Tracing (broadly) the Arc of Sedition from 1942 to 1962

A journey which began in 1942 with Three Justices of the Federal Court of British India deciding Niharendu Dutt Majumdar [1942 FCR 38] ended in 1962 with Five Justices of the Supreme Court of India deciding Kedar Nath Singh [AIR 1962 SC 955]. The outcome of this journey will soon be revisited, with the Indian Supreme Court having agreed to reconsider the validity of the sedition offence as codified in Section 124-A of the Indian Penal Code 1860 [IPC]. It presents as good an opportunity as any to revisit this past. Not from the doctrinal lens which is too often reduced to a three-part act, with Niharendu and Kedar Nath Singh standing at either end of the story, and the Privy Council opinion in Sadashiv Narayan Bhalerao [1947 UKPC 8] being sandwiched in the middle. Rather, I thought of travelling across the two decades with the limited time and resources available to me to try and offer a glimpse into this fascinating period of Indian legal history.

The Many Forms of the Sedition Offence

Traditionally, when we think of sedition in India, we think of Section 124-A of the IPC. It may come as a surprise that neither Niharendu nor Sadashiv were judgments considering Section 124-A, but were tasked with interpreting other offences which incorporating nearly identical language as that of Section 124-A. 

The chief culprit in both those decisions was Rule 34 of the Defence of India Rules, passed under the Act of 1939, where Rule 34(6)(e) of those Rules punished more or less the same offence as Section 124-A as a 'prejudicial act'. In addition to this was the Indian Press (Emergency Powers) Act of 1931. An already draconian law was amended in the wake of the Civil Disobedience Movement of 1932 to enable shutting down of any publication that ran material which fit the definition of sedition (besides enacting a whole slew of other repressive measures). There were some other laws as well, such as the Police (Incitement to Disaffection) Act 1922, but the chief measures to curb political speech for the period under consideration appear to be the first two statutes that I mentioned. 

Were all of these laws punishing exactly the same offence? At one level, yes, and that is what the Federal Court concluded in Niharendu in respect of the Defence of India Act and Rules. However, the Privy Council differed slightly and noted that, if anything, the Defence of India Act formulation was broader than Section 124-A of the IPC because of the prefatory words to 'prejudicial act'. And the same could be said of the restriction under Section 4 of the Press Act which covered acts that tended either directly or indirectly to excite disaffection or bring the government into hatred or contempt. All this goes to show the width of potential restrictions that the government of the day could impose to curb critical speech.  

The Journey from Niharendu to Kedar Nath Singh

The two decades of history bookended by these two decisions sees many changes in the legal and political landscape. It is oddly circular if you look back at it. There is a war, there is independence, there is the coming of a Constitution, there is a hasty amendment to that Constitution, there is loss of independence for some parts (and integration into India), internal turmoil, and finally there is war again. To think that these events had no impact on how the government(s), the legislature, the courts, and of course the ordinary public, thought of political speech is difficult to say the least. Reconstructing that narrative in all its depth requires far more time, effort, and resources, that I have available at my disposal. But it is still important to keep this bit of information at the back of one's mind as we move along the years looking at how courts engage with the sedition offence in its many forms.

Another thing to remember is that my drawing the line at 1942 and starting with Niharendu is an arbitrary decision. It excludes looking at one of the more interesting shifts in governance during the colonial period — the coming in of nationalist governments at the provincial level and the impact this has on sedition. Not merely at the level of studying cases, but seeing the assembly debates, correspondence, and other letters (especially since prosecuting sedition would require official sanction and would generate correspondence). Lots to consider for those interested. 

Part One: From Niharendu till Sadashiv

The judgment of the Federal Court in Niharendu is quite fascinating from an institutional perspective [as was the Federal Court more generally, as Rohit De has written]. The Petitioner was a member of the state legislature. He had not been sentenced to anything harsher than being detained till the rising of the court. And yet, he took the case — and the courts agreed to hear it — all the way up to the Federal Court. He got a good chiding for his speech, but that was a small price to pay for the Court not only overturning his conviction but doing so by raising the barometer for what counted as sedition. By this I refer to the ruling of the Federal Court that this crime required establishing that the offending speech had some intention or tendency to incite disorder. 

Since Niharendu was rendered by the Federal Court, which sat at the top of the judicial hierarchy in India it was bound to be followed. But it certainly did not stop prosecutions from being launched for sedition even in absence of the disorder requirement, which either ended in acquittals by trial courts or convictions being overturned by high courts [see example, here, here]. One such prosecution was the one in Sadashiv, where the accused had admitted to publishing leaflets on behalf of the Hind Communist Party regarding the war effort which criticised the 'Imperialists' and their oppression of the people. This prosecution ended in an acquittal at the trial court, which was upheld by the High Court in 1944. 

Again, it is interesting that the government chose to appeal it to the Privy Council. Niharendu was in clear conflict with earlier Privy Council judgments and sedition was a crime across the Empire so challenging this decision to clarify the law is an obvious motive. On the other hand, this is late 1946, the war has ended and there are more important things going on, and India itself has seen the Constituent Assembly start work, so the Privy Council archives (and others) are bound to reveal interesting correspondence on what led to the appeal being filed and pursued. That too without the defendant; the opinion states that the hearing was only to clarify the law and the government had undertaken to not launch a fresh prosecution. 

If setting aside Niharendu was the objective, the Crown succeeded. In February of 1947, while the first draft of the Fundamental Rights chapter for India's Draft Constitution was nearing completion, the Privy Council allowed the appeal in Sadashiv and held that there was nothing in the text of Section 124-A of the Penal Code that could justify inserting a restriction of the kinds done by the Federal Court. They weren't wrong — the text at no place carries such a requirement to link the speech with disorder. But it would not be out of place to suggest that the Privy Council's view was out of step with prevailing mores. This would become apparent in India almost immediately.

