Gautam Bhatia on the Sedition Law

Gautam Bhatia writes in the Hindustan Times-

Earlier this month, during the course of a lecture, Supreme Court (SC) judge Justice Deepak Gupta, remarked that the time had come to reconsider the law of sedition. Highlighting a number of recent examples, he observed that the law of sedition “is more often abused and misused”, and that “freedom of expression being a constitutional right must get primacy over the laws of sedition”.

If this is the case, there is no need to get rid of the sedition law. It will be read down by the bench- i.e. in accordance with a principle of harmonious construction.

Justice Gupta’s observations are a significant intervention in the ongoing debate about the utility of the sedition law in the India of 2019.

Where is this debate occurring? If it isn't in Parliament then it isn't really a debate- it's just talk is all.

As Justice Gupta correctly noted in his lecture, sedition is — of course — of colonial origin.

No. Sedition, as a crime, is no more of 'colonial' origin than rape or murder was of 'colonial origin'. Indian Princes would chop off your head if they thought you were looking at them funny. The Brits did the same thing. Only after their rule was perfectly secure did they embrace milder judicial types of punishment as opposed to just blowing rebels out of the mouths of cannons. However, as Brigadier Dyer showed at Jallianwallah Bagh, they were quite happy to machine gun potential seditionists- or just anyone it was convenient to do so- to send a message. Thus, the law wasn't the problem. The problem was getting killed if you wagged your tail.

The British regime enacted it in order to suppress political and cultural dissent, and many of the most famous figures of the freedom struggle — including Gandhi — were sent to jail on charges of sedition.

The British regime suppressed dissent by killing people. However, it discovered that people it sent to the Andamans soon started whimpering to be let out and promising to behave. In some cases, like that of Aurobindo, the smart play was to let the guy loose and then spy on him so as to roll up the entire network. It didn't kill Gandhi and his chums because they were very useful to the Brits. They represented the 'Plan B' for when the cost of repression outweighed the benefits.

The very text of the sedition law reflects its colonial provenance.

Yes. It was written in English, not Urdu. This is because India had been colonized by English speaking people. The very text of the law on rape too reflects its colonial provenance. The same is true of laws passed in Independent India.

In prohibiting “disaffection”, “contempt” or “hatred” against the government, it effectively requires citizens to love their rulers — or, at least, to not make their dislike publicly known.

Bhatia is a lawyer. He knows this is not true. There is a wide difference between encouraging others to feel disaffection, contempt, or hatred and being forced to dissimulate such feelings one might oneself have. I am welcome to show hatred and contempt for Bhatia because I believe he tried to sexually molest me on the Northern Line at rush hour. However, if I publish material which would tend to cause other people to believe that Bhatia is the worst sort of pervert who gets into packed Tube compartments for the express purpose of interfering with elderly Tambram males, then I may be prosecuted for libel even though it is probably true that Bhatia gets his jollies in the manner I have described.

It was for this reason that there was a fierce debate about sedition in the Constituent Assembly. Attempts to include it as a specific restriction upon the freedom of speech were defeated, and Jawaharlal Nehru himself went on to promise that the government would soon get rid of it.

So, the sedition law was useful. The Constituent Assembly decided that it was reasonable to restrict free expression if it endangered relations with a foreign power. Why not if it endangered relations between the Government and its own people? The framers of the Constitution deliberately chose to make it autochthonous on the Irish pattern. They wanted to foreclose stupid arguments about 'colonial laws'. Thus the Constitution declares all Indian laws to be wholly indigenous.

However, the government didn’t, and in 1962, the SC upheld the constitutional validity of sedition. The court held that penalising sedition was a reasonable restriction upon the freedom of speech — however, only if the words of the provision themselves were given a narrow meaning. In other words, it wasn’t enough to just spread “disaffection” against the government, but to do so in a manner that incited violence or public disorder. In the five-and-a-half decades since that judgment, the SC has refined the test further, noting that the link between speech and public disorder must be like that of a “spark in a powder keg”, and that it must constitute incitement to “imminent” lawless action.

All this is quite reasonable. Bhatia may be a nitwit, but the Bench isn't. There is no need to amend laws which are being interpreted in a utile and harmonious manner by the Judiciary.

The problem, however, is that there remains a massive gap between the words of the sedition law — “disaffection”, “contempt”, and “hatred” — and the interpretation placed upon it by the Supreme Court — incitement to imminent lawless action. An ordinary person who simply looks at the text of the law is unlikely to divine that what it actually requires is incitement to public disorder.

Ordinary people don't look at 'the text of the law'.  Those who are intent on mischief may not know what law they are breaking but they do know they are doing something that can get them into trouble.

It is this gap that has allowed the law of sedition to be used as a political tool. As Justice Gupta also pointed out in his lecture, sedition is a cognisable offence, which means that the police can arrest an accused without the need for a judicial warrant. This allows for the deprivation of personal liberty with great ease; so while there are very few convictions for sedition, the provision’s broad wording facilitates — to use an old cliché — “the process being the punishment”.

So, there is an abuse of power- not a defect in the law.

Keeping this in mind, and the fact that we already have laws to penalise and punish people who call for and incite violence, Justice Gupta’s call to relook at, and review, the sedition law must be heeded.

Why? In view of the tactics used by outfits like ISIS, the opposite is the case. We need to punish the guys who recruit the suicide bombers.

The real bite of the sedition law is in its broad wording. Terms like “disaffection” and “contempt” can be stretched to mean just about anything, enabling, for instance, prosecuting 7,000 farmers for protesting against a nuclear power plant (as happened a few years ago).

I suppose Bhatia means the fisherfolk- or more generally their wives- who opposed the Kundakulam nuclear plant and raised slogans against Manmohan Singh and Jayalalitha. But, sedition was only one of a number of false charges levied against them. The Supreme Court had decide that the Nuclear plant was 'in the public interest'. Both the Center and the State Government were determined to teach this mainly Christian fishing community a lesson and showed their willingness to abuse due process to do so.

But it is this precise broad wording — with its colonial rationale of insulating the government from the citizen — that is contrary to the Constitution, and the precise reason why the SC has given it a narrow (and almost unrecognisable) meaning.

The Constitution says the sedition law is autochthonous, not colonial. The Bench has given narrow, wholly unrecognisable, meanings to all sorts of laws. One reason for this is because Parliament can't be bothered to draft new legislation to tackle problems the great mass of the people don't care about.

As events have shown, however, the gap between the law and its judicial interpretation has become so wide that there can be no interpretive bridge that will adequately protect liberty; this being the case, the Supreme Court will, hopefully, reconsider its 1962 decision, and strike down the law of sedition as being unconstitutional. This will be the greatest tribute to Gandhi.

The greatest tribute to Gandhi would be to embrace celibacy like he told us to. The Indian race would have died out long ago if only we'd listened to the Mahatma. However, it is important to bear in mind that Gandhiji was against all forms of sex including whatever it is Bhatia gets up to on the Northern Line at rush hour.