The Great Repression Read online

  CHITRANSHUL SINHA

  THE GREAT REPRESSION

  THE STORY OF SEDITION IN INDIA

  PENGUIN BOOKS

  Contents

  Acknowledgements

  Prologue

  PART I: ORIGIN STORY

  1. Company Raj: Seeds of the Modern Indian Legal System

  2. Bentham, Mill and Macaulay

  3. The Indian Penal Code and Sedition

  PART II: EARLY LIFE

  4. Four Trials and an Amendment

  5. Revolutionary Sedition

  6. Dark Acts and the Black Act

  7. Gandhi, Azad and Nehru: Politics of Sedition

  PART III: SEDITION IN THE REPUBLIC

  8. No Love Lost: ‘Sedition’ in the Constituent Assembly

  9. Courting Sedition: Conflict with Freedom of Speech

  10. Stories of Sedition

  11. The Road Ahead

  Notes

  Follow Penguin

  Copyright

  ADVANCE PRAISE FOR THE BOOK

  ‘Chitranshul Sinha’s trenchant exposition of the history of the sedition law in India makes an exceptionally well-researched and strongly argued case against this antiquated and undemocratic tool of repression. His exceptionally readable analysis has been critically positioned within the structures and practices through which the concept of sedition emerged, making it an insightful work of great relevance for our times’—Shashi Tharoor, member of Parliament from Thiruvananthapuram

  ‘The book concisely chronicles the entire 150-year journey of the law of sedition from its insertion in the Indian Penal Code in 1870. Despite the extensive and inevitable legal content, the book is highly readable and Chitranshul Sinha makes a compelling case for the repeal of Section 124A—as has been done in the UK, the country of its origin’—Arvind P. Datar, Senior Advocate

  To the innumerable nameless seditionists to whom we owe our freedom and our republic

  ‘The Constitution fails when a cartoonist is jailed for sedition.’

  Justice Dhananjaya Y. Chandrachud

  Acknowledgements

  The idea of writing a book, any book, took flight when Rukun Kaul, a dear friend, declared one fine evening that she thought I was going to write a book. This decree was pronounced while discussing the future and our expectations from it. She followed up her pronouncement by connecting me to Manasi Subramaniam, editor extraordinaire at Penguin Random House India. Manasi then guided me towards the idea of writing the story of sedition in India and helped me crystallize the pitch and the structure. After that she granted me complete freedom and never ever interfered or tried to influence my work. As a professional working in a high-stress environment, being granted such freedom was a breath of fresh air. Thank you, Rukun, and thank you, Manasi.

  The idea of writing anything for public consumption was given a push by another dear friend, Apar Gupta. He pushed me to write and connected me with Rukmini Srinivasan at Huffington Post, for whom I wrote my first article. Rituparna Chatterjee, who was then an editor at Huffington Post, and whom I have the privilege to call a friend now, enabled me to write even more and helped me develop my writing style as well as my confidence. Thanks, guys.

  The amount of research involved in this book was monumental. I would not have been able to take a deep dive without the help of my colleague Sonali Khanna, who is a bright young lawyer to watch out for, and Akshay Sharma, who is one of the brightest law students I have come across. Deepa Kumar helped me source research material which otherwise would have been unobtainable for me thanks to the gatekeepers of knowledge. I also want to thank all my colleagues in my office for their support and constant encouragement. Dua Associates, the law firm where I work, has one of the best work environments which granted me the freedom to write while working full-time.

  I owe a debt of gratitude to my friends and colleagues Alok P. Kumar, Gautam Bhatia, Aastha Dhaon and Konark Tyagi for looking at my manuscript despite having extremely busy lives. Their suggestions and inputs were invaluable and helped me provide the final shape to this book. Siddharth Singh chipped in with excellent tips and advice despite being occupied with writing his own book, the excellent The Great Smog of India. Asmita Bakshi and Avantika Mehta, excellent journalists both, provided brilliant suggestions for deciding the book’s title, which is an extremely underrated task. Super-cop A. Sai Manohar (IPS) provided insights and guidance on legal procedure and data without which a critical part of the book would have remained insufficient. His grace was demonstrated by the fact that he took time out to help me despite being busy beyond belief. I am really grateful for his help. Special thanks to my brother, Ayushman, for being my sounding board and for patiently listening to my rants.

  This book would never have been completed without the support of Esha Sharma, my wife, who suffered through a year of lost weekends (and weekdays) with nothing but encouragement. She forsook important occasions for my sake, raised my spirits and kept me on the right path every time I was just about ready to throw in the towel. Her help at crucial junctures is invaluable. This book is as much hers, if not more, as it is mine.

