The Great Repression

by Chitranshul Sinha

(iii) Will it be worthwhile to think of an option of renaming the section with a suitable substitute for the term sedition and prescribe punishment accordingly?

  (iv) What is the extent to which the citizens of our country may enjoy the right to offend?

  (v) At what point the right to offend would qualify as hate speech?

  (vi) How to strike a balance between Section 124A and right to freedom of speech and expression?

  (vii) In view of the fact that there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping Section 124A in the Penal Code, serve any purpose?

  (viii) Given the fact that all the existing statutes cover the various offences against the individual and/or the offences against the society, will reducing the rigour of Section 124A or repealing it be detrimental or beneficial, to the nation?

  (ix) In a country, where contempt of Court invites penal action, should contempt against the Government established by law not invite punishment?

  (x) What could be the possible safeguards to ensure that section 124A is not misused?

  The Commission invited views from legal luminaries, lawmakers, government and non-government agencies, academia, students and the general public on the propositions to enable it to recommend appropriate measures to the government. Unfortunately, the term of the 21st Law Commission ended in August 2018 itself.

  The constitution of the 22nd Law Commission is still awaited.

  Notes

  Chapter 1: Company Raj

  1.Bipan Chandra, History of Modern India (New Delhi: Orient BlackSwan, 2009).

  2.Arthur Berriedale Keith, A Constitutional History of India, 1600–1935 (London: Methuen and Co., 1936).

  3.John William Kaye, The Administration of the East India Company (London: Richard Bentley, 1853).

  4.M.P. Jain, Indian Legal History (Nagpur: Wadhwa and Co., 2006).

  5.Amar Farooqui, The Establishment of British Rule, 1757–1813: A People’s History of India, Vol. 23 (New Delhi: Tulika Books, 2014).

  6.Present-day Kanyakumari in Tamil Nadu.

  7.Kaye, The Administration of the East India Company.

  8.Keith, A Constitutional History of India, 1600–1935.

  9.Jain, Indian Legal History.

  10.Kaye, The Administration of the East India Company.

  11.Keith, A Constitutional History of India, 1600–1935.

  12.Jain, Indian Legal History.

  13.Chandra, History of Modern India.

  14.Present-day Bharuch in Gujarat.

  15.Present-day Machilipatnam in Andhra Pradesh.

  16.Mina Choudhuri and Mrinmaya Choudhuri, Glimpses of the Justice of Presidency Towns, 1687–1973 (New Delhi: Regency Publications, 2006).

  17.Peter Auber, Constitution of the East India Company (London: Kingsbury Parbury and Allen, 1826).

  18.Present-day Madras in Tamil Nadu.

  19.Edgar Thurston, The Madras Presidency (Cambridge: Cambridge University Press, 1913).

  20.Edmund C. Cox, Short History of Bombay Presidency (Thacker & Co., 1887).

  21.Lillias C. Davidson, Catherine of Braganza (London: John Murray, 1908).

  22.James Grant, Cassell’s Illustrated History of India (London: Cassell Petter & Galpin, 1880).

  23.James Mill, The History of British India (London: Baldwin Cradock & Joy, 1817).

  24.Chandra, History of Modern India.

  25.Decided on 10 May 1943, reported as (1945) 47 BOMLR 525.

  26.Jain, Indian Legal History.

  27.Pitt’s India Act, 1784.

  28.Keith, A Constitutional History of India, 1600–1935.

  29.C.H. Philips, The Secret Committee of the East India Company, 1784–1858 (London: Bulletin of the SOAS, 1940).

  30.Hindu scriptures.

  31.D.A. Washbrook, ‘Law, State and Agrarian Society in Colonial India’, Modern Asian Studies 15.3 (1981): 649–721.

  32.Marc Galanter, ‘Displacement of Traditional Law in Modern India’, Journal of Social Issues 24.4 (1968).

  33.Sir Henry Maine, member of the governor general’s council (1863–69).