Part Two: From Sadashiv till the First Amendment to the Constitution

In February 1947, the Privy Council rendered its opinion in Sadashiv. In August of that year, India attained its independence and the nationalist government came in power across the country. How did the governments at the centre and state levels react to controversial or critical political speech? It is an impossibly difficult question to answer as there was the human cost of Partition to reckon with at the time. Which makes it rather unsurprising to find that the authorities were liberally resorting to the authoritarian playbook to quell the violence by passing various public safety acts or using existing ones to do so. This, naturally, also meant giving any critical or controversial speech short shrift.

It makes sense that authorities in now-partitioned Punjab were not averse to using coercive powers to curb publications that they thought of as problematic, even as these may not cross the legal thresholds. To do so, authorities resorted to powers under the Press Act that gave a free hand to restrict 'seditious' speech through a clause, which if you recall, was actually broader than sedition (and that principal offence itself had been unshackled by the Privy Council in Sadashiv). 

In this vein we find that the publisher of 'Weekly Insaf' was directed to furnish hefty security to continue running his printing press after having run an article in August 1948 which the authorities claimed tended to bring the government into hatred or contempt, or excite disaffection against the government established by law. In a judgment delivered that December [Kidar Nath, AIR 1949 Cri LJ 756], the High Court set aside the order directing security. Importantly, it observed that:

"To accuse the ministers of imbecility was held not to be an offence [in England]. It will be placing unwarrantable restraints on the liberty of the press if a more stringent view of the matter is taken in India. This is all the more important since the attainment of independence; and the public and the press must be allowed considerable latitude in expressing themselves and in criticising the acts of the government in order to redress the grievances of the public."

Prior to the orders against 'Weekly Insaf' there had been action by the East Punjab Government demanding security against a separate publication, an Urdu daily newspaper 'Pratap', in February of 1948. Then, there were orders in May 1948, forfeiting this security to the government, after the paper ran two pieces — one a letter to the editor, and the other a news item — that tended to bring the government established by law into hatred or contempt or excited disaffection against it according to the authorities. These orders were challenged, and eventually set aside by a Full Bench of the High Court in April 1949 [In the matter of an Urdu Newspaper 'Daily Pratap', 1949 CriLJ 813]. 

What is notable is how strongly worded the unanimous opinion, authored by Das C.J. was (he would later go on to become Chief Justice of the Indian Supreme Court and be part of some important decisions on the subject of laws curbing speech). The opinion express full support for the idea that sedition ought to be a crime and offers a wonderfully succinct summing up of the law as it stood at the time. It notes that it was not possible to read in the safeguards of English law on sedition into the Indian law, "however much we may regret it", of linking the speech with intention to cause disorder. Even so, the Court did not find the pieces in question as meeting the threshold of tending to bring the government into hatred or contempt or exciting disaffection against it. Such a view seemed possible in this case only if one read a passage in the pieces "hoofed of its context" in respect of the offending letter to the editor. And in respect of the news item, the Court was simply baffled with the supposed problems the government had with what was a true and correct report. The opinion ends with a startling set of observations:

"Before we conclude, we desire to state that these proceedings clearly bring home to as that the official mind still moves in old groove of suspicion and distrust. The change in the situation in the country and the new atop do not appear in the least to have brought about any change in the outlook of the executive and the old vain susceptibilities still linger in their mind. Our newly won freedom has not broadened their vision and they are still prone to stifle legitimate comments and criticisms. The outpourings of aggrieved persons who pray for redress instead of being appeased are sought to be smothered with the handy weapon of the law of sedition. We do feel that the law of sedition in our country should no longer be left in the nebulous state in which it is by reason of the judicial decisions based on the true but nevertheless narrow principle of construction. It is desirable that the safeguards let in by the Federal Court in its judgment in Niharendu Dutt Mujumdar's case should be incorporated in our law of sedition and our Press Act, for these very proceedings clearly demonstrate, to our mind, that people still require protection against the Executive Government even though it is our National Government."

Striking is the fact that there was a separate forfeiture order against the same publication, which was also challenged and struck down by a judgment delivered by the High Court a few months thereafter in July 1949 [1950 CriLJ 725]. The lead opinion by Ram J. again made some remarkable observations: 

"I am not a little surprised that the Chief Commissioner should have considered it necessary to base an order of forfeiture on this material. Item 1 was published more than five months before any action was taken by the Chief Commissioner, The desire to stifle legitimate criticism is to be deprecated and the press must be allowed more liberty of expression. The proceedings in this case would appear to show that even innocent and harmless utterances of the press are looked upon with disfavour by the executive authorities."

To think that all High Courts were setting aside proceedings under the Press Act is a stretch [for instance, see here]. But it certainly appears to have been the dominant view. Another example comes from a case, in the other partitioned state, on the question of suppressing political speech came in context of action taken by the West Bengal government in relation to a paper called the 'Saptaha' in March 1949. Orders forfeiting the security furnished under the Press Act were passed after publication of pieces criticising the handling of political prisoners. The Calcutta High Court upheld the orders of forfeiture in a judgment delivered in August 1949 [AIR 1950 Cal 444]. But even whilst doing so, all three opinions were at pains to note that adhering to the position in Sadashiv would stifle a great deal of legitimate criticism in the nation that was now an independent democracy. 

