‘Persecution In The Name of Sedition Finds Popular Acceptance in India’, Says Anushka Singh, Author of the recent book, ‘Sedition In Liberal Democracies’
Anushka Singh is Assistant Professor at the School of Law, Governance and Citizenship, Ambedkar University Delhi. She graduated from Miranda House and did her Masters from Lady Sri Ram College. She went on to do her M.Phil and PhD from the Department of Political Science, University of Delhi where she also taught the Masters students, briefly. She was previously employed at the Gargi College, University of Delhi. She was awarded the Visiting fellowship for doctoral research at Tagore Centre for Global thought, King’s College, University of London, England in 2014. She was also awarded the ICSSR Doctoral fellowship in 2015. Her areas of interest include nature of state, intersection of law and politics, people’s movements and democratic rights.
In this interview with LIVELAW, she answers specific questions about her book, Sedition in Liberal Democracies, published by Oxford University Press, recently.
LIVELAW: Can you tell us how your book fills the existing gap in the literature on sedition in India, and how it could help to get clarity in the contemporary discourse on sedition?
ANUSHKA SINGH: The specificity of this work lies in the contemporaneity of its subject particularly in the context of India. Past works have researched upon the chilling effect of the law of sedition on the right to free speech, in the context of England and the USA, but most of these works are historical in nature analyzing the historical use of the law until late 20th century and focus on independent experiences of specific countries.
This book intervenes and contributes to the debates on the concept of sedition drawing the experiences from four liberal democracies, put in a comparative perspective, while emphasizing on the contemporary status of sedition in each of the countries and its relation with other laws that have an effect on free speech.
Recent scholarships namely, Gautam Bhatia’s Offend, Shock, Or Disturb: Free Speech Under the Indian Constitution (2016), Abhinav Chandrachud’s Republic of Rhetoric: Free Speech and the Constitution of India (2017), etc. have contributed immensely to the debate on right to freedom of expression in India. However, sedition is one among the many offences that these scholarships look at. On the other hand, my book is a detailed monograph on sedition, its meaning in changing landscapes and the nature of its political existence in contemporary times.
The uniqueness of this work in the context of the free speech debates in India lies in its analysis of the everyday narratives of the working of the law of sedition and its interaction with its socio-political environment. It attempts to juxtapose the lived reality of the law with its positivist existence. The last detailed monograph on sedition in India was published in colonial times by an English scholar (W. R Donogh, The History and Law Of Sedition, Calcutta, 1911). My book is the first full-length monograph on sedition in post-colonial India, which traces its colonial legacy, its contemporary use and compares the Indian case with specific experiences of England, USA and Australia.
Contradictory Understanding of Sedition
LIVELAW: In the Introduction to your book, you say that Indian liberal democracy is being characterized by a ‘moment of contradiction’ in relation to the offence of sedition? For the sake of readers, who are yet to read the book, could you explain in brief, what you mean by this ‘moment of contradiction’?
ANUSHKA SINGH: The book offers a conceptual framework of specific moments in the context of each of the four countries based upon separate inquiries into the political history of the law of sedition, related judicial trials, targets of the law and the relationship of sedition with counter-terror legislation. The book identifies the ‘moment of abolition’ in England, the ‘moment of restriction’ in USA and the ‘moment of modernization’ in Australia as three different sites that best explain the relationship between sedition and liberal democracy in the milieu of that particular country. The picture in the context of India is most convoluted, exhibiting contradictory impulses both in terms of internal domestic politics and the global trajectory of liberal democracies. The moment in the context of India, hence is that of ‘contradiction’ which is explicated in two specific arguments.
The first argument relates to the conflicting understanding of the concept of sedition between the higher judiciary and state executive. While the law is routinely used in the domain of executive orders to lodge FIRs under sedition, these cases fail to stand the test of judicial scrutiny. In the legal discourse, the gap between rate of conviction and the rate of registration of cases would imply that while the provision for sedition is being rampantly misapplied to file cases, the judiciary has been able to uphold the right to free speech through dismissal of charges or setting aside convictions ordered by lower judiciary. The discourse of sedition bifurcated into the judicial and the executive terrain, offers two primary deductions regarding its contemporary status.
