There’s nothing funny about being charged with Sedition. But equally so, it’s difficult to see the humour in a cartoon which depicts the chief protagonist of the 26/11 attacks in Mumbai urinating on a book titled the Constitution of India. In fact, it is distasteful, disrespectful and downright offensive. Even the cartoon embellishing the national emblem of India with blood-hungry wolves, instead of Asiatic lions, seems amateurish and lacking creative talent. And the doodle of the Parliament as a toilet bowl flushing down legislations is hardly satirical and is irreverent to say the least. But is it Seditious?
Interestingly, Sedition is not defined in Indian statutes. The word Sedition appears only in the marginal notes to Section 124-A of the Indian Penal Code (IPC) and provides the name by which the crime defined in the Section will be known. This does not affect the legal potency of the Section which has two essential requirements. First, the accused must bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government of India. Notably, whether any disturbance or outbreak was actually caused by the publication of the Seditious material is immaterial. The offence is committed if the accused attempted to excite rebellion. The essence of the crime of Sedition consists in the intention with which the language, including visuals, is used. Whether the intention has achieved the result is immaterial. Additionally, whether or not a speech or visible representation excites hatred, contempt or disaffection, needs to be viewed from the standpoint of the person to whom it was primarily addressed.
The second requirement is that such act or attempt should be done by words, spoken or written, or by signs or visible representation. The laws of Sedition are placed in the chapter titled ‘Offences Against The State’ and if convicted the accused can be punished with imprisonment for life.
The arrest of Aseem Trivedi under charges of Sedition, amongst other violations, has once again brought to the fore the debate about free speech and the State’s ability to impose reasonable restrictions to curtail such freedoms. Legitimate questions are being asked whether the archaic Sedition laws are being used to quell all forms of political dissent. A debate is also ongoing on whether we as a nation, our political class as a sub-sect and the common man as citizens are growing intolerant towards one-another and are we becoming thin skinned. A wise man once said that respect needs to be earned, not commanded. But is the State using all machinery at its disposal to try and regain its trust and re-instil its authority and superiority no matter what?
Undoubtedly, freedom of speech is essential for democratic functioning, since without free political discussion no public education, essential for the proper functioning of a popular government, is possible. Questioning Governmental action and criticising its inaction is important, necessary and an essential part of democracy. But let us not forget that every right has a corresponding duty – a duty to respect the laws and emblems of the nation, an obligation to uphold the Constitution and its organs and a duty to exercise restraint even when asserting one’s freedoms!
Let us also not get swept away in the current rhetoric that somehow the laws of Sedition, as codified in India, are in any manner unconstitutional or violative of free speech. On the contrary, the explanations to the defining Section provides exemptions for criticism and comments on Government actions, however strongly worded, provided they are within reasonable limits. It is only when the words or visible representation cross the limits of fair criticism and has the tendency or intention of creating public disorder or disturbance of law that the laws of Sedition come into play.
In fact, a Constitution Bench of the Supreme Court has tested them and upheld the constitutionality of the Sedition laws. While doing so, the Court noted that it has a duty cast upon it of striking down any law which unduly restricts freedom of speech and expression. But it also noted that “the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government.” The Court goes on not say that “a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” This leaves little doubt that the Court has to balance the freedom of speech with the security of the State and public order.
Coming back to Aseem Trivedi’s crude scribblings – they prima-facie violate the Prevention of Insults to Nation Honour Act. That they are in bad taste and perhaps not in keeping with the tone of satire is also well established. But again, are they so extreme to be termed as being Seditious?
One can’t overlook the fact that the recent drama started with a law student, a private citizen and not the State, taking note of the worrisome drawings. It can also not be overlooked that the drawings are from eight months ago and perhaps for good reason went un-noticed so far. But equally, one can’t ignore Trivedi’s association with India Against Corruption (IAC). There’s no criminality on account of his association with IAC. But when his cartoons are viewed in the background of IAC’s call for a revolution against all forms of political establishment, their remarks against the ineffectiveness of the Parliament and IAC’s utter disrespect for our Constitution, that very document that enshrines the freedom of speech now being waived as a loose cloth, one can perhaps understand the Government’s high-handedness. As someone commented– the cartoons are clearly the work of an activist and not a social commentator!
But despite all of the above and it becoming clear that Trivedi’s intention was to attempt to excite disaffection towards the Government, one would still argue that to charge him with Sedition may be akin to killing a fly using a missile. The authorities could and should have displayed greater tolerance in charging him. And if the charges of Sedition against him are not dropped, it is Trivedi who will come out as the hero and the Government will have no one besides themselves to blame for being perceived as the villain!
Despite what the black letter prescribes, now may be a good time to adopt what some Western countries, where Sedition laws exist, do – follow an effect-based test, which examines the effects of the Seditious text, rather than a content-based test, which reviews the text alone. And while the United Kingdom, from whom we inherited these laws, may have repealed them in 2010, to push that they be removed from the statute books in India, may be a perfect case of throwing the baby out with the bathwater. Any such decision needs to be based giving due consideration to India’s current socio-political context and the internal law and order situation. For the moment, the best course is to check the enforceability and implementation of the laws of Sedition and urge the Government to be more parent-like when dealing with erring children.
Satvik Varma is an advocate & corporate counsel based in New Delhi.