Section 124A: This is what makes Kanhaiya an enemy of the state

Vikas Kumar/ Catch News

Section 124A: This is what makes Kanhaiya an enemy of the state

The law

  • In question: Section 124A of IPC
  • The British coded this to slap sedition charges
  • UK, by the way, has scrapped its own sedition law

More in the story

  • The misuse of Section 124A
  • And who all have misused it
  • Which other countries have such a law

Jawaharlal Nehru University Students Union President Kanhaiya Kumar was arrested under Section 124 A of the Indian Penal Code (IPC). He was the first to be arrested this year under the Section, which is meant to punish people working against the unity of the nation.

The antiquated sedition law was not scrapped at the time of Independence despite apprehensions of its misuse.

Read- JNU Row: Eyewitnesses who claimed Kanhaiya chanted slogans are from ABVP

While speaking on the First Amendment to the Constitution in 1951, to include public order as a specific limitation to free speech, Prime Minister Jawaharlal Nehru termed Section 124A as "highly objectionable" and said "the sooner we get rid of it the better."

"It should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass," he told Parliament.

In a historic judgment in 1962 (case: Kedarnath vs State of Bihar), The Supreme Court upheld its validity but with the caveat: "criticism on political matters is not of itself seditious".

The blatant misuse of the sedition law in recent years has re-ignited the debate over the need for such a provision. Cartoonist Aseem Trivedi was booked under it for some controversial sketches of Parliament during the heat of the 2012 Jan-Lokpal movement.

India stands in the league of nations like Saudi Arabia, Malaysia, Iran, Sudan and Turkey

The Bharatiya Janata Party, now in power, had then accused the Manmohan Singh government of "murdering democracy". Now, Congress is returning the favour through similar allegations.

In March 2011, Kashmiri students at Swami Vivekanand Subharti University (SVSU) in Meerut faced charges under the same section for allegedly celebrating Pakistan's victory over India in a cricket match. The Uttar Pradesh government later withdrew the sedition case against them.

Also, Hardik Patel was arrested under the same provision for leading the Patel agitation seeking reservation in Gujarat.

A political tool

The law can only be applied to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement of violence.

"The evidence so far suggests that Kanhaiya had not even criticised the government, leave apart inciting violence. Whereas, Hardik Patel was termed as a traitor only because Chief Minister Anandiben Patel failed to persuade him for a compromise," said Anand Yagnik, a Senior Advocate at the Gujarat High Court.

Also read: Meet Kanhaiya; the student icon in jail for the next 14 days

There is a fresh demand for reconsidering the law after Kanhaiya's arrest.

When Binayak Sen was sentenced by a Chhattisgarh sessions court under the same law, the then Union Law Minister Veerappa Moily stressed the need for its review. He promised to refer the matter to the Law Commission.

However, the UPA government lost elections before Moily could act. After assuming power, the National Democratic Alliance government prepared a list of 287 obsolete laws, but left Section 124A out of it.

It is incumbent upon the Law Commission to identify and review laws that have lost relevance or contradict court judgments and international treaties.

'If opposing Afzal Guru's sentence is treason, how can Godse's followers claim to be nationalists?'

In 2009, the British government acted upon the recommendation of its Law Commission and abrogated the sedition law. The then Parliamentary Under Secretary of State at the Ministry of Justice, Claire Ward, said: "The existence of these obsolete offenses in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom."

"Abolishing these offenses will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppressing free speech."

Jharkhand tops

Ward's words ring the most true in Jharkhand. According to the National Crime Record Bureau (NCRB) data, the state recorded the most number of sedition cases in 2014.

"Most people charged with treason in Jharkhand were opposing the plundering of natural resources by the government-corporate-police nexus. They had to pay a price for raising their voice against the establishment," said Shashi Bhushan Pathak, a human rights activist who work with the state's adivasis.

Read more: Congratulations JNU. You just got slut-shamed

Bihar was a close second. "The pillaging of mineral wealth is not an issue; yet, people were punished for dissenting against the government policies," Patha said.

Together, the two states accounted for 72% of sedition cases in 2014. They were followed by Kerala, where five people faced sedition cases.

Most countries have either diluted or scrapped sedition laws. The provision was incorporated into the constitution of the United States in 1798. The US judiciary has ended possibilities of its misuse through various reviews since then.

In fact, in the US, students poured onto streets against their government during the Vietnam War. "Can you imagine such a protest in today's India?" asked Yagnik who felt the BJP and the RSS want to impose a "democracy of consent".

US students poured onto streets against Vietnam War. Can you imagine such a protest in today's India?

"There's no such thing like democracy within the Sangh Parivar. It essentially works on the concept of a one-sided discourse. The guru dictates the terms and the disciples follow without questioning," he said.

"Any dissent is seen as indiscipline in the Rashtriya Swayamsevak Sangh (RSS). The battle of ideas is a prerequisite to any healthy democracy. But the RSS views disagreement as rebellion," Yagnik said.

The RSS philosophy also has a skewed view point on the Left ideology. Instead of taking it as a political or ideological adversary, it sees leftism as outrightly anti-national.

Politics of Hypocrisy

According to Yagnik, the BJP's brand of nationalism is based on hypocrisy: "The BJP wants to replace the Constitution with the RSS agenda. It is deliberately infesting the idea of liberal India with that of the RSS concept of Hindu Rashtra."

Jharkhand, Bihar accounted for 72% of India's sedition cases in 2014

Right-wing organisations called JNU students anti-national for opposing the hanging of Afzal Guru. Why does worshiping Godse and constructing his temple does not fall into the same category under the same logic? He was also sentenced to death by the judiciary after due process.

"The court handed out capital punishment to Godse after nearly two years of judicial proceedings. The same procedure was followed in the case of Afzal Guru. If opposing Guru's sentence is treason, how can Godse's followers claim to be nationalists?" Yagnik asks.

In league with Saudi Arabia

The Saudi government recently executed Shia religious leader Sheikh al Nimr under the same law for opposing monarchy. This caused a huge outcry in the international community and strained kingdom's ties with its neighbour Iran.

Today, the world's largest democracy stands in the league of nations like Saudi Arabia, Malaysia, Iran, Sudan and Turkey when it comes to sedition law.

Just a throwback: when Mahatma Gandhi was tried under Section 124A in 1922, he said: "Section 124A, 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. Affection cannot be manufactured or regulated by law. What in law is a deliberate crime appears to me to be the highest duty of a citizen."

Edited by Joyjeet Das

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Abhishek Parashar

Abhishek Parashar @abhishekiimc