To cite more cases would only belabour the point [if interested, see here], which is that between 1947 and the coming of the Indian Constitution in 1950, it was certainly not the dominant intention of all arms of the new Indian State to breathe more life into critical speech. This new nation had not even begun to stand on its feet as its administrators were tasked to deal with a humanitarian crisis of unparalleled proportions. Restoring the sense of normalcy that prevailed prior to the Partition became the immediate objective and to achieve this, nationalist administrators turned to the same playbook that had served the colonial regime so well before them. It fell to the courts to remind the administrators that they could not simply go on as before, as they were now dealing with citizens not subjects. Citizens had a right to criticise the state and government established by law. This was not a formal right recognised in a document as the Constitution was yet to come into force, but a natural right that inhered in the public of a democracy.

The formal right soon came as well, in the form of Article 19(1) of the Constitution of India. The absence of the words 'public order' from the clause codifying restrictions was notable and has been a regular topic of discussion over time. One of the facets that makes this absence remarkable is the prevalence of public order statutes across the country at the time. There were 'public safety' or 'public order' statutes in almost every province, which as I mentioned above were passed to confer broad powers upon the authorities to mainly deal with the violence of Partition but were often used for much more. To willingly forsake this legal concept of public order or public safety to limit speech when crafting the Constitution, in spite of these being exceedingly prominent at the time, speaks volumes about the document and its emphasis on securing the rights of citizens. That some parts of the prevailing public order and public safety acts were some of the first pieces of legislation to be declared unconstitutional by the new Supreme Court of India in Brij Bhushan [1950 SCR 605] and Romesh Thappar [1950 SCR 594] caps an astounding turn of events.

The security and forfeiture provisions of the Press Act, though, were held as constitutional by the Calcutta High Court in April 1950 (a month prior to Brij Bhushan and Romesh Thappar) [Ramesh Saha, AIR 1951 Cal 36]. When a similar challenge came up before the Punjab High Court in context of seizure of a book after the Supreme Court had interpreted Article 19, a majority did not hesitate in declaring Section 4 of the Press Act as unconstitutional for it condemned a swathe of utterances besides those having a tendency to overthrow the state [Amar Nath Bali, 1951 CriLJ 261]. In dissent, Kapur J. agreed that this particular order of the executive was bad, but could not join the majority in declaring Section 4 of the Press Act as going beyond the scope of permitted limits on free speech. Relying heavily on prevailing U.S. law, he batted for an approach that allowed more play in the joints for each case by adopting a test of reasonableness. There was vagueness in the clause, and if authorities abused their power then that abuse or misuse could not be seen as determinative of the legality of the clause itself. For him, expanding the logic of Brij Bhushan and Romesh Thappar across the board would mean that provisions such as Section 153-A of the Penal Code would also fall by the wayside, and that was certainly beyond contemplation.

Striking down of Section 153-A and 124-A of the Penal Code (as well as parts of the East Punjab Public Safety Act) by a different bench of the Punjab High Court is exactly what happened a few months later in Tara Singh [1951 CriLJ 449]. The opinion says peculiarly little about the specific acts that resulted in the Petitioner being prosecuted of these offences. What is even more curious, and also telling from the view of hindsight, is that the government argued that while the statutory clauses are vague, so was Article 19(2), and the Court should try to adopt a construction of the law that renders it valid. Such an interpretation could be found in Niharendu. This time, the High Court disagreed, noting that a bare reading of Section 124-A did not support any such limitation, and it was impermissible to read in new phrases into a penal statute. Ironically, sticking to the expansive logic of Sadashiv is what condemned Section 124-A. 

For the interim Union Government, these opinions confirmed the judiciary was realising their worst fears of permitting all sorts of disreputable and incendiary speech at a time when the country was still reeling from separatist rhetoric. The outcome of the decisions in Brij Bhushan, Romesh Thappar, Tara Singh is well documented. It led to amending Article 19(2) to clarify that restricting speech in interests of public order was not beyond the pale [something hinted at in the dissenting opinion of Kapur J. in Amar Nath Bali]. The new formulation widened possible grounds for limiting speech and expression while adopting a test of reasonableness to decide if government action was valid. 

Another less widely documented development was the repeal of the Press Act of 1931. Perhaps this was in line with Prime Minister Nehru's remarks at the time of bringing in the amendment to Article 19 that sedition was an obnoxious offence that deserved no place in India's laws. But removing the hydra required much more than repealing one of sedition's manifestations in the law.

Part Three: From the First Amendment till Kedar Nath

The First Amendment continues to divide foes and friends. For some, it put the bird of free speech back in the cage by broadening restrictions. For others, it did broaden possible grounds for curbing speech but in fact ushered in a more sensible regime by inserting a reasonableness requirement which meant there had to be a real connection between the offending speech and the problems Article 19(2) identified rather than a mere formalistic one. 

If we look at how courts took to interpreting Article 19 in the wake of the amendment, it appears that some judges thought the amendment allowed more restrictions to free speech. The clearest adherent to this view appears to have been S.K. Das, J., during his time as a member of the Patna High Court [incidentally, the first Justice to the Supreme Court of India without a legal background; he was an ICS officer]. His decisions in Debi Soren [1954 CriLJ 758], Ramanand Tiwari [AIR 1956 Pat 188 - in context of a 1947 law on maintaining essential services] took a view that amended Article 19(2) was broad enough to embrace the Privy Council's reading of the sedition offence in Sadashiv — even as he expressly disapproved of that interpretation as being 'unduly literal'. The key, he argued, was that the amendment permitted restricts not for maintaining 'public order' but those 'in the interests of' public order, which was a broad formulation. Importantly, around this time, a separate bench of the Patna High Court upheld the convictions of Kedar Nath Singh by a judgment in April, 1956. 

Then was the view of the Gauhati High Court which agreed that the amended Article 19 was a broader set of restrictions, but even so did not save Section 124-A in its entirety [Sagoslem Singh, 1955 CriLJ 184]. 

