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Why the law on sedition needs to be scrapped

July 16, 2018 10:39 IST

'The best remedy would be to scrap Section 124-A of the IPC, a colonial vestige, altogether.'
'However, if legislators don't want to do so, they can do two things.'
'They can formally amend Section 124-A to bring it in line with what the Supreme Court has said about sedition.'
'The words which stand on the statute book today were inserted in 1898.'
'The Supreme Court's words are not a part of Section 124-A.'
Illustration: Dominic Xavier/Rediff.com

When Ugandan dictator Idi Amin said 'You have freedom of speech, but I can't guarantee freedom after speech', he certainly did not have India in mind.

However, it is an apt illustration of the tenuous nature of freedom of expression here too.

Apart from various groups and sects who are ready to outrage at the drop of a hat, the Right to Free Speech in India is heavily chained in by legislation, which go beyond the exceptions listed in Article 19(2) of the Constitution.

There are sections in the Indian Penal Code which ensure that if the State or a group wants to curb one's right to free speech, they have ample tools to do that legitimately.

The Opposition parties often accuse the present dispensation of hijacking Indian's right to have a dissenting opinion, but previous regimes do not have a stellar record in this respect either.

At difficult times like these, when people freely offer bounties to kill those who have made a film they don't like or who said something that goes against their ideology, senior high court lawyer and author Abhinav Chandrachud -- whose grandfather Justice Y V Chandrachud was the longest serving Chief Justice of India and whose father Justice Dr D Y Chandrachud is currently a Supreme Court judge -- has published Republic of Rhetoric: Free Speech and the Constitution of India.

Dr Chandrachud's book explains how, even after freeing itself from the British and drafting its Constitution, India failed to lift curbs put on its people's right to free speech.

"Freedom of speech can't be absolute," agrees Dr Chandrachud, but, quoting Justice V R Krishna Iyer in an e-mail interview with Rediff.com's Utkarsh Mishra that 'a few fanatics who hold obdurate views can't be given the right to decide what can or can't be said in public.'

 

The focus of your book, broadly, is that how despite the enactment of the Constitution, the restrictions on freedom of speech were not reduced, and in some cases, were made even more stringent.
Do you consider freedom of speech to be absolute?
If not, in your opinion, what kind of restrictions can be put on it?

Freedom of speech can't be absolute. It isn't absolute even in the United States, where the First Amendment doesn't specifically enumerate restrictions as our Constitution does.

Restrictions ought to be imposed on speech when it crosses the boundary of advocacy and becomes incitement.

This is a distinction that Justice R F Nariman has highlighted in his judgment in Shreya Singhal's case.

In this era of even national media disseminating unverified information received on WhatsApp, don't you think we need some kind of regulation that mandates them to, say, divulge their sources?

A regulation which forces newspapers to reveal their sources would be very dangerous.

No 'insider' in the government, for instance, will reveal anything to a journalist if he thinks that his name will be disclosed.

This will prevent journalists from investigating the truth.

Instead, I think that the onus is on us, as readers and consumers of the news, to ensure that we get our news from relatively well-known sources, and to develop a healthy scepticism of what we might read in the press.

Do you find India's electronic media mature enough to be given a First Amendment kind of right?

This too is a very dangerous idea, that we must wait for our citizens to become 'mature' in order to exercise rights.

The Right to the Freedom of Speech and expression cannot be curtailed on the basis of the intelligence and maturity of the speaker.

The sedition law, as you mention in the book, was debated by many of those in the Constituent Assembly who were themselves a victim of it. But they decided not to scrap it.
Maybe they thought that a government needs protection against an armed rebellion.

It was thanks to the efforts of K M Munshi that the word 'sedition' was not included as an enumerated exception to the Right to Free Speech under the Constitution.

Thereafter, the Punjab high court in Master Tara Singh's case even found that sedition, under Section 124-A of the Indian Penal Code, was unconstitutional.

However, after the First Amendment to the Constitution was enacted in 1951, 'public order' was introduced as an exception under Article 19(2). The circumstances of its enactment have been discussed in chapter 5 of my book.

Sedition therefore still remains on the statute books in India.