First, sedition represents an internal discord between different institutions of the state marked by a contradictory understanding of the offence by the higher judiciary on the one hand, and the lower judiciary and executive on the other. Second, unsuccessful prosecutions at the level of higher judiciary have cast an impression of sedition as a declining law, seemingly. The increasing rate of registration of cases under sedition, however, makes it a viable law of colonial origin being actively used by a democracy. In the judicial discourse in India, the offence of sedition is constituted only in acts of incitement to violence or disorder. In the quotidian life of the law, in the domain of executive orders, however, sedition is constituted in a whole range of mundane political acts falling short of having any impulse to incite violence.
The second argument characterizing the ‘moment of contradiction’ pertains to a conjoined use of sedition with anti-terror laws in cases related to prosecution of what is broadly termed as ‘anti-national’ expressions. While western liberal democracies have seen anti-terror laws replace the use of sedition, in India, the law of sedition is used along with counter-terrorism legislations with equal alacrity. India stands at variance in this global paradigm of changing contours of free-speech norms and related restrictions.
Sedition & Anti-Terror Laws
LIVELAW: For the purposes of your study, you have chosen four liberal democracies, namely, UK, USA, Australia and India. What made you to compare these countries, and restrict your comparison to only these four?
ANUSHKA SINGH: The four countries chosen are historically situated illustrations of liberal democracies that claim to work on the principles of Rule of Law, absence of arbitrary government, constitutionalism and guarantee of basic rights of citizens. The intent was to study a common aspect- the tussle between the right to expression and the concept of sedition, within four different jurisdictions that are related to each other through the history of colonialism.
All other three countries have been erstwhile colonies of Britain, while Australia and India adopted the common law understanding of sedition post-independence, USA in 1798 enacted a federal statute on sedition deviating from the common law vocabulary of sedition. England was chosen as a case study because the concept of sedition owes its genesis to English law which has inspired the formulation of laws related to sedition in most jurisdictions. England is also one of the earliest liberal democracies to have abolished the offence of sedition. USA emerged as another interesting illustration of a liberal democracy which has the most robust free speech jurisprudence alongside the existence of the offence of sedition.
The distinctiveness of the Australian liberal democracy lies in the fact that it has made one of the earliest and definitive attempts to modify the language of sedition to bring it within the counter-terror legislations. The Indian case presents with a more convoluted picture where post-independence it adopted the exact vocabulary of sedition marking the colonial continuity and continues to define sedition in common law terms within the Indian Penal Code while England has abolished the offence a decade back. India is also one of those jurisdictions where sedition and anti-terror legislations are used concomitantly to penalize forms of political speech.
LIVELAW: You have mentioned that India is the only liberal democracy among the four countries, to continue with the same definition of sedition, as introduced in the Indian Penal Code in 1870. What does it reveal, with regard to the political culture of these countries?
ANUSHKA SINGH: There has been a marked shift in the legal discourses of the three western liberal democracies in modernizing the vocabulary of laws restricting freedom of expression. This shift is symptomatic of either abolishing the archaic and pre-modern language of sedition, or restricting its use. These liberal democracies have gradually moved towards a politico-legal paradigm in which restriction on political speech has been justified mostly in the name of countering terror.
The intersection of the counter-terror legislations with sedition laws, either abolished or now defunct, suggest that certain western liberal democracies have developed other mechanisms at controlling free speech and political dissent, counter-terror measures being one of them. Sedition by nature is a political offence and its persecution has always carried the baggage of persecution of political dissent. With persecutions under the new modified terrorism Acts, the aspect of the political, diminishes. The governments, mostly in popular imaginings, are not accused of crushing political dissent when anti-terror laws are used against specific speeches.