And practically on the other side of this spectrum was the view of the Allahabad High Court. It construed Article 19(2) by reading 'public order' narrowly and interpreting the reasonableness prong as requiring a proximate link between offending speech and threat to disorder [Das J. expressly rejected this approach in Ramanand Tiwari]. This led a full bench of that Court to unanimously strike down Section 124-A in May 1958 while deciding a batch of appeals [Ram Nandan, AIR 1959 All 151], with three separate concurring opinions being authored. The government seems to have adopted a two pronged approach — it first argued that restrictions suggested in Niharendu ought to be read in to the law, which the Court declined for this would amount to re-writing the text. Next, the government sought to overcome absence of any public disorder requirement by claiming that comments causing disaffection under Section 124 had an inherent tendency to cause such disorder. This framing was regarded as far too broad by the Court, and its dangers were elaborated to different degrees by the three opinions.

The appeals filed against Ram Nandan and other judgments were finally decided by a Constitution Bench of the Supreme Court in Kedar Nath Singh in 1962 [which incidentally consisted of S.K. Das, J.]. While it agreed with the Allahabad High Court that the sedition offence could not be saved as it stood on the statute book, the Supreme Court was not hamstrung by precedent to craft a different reading of the law if needs required. Needs did require, and so it decided to conduct the kind of judicial surgery of a statute which the High Courts had deemed inapposite. The Court read in a requirement of the speech to excite disorder or use of violence, and retained the law on the books. Less than ten months thereafter, India found itself in the middle of a war where the Defence of India Act and Rules would be revived with the 'prejudicial act' definition being as it was when Niharendu and Sadashiv were decided; only Rule 34(6)(h) was now Rule 35(6)(e).    

Taking Stock

The point of this post is not Kedar Nath Singh, but the journey to this destination that spans two decades. We saw that between 1947 and 1950, the High Courts were unhappy with the literal reading of Section 124-A preferred by the Privy Council in Sadashiv, and even more unhappy with how the provincial governments were using the idea of sedition to muzzle political speech. Between 1950 and 1958 there had been several challenges to the validity of sedition and similar offences / laws. State governments fought for validating the sedition offence within the folds of the new Constitution, as well as fought for retaining broad powers that vested curbing speech and expression on a similar logic under other laws [the Dramatic Performances Act 1876, for instance; or using the Police Disaffection law; or suspending agitating public servants under conduct rules]. Nowhere did the Union Government intervene, nor was any bill pushed to formally repeal sedition and allied laws. So, while the Union Government claimed to dislike sedition — recall the speech of the Prime Minister during debates on the First Amendment to the Constitution— this dislike was seemingly not reflected in practice.

The manner in which the state governments sought to defend sedition when it was challenged is important. The first line of argument was to invite judges to rewrite the law, in line with Niharendu, and acknowledge the need for an explicit test linking the offending speech with an intention to cause disorder. The High Courts disagreed for reasons of principle and precedent. Principally they saw this as rewriting the offence which was beyond the judicial role. On precedent they considered the opinion in Sadashiv as having been accepted by the Indian Supreme Court as correct and thus binding on High Courts. The second, alternate line of argument, was that sedition is so obviously connected with public order that it was justified under Article 19(2). This meant either claiming that the phrase 'interests of public order' did not necessarily require disorder, which the Patna High Court agreed with; or claiming that a tendency to public disorder was inherent in sedition, which the Allahabad High Court rejected as being an extremely broad view of the law.  

Equally noteworthy is what was not being argued in court. The debate on whether sedition itself ought to be a crime in the first place was lukewarm at best. The dominant view seemed to treat sedition somewhat like obscenity; part of a category of harmful speech that did not deserve legal protection yet seemingly incapable of precise definition. The only issue for courts used to become whether the extant formulation of the Penal Code curbed the dangerous speech without casting too broad a net to also embroil a great deal of fair criticism. 

One would imagine that concerns about overbreadth would mean being critical about the usage of phrases like 'hatred', 'contempt', and 'disaffection' to describe the allegedly problematic speech and this vagueness resulting in the offence being declared unconstitutional. But this was not so. Much like their colonial predecessors, Courts in independent India took the view that they knew what real disaffection or hatred was when they saw it so the vagueness of the phrases was not a problem. Instead, the problem was a lack of clear signalling to the government, which could be resolved by inserting the disorder requirement in the offence. This was, after all, at a time when Articles 19 and 21 were of a rather limited import and the main emphasis to secure fairness was insertion of procedural tests to first curb the exercise of power and then confer sufficient opportunity for review. Vagueness as a test for determining the validity of crimes was not a theory in vogue, not only in India but also the world [the U.S. Supreme Court adopted it only in 1972 with Papachristou]  

Summing up then. Reading Kedar Nath Singh suggests a compromise was being struck by the Supreme Court. By looking at a sliver of the rich history of judicial engagement with the sedition offence as under Section 124-A of the Penal Code and allied laws, this post sought to help shed more light on the context behind Kedar Nath Singh as we return to re-evaluate the choices it made.

[Disclaimer: The author is part of the legal team involved in one of the petitions challenging the validity of the sedition offence]

Section 144 Cr.P.C. — Part IV: Public Order and Political Agitation (1901 to 1920)

(This is the Fourth Post in a series on the Blog. Previous posts can be accessed here)

The previous post expanded upon the officers who dealt with the powers conferred under what, by 1898, was Section 144 of the Criminal Procedure Code [Cr.P.C.]. The post also elaborated upon the expansion of such powers by the enactment of new police legislation, or the amendment of existing laws to empower police to address public order problems. Before that, we had begun drawing a long historical arc to see the evolution of Section 144, which is at the heart of public order policing in India today. This post comes back to that effort, and sheds light on the period from 1901 to 1920. 

