The Continuity of Insecurity from the Colonial to the Post-Colonial State: The Law of Sedition in India and its Dissenting Peoples

John Simte

National Law School of India University

Editors’ Note: This text is a shorter, globalised version of a piece first published on TheWire.in. on 19 July 2019, available here.

The evolving use of technology by government(s) to create a surveillance security regime to monitor dissent in present day India has a dangerous organic relationship with the retention of statutory offences criminalising political speech. Their object is the same; imposing fundamental restrictions to constitutional freedoms. It is therefore important for, and the duty of, constitutional citizens to consciously question: why and how are these lawless laws and seamless police power(s) a continuing feature in our democratic polity?

The most recent declaration of this willingness to retain excessive power by the state is found in an official reply given to the Rajya Sabha (Council of States; the upper house of the bicameral Parliament of India) by the Ministry of Home Affairs on the 1st of July 2019 that there was no proposal to repeal Section 124-A of the Indian Penal Code because of its utility to combat “anti-national, secessionist and terrorist elements.” Interestingly, this official response comes almost 5 months after a legal opinion on a “consultation paper” released by the Law Commission of India that suitably recommended a review or even repeal of the law of sedition sought by the Government of India had stated that the “law is necessary” and advised it against diluting or doing away with the provision.  This response reflects that the post-colonial Indian state, much like other nation-states in the sub-continent and elsewhere with a shared history of European colonialism, carries with it the indelible legal, political and cultural markings of its terrorising colonised past.

Despite the Indian National Congress having led the anti-colonial struggle, and its prominent leaders having been active participants in the drafting process of a sovereign constitution – envisioned to transform its people(s) from oppressed subjects to autonomous citizens – a close analysis of the Indian state’s attitude in the post-constitutional era of the rule of law and a right(s)-based order shows a direct and sustained affront under the garb of ‘national interest’ by the state to the constitutionally guaranteed fundamental freedoms and liberties of individuals.

This is best explained by the early inclusion of sedition as a ground for restricting speech, in both the initial draft of the Bill of Rights and the Draft Constitution of 1948 (but ultimately excluded from the final draft) presented to the Constituent Assembly. It is also explained by the conscious retention and continuous abuse of Section 124-A of the Indian Penal Code, introduced by the British to reign in a conspiracy among mainly Muslim (Wahabi) leaders against colonial rule in the 1830s, and which, as it currently exists, criminalizes the bringing into “hatred or contempt” or exciting “disaffection” against the government established by law. Section 124-A thereby highlights a colonial continuity; of a constant disengagement with its people(s), a blanket muzzling of any form of dissent or rebellion to a majoritarian narrative and a refusal to address complex questions about itself arising from a deep-seated nervousness of its existence as a separate political and territorial entity – an ‘imagined political community’.

In this connection, the explosion of instances in the recent past has gained as one scholar describes it “a special degree of notoriety” in how a number of human rights activists, university teachers and students, and journalists have been otherised as ‘anti-nationals’ and charged with and arrested for the offence of sedition. This has led to the creation of a state-sanctioned chilling effect on free speech and has sharply re-introduced important concerns about the political use of the law in clamping down on individual human rights.  Foremost among them are the rights to freedom of speech and expression, encompassing the right to rebel and protest against the government and the policy of the state that are unquestionably vital for sustaining a resilient democratic political process. Moreover, it is in this precarious state of affairs where the process itself set into motion by an inherently violent law becomes the punishment and where liberal freedoms and virtues find themselves against the anxiety of the post-colonial state that we constantly turn towards the courts to reclaim and assert the idea of transformative constitutionalism and the rule of law - dramatically departing  from the colonial logic of a ‘permanent state of exception’ which allows the brazen infringement on basic freedoms to advance the constitutionally grounded logic: of every state action to be measured by the judiciary against the reasonableness principles set out in the founding document.

However, the judiciary, and particularly the Supreme Court of India, when given an opportunity to knit into the constitutional cloth, a robust free speech jurisprudence in relation to sedition has consistently and significantly failed to position itself as a counter-majoritarian institution that ought to stand between the dauntingly asymmetrical relationship of power between the nation-state and its dissenting people(s). That said, the Court in its majority opinion in two successive cases decided in 1950, exhibited exemplary courage in examining the relationship between the restrictions on the right to freedom of speech in Article 19(2) of the Constitution and ‘public order’ by noting that “not every instance of public disorder reached the level of undermining the security of the State”. This, and its discussion on the speech-protective vision of the drafters laid the foundation for various High Courts in Tara Singh (1950) and Balwant Singh (1995) to hold Section-124A to be unconstitutional and that if there was no incitement to violence even ‘revolutionary speech to overthrow the state’ was permissible within the framework of Article 19(1)(a).

