The wretched law of sedition frequently comes to the rescue of people in power left cold by the despondence of their deeds. It is hardly surprising that the colonial British empire tried to warm its morally naked soul by taking shelter behind the offense of sedition as enacted under Section 124 A of the Indian Penal Code. What defies logic is the deafening silence of the Parliament of independent India on the offense of sedition which was responsible for conviction of renowned freedom fighters like Bal Gangadhar Tilak, Mahatama Gandhi and the like. Realizing the potential for mischief being caused by the draconian Section 124 A of the Indian Penal Code, the Supreme Court of India read it down in successive judgments. This was done by invoking Article 19(1)(a) of the Constitution, the sentinel of freedom of speech and expression. However, the limits of judicial intervention in essentially legislative domain of State are exposed in the JNU case which would force the constitutional courts to revisit their strategy for such intervention. Also the functioning of criminal justice system in this case left much to be desired highlighting the urgency of judicial reforms in this regard.
Notwithstanding the undemocratic contours of Section 124 A, let us examine its operative part that has survived the democratic onslaught of Article 19(1)(a) since the formation of our republic. Here are the essential ingredients of Section 124 A as tempered by judicial interpretation:
While the first three ingredients are contained in Section 124 A itself, the last one is the cumulative effect of judicial interpretation in Niharendu Dutt Majumdar vs King Emperor by the Federal Court in 1942 as approved by the Supreme Court in Kedar Nath Singh vs State of Bihar in 1962. This last ingredient is the gist of the offense of sedition which gave it extended lease of life after coming into force of the Indian constitution. In fact, if the fourth ingredient was not added by way of creative judicial interpretation, Section 124 A would have become unconstitutional in view of Article 19(1)(a). Consequently, it follows that if the impugned speech does not fulfill the ingredient involving incitement to imminent violence then it would not come within the mischief of Section 124 A.
In the JNU case none of the complainants including the police have even remotely suggested that violence was imminent in support and response to the alleged slogans. It implies that the fourth essential ingredient of the crime of sedition was not fulfilled in this case. Under the settled principles of criminal jurisprudence unless all the essential ingredients of a crime are fulfilled the wheels of criminal justice system can not be activated by way of registering an FIR or accepting a criminal complaint against alleged culprits. This principle is aimed at preserving the credibility of criminal justice system by ensuring that it does not become an object of ridicule. To give an example suppose Mr. X makes a complaint to the police that Mr. Y has killed Mis. Z and as a result of this police arrests Mr. Y. Later it turns out that Mis. Z, far from being dead is happily enjoying her holidays in Mussori! How would you react if Mr. Y is remanded to police/judicial custody by the criminal magistrate even after the discovery of the fact that Mis. Z is not dead? What would you think of a criminal justice system which makes Mr. Y struggle to get bail after much sermonization about the value of human life? You may not be amused to find out that the media has branded Mr. Y a dreaded criminal and a master mind terrorist with impunity. Better still how are you supposed to react when you see instant mob justice being delivered to Mr. Y for the murder of Mis. Z right in the court premises in the presence of the police and the media? Please remember all along the ordeal of Mr. Y at the hands of incomprehensible criminal justice system, Mis. Z is still enjoying her holidays in Mussori!
What then is the test to decide that the impugned speech which fulfills the first three ingredients also satisfies the requirement of the fourth ingredient? In other words, when can we say that the speech has crossed the threshold of empty b(h)owl to a glass full of violent storm so that those who drink from it are likely to soil their mouth with its sour taste! Unfortunately a water tight test to answer this question is yet to be laid down by judicial or legislative act. In the absence of such clear cut test, Section 124 A has been reduced to a political tool in the hands of vested interests of the ruling class in power. That it is so, despite judicial safeguards provided against misuse of sedition law calls for serious introspection. In this situation judicial strategy to prevent the misuse of archaic section 124 A needs rethinking. What techniques are available with the apex court which can be employed to ensure that the credibility of the criminal justice system is not undermined? How best can the supreme court intervene to prevent the criminal justice system from becoming an object of ridicule alleged cases of sedition?