Judicial Decisions: A Skewed Archive

The reported judicial decisions from 1861 to 1901 were few, but nevertheless, significant. The cases showed how the legislators at that point in British India were keenly tuned into how the statutes were being applied. This litigation experience was useful feedback for the legislators, who then amended the law to rectify whatever defects had been made apparent. A good example of this was the addition of a time-limit on the duration of any orders under Section 144. Where no such temporal limits were initially present, the law was amended in 1872 after courts stressed upon the need for such a limit to the powers conferred by this provision. 

At the same time, the litigation history of Section 144 also helped give an idea of the social context in which the provision was being used. The few reported decisions available suggested that one of the main uses of Section 144 was to help keep the peace between rival groups — be it religious sects, landlords, or factions in a village. At the same time, a few stray decisions had Magistrates using this provision as a tool for good governance — by regulating how boats could be docked at the harbour, say — and such administrative usage of the provision was strongly deprecated by the High Courts.

I've added details of the reported decisions for the period from 1901 to 1920 to the Google Sheet, this time including references to cases under the Police Act. It would appear that the the most common litigation in the High Courts around this provision continued to be that between rival groups seeking to enforce / defend their private rights. In this regard, it is notable just how frequently ordinary disputes over land rights ended up with Section 144 orders being passed, which were then set aside by the High Courts. A line of cases emanating from the Patna High Court is most instructive in this regard. There are also two cases that came up where orders under Section 144 / Police Act had been passed for good governance purposes: One of these regulated the carting of dogs, and the other regulated who could go through a railway station. In both cases, the orders were struck down.

Before drawing conclusions about the social context in which these provisions were being used, let's take a step back, and square this information from judicial decisions with what else we know about this period from 1901 to 1920.

According to most accounts, this period was one of the most volatile periods in the history of colonial India. Recall that this is the era of the infamous Partition of Bengal, of the onset of revolutionary and anarchical activity across the colony and secret societies, of the First World War, of the Khilafat movement, and of the infamous Rowlatt Act. However, none of this is reflected in our small set of High Court decisions. In fact, I found zero cases where the High Courts dealt with Section 144 orders passed in such kinds of issues. The only case I found where the facts concerned political agitations was one under the Calcutta Suburban Police Act, where the Calcutta Police had banned one Leakat Hossein from carrying out Swadeshi Agitations in 1907.

Section 144, Political Speech, & the Seditious Meetings Acts

So, was Section 144 really not being used by the government to rein in political agitators during this period? Of course not. During this time, the limits of Section 144 were being tested as a strained set of administrators relied on this provision to curb political speech and expression. While it did not end in courtroom battles, there was considerable debate within the administration itself, much of which is now publicly accessible thanks to the digital repository of the National Archives of India. 

The tense situation created by the Partition of Bengal in 1905 led many District Commissioners and Magistrates to use Section 144 and prohibit public meetings which, in their view, involved seditious oratory. But something was clearly amiss, for in 1907 the Government brought about the Regulation of Meetings Ordinance to prevent "seditious meetings" and applied it to parts of Bengal. The debates on the eventual Prevention of Seditious Meetings Act of 1907 are silent on this aspect, and Dr. Rash Behari Ghosh's remarks of Section 144 being enough to curb seditious meetings went unanswered. 

A view to how the Government approached the issue can be gleaned from the Home Department files on the 1907 Act, specifically the one marked "HOME_POLITICAL_A_1907_DEC_64-84". The file contains a letter dated August 12, 1907, sent by the Chief Secretary to the Chief Commissioner, Central Provinces to the Secretary of the Home Department, Government of India, giving his opinion on the draft legislation shared with him (Pages 130-132). On whether Section 144 was sufficient to deal with seditious meetings, the letter reads:

"Section 144 of the Criminal Procedure Code would justify the issue of an order to this effect to a fire-brand orator; but disobedience, to that order cannot be punished under the Indian Penal Code unless the court will hold that his action produced or tended to produce a breach of the peace. Fear of a disturbance of the public tranquillity justifies an order under section 144 but not a conviction for disobedience of it under section 188 of the Indian Penal Code which was never correspondingly amended. The object sought could be gained by such an amendment of section 188 of the Indian Penal Code. The interpreta­tion of section 144 of the Civil Procedure Code [sic], read jointly with section 188 of the Indian Penal Code, is so overlaid by a mass of rulings that it is difficult to extract what the law on the subject really is."

Thus, one big flaw in the potential for using Section 144 to curb political agitations was the absence of any subsequent sanction: Even if somebody disobeyed the order, punishment could only follow in very limited cases.

More arguments on the inadequacy of Section 144 are found in a letter dated July 18, 1907 that was appended to the letter sent in August. This earlier letter was sent to all Commissioners and Deputy Commissioners in the Central Provinces and Berar by the Office of the Chief Commissioner, Central Provinces, giving guidance on using Section 144 to deal with political meetings (Pages 138-139). I've linked a typed out copy of the letter here, which merits a full reading.

In the interests of brevity, here I only flag three of the other concerns that the letter raised in using Section 144 for the purpose of containing political speech. One point was the lack of prior notice that a meeting was to be held: it would be very difficult to issue orders under Section 144 to prevent a seditious meeting if there was no prior notice at hand. Another point was the concern of Section 144 with preventing public disorder. Thus, it could not be used "if the sole object of the Magistrate were to prevent an extremist orator from making a Swadeshi speech which might or might not contain seditious phrases". And, finally, there was the problem of legality. There was always the chance that the order under Section 144 could be challenged, either directly or in a prosecution for Section 188 IPC, and so Commissioners were advised to only pass orders which could withstand subsequent legal scrutiny. 