The First Amendment to the Constitution, adopted in 1951, did two important things to 19(2): Firstly, it replaced ‘security of the State’ with ‘public order’ and added ‘incitement to offence’. Secondly, it included the requirement of reasonableness. In this context, despite its apparent initial fidelity to broadly  interpreting constitutional protection(s) to free speech, the Supreme Court in the Kedar Nath case (1962), where the constitutionality of sedition was challenged, took a weak approach to free speech protection. While on the first part the Court did re-state the test of ‘incitement to violence’, it also ignored a direct precedent that had formulated a strict test of proximity between speech and consequence to reaffirm a speech-restrictive standard of mere ‘intention or tendency’ to public disorder, that had already been overruled in Lohia (1960). In doing so, it upheld the law on the basis that this power was required by the state to protect itself and committed a troubling act of judicial pragmatism. Thereby, remarkably failing to perform its responsibility as the sentinel qui vive of dissent in a democracy when presented with a glorious opportunity to consign sedition to the annals of the colonial past.

Although, in the recently concluded General Elections, it was refreshing to notice that the official manifesto of at least one major political party (Congress) had promised to repeal Section 124A, the biggest irony remains that the United Kingdom and Australia have written it out of the common law through a statutory enactment, and the constitutional courts of Uganda and Kenya (also former colonies in the British Empire) have also struck down the criminality of sedition but the police and courts in India still validate its existence in their misuse, misapplication and misinterpretation of the law.

The subsistence of a tyrannical criminal law penalising subversive speech in the world’s largest democracy, not only has the unwarranted effect of detrimentally altering the relationship between the citizen and the state but also goes against the grain of judicially accepted test required to be satisfied for an individual to be convicted for the offence of sedition, of constitutionally protected values and international human rights obligations. The only hope that the dissenting people(s) in India continue to imagine for their free speech and of civil liberties – albeit with a visible slipping away of rights over time and forceful challenges from powerful members of the ruling right-wing Hindu majoritarian government rendering a review or repeal of the law only illusory – firmly finds resonance in the recent judicial reaffirmation(s) of the Kedar Nath doctrinal standard by the Kerala High Court Shameer (2019) and the bail-order of the Chief Judicial Magistrate, Impha in Thokcom Veewon (2019). More radically, the decisions of the Supreme Court in Rangarajan (1989), Arup Bhuyan (2011) and Shreya Singhal (2015), in their progression towards a similar test of ‘imminent incitement to lawless action’ as was evolved in Brandenburg v. Ohio (1969) by the US Supreme Court and in their repudiation of unbridled executive supremacy and fierce endorsement of constitutional supremacy are illustrative of the transformative potential and vision of the Constitution that is marked by a regime of accountability for the political executive, narrowly defined restrictions to fundamental rights and freedoms, and of a fearless commitment to the rule of law. These decisions taken together and collectively lay down a strongly spirited foundation for a rare form of judicial resistance to unchecked and limitless executive action and of a judicial philosophy that firmly positions an individual and his right to dissent at the nucleus of a liberal constitutional order and accords legitimacy to citizens for effectively resisting the erosion of their foundational civil rights and liberties by assisting in building a checks and balances architecture against the attempts to create a totalitarian society through the normalization of oppressive structures and regimes of coercive power - Being citizens in a democracy entails a responsibility upon us to continuously re-negotiate with the state the guarantees one can give away and also employ the Constitution to effectively limit state violence over its peoples. In the same way as noted Indian civil rights lawyer, K.G. Kannabiran asks us to recognise “It is a very long journey from being a slave to being a subject and to finally being a citizen”.

John Simte is student at the National Law School of India University, Bangalore. He was previously Research Assistant to Dr. Chintan Chandrachud and has also interned with Senior Advocate, Mr. Shyam Divan and Dr. Usha Ramanathan.

Suggested citation: John Simte, “The Continuity of Insecurity from the Colonial to the Post-Colonial State: The Law of Sedition in India and its Dissenting Peoples” IACL-AIDC Blog (22 July 2019) https://blog-iacl-aidc.org/indian-young-scholars/2019/7/22/the-continuity-of-insecurity-from-the-colonial-to-the-post-colonial-state-the-law-of-sedition-in-india-and-its-dissenting-peoples