  Chapter 2: Bentham, Mill and Macaulay

  1.The account of Nanda Kumar’s trial is based mainly on The Trial of Maharaja Nand Kumar by Henry Beveridge (Thacker, Spink & Co., 1886) and The Story of Nuncomar by James F. Stephen (Macmillan & Co., 1885). Beveridge’s book was written as a response to Stephen’s book as he felt that Stephen was biased towards holding that Hastings and Impey were not at fault. Stephen had in his book raised doubts on essays on the trial written earlier by Beveridge. More than that, Stephen had stated that Beveridge was not that proficient in English law. Beveridge, who was a judge of the High Court at Calcutta, took it personally and felt the need to respond by calling Nanda Kumar’s trial and execution a judicial murder. In his book dedication, Beveridge writes, ‘I dedicate this to my wife who has taken so much interest in the attempt to vindicate a persecuted Bengali.’ Interestingly, Stephen had felt a need to write his book partly in response to Thomas Macaulay who in his essay on Warren Hastings was scathing in criticism of the Nanda Kumar trial, and also considered it a judicial murder. A more recent account of the Nanda Kumar story has been provided by A.G. Noorani in Indian Political Trials (Oxford University Press, 2005).

  2.Hastings was facing immense scrutiny from some members of the English Parliament and thus Nanda Kumar’s demise was a reprieve for him.

  3.English barrister who was an advocate for abolition of capital punishment.

  4.Phil Handler, ‘Forgery and the End of the “Bloody Code” in Early Nineteenth Century England’, Historical Journal 48 (2005).

  5.Mason v. State, 206 SW 3d 869 (2005).

  6.Bentham’s life and works are written about in the book Jeremy Bentham: His Life and Works by Charles M. Atkinson (Metheun & Co., 1905).

  7.An Inn was, loosely, an association of which Barristers are members and in the old days provided lodgings for them. Even today, initiation into such Inns is referred to as ‘eating dinner’ at the Inn, which was literally the case in the old days. Lincoln’s Inn was one the most prominent Inns of Court for English barristers. More about Lincoln’s Inn can be read at www.lincolnsinn.org.uk.

  8.Bentham, in his first notable work published in 1776, called A Fragment of Government, heavily criticized the commentaries of Blackstone. However, the book was published as the work of an anonymous author at the time, considering the unpopularity of the principles of utility.

  9.Bentham published An Introduction to the Principles of Morals and Legislation in 1789, which was a compendium of all his writings on the subject, including a chapter on ‘General Principles of Legislation’.

  10.Bentham was later very unhappy with some consequences of the French Revolution.

  11.Also known as Stephen Dumont, a Swiss, he was a friend of Bentham’s and the editor of Bentham’s works.

  12.English translation of the title.

  13.Alexander Bain wrote James Mill: A Biography (Longman, Green & Co., 1882). Bain’s motive behind painstakingly piecing together the biography was that he had failed to come across a proper account of Mill’s life, who in his estimation was one of the greater characters in contemporary British history.

  14.The Charter of 1813.

  15.The summary of the Act is based on the text of ‘A Bill for Effecting an Arrangement with the India Company, and for the Better Government of His Majesty’s Indian Territories’ which formed part of Further Papers Respecting the East India Company’s Charter published in 1833 by Cox and Son by order of the general court for the information of the proprietors of the East India Company. The papers contain minutes of the meetings of the secret committee of the East India Company and correspondence between the directors, Indian officials of the Company, members of the British Parliament, ministers in the government and the Board of Control. The papers shed light on the negotiations and representations which led to the enactment of the Charter Act of 1833 and evidences the East India Company�
��s resistance to the Charter and their attempts to hold on to their only remaining trade monopoly, which was over trade of tea and opium, etc., from China. The resolute Parliament did not succumb to the Company’s resistance in the face of the opposition of traders and the public to the trading nature of the Company. Therefore, it is safe to say that the East India Company was not very popular with British traders and citizens at that point of time.

  16.George P. Landlow, ‘The British East India Company—the Company That Owned a Nation (or Two)’, www.victorianweb.org (accessed 15 August 2018).

  17.Keith, A Constitutional History of India, 1600–1935.

  18.Macaulay’s speech was delivered on 10 July 1833 in the House of Commons when the Bill to enact the Charter was placed before Parliament for a second reading. The motion was carried out without a division but only after a long debate during which Macaulay delivered his famous speech. ‘Government of India’ delivered in the British Parliament by Macaulay on 10 July 1833, which I have referenced at footnote no. 18. Complete Works of Lord Macaulay published by G.B. Putnam’s Sons in 1898.

  19.Macaulay mentioned this in a letter dated 21 October 1833 which he wrote to his sister Hannah M. Macaulay, who eventually accompanied him to India in 1834. Macaulay’s letters have been published by his nephew George Otto Trevelyan in the book The Life and Letters of Lord Macaulay (1877).