As a result of these issues, the Seditious Meetings Act was passed in 1907 with a three-year expiry date. It was given an extra lease of life in 1910, and then was made permanent in 1911. However, even though the legislators had stressed on the inadequacies of Section 144 to push the case for having a special law in the nature of the Seditious Meetings Act, the ordinary law continued to be used for the containment of political speech throughout British India. Indeed, the sufficiency of the ordinary law was a constant refrain of the Indian benches who were opposing the 1911 Act in the Legislative Council debates. 

Perhaps it was due to this supposed adequacy of Section 144, coupled with India being placed under wartime legislation for a large part of the 1920s, that the Seditious Meetings Act was rarely used till its eventual repeal in 2018. The same can hardly be said about Section 144, which emerged as one of the "repressive laws" of the colonial regime in the subsequent decades.

Next Post: Emergence of a Repressive Law

The years between 1901 to 1920 marked a transformation in how Section 144 came to be used across India. A growing political consciousness led to this provision being used to prohibit public meetings where, according to the British, seditious speeches would be made. Yet, in spite of this, a reference to the debates of the Legislative Council when this issue of curtailing public meetings was raised shows that the Indian members of the Council were quite sympathetic to this provision. It is perhaps notable that while the Rowlatt Act, the Seditious Meetings Act, and the Defence of India Act were all part of the brief of the Repressive Laws Committee of 1922, Section 144 was not.

The resentment surrounding Section 144 was to considerably grow in the next two decades, as it became a key instrument in the legal arsenal to combat large-scale political mobilisation in India. By the end of this period, Section 144 also came to be seen as a Repressive Law, with many unsuccessful attempts being made for its repeal. All this will be the focus of the next post in this series.

Descending into the Abyss: The Denial of Bail in the KLE Students Case

Basit, Talib, and Amir are three students of the prestigious KLE college in Karnataka. They are all in their early 20s and have received scholarships to pursue their college education. They also happen to be Muslim, and hail from the erstwhile state of Jammu and Kashmir. These students made a short video in which it appears that they are singing a song and changing the lyrics to say "Pakistan Zindabad" at one place. They did not ask anyone to sing along by chanting this on stage, but rather, they made this video in the confines of their room. They did not ask anyone to come to the streets to condemn the country that they are citizens of, to protest against a government, against a law, or against anything. What they did was that they made a video, changed the lyrics of a song and sang it, then shared it on their social media account(s). 

They were arrested for allegedly engaging in seditious conduct. Yes, sedition — a crime that requires either saying or writing anything which brings the Government into hatred or contempt, or excites disaffection towards the Government and is punishable with imprisonment for life. They were also alleged to have promoted enmity between different groups of the community by this dastardly deed of making a video with a "Pro Pakistan" slogan in it. Not only were they arrested, but their conduct was deemed so hazardous that the very lawyers whose professional duty requires them to assist any person in need passed resolutions banning any legal aid from being extended to these twenty-year olds. 

It was only after intervention by the Karnataka High Court that these boys managed to get a lawyer. And, even then, the lawyers needed massive police protection to make their way to their clients, for it turned out that their video had created such a hostile situation that there seemed to be a threat to the lives of any person seemingly connected with the boys. Even so, the lawyers performed their duty and filed a bail application before the jurisdictional court. And by all accounts, it was an arguable case for bail: (i) their clients were young first-time offenders, (ii) the police already had seized the incriminating evidence which could not be deleted or tampered with, (iii) the boys were willing to subject themselves to any conditions and produce sureties ensuring their presence as and when required, and (iv) by all accounts, the allegedly criminal act of saying "Pakistan Zindabad" in a video could not satisfy the legal threshold prescribed for the serious crime of Sedition, where the law had consistently demanded nothing less than incitement to public disorder. 

What nobody could have accounted for are the manifest illegalities and complete abrogation of judicial function that describes the order through which the bail applications of Basit, Talib, and Amir have been dismissed by the jurisdictional court in Hubli / Hubballi. The order displays a near-total failure to consider the bail applications for what they were — applications seeking release pending investigation into the allegations — and, instead, is a classic demonstration of an overzealous court pre-judging the merits of a case where the bogey of national security is raised to condemn the accused. 

In a complete dereliction of duty and contrary to the legal position on bail most recently encapsulated by the Supreme Court in the Chidambaram cases, the Hubli court meekly accepts the shockingly bald and generic assertions made by police about the accused persons tampering with the evidence and fleeing from justice if released upon bail. The only basis to suggest that the accused will flee from justice if granted bail was the fact of their Kashmiri heritage, with the police stating that it will be "difficult" to get them to appear if they fled to the region. One can only imagine that this was due to the sheer geographical distance between Kashmir and Hubli, for the ferocity of policing in that region surely would ensure that the accused could not "flee" if they went to Kashmir. 

The court appears to be in such awe of the grave and serious allegations levelled against the accused by the police, that it completely fails to consider whether the conduct in question even meets the legal requirements of the alleged offences. Thus, while many people might think it is a bad to say anything "Pro Pakistan", that does not automatically make any such act seditious, nor does it automatically incite hatred towards India, or between any groups in the community. What is grave here are not the allegations, but how the court failed to conduct even this basic level of scrutiny while assessing the prosecution case, and thus failed to rise above the kind of assertion-based arguments that are the staple for television shouting-contests but not for courts of law.         

Rather than thorough engagement with the legal considerations for bail and a test of the police claims, what we get is a sermon from the court about the duties of young persons and the dangers of engaging in any speech that even remotely suggests affection towards the neighbour with whom the court (incorrectly) says India has severed bilateral activities. The court reminds us that the "safety and security of this Country gets priority over all", and is so worried about the anti-national activities and the threats to national security in the present climate that it openly advocates for using the criminal law to monitor such ideas so that they can never "hatch" or come out of their "shell". At this point, one can't help but be reminded of the similarities here with the Delhi High Court's bail order in Kanhaiya Kumar's case, where the court did grant bail but only after literally "singing" paeans to state interests. 

