tends toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. Seditious words in writing are seditious libel. A seditionist is one who engages in or promotes the interest of sedition. Typically, sedition is considered a subversive act, and the overt acts that may be prosecutable under sedition laws vary from one legal code to another. Where the history of these legal codes has been traced, there is also a record of the change in the definition of the elements constituting sedition at certain points in history. This overview has served to develop a sociological definition of sedition as well, within the study of state persecution.
Origin
The term “sedition” in its modern meaning first appeared in the Elizabethan Era (c. 1590) as the "notion of inciting by words or writings disaffection towards the state or constituted authority". "Sedition complements treason and martial law: while treason controls primarily the privileged, ecclesiastical opponents, priests, and Jesuits, as well as certain commoners; and martial law frightens commoners, sedition frightens intellectuals.
Origin of Sedition around the World
Sedition was included in the laws of majority of the countries. To take a few examples:
In Australia “sedition” was introduced in late 2006, the Commonwealth Government, under the Prime-Ministership of John Howard proposed plans to amend Australia's Crimes Act 1914.
In the United States of America “sedition” was introduced in 1798, when the then President John Adams signed into law the Alien and Sedition Acts. Later on this act expired. Again, in the Espionage Act of 1917, Section 3 made it a federal crime, punishable by up to 20 years of imprisonment and a fine of up to $10,000.
The Sedition Act 1661 (13 Car 2 St 1 c 1) was an Act of the Parliament of England, although it was extended to Scotland in 1708. Passed shortly after the Restoration of Charles II, it is no longer in force, but some of its provisions continue to survive today in the Treason Act 1695 and the Treason Felony Act 1848. One clause which was included in the Treason Act 1695 was later adapted for the United States Constitution.
Article 40.6.1° (i) of the 1937 Constitution of Ireland guarantees the right to freedom of expression, subject to several constraints, among them:
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
Origin of Sedition in India
The section corresponding to section 124A, the law that defines sedition in the IPC, was originally section 113 of Macaulay’s Draft Penal Code of 1837-1839. Section 113 of this draft made it an offence to “excite feelings of disaffection against the government”, but this section was omitted in the IPC as it was enacted in 1860. The then Prime Minister of the Empire of England J. Fitzjames Stephens, the architect of Indian Evidence Act, 1872, has been quoted as saying that this omission was the result of a mistake. Another explanation for this omission is that the British Government wished to adopt more wide-ranging strategies against the press including a deposit-forfeiture system[1] and general powers of prevention action. Section 113 was omitted from the IPC in 1860 because it was incompatible with the contemporary law of sedition in England at the time. After all, the law codes of British India were prepared by the followers of Jeremy Bentham, who wished to enact similar codes back home in England. For them, the colony of British India was a laboratory where they could test how a code would function. They hoped that codes like the IPC would later serve as models or precedents for similar law codes to be drawn up in England itself. It is therefore plausible that the framers of the original IPC of 1860 left out Section 113 of Macaulay’s draft because it did not reflect the existing state of the law of sedition in England and because its introduction into the IPC might have come in the way of the code being used to draw up a similar statute in England. Section 124A was introduced by the British colonial government in 1870 when it felt the need for a specific section to deal with the offence. An amendment was introduced to the IPC in 1870, and Section 113 of Macaulay’s draft was inserted into the code as Section 124-A. There is some evidence to suggest that sedition was finally made an offence in British India because the colonial government feared a Wahabi uprising. It was one of the many draconian laws enacted to stifle any votes of dissent at that time. Mahatma Gandhi was prescient in recognising the fundamental threat it provided to democracy when he called it the ‘prince among the political sections of the IPC designed to suppress the liberty of the citizen’.
The framework of this section was imported from various sources- the Treason Felony Act (operating in Britain), the common law of seditious libel and the English law relating to seditious words. The seditious libel included bot actions and words that pertained to citizens and the government, as well as between communities of persons. The initial cases that invoked the sedition law included numerous prosecutions against the editors of nationalist newspapers. The first among them was the trial of Jogendra Chandra Bose in 1891. Bose, the editor of the newspaper, Bangobasi, wrote an article criticising the Age of Consent Bill for posing a threat to religion and for its coercive relationship with Indians. His article also commented on the negative economic impact of British colonialism. Bose was prosecuted and accused of exceeding the limits of legitimate criticism, and inciting religious feelings. The judge rejected the defence’s plea that there was no mention of rebellion in his article. However, the proceedings against Bose were dropped after he tended an apology.