  20.Bain, James Mill: A Biography. On Mill’s death in 1836, Macaulay wrote that he was a sincere mourner for Mill and had been on the best of terms with him. He mentioned that he had even received a very kind letter from Mill a week before his death.

  21.Letter from Macaulay to Lord Lansdowne dated 5 December 1833. Macaulay was paid 10,000 pounds a year for his work in India, which was nothing short of a king’s ransom at that time.

  22.The Institutes of Hindu Law refers to the Ordinances of Manu (the first man according to various Hindu texts) or the Manusmriti. There are over fifty texts of the Manusmriti which are also known as the Manava Dharmshastra.

  23.Macaulay believed that the process of codification should be driven by a small group of veteran jurists instead of democratic assemblies. His reasoning was that a small benevolent but despotic group would be more efficient than a democratic legislature that entails protracted debate which causes delay.

  Chapter 3: The Indian Penal Code and Sedition

  1.George Otto Trevelyan, The Life and Letters of Lord Macaulay (New York: Harper & Brothers, 1877).

  2.A state within the United States of America.

  3.The background of the draft IPC is explained in the Introductory Report submitted along with the draft code.

  4.Term for territories within the presidencies beyond the towns of Calcutta, Bombay and Madras.

  5.The draft penal code was published by the orders of the governor general in 1837 by G.H. Huttmann at the Bengal Military Orphan Press.

  6.Not in any particular order. Macaulay wrote very detailed notes on each chapter (numbering from A to R) which were annexed to the introductory report to the draft Indian Penal Code.

  7.John D. Mayne, Criminal Law of India (Higginbotham & Co., 1896). This book was also published at the same time by Thacker & Co. in Bombay, Thacker, Spink & Co. in Calcutta and W.M. Clowes & Sons in London.

  8.James F. Stephen’s commentary The History of Criminal Law of England published in three volumes by Macmillan & Co. in 1883 sheds light on the history and status of the law of sedition in England.

  9.From the French region of Normandy which invaded England in the eleventh century.

  10.From the Germanic region of Denmark and North Germany.

  11.The originals inhabitants of England when the Roman conquest made it a part of the Roman Empire.

  12.The ascension and rule of King Edward I has been recorded in The Life and Reign of King Edward I written by Edmund Clifford and published by Seeley, Jackson & Halliday in 1872.

  13.Stephen, The History of Criminal Law of England.

  14.Ibid.

  15.Ibid.

  16.Ibid.

  17.Atul Chandra Patra, ‘An Historical Introduction to the Indian Penal Code’, Journal of the Indian Law Institute 3.3 (1961).

  18.J.E.D. Bethune (1801–51) was also the president of the Council of Education and founded the first school for girls called the Hindu Female School in Calcutta in 1849, which was later called the Bethune School. The school eventually developed into a college and is now known as the Bethune College, http://www.bethunecollege.ac.in/BethuneCollege/BethuneCollege.htm (accessed 25 August 2018).

  19.Eric Stokes, The English Utilitarians and India (Oxford University Press, 1959).

  20.Chandra, History of Modern India.

  21.Part of present-day Uttar Pradesh.

  22.R.C. Majumdar wrote The Sepoy Mutiny and the Revolt of 1857 (Kolkata: Calcutta Oriental Press, 1957) in the centenary year of the revolt, at the same time as when the Indian government published the official account of the revolt. He has explained in detail the causes of the revolt based on published accounts from historians and witnesses.

  23.In present-day West Bengal.

  24.Bahadur Shah had parlayed with the British to spare his and his family’s life. However, the day after his surrender an officer by the name of Hodson massacred the princes after arresting them from Humayun’s Tomb in Delhi.

  25.Keith, A Constitutional History of India, 1600–1935.

  26.Stephen, The History of Criminal Law of England.

  27.A Legislative Council which was to be headed by the Legislative Member of the Governor General’s Council was created by the Charter Act of 1853 to replace the structure existing under the Charter Act of 1833.

  28.As per Section 1 of the IPC, 1860, as originally enacted.

  29.Patra, ‘An Historical Introduction to the Indian Penal Code’.

  30.Trevelyan, The Life and Letters of Lord Macaulay.

  31.Stephen, The History of Criminal Law of England.