In cases like that of Jawaharlal Nehru University students Umar Khalid and Anirban Bhattacharya, Section 124-A IPC was said to be grossly misused despite specific directions of the Supreme Court in earlier cases.
What could be a better solution to prevent such incidents: Making the offence non-cognisable or scrapping the section altogether?

Of course, the best remedy would be to scrap Section 124-A of the IPC, a colonial vestige, altogether.

However, if legislators don't want to do so, they can do two things.

Firstly, they can formally amend Section 124-A to bring it in line with what the Supreme Court has said about sedition.

The words which stand on the statute book today were inserted in 1898.

Though the definition of sedition has now changed (it means incitement to insurrection, not merely evoking bad feelings against the government), a police officer who opens the bare act of the IPC to read Section 124-A still reads the definition of sedition introduced by the colonial government in 1898.

The Supreme Court's words are not a part of Section 124-A.

Secondly, sedition should be made a bailable offence (as it was in England since 1832) and a non-cognisable offence (as it was even in colonial India).

In other words, a person accused of sedition should be entitled to be immediately released on bail, and the case against him should not be investigated without an order from a magistrate.

Discussing the 'absolute right to free speech', John Stuart Mill writes in On Liberty that 'Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion'.
Do you think we are such a society, given incidents like the violent response to James Laine's book on Chhatrapati Shivaji, which you have mentioned in the book?

Of course, there can be no absolute right to free speech.

However, in the words of Justice V R Krishna Iyer, I do not believe that we should give 'a few fanatics (who) hold obdurate views' the right to decide what can and can't be said in public.

Regarding the contempt of court restriction, you write that 'an argument can conceivably be made to limit these powers only to contempt which takes place in the face of the court'.
Do you suggest that one should be allowed to accuse a judge of bias or corruption if one feels so, without inviting the charge of contempt?

Contempt of court is very serious when it is committed 'in the face of the court' (if a person heaps abuse upon a judge in open court, shouts slogans during court proceedings, or undermines the decorum of ongoing proceedings).

Contempt in the face of the court should be dealt with seriously.

Similarly, if someone incites others to disobey court orders, and there is a clear and present danger that court orders will be disobeyed as a consequence, that should be dealt with seriously as well.

However, other forms of contempt in the form of 'scandalising the court' perhaps ought to be ignored as they are often too silly to be taken seriously.

The suggestion I have made in my book is somewhat in practice even today.

If you search for the names of judges on Twitter, you will see what kind of terrible abuse is heaped on them from time to time.

Yet, none of the owners of those Twitter handles is brought to book for contempt of court.

In the words of Justice Murphy, '[s]ilence and a steady devotion to duty are the best answers to irresponsible criticism'.

Coming to 'hate speech', the most contentious of restrictions of freedom expression, don't you think it was natural for the government of a country which went through a bloodied partition on religious lines to restrict speech which has the potential to incite communal violence?

Partition and communal rioting played a large part in the evolution of Articles 19(1)(a) and 19(2) of the Constitution.

Initially, 'public order' was not an exception to the right to free speech.

It was only if your speech affected the 'security of the State' or had the tendency to overthrow the State that it could be prohibited.

After the Constitution came into force in 1950, the Supreme Court in the Romesh Thapar and Brij Bhushan cases took the view that speech which induced a local communal riot did not affect the 'security of the State' or tend to overthrow the State in India, and could not be prohibited.

That is partly why the words 'public order' were inserted into the Constitution in the First Amendment enacted in 1951.

Does the 'Holmesian test' of hate speech that whether it poses a 'clear and present' danger take into account the 'Heckler's veto'?
For example, I may criticise a religion, the followers of which have enough time to argue and prove my point wrong.
However, there would be another section of followers of that religion which would demand my head as soon as my views are aired.
Is this 'heckler's veto' considered as 'clear and present' danger while deciding on hate speech?

Your question is a good one. In one American case, Justice Oliver Wendell Holmes articulated the famous test of shouting 'fire' in a (crowded) theatre.

According to this test, a person's speech should only be prohibited if it is akin to shouting 'fire' in a crowded theatre.

A man who falsely shouts 'fire' in a crowded theatre immediately induces a panic -- you can't argue with that person and convince him or his listeners that he is wrong.

But what happens when listeners start rioting even when nobody has falsely shouted 'fire' in a crowded theatre?