  Lastly, writing in this medium would not have been possible without the English language education that my parents provided me with despite all odds. They ensured that my brother and I studied in the best schools and colleges while fighting off financial constraints. My brother and I never felt that we did not have enough, or we were not good enough. They taught us life.

  Prologue

  The Indian Express published a story on 20 June 2018 about how the police in the Rohtas district of Bihar arrested eight people, five of whom were minors, on charges of sedition for dancing to a song whose lyrics meant, ‘We are Pakistani mujahids, protectors of Earth; if you challenge us even by mistake, we will cut you up.’ The arrests occurred after a video of the song and dance was given to the police by a right-wing organization.

  ‘They must have danced to the beat—the song barely played for three or four minutes,’ the parent of one of the boys said. According to the brother of another minor boy, ‘The children were dancing in joy. Most of them realized that some objectionable and controversial song had been played only after the ruckus following police intervention.’ The father of another boy said, ‘Sedition charges against these little boys have hurt us badly. There has never been any communal riot in Nasriganj’s history. In this town you can still hear the azaan and Ram dhun going on simultaneously. We are trying to hire a good lawyer and pinning all hopes on the judiciary.’

  The Indian Penal Code (IPC) of 1860 was the first ever codification of offences and penalties in India. Chapter VI of the Indian Penal Code provides for ‘Of Offences against the State’, within which falls Section 124A which lays down the offence of ‘sedition’. The capital alphabet ‘A’ suffixed to 124 signifies that the provision was not a part of the original penal code as enacted in 1860. Section 124A was slipped in between Section 124 (‘assaulting President, Governor, etc. with intent to compel or restrain the exercise of any lawful power’) and Section 125 (‘waging war against any Asiatic power in alliance with the Government of India’) of the code in the year 1870, marking the first time that sedition was defined in a statute in the common law system.

  Section 124A was amended for the first time in 1898, and thereafter underwent multiple changes in the years 1937, 1948, 1950, 1951 and 1955. After the amendment of 1955, Section 124A has been left untouched by Parliament, and in its present form reads as under:

  Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punishe
d with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

  Explanation 1.—The expression ‘disaffection’ includes disloyalty and all feelings of enmity.

  Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

  Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

  The first annual report on ‘Crime in India’ was published for the year 1953 by the Intelligence Bureau which introduced a uniform system of maintaining crime statistics throughout the country. The report covered only the major heads of crimes, being murder, dacoity, robbery, kidnapping, housebreaking and theft. The entire report along with appendices was twenty-one pages long. Thereafter, the annual report has been published for all years till 2016, barring 1962, which was the year of the Indo-China war.

  The National Crime Records Bureau (NCRB) is the agency now responsible for the collection of statistics and publication of the report, which has grown in volume and now features an expanded categorization of offences. However, offences against the State did not find a separate mention for sixty years. The report created a separate category for offences against the State in the year 2014 for the first time. In its introduction to the chapter on offences against the State, it says:

  Broadly speaking, all crimes are against the state, or government, insofar as it disturbs the public order. But there are some criminal activities that are directed against the existence of the state itself viz. treason, sedition, and rebellion. Treason is the crime of betraying a nation by acts considered dangerous to its security like selling military secrets to a foreign power, giving aid to the enemy in time of war etc. Sedition refers generally to the offence related to conduct or speech inciting people to rebel against the authority of a state or government. Rebellion is the attempted overthrow of a government; if it succeeds it is a coup, or revolution.

  A total of forty-seven cases of sedition under Section 124A of the IPC were reported for the year 2014 for which a total of fifty-eight people were arrested. This number fell to thirty cases in 2015 with seventy-three people arrested, but rose to thirty-five in 2016 with forty-eight arrests. At the end of 2016, out of all the pending cases, sixty-one cases under Section 124A were still pending investigation by the police. The charge-sheeting rate for cases of sedition stood at 66.7 per cent, which implies that over 33 per cent cases where an offence of sedition was alleged did not even reach trial and were closed by the police. In fact, out of the forty-eight people arrested for sedition in 2016, only twenty-six people were charge-sheeted.

  The year 2016 saw thirty-four trials for sedition, out of which only three cases were concluded, resulting in a single conviction and two acquittals according to the report. Thus, at the end of 2016, thirty-one trials were still pending adjudication.

  The recorded data demonstrates that out of all the recorded cases there has been just a single conviction. The NCRB data records that the conviction was in the mineral-rich eastern state of Jharkhand, which incidentally also recorded the highest number of cases under Section 124A. Note that there is a raging internal conflict in the state with Maoist insurgents, with the government locked in a bitter battle with them for the past many years, which shows no signs of concluding any time soon. Most recently, cases for sedition have been lodged against student leaders, journalists and even people supporting Pakistan in a match against India. Historically, Section 124A has been used to muzzle voices against the establishment, be it journalists or activists.

