Sedition clause: What does not bend will break

The sedition case against Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya and seven others recalls other questions that might provoke contrary opinions nut cannot, therefore, be avoided. Can a Supreme Court judgment be criticised, for instance? Or is secession a form of treason? The second proposition recalls the imprisonment that Dipankar Chakrabarti, editor of a small provincial Bengali monthly, Aneek, and his colleague, Sukanta Raha, suffered for publishing an editorial titled “India’s annexation of Sikkim” in a special issue of April-May 1975. They were arrested under the Defence of India Rules, and an additional sessions judge refused them bail on the grounds that the article “seems to be calculated to prejudice the minds of the people against the territorial integrity of the Union of India.”

That punishment weighs on my mind because similar stringent action was not taken against my book Smash and Grab: Annexation of Sikkim when it appeared in 1984. Of course, the Emergency was long over by then. Nevertheless, a Marxist might have attributed the difference in the government’s responses to Aneek and Smash and Grab to “class justice…or injustice”. Whatever the explanation, it does suggest that justice is subjective, and depends, to a large extent, on the government’s confidence and sense of fairness.

Irrespective of the outcome of Kanhaiya’s prosecution, no wise ruler can afford to lose sight of two crucial factors. First, governments come and go but the country remains forever. A country’s government should not, therefore, ever be confused with the country. Second, taking a sledgehammer to a fly can transform the fly into a hero. It is never worth authority’s while to risk transforming demonstrators, agitators and protesters into martyrs.

Indians fail to appreciate this partly because of a lack of humour. In the early 1960s the British socialist weekly, New Statesman, which was widely read then among India’s urban elite, published a cartoon on British discontent showing the royal coat of arms with the lion and the unicorn on either side trying to hold up the Crown which was slipping off. An elderly and not very Westernised Indian colleague was shocked. He thought it sacrilege. “How can you make fun of the national symbol?” he asked incredulously. If he had had his way, the New Statesman cartoonist and editor would both have been charged with sedition, and the magazine closed down.

To deplore that rigidity is not necessarily to recommend Mohandas Karamchand Gandhi’s view that “every man has a right to hold any opinion he chooses, and to give effect to it also, so long as, in doing so, he does not use physical violence against anybody.” Some opinions can be actively dangerous. But that can hardly be said of slogans condemning the hanging of Mohammad Afzal Guru, the Kashmiri separatist, who was convicted for his role in the 2001 attack on Parliament, and executed on February 9, 2013. If Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya and seven others did indulge in slogan-shouting — what could be a more common Indian pastime? — in the Jawaharlal Nehru University campus that day, their ire was directed against the current administration of India and not against India.

Section 124A of the Indian Penal Code, the so-called sedition clause, holds that “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life”. This is a colonial law, enacted at a time when a nervous regime lived in constant fear of attack, assassination and annihilation.

British proconsuls were being murdered, newspapers were stringently censored, and so great was the threat perception that an enactment like Section 144 of the Criminal Procedure Code forbade more than four persons to collect in an area. It was permanently in force in certain parts of the major cities, and still is. According to Sections 141-149 of the Indian Penal Code, the maximum punishment for engaging in rioting was and is rigorous imprisonment for three years and/or a fine.

All that should have ended in 1947, and the demand by Palaniappan Chidambaram, the former home and finance minister, for a debate on whether a provision like Section 124A should have a place in the laws of a democratic republic will find a wide resonance in enlightened circles. “The charge of sedition against Kanhaiya Kumar and others is absurd” Mr Chidambaram, who is also a corporate lawyer, said. “If it takes three years and 1,200 pages to make out a charge of sedition (based on a public speech), that alone exposes the motive of the government,” he added in a series of tweets. “How many in the investigating team have read and understood Section 124A of the IPC and the case law on the Section. There must be a serious debate if a provision like Section 124A has a place in the laws of a democratic republic.”

Returning to the question of secession, some readers may be aware that in his maiden speech in the Rajya Sabha on May 1, 1962, C N Annadurai demanded self-determination for Dravidians and “a separate country for southern India.” No one thought him anti-national at the time. In fact, a Madras (this was long before Chennai) journalist used to boast then that it was his ambition to be his paper’s first foreign correspondent in New Delhi. In Britain the Brexit stalemate has encouraged the Scottish Nationalist Party again to speak of independence. Montreal’s Parti Quebecois has never been reconciled to a united Canada.

The Catalans in Spain are still vigorously campaigning for independence. They can all point to Ireland and India as two countries where the seditionists of the day before yesterday became yesterday’s patriots. Sikh separatists may similarly recall one day that the Supreme Court ruled in the Balwant Singh case in 1995 that the slogan “Khalistan zindabad” was not seditious. Since what is sauce for the goose is sauce for the gander, logic suggests that judgment also applies to students proclaiming “Pakistan zindabad” or “azaadi” for Kashmir.

Nobody wants India to be balkanised. But the most effective way of ensuring that is not through force but by transforming this land into the tolerant and liberal nation that the founding fathers envisaged so that its institutions enjoy public trust and respect, and the country is too attractive for any Indian to seek another homeland. Bangladesh, and the bitter 1971 war of liberation, should serve as a perpetual warning of what happens to nations that will not tolerate a multiplicity of views. What does not bend will break.

Sunanda K Datta-Ray is the author of several books and a regular media columnist.

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