Farmers Movement Archive

Tamil Nadu: Another reminder why sedition law needs to be scrapped

By P SelviRecently, Tamil Nadu chief minister M K Stalin announced that all the cases filed against people for protesting would be withdrawn. Most of the cases were related to the Chennai-Salem expressway, Kudankulam nuclear power plant, hydrocarbon extraction projects, and the three new farm laws passed by Parliament last year. Stalin said the cases were being withdrawn to uphold the rights of protesters and to protect freedom of expression. Activists say more than 10,000 cases were registered across five districts over protests against the Salem-Chennai expressway. Between 2011 and 2013, around 9,000 protesters of the Kudankulam Nuclear Power Plant were charged under several sections of the law including sedition. Sedition, an offence under Section 124A of the Indian Penal Code (IPC), appears to be the flavour of the season as more petitions are filed before the Supreme Court challenging its validity. The petitioners contend that alternative, less intrusive laws dealing with safety and security, public disorder and terrorism are now available and hence the sedition law is unnecessary. The colonial-era law punishes any person for certain acts that would bring the government established by law into hatred or contempt, or create disaffection including disloyalty and feelings of enmity. The explanation under the section excludes ‘disapprobation’ (or disapproval) of government measures that do not excite or attempt to excite hatred, contempt, or disaffection (e.g. a person criticising vaccine distribution policy to states is protected by the explanation). The continuation of sedition in the penal statute is a threat to free speech, and muzzles any form of dissent. Significantly, the Constituent Assembly did not include sedition when it drafted the Constitution as a restriction on freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. In fact, sedition was not even included as a restriction even when ‘friendly relations with foreign states’ and ‘public order’ were, under the First Constitutional Amendment, 1951. But the Supreme Court, in the case of Kedar Nath Singh vs State of Bihar (1962), upheld the constitutionality of sedition and limited its application to acts that incite or "tend to" incite violence or create disorder or disturbance of law and order. It is this expression – ‘tend to’– that has been used expansively to include any situation, without any checks and balances. Moreover, the judgment does not restrict sedition to only against the state, it allows individual actions that tends to lead to violence as sedition. The judgment relied on the 1898 Criminal Procedure Code (CrPC) when sedition was non-cognizable. But after the CrPC was replaced by the existing Code of 1973, the offence is cognizable giving police unbridled power. However, the jurisprudence of free speech has evolved since 1962. Sedition could be challenged on the grounds of manifest arbitrariness and proportionality principle (maintaining the balance between action and purpose for which powers have been conferred) that have undergone expansion in the past few years. Anybody can file a false complaint and have the person arrested. But cases for malicious prosecution are seldom filed, police officers are not prosecuted or tried with departmental action, nor does the victim get paid compensation. Two private members’ bills on sedition have been pending in Parliament, but the judiciary appears well-placed to strike it down altogether. As Amartya Sen said "voice is a crucial component of the pursuit of justice" and we argumentative Indians known for our loquaciousness, should not be silenced. (The writer is an advocate at Madras high court)

The Times of India

2021-08-24

Chennai