With the advancement of democracy, the aspect of control has changed its form- if it was sedition a century back, it is now something else. This is also done to mark the advancement of time and the idea of progress. If sedition was frequent in 18th and 19th centuries, a change in the course now symbolized by decline in prosecution related to sedition or abolition, imply a certain advancement that liberal democracies have made.
Sedition (as a law) was archaic and its use dents the image of modern democracies. The threat of terrorism is considered more direct, impending, and challenging as opposed to the pre-modern and cryptic offence of sedition. There remains an enduring discomfort with political dissent even in western democracies and they find more convincing legislations to address the same, however, in the process of restricting the law of sedition, the free speech jurisprudence that has emerged particularly in the USA, aids a culture of freedom of expression.
The politico-legal culture in India is distinct where persecution in the name of sedition finds popular acceptance. The reasons for it are two. Firstly, in India sedition is translated in local parlance as ‘deshdroh’ which separates the act of sedition from the idea of political dissent. Secondly, in India sedition is used as an adjunct charge in terror cases alongside anti-terror legislations which contributes further to its delegitimation. In popular imagination hence, in using the sedition law, state executive is not found guilty of suppressing political criticism.
LIVELAW: You have chosen Haryana, Maharashtra and Punjab for your field research. Did you consider any criteria for choosing these, and not others?
ANUSHKA SINGH: The purpose of the work was to look at the life of a law beyond the institution of courts, its extension into the social sphere to see how the law in its everyday working interacts with the socio-political environment. Consequently, those field sites were chosen where social contradictions emerged in the use of sedition with its complex interaction with the questions of caste, nationality, etc. While mapping out the recent cases of sedition, certain states appeared frequently but the specificity of the cases rested not only in their frequency but their alignment with local struggles related to caste, class, community, etc. The regions of Haryana, Maharashtra and Punjab emerged as field sites where the intertwined dynamics of sedition with socio-political variables, lend it a different character.
In Haryana, there were multiple cases of sedition on dalit and kisan (farmers) organizations. In Maharashtra, along the same lines, the dalit and trade union activism had been on the radar of the law. Both Haryana and Maharashtra, presented with a picture of the offence of sedition enmeshed with the question of caste and class. In Punjab, it was the demand of the Sikh community for a separate state of Khalistan, which had invited the charge of sedition. Here the nationality question and the idea of an alternate political community based on religious identity offered an intricate understanding into the working of the law.
Arbitrary Use of an Intrinsically Arbitrary Law
LIVELAW: Your field research shows that what constitutes sedition in one state is not considered so in another state. What does it imply, and how it can be remedied?
ANUSHKA SINGH: The implication is in bringing out the deeply political character of law where its use is acutely conditioned by the political environment that grounds it. What matters so much is not the act committed that is being labelled as seditious, but the identity of the author of the ‘seditious’ speech act, her relationship with the political incumbency and the status of the target of that act. The remedy to the situation connects back to the question of ambiguity in the language of law that makes it prone to political use while the theoretical defenses behind using sedition law always cite concerns related to national security and public order.
The book does not restrict itself to the language of abuse of law in the hands of state executive to define the situation. Laws such as sedition that essentially empower the political authority to curb adversarial forms of expressions by labelling them as seditious, are characteristically designed to provide immunity to authority from political opposition. The rationale behind retention of the law of sedition in the Constituent Assembly debates was that a nascent independent state needed consolidation and protection from political reactionaries.
It was also felt that the use of a law like sedition which had a chilling effect of the right to freedom of expression, would show restraint in the hands of a democracy that had witnessed a colonial past. The history of the use of sedition in post-colonial India and its contemporary status have shown that its use has been arbitrary. Successive governments have used it to political advantage exploiting the ambiguity in law, in absence of any imminent threat to security of state.
The repeal of an intrinsically vaguely worded law like sedition becomes imperative with historical proof of its arbitrary working. A more tightly defined law addressing the current ambiguities will not address the concerns related to the theoretical tension between the law of sedition and the value framework of a liberal democracy. It will remain a law that will criminalize expressions by citizens against their own representatives in a democracy.
