In an ideal liberal democracy where citizens are guaranteed expansive liberties, the state is left with limited avenues to control its citizens. Censorship is limited by laws of freedom of speech and press, surveillance is limited by the right to privacy, and so on. Given India’s heterogeneity, in principle the democratic state’s role would be confined to fulfilling the needs of private interests groups, such that the state and its office bearers who would have little power to themselves. And yet this is not the reality confronting India today, as in spite of an elaborate constitution, the contemporary state is omnipotent and omnipresent. An important explanation for this lies in the fact that the state cannot be understood just through a theoretical examination of its institutions and laws. Instead, an analysis of India’s sedition law reveals how state power is established by wielding the ultimate political instrument in a democracy: public opinion.
The Indian sedition law, enshrined in Section 124A of the Indian Penal Code, was introduced by the British government in 1870 specifically to deal with revolution and dissent against colonial rule. While initially used against violent revolutionaries like Sarvarkar, the sedition law was gradually used in colonial India to target non-violent nationalist leaders like Tilak and Gandhi. This shift was made while acknowledging the greater threat posed by these leaders spreading anti-colonial sentiments among Indian subjects. Mahatama Gandhi noted in his trial that some of the most loved of India’s patriots have been convicted under Section 124A. Sedition in colonial India became synonymous with nationalism. The sedition law was criticised by nationalist leaders in India, and used to challenge the legitimacy of colonial rule that criminalised free speech. The irony of retaining the sedition law that persecuted India’s eminent nationalist leaders was raised by the political leaders of post-colonial India. Yet the law was not revoked. Section 124A of the IPC was changed in post-independent India to remove mention of British rule and define sedition as: ‘an act that brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India by words, either spoken or written, or by signs, or by visible representation, or otherwise’.
While political leaders like Nehru expressed opposition to the sedition law, Constituent Assembly debates post-independence reveal an eventual recognition of the need for the colonial sedition law. Though the sedition law was found unconstitutional by several court judgements in the 1950s, the landmark judgement of Kedar Nath Singh vs the State of Bihar overruled them all declaring the constitutional validity of the sedition law. This judgement clearly outlines that, ‘disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means’. Subversion of the government is an offence, however criticisms of its actions is not. Inciting violence against the state is a crime, but expressing a non-violent opinion is a democratic right. This judgement echoes international standards of freedom of speech, as under The Johannesburg Principles on National Security, Freedom of Expression and Access to Information of 1996, restrictions on freedom of expression are sanctioned on account of threats to national security. However, the narrow definition of sedition laid out in this judgement is frequently ignored by lower courts, particularly evidenced by the large number of sedition cases filed in contemporary India. The retention of Section 124A in independent India could on one hand suggest that the use of the sedition law represents a form of colonial continuity– an inevitable perpetuation of colonial power through the state infrastructure. What stands out however, is the extremely different patterns of how the law is used in colonial and contemporary India. Convictions under the law are abysmally low. Data from the country’s Ministry of Home Affairs reveals that between 2014 and 2016, 179 people were arrested on the charge of sedition with only two convictions. Unlike in colonial India, most sedition cases today rarely even go to trial.
The Citizen-Nation Dichotomy
Contemporary sedition charges like to target the selected individuals from disparate social movements. Sedition charges are rarely levied against a large group, focusing on a few individuals representing a movement. The 2016 case against Kanhaiya Kumar, who was part of a JNU students protest and the case against Aseem Trivedi, a journalist who participated in the anti-corruption movement of 2012, suggests that the sedition law is used tactically to designate particular acts of dissent as threatening the nation. Trivedi’s chargesheet specifically stated his cartoons insulted ‘national honour’ and Kumar was accused of chanting ‘anti-national slogans’. This suggests a pattern where their crimes are not against the state or individuals representing the state, but against a larger entity of the nation. Given that the sedition law rarely leads to trials, leave alone convictions, what becomes especially important to study is the public discourse generated around arrests. While nationalism served as a defence against colonial sedition charges, in contemporary India it is instead used to accuse individuals of sedition. This invocation of the nation adds a moral aspect to these cases, and leads for judgement to be passed by citizens without a trial. Terms like ‘anti-national’ have gradually become more common to describe activists, intellectuals and other members of society expressing dissent, and the sedition law has played a crucial role in this.
