06/11/2015 8:19 AM IST | Updated 15/07/2016 8:25 AM IST

Speaking Without Sedition: A Solution

Manuraj Shunmugasundaram


Kovan in a street performance

The "Intolerance Quotient" has been steadily rising across our nation, with Jayalalithaa jumping on the bandwagon last week. On 30 October, the government of Tamil Nadu sent plainclothes policemen to arrest a folk artiste from his house around 2am. His crime: singing songs and organising street plays criticising the government's policy on sale of alcohol. Charged with sedition, folk artiste Kovan joins a long list of cases such as Aseem Trivedi and Senthil Mallar where the State has used this criminal provision for frivolous reasons.

Kovan's arrest has sparked outrage in Tamil Nadu and reignited the national debate on the sedition provision in our penal statutes, which has in the recent past been used by the State when cartoons and speeches criticised the establishment. Aseem Trivedi's cartoons were alleged to be "derogatory", whereas, Mallar's book on the history on Pandya Kingdom was found to create "disharmony among communities in the guise of research". In the southern Tamil Nadu town of Kudankulam, you would be more likely to find a person charged for sedition than not. At the height of the anti-nuclear protests in 2012, the Jayalalithaa-led government filed sedition charges against 8000 persons.

"The need of the hour is a two-pronged strategy -- remove the sedition provision from statute books and empower the police force to better serve people."

The State's fondness for slapping sedition charges is evident from these cases. But, there is a larger academic question around the fine line separating freedom of speech and the State's powers to restrict it. The framers of our Constitution tackled this issue and empowered the citizen with freedom of speech and expression with limitations. Speaking on 1 December 1948, Sardar Hakum Singh argued that the purpose of freedom of speech and expression is to "safeguard the freedom of the citizen against any interference by the ordinary legislature and the executive of the day." However, in the final form of Article 19 of the Constitution, the freedom of speech contained a caveat that it may be curtailed if it possessed a threat to the "sovereignty and integrity of India" or "security of the State". Otherwise, any law which unreasonably curtails the freedom of speech and expression is liable to be struck down by the courts.


The Kudankulam Jal Satyagraha, a protest against a nuclear plant in Tamil Nadu

In spite of this, the British-era law of sedition -- Section 124A of Indian Penal Code --has survived the language of Article 19 of the Constitution. In fact, in pre-Independence days, it was used by colonial rulers to arrest anyone who showed "disaffection" or "disloyalty" to the Crown. But only in 1962 did the Supreme Court of India examine its validity in Kedar Nath Singh vs State of Bihar. In that case, the court held that the sedition provision could only be constitutionally valid on acts "involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence." By this interpretation, the courts held that sedition charges may only be applied when there is a clear action which incites violence or disturbs public order. With this, the judiciary established a balance between the existence of fundamental freedoms and reasonable restrictions which may be placed on them.

However, today, we notice a blatant disregard for this nuanced law declared by the Supreme Court in the exercise of the State's police powers. The police have become more political tools than public servants. There is a need to insulate the police service from the political masters. Only an accountable and empowered police force will be able to go after real criminals, not dissenters and protestors.

We see governments using police powers to frame exaggerated charges against political rivals, media organisations and civil activists with a view to bog them down. In Tamil Nadu alone, over the past four years, more than a hundred criminal defamation cases have been filed against opponents of the ruling party. In addition to this, cases such as Senthil Mallar, Aseem Trivedi and Kovan only highlight the blatant misuse of police powers in general and the sedition provision in specific. The need of the hour is a two-pronged strategy -- remove the sedition provision from statute books and empower the police force to better serve people.

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