Additionally, as the book has shown, there is an acute disjunction between the everyday interpretations of law and its judicial theorization. This disjunction is a consequence of political motives which will always be present however tightly defined the law maybe.
The very nature of sedition law renders it a political tool in the hands of political authority. Failing prosecutions in courts have so far not deterred the alacrity of its use by executive. Sedition is a law the constructs the state as the victim of seditious expression taking recourse to law to avenge the damages caused to it. In taking recourse to law, the state executive alone has the power to decide as to when it is harmed by seditious expression; in other words, when can the law be used and against whom. A tightly defined law may still not be able to check its arbitrary use by the executive.
Sedition & Disaffection
LIVELAW: You observe that the idea of sedition as deshdroh has far-reaching consequences, although it is the common understanding of the word. What explains the blurring of the distinction between sedition and disaffection in India?
ANUSHKA SINGH: The blurring of the distinction between sedition and disaffection needs to be viewed separately from the blurring of the distinction between sedition and ‘deshdroh’.
Sedition and disaffection are not separate; in fact, disaffection embodies the idea of sedition as a political act. The roots of this notion of sedition dates back to the ideas of Gandhi and others who presented themselves as self-proclaimed seditionists against the unjust colonial government. To incite disaffection against such a political authority was a virtue, sedition was an act of patriotism emanating from love for one’s own country and exemplified resistance against an alien, oppressive government.
Sedition as deshdroh completely subverts the idea of sedition as rightful resistance against political authority. It delegitimizes the discourse of dissent by presenting the seditionist as anti-national. The recurrent use of sedition in contemporary politics against acts such as not standing up for the national anthem, cheering for Pakistani cricket team, etc. have popularly construed sedition as a challenge to the dominant discourse of the nation. The propagation of sedition as deshdroh allows the executive to re-enforce the majoritarian discourse of nation and governments find legitimacy and popular support in proscribing sedition without having to carry the baggage of proscription of political dissent.
LIVELAW: Although Mahatma Gandhi, during the freedom struggle, has severely deplored the provision dealing with sedition, Ambedkar, in a different context, had disapproved extra-constitutional methods of protest, once the Constitution comes into force. Do you see different world-views on the approach to sedition, in the writings and speeches of these two leaders?
ANUSHKA SINGH: While Gandhi critiqued the law penalizing sedition, his was one of the earliest attempts to liberate the idea of sedition from the vocabulary of state and establish it as rightful dissent. It needs to be explicated that sedition for Gandhi was the duty of citizens to mobilize public opinion against an unjust government but sedition, for him, was not advocacy of violence. He did, however, call for breach of unjust laws.
Ambedkar’s notion of constitutional morality calling for reverence to forms of constitutions and obeying political authorities that function under these forms, has to be understood in a context. Ambedkar’s reference to obedience to political authority flows from the premise of the political authority’s functioning in consonance with the values of the constitution.
Let’s now return to the question of sedition. Gandhi’s idea of sedition as the moral duty of people is contextualized in the backdrop of a colonial regime. In the Gandhian framework, the obligation of the citizens to commit sedition emanates from the nature of political authority being essentially unjust and oppressive. Ambedkar’s disavowal of unconstitutional measures presupposes the guarantee of constitutional values and rights emanating from those.
If the nature of political authority is just and its functioning is in accordance with the constitutional norms, political dissent and opposition through constitutional means would be an extension of the right to freedom of expression. In that situation, within the Gandhian framework, it would no longer be the duty of the citizen to resist that political authority through sedition.
Hence, what appears as two diverse positions on the morality of the act of sedition, one the Gandhian and other the Ambedkarite, would cease to be different once the context against which they are arguing is understood.
LIVELAW: On September 5, 2016, the Supreme Court reiterated Kedar Nath Singh in Common Cause v Union of India, finding it sufficient to deal with the contemporary cases of misuse. In particular, the Court did not find it necessary to grant the other prayers of the petitioners for extra safeguards to prevent the misuse of the Section 124A of the IPC. Do you agree?