Should the speaker be barred from saying something which will cause unreasonable listeners to violently react, even when the speech doesn't amount to falsely shouting 'fire' in a crowded theatre?

This is the idea of the heckler's veto, and I believe that it has been rejected by our Supreme Court.

In the words of Justice Krishna Iyer quoted above, the law will not permit 'a few fanatics [who] hold obdurate views' to decide what can and can't be said in public.

You mention a United States supreme court judgment where the late Justice Anthony Scalia -- striking down an ordinance 'for discriminating between different viewpoints' -- says that when those advocating racial equality are allowed to use 'fighting words', the other side too deserves a similar right.
However, if seen with majority vs minority angle, the verdict seems unjust.
If a weaker section is up against the oppression of a socially and economically powerful section, the former needs more freedom to make stronger statements than the latter. Do you agree?

The US tends to be an outlier when it comes to hate speech.

Jeremy Waldron's book The Harm in Hate Speech, on the other hand, speaks of how hate speech harms the dignity and sense of belonging of minorities (though Waldron focuses only on 'vulnerable minorities -- which would perhaps exclude minorities like Parsis and Jains in India).

To answer your question, though, I don't think I agree with the idea that any group, majority or minority, deserves 'more freedom' than the other.

What is really required is a level playing field in the marketplace of ideas.

At one point you mention that while Indian law allows 'blasphemous' views to be expressed, it curbs hate speech.
But does one lead to the other?
Blasphemy amounts to criticising a religious doctrine while hate speech is directed against a group of people in general. Aren't they different?

Blasphemy and hate speech may sometimes overlap.

If a speaker says: 'I don't believe that there is any God', this might be considered blasphemous, but not hate speech.

On the other hand, a speaker might say, 'I believe that the God of Religion X is a false God'. This might be considered by some to be both blasphemy and hate speech.

Blasphemy was dropped as an exception to the Right to Free Speech very early in the process of drafting the Constitution.

However, hate speech is still prohibited.

You mention another case where the Supreme Court of Illinois allowed displaying of the Nazi swastika by a group of people because they had given 'prior notice' of their message, and hence, have 'not compelled a confrontation with those who voluntarily listen'.
This defence of hate speech seems flawed. It only takes into account those who would like to turn their faces away if they see something hurtful to their beliefs.
There would certainly be another section which would like to violently protest the display of such symbols or messages as hurtful to their beliefs.
Prior notice in such cases, thus, will risk a confrontation and disturb public order.

This question is covered by my answer to the heckler's veto question.

Violent protest, no matter how righteous the cause, can never be condoned.

When you hear something that you don't want to hear, the remedy, in the words of Justice Brandeis, is 'more speech, not enforced silence'.

Talking about truth as a defence of hate speech and defamation. In the case of the latter, it is already a defence that the information conveyed is in 'good faith' or 'public good'.
What purpose would be served by protecting something which is true and defamatory to an individual but is not in public interest?

It would be very unfair to send a person behind bars under the law of defamation for something he said which was true, merely because his words were not in the 'public interest', when there is no element of the right to privacy involved.

Consider the following example. Imagine that a newspaper publishes a report which says that politician X was sleeping during a T20 cricket match between India and Pakistan.

Let us say that this was, in fact, true.

While this piece of information may not be in the public interest, it would certainly be very unfair for the editor of that newspaper to be thrown behind bars for committing defamation when the story was, in fact, true, and when there was arguably no question of privacy involved (since a cricket match is a highly public event, and politician X may not be able to say that his actions during the match were covered by the right to privacy).

We see almost every day that the restriction on reporting sub judice cases doesn't stop a large section of the media from conducting media trials.
In such a situation, how prudent would it be to lift the stipulated restrictions?

Judges today decide some highly sensitive cases amidst a great deal of pressure from the media.

It is the duty of the judge to decide a case without fear or favour, without fear of the adverse repercussions in the media and of negative public opinion for deciding a case in the manner which the judge considers just and correct.

On a similar note, what is your take on the rule that prohibits publications of names of rape victims or survivors or minor accused?

It is a perfectly prudent and rational rule which ought to be continued.

The Right to Free Speech cannot be used to inflict harm on the privacy of rape victims or on minor accused (who may not have fully understood the consequences of their actions and who can be rehabilitated).

Utkarsh Mishra / Rediff.com