Having held so, it felt that it was duty bound to clearly demarcate between the scope of a citizen’s fundamental right to free speech and the power of lawmakers to impose reasonable restrictions in the interest of security of the State and public order. Towards this end, the court fell back upon the Federal Court’s interpretation in Niharendu Dutt Majumdar that the gist of the offence of sedition is incitement to violence or the tendency or the intention to create public disorders by words spoken or written. It felt that interpreting Section 124A on these lines would protect it from being void, as compared to the interpretation given by the Privy Council which held that incitement of violence or public disorder was irrelevant. Therefore, the constitution bench of the Supreme Court read the ‘public order’ test into Section 124A to protect it from the scourge of unconstitutionality. It held that Section 124A would be within the permissible limits of reasonable restriction laid down in Article 19(2) of the Constitution.
This judgment has settled the question of the constitutionality of the sedition law, for now. As it is a judgment of a constitution bench of the Supreme Court, which comprises of five judges, it can only be overruled by a bench comprising of seven judges or higher. Since Kedar Nath Singh the issue has not been diverged from by any High Court or the Supreme Court as the decision is binding on all courts across the country. As per Supreme Court Rules it would take a reference to a seven-judge bench by any other bench of the Supreme Court in an appropriate case to reopen the question.
One question which arises is whether this judgment can be looked at with a strict legal perspective or do we need to look at the political context as well. The judgment was delivered in January of 1962. The year is important because that was the year of the Sino-India conflict at the northern border in Jammu and Kashmir, and in the North-East Frontier Agency (NEFA), which is present-day Arunachal Pradesh. Trouble had been brewing on India’s border with Tibet and China for some years, which escalated in 1959 after India had provided sanctuary to the Dalai Lama after his escape from Tibet. The tension and constant squabbles between the Indian armed forces and the People’s Liberation Army of China culminated in the war of 1962. 15
Now, Kedar Nath was a member of a communist organization and admittedly making anti-government speeches with calls for a labour revolution at a time when the Communist Party of India was considered the fifth pillar of the Chinese invasion due to its pro-China stance. 16 Such unravelling events could have had a bearing on the minds of the judges, who were only human. The Communist Party of India had even emerged as one of the largest opposition parties after the 1957 general elections. 17 In such circumstances, in the face of a major border dispute with China which was compounded by a rise in communist thought within India, arguably the continued presence of Section 124A of the IPC may have been deemed necessary.
One can only speculate.
One’s speculation does find support in the decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Baleshwar Dayal & Ors 18 decided in May 1966. In the instant case the accused were charged with offences under the Defence of India Rules, 1962 which was a war-time emergency measure not unlike the British-era measures. The prosecution was launched under Rule 41(5) of the Rules for publication of articles in early 1963. These articles were critical of the Indian government and the cadre of Indian army officers.
Rule 41(5) was similar to Section 124A, as acknowledged by the High Court, and the accused were charged with ‘pre-judicial acts likely to cause disaffection among that armed forces, prejudice and interference with the recruitment and the discipline among such forces, bringing them into hatred and contempt and the exciting of disaffection towards the government in general, and of the officers in particular and finally to prejudice the conduct of the military operations’. The accused were acquitted by the trial court for lack of evidence of any direct adverse effect being caused due to the articles. However, the High Court reversed the acquittal and convicted the accused based on the Privy Council interpretation and thus did away with the ‘public order’ test.
It did so because it distinguished the emergency measure under the Defence of India Rules from the more general Section 124A. In convicting the accused the High Court observed, ‘Coming to the punishment we note that the incidents that have led to these communications are fast becoming matters of history. Besides, there have been many nearer events which have, as it were, blacked out of public memory a good deal of the happenings of 1962. But we have to make it clear that there are prejudicial acts, highly prejudicial in fact, and subversive of the strength and morale of the armed forces.’
Clearly, geopolitical events and the Indo-China war had an effect on the adjudication in this case to such an extent that the High Court deviated from the interpretation of sedition provided by the Supreme Court in Kedar Nath.
In fact, Jawaharlal Nehru had established a National Integration Council in 1961 which held its first meeting on 2 June 1962. The Committee on National Integration and Regionalism appointed by the National Integration Council recommended that Article 19 of the Constitution be so amended that adequate powers become available for the preservation and maintenance of the integrity and sovereignty of the Union. With that in mind, Parliament amended clause (2), along with (3) and (4), of Article 19 to enable the State to make any law imposing reasonable restrictions on the exercise of the rights conferred by Article 19(1) in the interests of the sovereignty and integrity of India. Therefore, the government was further empowered to make laws reasonably curbing free speech to protect the sovereignty and integrity of India. 19
The conflict with China made the Indian State even more wary of communists, especially Maoists. In 1971, the government of Gujarat passed an order of forfeiture of all copies of a book in the Gujarati language which contained passages from speeches delivered by Mao Zedong, the father of the communist movement and ideology in China. Such forfeiture was ordered on the ground that the book contained seditious material, the publication of which would be punishable under Section 124A of the IPC. According to the government, the book was full of hatred and contempt for persons who did not subscribe to the communist ideology, and contained advice on how to overthrow a non-communist government and establish a communist government through violent revolution.