ANUSHKA SINGH: The insistence of the Supreme Court to stick to the 1962 judgment in defining sedition and its unwillingness to re-engage with the interpretation of sedition to make it accessible to law enforcers and common citizens further results in overbroad interpretations of the law in its quotidian life. The fact that a seditious expression is defined in terms of its ‘tendency’ to cause public disorder in absence of any parameter identifying the likelihood of that tendency to cause public disorder is also a reason for its abuse. The apex court seems to gloss over this fact.
However, the book wishes to move beyond the framework of abuse of law. The very nature of sedition law is such that it will always privilege the political authority in registering cases against political adversaries because the law allows the political authority to become ‘victim’ of a seditious expression and also empowers it to then take recourse to law in capacity of a plaintiff to avenge its ‘harm’.
Data on Sedition
LIVELAW: What does the data on conviction for the offence of sedition reveal? Can you give us details of any final convictions which might have happened?
ANUSHKA SINGH: The discord between the executive and the higher judiciary, as explained earlier, is exemplified in the gap between the rate of registration of cases of sedition and the rate of conviction. NCRB has started collecting data on sedition only since 2014 and according to their figures, only two convictions took place in two years while around 112 cases were registered. The falling prosecutions superfluously imply that the law is dying a natural death, but the agility with which the law is working in its everydayness goes on to say that the higher judiciary’s cautionary reading of the law does not impact its meaning on the ground.
The 1962 SC judgment in Kedar Nath Singh vs state of Bihar which read down the law of sedition was a case of the successful prosecution. According to the court, Kedar Nath Singh in his speech had given a call for a revolution which in popular imagination evoked violence. Hence, on the scale of the free speech test evolved by the court, his speech had the ‘tendency’ to incite violence or disorder, hence seditious.
In 1976, Andhra Pradesh High Court following the Kedar Nath test, convicted P Hemalatha, editor of the journal Srujana for inciting violence through a publication of four poems where the author called for the peasants and workers to struggle against landlords and political authorities that supported them, on the lines of Naxalbari.
Binayak Sen’s conviction by Raipur Session Court which was later upheld by Chhattisgarh High Court in 2010 will count as a rare case of successful prosecution in recent times. The High Court had observed that Sen had outreached the reasonable limit of disapprobation in his criticisms of the government and had possessed ‘seditious material’. In 2011 however he was granted bail by Supreme Court owing to the rather flimsy ground of evidences presented against him. The Supreme Court had then observed that no case of sedition is made out on the basis of materials in possession unless active support to Maoists can be established. The Supreme Court observed that Sen may be a sympathizer but that does not make him guilty of sedition. That apart, the conviction in HC still holds.
It must be mentioned that the rare convictions that have taken place, have been on charges related to association or membership with/of the banned Maoist Party. For instance, Chhatradhar Mahato was convicted by a district court in the West Bengal in 2015. In such cases, sedition is a mere adjunct section in what are presented as UAPA cases. A conviction in a standalone case of sedition at the higher judiciary is recent times is hard to find.
Sedition & Political Dissent
LIVELAW: The movement for the abolition of offence of sedition has been successful in the U.K., while in the USA and Australia, its use has been confined to incitement to violence, under the garb of anti-terror laws. Why do you think a similar movement against use of sedition in the legal vocabulary is missing in India?
ANUSHKA SINGH: A crucial point is about the relationship between the judiciary and the executive regarding the understanding of specific offences. In West, the failing prosecutions related to sedition in courts owing to tighter and precise free speech tests evolved through judicial pronouncements, have had a domino effect on the use of sedition by the executive. The executive gradually gave up recourse to law of sedition as they were unable to secure conviction. In the case of India, the trickle-down effect is yet to be seen. The conflicting understanding of sedition between the two organs of the government make it a viable law for the state executive despite unsuccessful prosecutions as it still secures imprisonment of adversaries for years as undertrials and deters others from voicing dissidence.