  In 2016, Common Cause, an NGO, filed a writ petition against the Union of India before the Supreme Court of India asking for guidelines to be laid down for registration of cases under Section 124A. The writ petition asked that police authorities and magistrates be directed to provide a reasoned order certifying that the ‘seditious act’ either led to the incitement of violence or had the tendency or the intention to create public disorder before any FIR was filed or any arrest made or investigation directed on the charges of sedition against any individual. The Supreme Court, however, did not deem it necessary to issue such specific directions, but by its order on 5 September 2016 directed that authorities must be mindful of the 1962 Constitution Bench judgment of the Supreme Court in Kedar Nath Singh v. State of Bihar.

  Five judges of the Supreme Court led by then Chief Justice of India Bhuvaneshwar Prasad Sinha unanimously held in the Kedar Nath case that:

  It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.

  Therefore, in simple words, a precondition for conviction under Section 124A would be that the alleged seditious act should either be violent or lead to, or attempt to lead to, violent acts.

  India is arguably considered one of the most mature parliamentary democracies in the world, apart from being the largest. Freedom of speech and expression, freedom to peacefully protest and freedom of political activism are essential for mature democracies as diverse as ours. The diversity and population of this country entails conflicting views and opposition to the establishment. The law against sedition may appear out of place in such a society, and the reasons for its existence can only be understood with a look at the history of evolution of the legal and judicial system in India, and the origin and philosophy of criminal law in India. More importantly, the law against sedition must be understood from the history of its application and implementation.

  This book will attempt to tell the story of sedition, and the reasons and desirability of its continued existence.

  PART I

  ORIGIN STORY

  1

  Company Raj: Seeds of the Modern Indian Legal System

  Vasco da Gama, a Portuguese explorer, discovered a sea route to India around the Cape of Good Hope in Africa in 1498 and landed in Calicut in what is now Kerala. This important discovery of an all-sea route opened the doors to Asia for Western European nations which had been hampered in their trade with the East due to a monopoly of the Mediterranean States, and later by the Turks as they controlled land access to Asia. The fifteenth century saw the growth of Portugal and Spain into naval powers which enabled the dispatching of sovereign-backed explorers to discover sea-based trade routes to Asia and the West. These adventures culminated in the discovery of a sea passage to India and other Asian regions.

  The beginning of the seventeenth century saw the birth of the two most powerful trading corpora
tions which would go on to dominate trade with Asia for a long time. In England, an association of merchants and traders known as Merchant Adventurers was formed in 1599. Better known as the East India Company, the association was granted a charter by Queen Elizabeth on 31 December 1600 with the exclusive privilege and right to trade with the ‘East Indies’. This was followed by the incorporation of the Dutch East India Company under a parliamentary charter in 1602 with the same purpose of trade in Asian spices, mainly with South East Asia, India, Malay and Sri Lanka. 1 The East India Company received another commission by King James I in 1609, making its charter perpetual in 1609, subject to termination with three years’ notice. 2

  In 1613, the Company established its first Indian factory—essentially a trading post—in Surat with the permission of the Mughal Emperor Jehangir, 3 who subsequently permitted the Company to establish factories at various places along the west coast. Surat was chosen by the Company on the basis of its importance as a port which saw a lot of traffic, especially for Muslim travellers who sailed to the holy lands, and for trade with Arab countries. 4 Interestingly, India was not the main focus of the East India Company whose main target market was South East Asia and Malay, where it was competing with the Dutch. However, the Dutch repelled attempts by the English to establish control over trade with South East Asia, which resulted in the English East India Company being consigned to focus its efforts on the Indian subcontinent. 5

  John William Kaye says, ‘From the Bombay Coast, where the Company factors first settled themselves, they made their way by land to Agra, then rounded Cape Cormorin, 6 settled themselves on the Coast of Madras, and soon stretched up the Bay of Bengal, to establish themselves in that rich province.’ The Company employed a system where their ships would sail from India with cargo, leaving behind agents known as ‘factors’ who would negotiate with local traders for the sale of cargo brought from England and for the purchase of goods to be sent back on the Company’s ships. English employees of the Company located in its factories in India were subject to two different systems of law. In their relations with the natives, and any disputes with them or offences against them, the English were subject to the laws which governed the natives, and the disputes or offences were adjudicated by the local system of dispensation of justice. However, when it came to maintaining discipline on the vessels of the Company, or in cases of offences by an English subject employed by the Company against another such subject, martial law was employed to adjudicate and impose punishments. 7