Kanhaiya Kumar (L) and Urvashi Chudawala
Kanhaiya Kumar (L) and Urvashi Chudawala

The law of sedition, like the law of contempt of court and the archaic Official Secrets Act, 1923 is often misused by the powerful to jail dissentients who are inimical to their interests. Hence, prima facie, it appears though the TISS student, Urvashi Chudawala, raised slogans, “Sharjeel Tere Sapno Ko Hum Manzil Tak Pahuchaenge” (Sharjeel, we will realise your dreams), she has not tried to overthrow the state by inciting violence against it.

And if she holds the governments at the centre and the state in contempt, well then, that is her private affair. Just so long as she does not create anarchy or incite riots. The Supreme Court has laid this down as far back as 1962 while taking umbrage over cases still being filed under Section 66-A of the Information Technology Act, which it had struck down as unconstitutional in 2015.

Whether justified or not, the arrest of JNU student leader Kanhaiya Kumar on February 13, 2016, on charges of sedition by inciting violence through ‘unlawful’ and ‘anti-national’ speeches, roused passions among the global cognoscenti. And the honouring of the Uber taxi driver for driving a dafli-carrying poet, Bappaditya Sarkar, to the police station because he was overheard using the words “lal salaam” and wore a red scarf, are all pointers that those who rule us are intolerant to maverick thinkers like Chudawala, Kumar and Sarkar. We need not agree with them, but we should not jail them.

And so, the Indian Penal Code’s Section 124A is an abomination that should have been scrapped when the Republic of India was created by the Constitution on January 26, 1950. All forms of dissent were criminalised by the British in 1870, after some bestial officers were killed in 1857. Like the colonial era, the police throughout India, are slaves of their political bosses which is why they arrested even 80-year-old writer Hiren Gohain on January 11, 2019, activist Akhil Gogoi and journalist Manjit Mahanta in Assam for so-called ‘seditious’ acts to stifle protest against the government’s National Register of Citizens.

The Delhi Police later charged ex-Jawaharlal Nehru University (JNU) Students’ Union president Kanhaiya Kumar and nine others with sedition, allegedly committed during a campus protest four years ago. And so, the BJP government is trying to muzzle dissent by cracking down on dissentients in Assam and in the JNU campus — masked goons can run amok.

The law of sedition was part of the original IPC drawn up by Thomas Macaulay, but was dropped when implemented in 1860, only to be reintroduced, citing the initial omission to be a mistake, a decade later. Deliberately left vague, the British misused the law of sedition for crowd control and its vagueness to silence Bal Gangadhar Tilak, and later, to jail Mahatma Gandhi in 1922.

“Section 124-A under, which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen,” famously declared Mahatma Gandhi, to rebut the charges against him, and he could not have been more correct.

And so, though the right to freedom of speech and expression which includes the right to raise offensive slogans on varsity campuses is a part of our democracy, the law of sedition thwarts dissent. Voltaire’s aphorism, “I disagree with what you say but will defend to the death, your right to say it” sounds musical but is ugly for those in power today. They tell us what to eat, how to dress and what slogans to raise.

And because the law of sedition has no place in a democracy, New Zealand, the United Kingdom, Indonesia, South Korea have scrapped the law of sedition. During the 1992-93 riots, the Maharashtra government did little to stop a progrom against a religious minority with a high-ranking police officer from the special branch admitting that a certain political party which is now in power had ensured that the members of the religious minority were butchered.

Sometimes, when President’s rule is imposed and set aside by a judge, the judge is victimised by transferring him to another high court or ensuring his juniors supercede him – as allegedly done in the case of Justice K M Joseph. During February 2017, Justice J Chelameswar, a judge of the apex court collegium, recorded a strongly-worded dissent note for not elevating Justice K M Joseph to the Supreme Court of India.

"Justice Joseph is an outstanding judge with impeccable integrity and the most suitable judge for elevation to the Supreme Court", Chelameswar wrote. "By not elevating a highly competent judge like Justice Joseph, the collegium was setting an unhealthy precedent", he added in the note.

Chelameswar has been forgotten but another judge from the minority community, Justice Akil Kureshi, was transferred from the Gujarat High Court to the Bombay High Court and now to a tiny little Tripura High Court instead of the Madhya Pradesh High Court as chief justice.

And just by the way, Justice Kureshi sent BJP strongman Amit Shah to two days police custody in the Sohrabuddin fake encounter case in 2010. But that may not be the reason for his being sidelined just as the fact that Justice Joseph struck down the BJP-imposed President’s rule in Uttarakhand when he was the chief justice there may not be the reason for delaying his elevation to the Supreme Court.

We also have a situation where a woman judge had in 2014, alleged that Justice S K Gangele, then her supervisor high court judge in Madhya Pradesh, had sent her a message through the district court registrar to “perform a dance on an item song” at a function at his residence. She was subsequently transferred from Gwalior to Sidhi, making her resign as an additional district and sessions judge on July 15, 2014.

Her July 2018 plea for reinstatement in the Supreme Court came six months after a Rajya Sabha-constituted panel dismissed her sexual harassment allegations but found the transfer was not as per the norms laid down.

But if her transfer was not bona fide, why was Justice Gangele allowed to retire? And if the woman judge’s complaint was not found to be bona fide, why is she allowed to be reinstated? The judiciary is part of the state. And so, dissentients like Chudawala, Kumar and Sarkar are vital for a democracy to thrive.

The writer holds a Ph.D. in Media law and is a journalist-cum-lawyer of the Bombay High Court.

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