The court's surrender to the throes of national security is complete when it informs us that the above considerations demand that the court "must allow the investigation agency to do its job with any body's intervention" in the present case. What are courts supposed to do then? Perhaps deny all bail applications in cases where the offences alleged are those affecting national security and remand all accused persons to custody with a short lesson on having good ideas that will help "accelerating the economic growth of the country". Or, they could do their job, which is to decide a bail application for what it is worth, and leave the ultimate adjudication of guilt or innocence for later. 

Basit, Talib, and Amir, were all arrested and sent to jail for making a short video. They were denied a lawyer because an entire Bar Association prejudged their guilt and deemed them unworthy of even a shot at trial. Now, their guilt has been prejudged by a court, which supported such a total surrender to the interests of national security that it consigned personal liberty to the bin, making it seem like the country is at war today. Any person reasonably well-versed with the law would argue that there is a chance of this order being overturned by the High Court, and bail being granted. But that is hardly the point here. Today a court has eviscerated the presumption of innocence that these students were entitled to, and also extinguished for them the promise of personal liberty that is guaranteed by India's Constitution. Thus, instead of having a chance of giving their exams and living a normal life while allegations against them are proven in court, these boys will suffer the ignominy of prison and probably carry the label of anti-nationals for months or years, all because they made the mistake of singing a stupid song while they were young and the air was charged with emotion.

[The post was updated on 10.03.2020 to remove references about whether a request for transferring the case was made or not]

In Re Sedition

The offence of sedition made headlines again last week. This time, a public statement had been made stating that Pakistan was not hell. Cue, pandemonium. A private complaint under Section 124-A of the IPC was filed against the maker of the statement [Ms. Ramya, an erstwhile MP]; demonstrations were carried out in Karnataka by certain political outfits, and various entities were demanding a retraction of the statement over the internet. This circus came shortly after Amnesty India had also been alleged to have sponsored seditious talks in Bengaluru. The uproar fizzed, as it always does, and there were the usual outraged television debates with news anchors telling us that the nation wanted to know how could a crime like sedition still exist. The public live-tweets and votes in favour of repeal outnumber those for retention of the offence. If only live-tweeting could replace parliament.

I find it very difficult to discuss the offence of sedition under Section 124-A of the IPC given the obviously political and policy-based tenors of the debate generated. The wanton criminalisation of speech and expression carried out by the provision has been subjected to intense analysis by my friend and colleague Mr. Gautam Bhatia in his book. All of that debate has a clear conclusion - if one considers free speech and expression as important democratic virtues, then offences criminalising these virtues are obvious problems. The value judgment of where to draw the line on free speech must, theoretically, be made by the democracy. By having failed to repeal the offence despite it being 2016 today, one can argue that our democracy wants the sedition offence.

If I was to look at Section 124-A IPC, I'd obviously agree with all that is said about it being a horrible infringement on free speech, for those are my virtues too. But, regardless of the political virtues we subscribe to, there are deep objective problems with the offence that cannot be ignored. It is criminally vague and espouses a standard that defies any logical and unbiased enforcement. But even more importantly, the offence is redundant and achieves nothing from a criminal law perspective. The purpose of any offence is to curb certain kinds of behaviour in society. Can the conduct curtailed by having an offence such as Section 124-A IPC be curtailed by other offences? Certainly, yes; acts that would be properly booked under sedition as per the interpretation of the Supreme Court would ultimately also be offences of Rioting etc under the IPC. 

So why have sedition as an offence? In a 1977 Report/Working Paper, the Law Commission for UK and Wales recommended that the offence of sedition not be part of a proposed criminal code. It noted that "Apart from the consideration that there is likely to be a sufficient range of other offences covering conduct amounting to sedition, we think that it is better in principle to rely on these ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is 'political'." I argue that this is the very reason why sedition continues to be an offence in India - it provides a label that the conduct is political. In a country which wears its nationalism on its sleeve (or, on its plate, depending on where you are), it is necessary to have sanctions against the wrong kind of political. That's an answer, if the nation wants to know.

Bail in re JNU: A Pyrrhic Victory at Best

Today, a single judge of the Delhi High Court granted interim bail for 6 months to accused Kanhaiya Kumar in FIR No. 110/2016 under Sections 124-A/34 IPC (the investigation has expanded to offences under Sections 124-A/120-B/34/147/149 IPC). For those unaware (which means those who have been living under a rock for the past three weeks), Mr. Kumar -  a PhD student at the Jawaharlal Nehru University [JNU] and president of the Jawaharlal Nehru University Students' Union - was arrested after having been named in the FIR. The primary allegation against him was his involvement in the raising of anti-national slogans inside the JNU campus on 09.02.2016. As most of us were (hopefully) not living under rocks, I will not go into what apparently transpired on that date. The unquestionable facts were these: police stormed a varsity, arrested students for making speeches, and didn't do all that much to prevent Mr. Kumar getting assaulted while in police custody itself. 

What was the message sent? Was it like the Home Minister tweeted - no tolerance for those saying anti-national things? Would this mean that one's freedom of speech and express was going to be limited by the hurting of other's sentiments when those others go on a rampage to prove their hurt? All this made the bail proceedings of Mr. Kumar both sensational and highly important. The result, as the title suggests, is a pyrrhic victory if the glass is seen half full, but is an undeniable nadir for the judiciary if the glass is seen half empty (like most people do). Why do I say such damning things? Those of you who broke off reading this post to read the order first, or came here after having read the order, might not have that question. For others, bear with me as I explain. I have two principal objections: (i) a complete pre-assessment of the case that has effectively condemned the accused, and (ii) the emergence of a dangerous symbiotic relationship between a sensationalist judiciary with its sensationalist media. The Court also refused to adequately address the law on grant of bail itself, but lets leave that aside for now.