The government had exercised this power under Section 99A of the erstwhile Criminal Procedure Code, 1898, which empowered the State to order the forfeiture of copies of books, newspapers, etc., for being seditious. This code was soon repealed and substituted by a new code in 1973.
The order was challenged before the Gujarat High Court by the publisher Manubhai Patel. The court applied the Kedar Nath interpretation strictly and held 20 that the book dealt with a wide variety of topics which reflected the principles and practice of communism as enunciated by Mao. The purpose of the book was to acquaint readers with his world view and ideology and not to incite violence or create public disorder. The court could not find even a word in the book which suggested that people should overthrow lawfully established government in India by force or violence.
Therefore, according to the court, to condemn the book as seditious would be to close the doors of knowledge to ostracize a philosophy because it challenged values held by the Indian society. It observed that:
It is not for the Government of the day nor for the Judges presiding over our Courts to decide what doctrine of philosophy is good for our people. It is for the people to choose what is best for them and in order that they may be able to make a wise and intelligent choice, free propagation of ideas is an essential requisite. The ideas propagated may be unorthodox and unconventional: they may disturb the complacency of a handful minority or they may challenge deep seated, sacred beliefs and question the most fundamental postulates of our social, political or economic thinking. That should be no ground for anxiety or apprehension, particularly in a country like ours which has always believed in the pursuit of truth and in its unending search for truth, never hesitated to receive new ideas and
absorb them, if found acceptable. There can indeed be no real freedom unless thought is free and unchecked, not free thought for those who agree with us but freedom for the thought we hate. It is only from clash of ideas that truth can emerge, for the best test of truth is the power of the thought to get itself accepted in the competition of the market.
Thus, the High Court held that the passages in the book were not of a kind which would attract the exercise of power of forfeiture as it did not constitute seditious matter punishable under Section 124A of the IPC.
The communist threat, however, resulted in a finding of sedition in the case of P. Hemlatha v. State of Andhra Pradesh 21 decided by the High Court of Andhra Pradesh in April 1976. Despite staying with the interpretation of sedition as enunciated in the Kedar Nath judgment, the High Court gave a finding of sedition against a publication of poems despite the absence of any evidence of public order or tranquillity being disturbed. It is pertinent to note that in 1976 India was going through a period of peacetime emergency declared by the Indira Gandhi government on the ground of ‘internal disturbance’.
In one poem ‘. . . the utterances have a tendency to create disorder or disturbance of public peace by resort to violence’, according to the Court. In another offending poem the principles professed and practised by communist insurgents were commended and people were exhorted to sharpen their weapons ‘. . . to cut down the pests and the leeches on the lines taught by naxalite leaders’ who did not believe in the existence and functioning of government established by law. The last poem declared, ‘We do not rest till we overthrow with arms, the Government which does not come down with the strike.’
The High Court found that the writings incited and advocated the overthrow of the government by violent and unlawful means, thus endangering public peace and security of the State. ‘They have the pernicious tendency or intention of creating public disorder or disturbance of public tranquillity and “law and order”. The very security of the State depends upon the maintenance of law and order’, it found upon employing the ‘sovereignty and integrity’ test along with the ‘public order’ test.
It further held that the writings in question were not protected by the explanations to Section 124A and also held that even truth was not a justification for seditious utterances. In doing so, the High Court regressed to a colonial common law interpretation of sedition where this argument had been utilized to subdue nationalist movements.
Years later, the Supreme Court underlined the interpretation of Section 124A on the basis of the ‘public order’ test laid down in Kedar Nath.
Balwant Singh and Bhupinder Singh, two Punjab government employees, were arrested on 31 October 1984 at about 5:45 p.m. in Chandigarh. Earlier that day, at about 9 a.m., approximately 250 kilometres away in Delhi, Prime Minister Indira Gandhi was shot by her Sikh bodyguards Beant Singh and Satwant Singh as retribution for Operation Blue Star. 22 She was declared dead at the All India Institute of Medical Sciences (AIIMS) at 2:23 p.m. 23
Balwant Singh and Bhupinder Singh were charged with sedition, among other charges, for raising slogans saying ‘Khalistan Zindabad’ (Long live Khalistan), ‘Raj karega Khalsa’ (Sikhs will rule forever) and ‘Hinduan nun Punjab chon kadh ke chhadange, hun mauka aya hai raj kayam karan da’ (This is an opportunity to establish our rule, will ensure that Hindus leave Punjab). They were convicted for sedition under Section 124A, as well as for promoting enmity and hatred under Section 153A, by a Special TADA Court in March 1985.