  32.Trevelyan, The Life and Letters of Lord Macaulay.

  33.Leslie Stephen, The Life of Sir James Fitzjames Stephen (Smith Elder & Co., 1895). Leslie Stephen was the younger brother of James F. Stephen.

  34.Stephen, The History of Criminal Law of England.

  35.Clause 3 of the State Offences Act of 1857.

  36.Clause 4 of the State Offences Act of 1857.

  37.Clause 6 of the State Offences Act of 1857.

  38.Present-day Uttar Pradesh.

  39.Capital city of the state of Bihar.

  40.The region between present-day Indian Punjab and Afghanistan.

  41.A city in present-day Haryana.

  42.Qeyamuddin Ahmad, The Wahabi Movement in India (Firma K.L. Mukhopadhyay, 1966).

  43.Aravind Ganachari, Nationalism and Social Reform in a Colonial Situation (Kalpaz Publications, 2004).

  44.Reg. v. Sullivan cited as 11 Cox 45.

  45.Walter Russell Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India (Thacker, Spink & Co., 1911).

  46.Section 9 of the Dramatic Performances Act of 1876.

  47.Ibid.

  Chapter 4: Four Trials and an Amendment

  1.Founded in 1875 by Dayanand Saraswati in Bombay.

  2.Founded in 1828 by Raja Ram Mohan Roy and Debendranath Tagore in Calcutta.

  3.Festival.

  4.Self-rule.

  5.Locally manufactured.

  6.R.C. Majumdar, History of the Freedom Movement in India (Firma K.L. Mukhopadhyay, 1962).

  7.Ibid.

  8.Ibid.

  9.B. Pattabhi Sitaramayya, The History of the Indian National Congress (1885–1935), published by the Working Committee of the Indian National Congress in 1935 on the occasion of its fiftieth anniversary.

  10.Hindu ritual of women being burnt alive on their dead husband’s pyre.

  11.Provision providing for the offence of statutory rape.

  12.Meera Kosambi, ‘Girl-Brides and Socio-Legal Change: Age of Consent Bill (1891) Controversy’, Economic and Political Weekly 26.31/32
(1991). Retrieved from www.jstor.org/stable/41498538 on 9 September 2018.

  13.Queen Empress v. Hari Mohan Maiti reported as (1890) ILR 18 Cal 49.

  14.Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India.

  15.Ibid.

  16.Reported as (1892) ILR 19 Cal 35.

  17.Reg. v. Holbrook & Ors. reported as L.R. 3 Q.B.D. 60.

  18.Mughal Emperor (1618–1707).

  19.Muslim general from Bengal who attacked Jagannath Puri in 1568 with his army to tear down the Konark temple.

  20.Reg. v. Sullivan cited as 11 Cox 45.

  21.Present-day Maharashtra.

  22.D.V. Athalye, The Life of Lokamanya Tilak (Annasahib Chiploonkar, 1921).

  23.A political post in native princely states occupied by officers of the British government.

  24.Imperial Gazetteer, Chapter 10 of Volume III (Oxford Clarendon Press, (1907).

  25.Figures for the population affected in princely states were not provided in the Imperial Gazetteer.

  26.Ajit Kumar Ghose, ‘Food Supply and Starvation: A Study of Famines with Reference to the Indian Sub-Continent’, Oxford Economic Papers 34.2 (1982): 368–89. Retrieved from http://www.jstor.org/stable/2662775 on 9 September 2018.

  27.Means ‘the Lion’.

  28.Anglicization of ‘Maratha’ which refers to a segment of people from western Maharashtra.

  29.The proposals made on 26 October 1890 also included proposals for the prohibition of alcohol, dowry and disfigurement of widows.

  30.Athalye, The Life of Lokamanya Tilak.

  31.Ibid. Tilak resigned from the Legislative Council in 1897 after a prosecution for sedition was initiated against him.

  32.Imperial Gazetteer, Chapter 10 of Volume III.

  33.Athalye, The Life of Lokamanya Tilak.

  34.Ibid.

  35.Ibid.

  36.A Muslim general who had attacked Shivaji Maharaj.

  37.This term was interpreted by the court to mean a barbarian or foreigner who speaks any language but Sanskrit and is not subject to Hindu institutions. However, other scholars contend that it referred to Muslim invaders and not Christians or other foreigners as interpreted by the Court.