In the wake of the controversy over National Register of Citizens (NRC) and Citizenship Amendment Act (CAA) and amidst nationwide protests against NRC and CAA, a new controversy has erupted over the frequent application of the sedition law.

The law has been turned into a pawn in the hands of the government in the politics of polarisation. On 21 January, this year, some students staged a play on CAA at Shahin Urdu Primary School near Shahpur gate in Karnataka.

On 26 January, the Bidar New Town Police filed a first information report against the headmistress and school management under Section 504 (intentional insult to provoke breach of peace), Section 505 (public mischief) and 124A (Sedition) of the Indian Penal Code (IPC).

The FIR was based on a complaint made by an Akhil Bharatiya Vidyarthi Parishad (ABVP – the student wing of the RSS) member, whose allegation was that the school was “instilling hatred” against the country and indulged in “derogatory references” to the Prime Minister.

Most surprisingly, the police also arrested a woman Najbunnisa, the mother of a ten year old girl, who acted in a key role of the play. Najbunnisa, a 35 year old widow, along with the members of the managing committee and the headmistress, languished in jail. On 21 February, 2020, a 19 year old girl chanted ‘Pakistan zindabad’ in a public event that took place in Bangalore.

The teenager, Amulya Leona Noronha, almost simultaneously shouted ‘Hindustan Zindabad’ a couple of times. She was immediately arrested by the police and booked under section 124A.

She was charged with the offence of seditious activities against the state. Earlier Amulya had tweeted, “Be it any country, Zindabad to all”. Sanjeev Maradi, a Sri Rama Sena leader, who offered a bounty for killing Amulya, however, is escaping arrest. Maradi offered Rs 10 lakh for killing the student. Kaleeswaram Raj, a veteran Supreme Court lawyer, wrote a letter to the Chief Justice of the Karnataka High Court, appealing to him to quash the sedition case filed against the student activist.

Raj, in his letter, categorically stated that Amulya’s conduct “does not reveal anything that reflects promotion of enmity between different groups.

It perhaps does the opposite”. In February 2016, student unrest erupted in the JNU Campus. The Delhi police, under the union government, filed sedition cases under Section 124A, against some of the student leaders including Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya.

The student activists were arrested on the ground that by chanting the slogan of ‘azadi’, they showed their hostility to national integrity. After some time the students were released on bail. When the student unrest broke out, the Aam Admi Party was in power in Delhi. The sanction of the state or the Centre is mandatory for prosecution of offences against the state, including sedition.

The Delhi government did not give any sanction. But after winning the elections held in February 2020 with a spectacular margin, the AAP government shifted from its earlier stand. On 28 February, the AAP government under Arvind Kejriwal gave sanction for prosecution of the student leaders under Section 124A.

Kejriwal, once an admirer of Kanhaiya’s eloquence, did not divulge anything in this regard. In fact, the sedition law bears a colonial legacy and a pertinent question may be raised whether such a law can exist in a free constitutional democracy.

The section related to sedition initially had its place in the code as Section 113, when Thomas Babington Macaulay, a member of governor general’s law council, drafted the Indian Penal Code in 1837. However, for some inexplicable reasons, it was omitted from the numerous intervals, being singled out for curbing of free speech. In 1951, the Punjab High Court ruled Section 124A to be unconstitutional.

A similar verdict was given by the Allahabad High Court in 1959, which concluded that it struck at the very root of the free speech. In the Government of Bihar vs. Kedarnath Singh case, the Supreme Court ruled in 1962 that speeches against government or political parties were not illegal, while upholding it as applicable to separatism by persuasion or force.

The Supreme Court observed, “Comments, however, strongly worded, expression of disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal”. As the first Amendment to the Constitution of India was passed in 1951, the then Prime Minister Jawaharlal Nehru proposed to get rid of 124A of the Indian Penal Code as written, and favoured handling of sedition by other means.

However, Section 124A was not withdrawn. In 2018, the Law Commission of India published a consultation paper that asked for a possible amendment or repeal of the law. The Law Commission rightly observed that “an expression of frustration over the state of affairs cannot be treated as sedition”.

During the 2019 general election, the Indian National Congress (INC) included a specific proposal to abolish 124A in their manifesto. But it must be noted, while the INC led United Progressive Alliance (UPA) government was in power from 2004 to 2014, a large number of citizens faced trial under Section 124A.

About 9,000 people were arrested only on ground of sedition. Even eminent personalities like Binayak Sen (2007) and Arundhati Roy (2010) were charged with sedition under 124A. The present union government led by the Bharatiya Janata Party (BJP) is haunted by the spectre of sedition in each and every criticism against the government. In 2014, some Kashmiri students were charged with sedition for supporting Pakistan in a cricket match between India and Pakistan.

Apart from Kanhaiya Kumar and his associates, the Patidar leader of Gujarat, Hardik Patel was slapped with sedition charges. In replying to a question raised by a TRS MP, Banda Prakash, in July 2019, in Rajya Sabha, Nityananda Rai, the Minister of State of Home Affairs, categorically stated, “there is no proposal to scrap the provision under IPC dealing with the offence of sedition.

There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements. The Father of the Nation opined that the Section 124A, which deals with sedition, was “designed to suppress the liberty of the citizens”. Jawaharlal Nehru called the Section “obnoxious” and “objectionable”. But we have miserably failed to get rid of this draconian law and to emancipate ourselves from colonial legacy.

If the country is not open to positive criticism, it would be difficult for us to distinguish between pre and post-independence era.

The writer is an Associate Professor, Dept. of History, Vivekananda College, Kolkata.