The state of the criminal justice system in India where it takes longer to secure bail and almost an eternity for appeal to reach higher courts contributes more towards the executive being able to take advantage of laws for ‘temporary’ prosecutions. However, the binary between the West and the Indian case doesn’t help. It has also taken centuries for the western nations to stop using the law of sedition and the shift has not been necessarily a leap towards securing the right to dissent but towards designing legal provisions to restrict the same within their anti-terror legislations.
There have been civil society movements for repeal of the law of sedition but they haven’t been successful in mobilizing substantive public opinion. One of the reasons for it in the contemporary political moment is also the identification of sedition with ‘deshdroh’ which has delegitimized political dissent in popular imaginings.
LIVELAW: Why there is a discord in India between the popular meanings of sedition and its judicial understanding? Is this discord responsible for the increasing rate of registration of cases under sedition, and its unsuccessful conviction rate?
ANUSHKA SINGH: The discord between different state institutions on the understanding of sedition is largely a result of varied interpretations of sedition which take shape when the law is interpreted by the executive at the time of invocation. These invocations not in sync with the Supreme Court’s understanding of sedition may not secure conviction at the level of higher judiciary. In the quotidian life of the law, however, these everyday interpretations inform the popular meanings of sedition way beyond and often contrary to acts of incitement to violence and disorder directed against the government. The working of the law has shown that the use of sedition has been to secure the interest of those who hold the state power. Following that logic, the pattern of use of sedition law by the local state executive assigns popular meanings to the term which deviate from its judicial antecedent.
Sedition here becomes contingent upon what the meaning of the term is for the local police person registering the case. The book has also shown through field study that often the registration of these cases was politically motivated where directions were given from above to local police stations to use the law against errants to power hierarchy, for instance, the dalits rights organizations in Haryana.
LIVELAW: What explains the use of the law of sedition along with counter-terrorism legislation in India, whereas other western liberal democracies have replaced laws of sedition with anti-terror laws?
ANUSHKA SINGH: Sedition in India has been used alongside TADA, POTA and UAPA at various points in history. The conjoined use with TADA was mostly in relation to cases of persecution of the movement for a separate state of Khalistan; with POTA is relation to allegations of terror acts against organization such as SIMI; and in case of UAPA most recently, with regard to charges of Maoist association or ‘Jihadi’ terror activities.
This pattern of the use of sedition law has cast an impression of sedition being an allied offence of striking terror and one that is essentially against the nation as opposed to political opposition to the government which was the original idea of sedition. The iteration of sedition as ‘deshdroh’ is also facilitated through this pattern of law invocation. Sedition and terrorism, both become ensconced in languages that have the connotation of being anti-national.
The question related to what conditions this parallel use while other western democracies have preferred one over the other, relates back to the politico-legal culture. While India has witnessed sporadic opposition from civil-libertarian organizations to the use of laws like sedition to criminalize dissent, a sustained mobilization and substantive political opinion against the use of such repressive laws, is missing. This results is an acceptance of a culture of repression of political dissidence.
The consciousness in western countries that sedition by virtue of being a political offence, when persecuted dents the visage of liberal democracy that claims to guarantee free speech of which political dissent is an extension, mobilized public opinion against the use of sedition laws. That consciousness and the free speech culture which venerates the idea of political opposition is yet to find substantive expression in India. This is also partly attributed to the fact that sedition in local parlance is about anti-national expressions. Hence, it can be said that the relationship is symbiotic- the use of sedition law with anti-terror laws delegitimizes the act of sedition and this delegitimation provides further grounds for the use of sedition in alleged terror acts.
LIVELAW: Can we say the continued use of sedition law by the authorities, without effective safeguards, makes the guarantee of free speech and expression a farce in practice?
ANUSHKA SINGH: Sedition law is one of the strongest obstacles in allowing a liberal democracy to guarantee to the individuals their freedom of political speech and dissent. Its dangerousness is aggravated in a country like ours at the instance of the unbridled use of the law by state executives against political opposition and with popular support for such prosecutions, in the name of prescribing ‘anti-national’ acts.