On an appeal filed before the Supreme Court, it held that as the slogans were raised only a couple of times only by the accused and that they did not evoke any response from any other person of the Sikh community or any other community, it was difficult to hold that ‘upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded. It is not the prosecution case that the appellants were either leading a procession or were otherwise raising the slogans with the intention to incite people to create disorder or that the slogans in fact created any law and order problem . . . the people, in general, were un-affected and carried on with their normal activities. The casual raising of the Slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India, Section 124A IPC, would in the facts and circumstances of the case have no application whatsoever and would not be attracted to the facts and circumstances of the case.’ 24
The Supreme Court further observed that raising some slogans only a couple of times by two lone persons, which neither evoked any response nor any reaction from any member of the public, can neither attract the provisions of Section 124A or Section 153A of the IPC. It held that ‘Some more overt act was required to bring home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in arresting the appellants for raising the slogans . . . keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi . . . Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups.’
Though it did not explicitly rely on Kedar Nath, the Supreme Court emphasized on the test that speech alleged to be seditious must have a direct bearing on the disturbance of public order. Isolated acts of sloganeering or provocative speeches would not fulfil the requirements under Section 124A.
Two years later, the Supreme Court again explicitly re-emphasized the principles of the Kedar Nath and Balwant Singh judgments in the case of Bilal Ahmad Kaloo v. State of Andhra Pradesh 25 and acquitted the accused who had been convicted for sedition as well as for promoting enmity and hatred under Section 153A of the IPC.
Bilal Ahmad Kaloo was allegedly an active member of a militant outfit called Al-Jehad which was formed with the ultimate object of liberating Kashmir from the Indian Union. He was accused of spreading communal hatred among Muslim youth in Hyderabad and for encouraging them to undergo training in armed militancy. On his arrest he was found to be in possession of a countrymade revolver and live cartridges. He was also accused of propagating among Muslims that Muslims in Kashmir were being subjected to atrocities by the Indian army. He was arrested after a series of bomb blasts occurred in Hyderabad in 1993.
The Supreme Court relied on Kedar Nath and found that the decisive ingredient for establishing the offence of sedition under Section 124A is the doing of certain acts which would bring the government established by law in India into hatred or contempt. In Bilal Ahmad Kaloo’s case, there was not even a suggestion by the prosecution that he did anything against the government of India or any other state government. It found that, ‘As the charge framed against the appellant is totally bereft of the crucial allegation that appellant did anything with reference to the Government it is not possible to sustain the conviction of the appellant under Section 124A IPC.’
While acquitting Kaloo, the Supreme Court took a parting shot at the state of the criminal justice system when dealing with offences like sedition and heavily criticized the mechanical approach taken by the trial court. It admonished them by saying:
Before parting with this judgment, we wish to observe that the manner in which convictions have been recorded for offences under Section 153A, 124A and 505(2), has exhibited a very casual approach of the trial court. Let alone the absence of any evidence which may attract the provisions of the sections, as already observed, even the charges framed against the appellant for these offences did not contain the essential ingredients of the offences under the three sections. The appellant strictly speaking should not have been put to trial for those offences. Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is
expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with.
One would think subordinate courts would take the observations and findings of the Supreme Court in Balwant Singh and Bilal Ahmad Kaloo to heart in adjudicating on cases where the offence of sedition is alleged. However, subsequent cases have demonstrated that Indian courts still have a long way to go to protect the freedom of speech and liberty guaranteed to citizens.
The case of Dr Binayak Sen demonstrates how the trial court and High Court failed to apply the principles laid down by the Supreme Court. Dr Sen was accused of sedition for meeting Narayan Sanyal, an alleged Maosit insurgent, thirty-three times in 2006 and 2007 while Sanyal was lodged in Raipur jail in Chhattisgarh. He was also alleged to be a conduit for Sanyal to disseminate his letters. During the course of searching Dr Sen’s house, the police discovered a booklet of the Communist Party of India (ML), a letter written by a Maoist lodged in jail to Dr Sen, printed material on ‘Andhra Pradesh: Women’s Rights and Naxalite Groups’, paper cuttings relating to human rights and atrocities of the police, and a booklet on Salwa Judum. Dr Sen is in fact a medical doctor and was a member of the People’s Union for Civil Liberties, and also general secretary of the Chhattisgarh Lok Swatantrya Sangathan. 26
Based on the allegations and the material discovered in his possession, the trial court convicted him of sedition in December 2010 and sentenced him to rigorous imprisonment for life. Dr Sen challenged the verdict before the High Court of Chhattisgarh which refused to grant him bail, less on the merit of his case but more on an ideological basis. 27
The Great Repression Page 17