The sedition law and the discourse it creates around nationalism is directly pitted against the language of human rights and citizenship in the country. Bail pleas and press articles especially describe the sedition law as a violation of rights of freedom and expression. Human rights lawyers and activists have been a frequent target of the sedition law. Since the sedition case of Binayak Sen v. The State of Chattisgarh, various human rights activists have been charged under the sedition law for alleged links with the Naxalite movement. The human rights activist Upendra Nayak, who has worked to challenge fabricated charges of Maoist links made against Adivasis in Odisha, was arrested in 2018 under similar charges with little public attention.
The Naxalite movement is repeatedly used to legitimise arrests made under sedition, and are often not based on association with violent activities of the movement. Instead even ideological alignment with the movement is considered a threat to the state, as seen in the case of Binayak Sen where possession of naxal literature was considered seditious. This creation of a dichotomy between the citizen and the nation is extremely important as it suggests the rights of the citizen can compromise the honour and integrity of the nation. The Indian sedition law doesn’t just presume that violent acts of terror are a threat to the state. It is primarily a law of thought-crimes, wherein evidence of ‘excitement of disaffection towards the state’ is located in the thoughts and feelings of fellow citizens. This suggests that the sedition law isn’t just used to target the content of the seditious speech, but rather the fact that it was expressed in a public sphere where it can influence other citizens.
Sedition cases like those filed against Kanhaiya Kumar, Aseem Trivedi, Upendra Nayak and others are all similar in that they each invoke an idea of the nation. This includes mentions of symbols or structures of the nation; a larger socio-political context of each individual being part of a larger movement opposing the state; the moral connotations of committing a crime against the nation and not just fellow citizens; the creation of a popular discourse around the nature of sedition and the nation; and the challenging of sedition with a language of individual and human rights. Although vague, it is clear that through these charges an idea of a unified nation that has interests above those of citizens is created.
Fuelling Public Opinion
It can be argued that the sedition law is used as a political instrument by different political parties of India to momentarily quell opposition and nothing more. However, that the sedition law targets citizens like activists, students, and journalists who are clearly exercising their individual liberties suggests that the law is being fashioned by the state into a contemporary tool of surveillance. The objects of surveillance here are not just the particular movements or the speeches, but rather what Alexis de Tocqueville pointed out as the most dangerous instrument in a democracy, the ‘all-powerful force of public opinion’. Rather than view the sedition law as an instrument of a hypersensitive state unable to tolerate dissent, the law must be understood as a tool for constructing a sense of obedience to the state through a nationalist ideology. While the sedition law should be used only in extraordinary cases of a threat to national security, its repeated use suggests that it is preoccupied with controlling ordinary speech and expression. In a post-colonial Indian state lacking a binding ideology of nationalism, laws like sedition have been instrumental in creating an idea of the nation that coerces citizens into regulating their own freedoms. Social media has become an important tool in legitimising arrests and vilifying activists by labelling them as ‘urban naxals’. Court procedures and legal evidence of sedition is rendered unnecessary, as social media serves as a platform for shaping public opinions on activism in the country. The law is used to invoke a sense of fear in citizens, to coerce them into monitoring their individual liberties and limiting dissent.
The Space for Dissent
The dichotomy of nation and citizen brings out how in democratic India where the state has limited avenues to exercise complete power, the individual liberties of the citizen are considered a threat. Laws designed to address extraordinary circumstances, like the sedition law and the Unlawful Activities Prevention Act, are used instead to build a narrative around state power. The individuals charged under sedition are used as cautionary tales to citizens, to show how activities that may not even seem violent or directly harmful to the state can be seditious and warrant state action. By understanding these narratives of nationalism as being specifically designed to undermine the rights of citizens, it is important to understand the rising nationalist rhetoric in the country as a direct threat to Indian democracy. Expressions of dissent are no longer being understood as an exercise of democratic rights, and are instead considered threats to the nation. The labelling of citizens as ‘urban naxals’ or ‘anti-national’, and suggestions that they belong to an invisible naxal-intelligentsia-media-academia-NGO-activist nexus seeking to threaten the nation is a means of coercing other citizens into silence. As the idea of the anti-national citizen gains prominence in India, greater research needs to be conducted on how nationalism is being used to stifle various forms of dissent, not just through laws but the power of public opinion. In a world where freedom from fear is sanctioned as an international human right, one must question the need for a law like sedition that seeks to send shivers down the spines of citizens.
Written by Jayant Kashyap, BA.LLB, DSNLU