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A return to the Raj: India’s anti-democratic use of sedition laws

Some say that Aseem Trivedi, the satirical cartoonist imprisoned in India this September, set himself up to achieve very little by highlighting an already deep rooted problem. But Trivedi’s real victory may be to have uncovered how India’s antiquated sedition laws are silencing democratic dissent

Ram Mashru
5 November 2012

The crime of sedition, contained in section 124A of the Indian Penal Code, states that anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards,  the Government established by law in India” has committed an offence against the state. The deliberately broad and vague drafting of the crime reflects its original function – to muzzle political criticism so that those found guilty are liable for life imprisonment.

India’s sedition law has a shameful pedigree. A relic of the Raj dating back to 1870, the legislation was used by British imperialists to target and imprison freedom fighters, of whom Gandhi was but one. Jawaharlal Nehru, India’s first Prime Minister, described sedition law as both “objectionable and obnoxious”. More recently Arundhati Roy was threatened with sedition charges for publicly speaking in favour of Kashmiri secession, whilst in May of this year local authorities in Tamil Nadu filed sedition complaints against thousands of protesters campaigning against the construction of a nuclear plant. Trivedi invoked this history when refusing bail for his two-week sentence, proclaiming that if he was a criminal then so too were the country’s great imperial-era emancipators.

Human Rights Watch condemned Trivedi’s sedition charge as “politically motivated” and urged the Indian government to desist. Before this – in one of the most high-profile sedition cases in India’s history – Dr Binayak Sen, a doctor and human rights activist, was handed down the maximum sentence for criticising the Chhattisgarh state government’s actions in anti-Naxalite operations. The case was condemned for having been carried out without “a shred of incriminating evidence” and only last year did the Indian Supreme Court grant bail.

Despite international and domestic criticism, state and private prosecutors continue to make use of the sedition law.  Its expediency goes some way towards explaining its persistence. In practice many are accused and imprisoned for long periods before any evidence needs to be presented. The politically motivated charges also tend to follow the same formula: sedition is used as the trigger, to silence and imprison activists, before subsequent charges are mounted in an effort to maximize the chances of conviction. As with Dr Binayak Sen, Trivedi was subsequently charged for further offences under the Prevention of Insults to National Honour Act 1971 and the Information Technology Act.

The legislation itself is highly problematic.  Five-decades ago the Indian Supreme Court in Kedar Nath Singh v State of Bihar ruled that the crime of sedition requires evidence of incitement to violence. Without the threat of violence, the law violates the constitutionally guaranteed right to freedom of expression. Despite this, prosecutors continue to mount charges without any such proof. India is also a signatory to the International Covenant on Civil and Political Rights, ratifying the treaty in 1979. Article 19(2) provides the right to free expression and norms of international law dictate that qualifications to fundamental rights must be necessary, strictly construed and sentences must be proportionate. In each instance India’s sedition law falls foul of the country’s international treaty obligations, contrary to all established understandings of the rule of law.

For these reasons Raosaheb Patil, Maharashtra’s Home Minister, publicly spoke-out against Trivedi’s arrest, arguing the police had no authority. Markandey Katju, a former Supreme Court judge and the current head of India’s Press Council, went further, insisting that Trivedi’s arrest by the police was an unlawful criminal act.

Most sedition charges are eventually dropped for a failure to substantiate allegations, but often not before those accused have spent time in prison or suffered police brutality. In this way, sedition laws have an inevitable chilling effect on those prepared to voice their criticisms. Ambika Soni, India’s Information and Broadcasting Minister, has said of her government’s record on freedom of expression that the policy is not one of censorship but of self-regulation. The obvious concern is that civil society activists begin to self-censor to avoid being forced to do so by the state.

There is marked and increasing impatience with government attempts,  like Ambika Soni’s, to reconcile India’s nominally constitutional status with the brazen silencing of political criticism. Activists have grown increasingly suspicious of the defence that sedition charges will be responsibly and sparingly made. The significance of the Trivedi arrest has been its catalysing effect on the abolition movement. The call for outright abolition has attracted the support of high-profile figures, from former Supreme Court Justices to film stars.  However, the possibility of imminent legal reform remains unlikely.

Sedition has come to be a catch-all means by which the State censures political criticism and represents the grossest misappropriation of – ostensibly – national security law to deny citizens their civil liberties. The question that is begged is: what does the regular resort to the use of such a draconian piece of legislation say about India as a constitutional democracy? At worst, the wide use of sedition charges represents a wilful elision between criticism of the government and insurrection against the state.

India has a long record of authoritarianism and the fact that sedition remains on the statute books confirms India’s status as a coercive state. At best, the existence of the sedition law represents a failure to understand the importance of criticism within a democracy and the retention of the sedition law represents a disappointing regression;  a return to the oppression of the Raj.

 

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