Article 19(1)(a) is little more than a House of Cards

The court puffs, and there goes the protection of Article 19(1)(a) tumbling down. After quoting Hindi Film lyrics deemed appropriate for the occasion - right at the end, the order states that observations here "shall not be considered as an expression on merits". It is standard practice to say so, as some engagement with the factual matrix is unavoidable when hearing a bail matter. But what happens here is difficult to swallow. The Court goes out of its way to confirm the entire set of legal propositions that the State wish to advance through the present case. It must be remembered that the question here is not only whether Mr. Kumar and others will be found guilty after trial, but whether there should be a trial in the first place. The extent of the rights safeguarded by Article 19(1)(a) was the issue here. That was squarely decided against the petitioners. The Court at paragraph 40 concluded that this "is a case of raising anti-national slogans which do have the effect of threatening national integrity". All hope that the accused had of having any arguments on charge were dashed in a line, regardless of the caveats issued. 

Paragraphs 39 and 41 show how the Court views the extent of the right under Article 19(1)(a). It exhorts, probably with a chest puffed with pride, that we enjoy freedoms without realising that we can only do so "because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans of holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even." Reading this, it seemed like I was re-watching Jack Nicholson deliver that famous "You Can't Handle the Truth" monologue from A Few Good Men. Mind you, Nicholson's character authorised the brutal killing of a soldier because he couldn't withstand those conditions and that would be ultimately fatal to the forces at the battlefield. 

Oh, also, a right to chant slogans is restricted by the "demoralising effect on the family of those martyrs' who returned home in coffin draped in tricolor." [Paragraph 42]. After telling everyone, from the Indian student body [Paragraph 44] to the JNU faculty [Paragraph 45] on how it should go back and think about the bad things that it did, the Court strikes the final blow in Paragraph 47: "the thoughts reflected in the slogans raised by some of the students of JNU who organised and participated in that programme cannot be claimed to be protected as fundamental rights to freedom of speech and expression." Yes, my thoughts themselves are unceremoniously thrown out in the rain from their place under the umbrella of Article 19(1)(a). The Court thus concludes that sedition is little more than a glorified defamation case against the State itself - you cannot say anything that might hurt sentiments. Is that what the purpose of having a fundamental right to freedom of speech and expression means? That a band of persons who claiming to be hurt (there, there) by my comments, can kick up enough of a fuss to take away my right to say that? Such an exercise of the legal provisions is definitely anti-minority and is bound to cause further oppression [For more on how such an interpretation of the law is undoubtedly horrendous, please read the excellent book by Mr. Gautam Bhatia titled Offend, Shock or Disturb.] 

Yet Another Confirmation of a Vain Judiciary

Paragraph 47, after taking away our freedom of thought, goes into an all out assault that I am still finding hard to understand. The order states that this anti-national thinking is "a kind of infection from which such students are suffering which needs to be controlled/cured before it becomes an epidemic." Naturally, the court follows this up with the old surgeon and gangrenous limb routine, rather farcically observing at Paragraph 48 that "whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally and if that does not work, by following second line of treatment. Sometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment." Due to the possible introspection engaged in by Mr. Kumar, the Court deems "inclined to provide conservative method of treatment." [It really does say so].

Who is this being written for? Is it for the police or the court? Of course not, for the order itself makes clear that the observations contained here are of no value whatsoever. They obviously are not for the general moral guidance of Mr. Kumar and the advocates involved in the case before the court. This is for the judiciary's new best friend, which it has revealed to us of late through 3 AM hearings and repeated soundbites - the 24 hour news circus! It was funny, as I started typing this post a certain channel started a newsflash about the order stating that "Exclusive: XYZ has Copy of High Court Order", deceiving you to think that an order available off the internet was in fact secured after great effect by the reporters of that esteemed establishment. At that point I knew what will follow over next two days. News anchors will shout themselves hoarse repeating these lines (some more than others, of course), to condemn and persecute at will. Amazingly, the order justifies the news peddled by the TV channels that JNU is a den of anti-national activity (something that even the police did not say). It went ahead and imposed the strangest conditions on granting bail to Mr. Kumar - he is required to "make all efforts within his power to control anti-national activities in campus", and his surety is tasked with not only ensuring that the Accused does not abscond, but also "to ensure that his thoughts and energy are channelized in a constructive manner" [a judicial nod of approval to our pro-national fascination with Yoga, perhaps?].  

Conclusion

Is a Pyrrhic victory better than none at all? While on the one hand it grants bail to Mr. Kumar (in my view, deservedly so as there exist little basis to further detain him for conducting the investigation), on the other hand the Court imposes several conditions on his release. The release is only for a period of 6 months. It would only be possible if Mr. Kumar secures a faculty member from JNU willing to stand surety for him and undertaking to ensure that he [Kumar] channels his energies in a positive way. Mr. Kumar himself is tasked with the unenviable exercise of ensuring that no anti-national activity occurs on the JNU campus. Anti-national here, as we all know, is basically whatever a bunch of people decide to cry foul about sufficiently loudly. Some would also note that by tasking him with being good-cop for 6 months, he has been uncharitably denied the right to step down as President of the Students' Union. What happens if someone thinks that one or more of these conditions are not being satisfied? That Mr. Kumar hasn't penned enough speeches eulogising our martyrs? The bail can be revoked, of course. So what the order eventually amounts to, is to give judicial basis for the public flogging of Mr. Kumar that occurred without such sanction previously. Perhaps a Pyrrhic victory might not be that good after all.