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Stifling free speech a bad idea

by Rajeev Dhavan, 2 November 2010

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(Published earlier in: Mail Today, 1 November 2010)

You do not have to like or agree with Geelani or Arundhati Roy to defend their right to speech. They are threatened with criminal proceedings for sedition (section 124 A of the Indian Penal Code).

When Gandhi was charged with sedition, he told the trial judge that this was the "prince among the political sections of the Indian Penal Code… to suppress the liberty of citizens". It was used ruthlessly by the British against Tilak, Gandhi and other Indians. So much so, when Param Cumaraswamy, a Malaysian lawyer was charged with sedition for criticising their Agong (King), Justice Desai of the Indian Supreme Court told him that sedition was an honourable offence to be charged with! It is this kind of honour that Geelani and Arundhati Roy will achieve if charged with sedition.

Deviating from the Federal Court view in 1942 that mere abusive words, without incitement to violence, do not constitute sedition, the Privy Council in 1947 affirmed the view it had taken in the Tilak (1897), Besant (1919) and Wallace Johnson (1940) cases that utterances that excite hatred or contempt or disaffection against the government would be sedition. Curiously, the Constituent Assembly (1946- 1949), did not include sedition to be a ground for restricting free speech.


But Nehru introduced the ‘ sedition’ limitation into the Constitution in 1951.

Unabashed, the Allahabad High Court in 1959 took the view that the offence of sedition was violative of free speech and unconstitutional. With the onset of Chinese aggression, the Supreme Court in 1962 had to soften this blow by reading the section down so that mere utterances were not sedition unless there was tendency or intent to incitement of disorder or violence which would threaten the security of the state.

Unfortunately, insensitive rulers, vindictive governments and misguided, vicious policemen think ‘ sedition’ is a crime to be bandied about to threaten free thinkers and critics of government and governance.

Editors became liable for the contents of magazines and newspapers and the burden of disproving their involvement is on them under section 7 of the Press and Representation of Books Act 1857. Theoretically, this applies to editors who report seditious material. Ultimately, it is the government which calls the shots. Without sanction from the government, no offence can proceed to charge and trial (section 196 of the Criminal Procedure Code).

This has never stopped the government from stooping to silence speech. On June 25, 2010, an FIR for sedition and promoting enmity between groups was filed against Surinder Singh Barnala and others for a pamphlet on uniting the Panth under Kesri Nishan Sahib even if the government called this extremism. In 2000, the Supreme Court in Balbir’s case acquitted those hearing speeches of Bhindrawale.

In 2005, sedition and other charges were levelled against those hoisting the Sikh Raj flag. They were acquitted.

So also Zee News and Sikhs for telecasting a docudrama called Desh Droh . We know that Simranjit Singh Mann has been acquitted on charges of sedition; as indeed Daljit Singh Bittu in 2006 and 2007. Retrograde judgments like Justice Chinappa Reddy’s judgment in Raghubir (1986) making couriers of pamphlets conspirators, seditionists have been offset by acquittals in Bilal (1997) where allegations against atrocities were publicly made. The point is not acquittal or discharge, but in Malcolm Feeley’s evocative phrase: the process is the punishment.

Now let us turn to Geelani and Arundhati’s speeches at the conference in Delhi called “ Azadi — The Only Way” where Maoist Vara Vara Rao was also present.

Geelani had a shoe thrown at him. Arundhati was heckled. Was this not part of the democratic reply? Arundhati’s view that Kashmir has never been an integral part of India may be untrue de jure , but may well de facto reflect the sentiments of many Kashmiris.


Surely she was right when she explained that she was making “ a call for justice”. Why wasn’t Geelani’s statement that he spoke for all minorities: Hindu, Sikh, Pandits, Buddhists and Muslims, reported? Shaddharbrata Sengupta’s report on the meeting deserves to be read. It is true that Geelani said he wants to see a strong and resurgent India but demanded a five point programme ( 1) acceptance of Kashmir as disputed territory, ( 2) repeal of black laws including the Armed Forces Act, ( 3) release of political prisoners and detainees, ( 4) withdrawal of disproportionate army presence ( 5) punishment of those who have taken life; and more generally thinking outside the framework of the Indian Constitution. Is this sedition? Hardly, it is a legal truism that comments should be considered in their context and read as a whole.

What is astonishing is the attitude of the Union government. On October 26, 2010, law minister Veerappa Moily defended free speech but claimed “ it cannot violate the patriotic sentiments of the people”. As a lawyer, Moily should know that there is nothing in Article 19( 2) of the Constitution which allows reasonable restrictions to protect ‘ patriotic sentiments’. Home minister Chidambaram was a little more cautious and talked about charging the dissident voices with ‘ hate speech’, which includes sedition (section 124 A) but also causing “ enmity between classes” (section 153 A) and provoking religious sentiments (section 295 A), not to mention obscenity.

For the Delhi police to get trigger happy and think that they have a case in sedition is a monumental folly unless the whole point of the exercise is to harass Geelani and Arundhati. On this Geelani says that he already has 90 FIRs against him.

Another one is not going to rattle him.


Unfortunately, the Union is playing a political game with the BJP whose spokesperson, Arun Jaitley, taunted Congress for “ looking the other way” at what happened at the conference. The BJP has shown enough constitutional illiteracy by asking that Article 370 be deleted from the Constitution. What the Union of India should do is to tell the BJP that the Congress led government is committed to an ‘ autonomy’ resolution in Kashmir which grows out of the Constitution itself and will not prosecute strong dissident speech.

At present, the government has decided not to proceed with sedition charges but that it seriously considered doing so is an indictment.

We have also to be wary about our understanding of the right to self- determination in International Law. All this was envisioned to solve the problems of Eastern Europe during the Cold War. From 1941 this was a vehicle decolonisation. In the 1990s, we saw the Soviet Union being dissolved, Yugoslavia break up, movements in Somalia, Ethiopia, Eritrea, Kosovo, Sri Lanka, East Timor, and so on. But self determination does not have to mean redrawing national boundaries. Minorities will still exist. Pakistan’s belief that Kashmir is theirs for asking is not a serious proposal.

Donald Horowitz rightly reminds that “ violence disproportionately attracts an interest in aggression”. Equally, James Crawford rightly says that although 22 new secessionist states have been erected since 1945, unilateral secession is not the true international practice but of find “ participation in ( a) constitutional system… on the basis of respect for territorial inequality.” One is not sure about the government’s interlocutors. Where are they going? And how are they going about it? But, are they guilty of sedition in saying Pakistan’s views are relevant or that autonomy be discussed with all? The Indian State is ill advised to injure its democracy by stifling its most outspoken.

The writer is a Supreme Court lawyer