Ideally, when the enactment of Article 19(1)(a) had rendered Section 124 A of IPC unconstitutional it should have been allowed to remain so by the Supreme Court in Kedar Nath Singh case itself. With the benefit of hindsight the entire exercise of reading down Section 124 A in order to make it constitutional appears to be futile. That this strategy failed to prevent the misuse of archaic sedition law is apparent from the number of frivolous criminal cases prosecuted under section 124 A since Kedar Nath Singh judgement. The ideal course of action is still open to the Supreme Court and it would not be too late before an opportunity arrives at its doors to adopt it. However, as it appears highly unlikely that the Supreme Court would go down the ideal path under the surcharge socio-political environment of the country, it is necessary to explore the alternatives.
Some hint for the alternative strategy can be gathered from the 1995 judgment of the Supreme Court itself in Balwant Singh & Others vs State of Punjab where the Apex Court tried to study the impact of impugned speech on the audience which was in the form of slogans ('khalistan zindabad', Hindustan Murdabad', Hinduan Nun Punjab Chon Kadh Ke Chhadange Hun Mauka Aya Hai Raj Kayam Karan Da). When the speech failed to stir any movement in the audience towards violence against the State in support and response to the impugned speech, it led the court to the conclusion that the requirement of fourth essential ingredient was not fulfilled. The court observed that the raising of some slogans which neither evoked any response nor any reaction from any one in the public can not attract the provisions of Section 124 A. This provides the bedrock for the test to be fulfilled before a case of sedition under section 124 A is initiated. The test would be “whether the impugned speech had the effect of moving the audience to violence against the State in support and response to such speech?” Here the slightest of violence against the State can be construed to satisfy the requirement of Section 124 A. Otherwise the impugned speech deserves same treatment from the State as it has received from its audience, that is a snobbish ignore!
However, the violence required in the aforementioned test needs to be carefully distinguished from the violence in reaction to an impugned provocative speech. That violence in reaction to most innocuous of speeches can always be orchestrated by the organized forces of vested interests is well documented. Hence, the violence in reaction to an impugned provocative speech would not pass the test of ‘Moving the Audience to Violence’ and the impugned speech would not qualify as seditious. This would obviate the possibility of misuse of the law of sedition by the organized forces of vested interests in connivance with an obliging police force. Once the possibility of misuse of the law of sedition is controlled to a certain extent, the possibility of use of the law of defamation can be explored as a counter to false propaganda built around Section 124 A.
At this stage, the distinction between supporting ‘the right to speech’ and supporting ‘the content of speech’ needs re-articulation. The support for the former does not automatically imply the support for the later. The heckler’s veto is too often exercised by blurring this distinction which destroys the nuance so essential to any debate on the right to free speech. The problem acquires alarming proportions at a time when media preys on the death of free speech. In order to preempt such degeneration, the law of defamation can be utilized against mischievous enemies of democracy. As an illustration, if we apply this strategy in JNU case then just because someone does not think that raising slogans like ‘Bharat ki barbadi’, ‘Bharat tere sau tukde honge’ etc. amounts to sedition, can not be asked ‘Do you support the slogans?’. Because asking the question ‘Do you support the slogans?’ is an innuendo suggesting that you probably support ‘Bharat ki barbadi’ and you want ‘Bharat ke sau tukde’ which would expose you to contempt, hatred or ridicule. It would certainly lower your reputation in the eyes of the right thinking members of society! Hence anyone asking the question ‘Do you support the slogans?’ is guilty of defamation as all the essential ingredients of defamation are inherently present in such questions. The penalty of law of defamation can be avoided only by rephrasing the question in more nuanced terms maintaining the distinction between supporting ‘the right to speech’ and supporting ‘the content of speech’. Therefore, increasing the use of law of defamation against the mischievous enemies of democracy has the potential to prevent the abuse of sedition law.
But no amount of judicial stratagem can compensate for the lack of legislative intervention to increase the boundaries of free speech. Continuance of Section 124 A on the statute book is nothing short of betrayal of the Indian tryst with destiny. After 68 years of independence when the world warms up to global warming, Indian Parliament continues to freeze behind the wretched coat of sedition! As long as Indian State remains soiled with Brahmanical hegemonic traditions, justice will continue to bleed through legal system. Media will continue to indulge in baffling journalistic practices while the civil society will remain content with jaw dropping spectacle of spontaneous speeches!
Ayaz Ahmad is an Assistant Professor in Glocal Law School.