Let Section 124A of IPC on sedition remain in statute as potential deterrent

Quite a few liberals desire that it should be done away with as it affects freedom of expression and as it had been done away even in England from where it came to India. But champions of 124A of the IPC hold it as a necessity, in our country to maintain law and public order and forestall chaos.

The debate intensified, especially in Tamil Nadu, after the recent order of a sessions court to imprison Vaiko for his speech delivered as late as in 2009, while launching the translation of his book “I Accuse.”

In recent times, none but Vaiko is reported to have been convicted under this section of Law. With this conviction, Vaiko joins the distinguished league of freedom fighters like Lokmanya Tilak and Father of the Nation Mahatma Gandhi who were convicted by the British prior to independence.

Vaiko is well known for his emotional outbursts and also for his indefatigable fight against colonial laws impinging especially on the individual rights. Once before he moved a private member bill in the Parliament for the abolition of the law governing interceptions of correspondence and communication of individuals in the interest of security and safety of the state. What was astonishing in the episode at that time was that he produced the original interception order issued on him by the CID in the Parliament. How he came to possess a top secret communication is a secret that only he alone can unravel.

Nationally 124A of IPC came into sharp focus when Kanhaiya Kumar, JNU student leader and Hardik Patel of Gujarat were booked under it. The section has been unsparingly used in recent times in Assam on those who are against the recent citizenship laws. It is also rampant in Jharkhand. These have accentuated many rights activists to launch campaigns against its unfettered use and abolition of the section.

Section 124A of IPC was an add-on by the British to the Indian Penal Code, much after the IPC had come into existence. The reason for initial absence and subsequent inclusion was attributed by some to clerical error. Probably, Lord Macaulay was hesitant initially as a jurist but as an administrator would have rescinded his thought, subsequently. The British brought it in India, to be used against Wahabists, who were bitter against them, with the trounce of Turkey but later used it against the freedom fighters as days rolled by. Thus came the cases on Tilak and Gandhi, which ended in conviction.

When Gandhi and Tilak were convicted it was for spreading disaffection against the government established by Law. But later the courts ruled that spreading disaffection was not enough but there should be disruption of public order as a consequence of incitement to award a punishment. The courts further dulled the potency of the section by their ruling that the resultant public disorder should be proximate to the incitement.

What could be cited as a perfect example of seditious speech is the famous speech of Mark Antony in Shakespeare’s “Julius Caesar” which provoked the Romans to rebel against the conspirators and burn down Rome.

Section 124A which was used against the freedom fighters, was very much resented by our leaders of independent India in the Constituent Assembly, but little was done to do away with it from the IPC even by great liberals like Pandit Jawaharlal Nehru and Vallabhai Patel as they, as administrators probably realised the necessity of this law, in our country where in the garb of free speech, disorder, division and desire for partition was very much seeded. Remember Pakistan, Dravidastan Communist upheavals etc. in the early years of free India.

In Tamil Nadu, cases were booked in 1980s in large numbers by police against fiery speeches and pamphlets by left wing extremists especially from Dharmapuri - Tirupathur areas under Section 124A. The local police then used to book such cases, to prevent the spread of extreme ideology and acts linked to it. They used to apprehend the accused and remand them. The magistrate would not easily grant bail in such cases as they would ordinarily do as Section 124A was nonbailable. The intention of police in resorting to 124A of IPC against these rabid inciters, was only to curb them from indulging in further incitement and consequent upheaval in Law and Order at least for the period of their internment in remand. So the cases were hardly pursued unless further developments absolutely warranted.

Whenever the local police felt that an inciter should be charged, procedurally they consulted the local government lawyer, with the draft charge and then forwarded it to the state CID, which in turn referred the matter to its legal department, got their consenting opinion and then forwarded the case to the government for final sanction to prosecute the accused. Thus so many checks were there, as the government felt that there should be extreme restraint and care  in using this section of law.

As can be seen , the intention of the local police in resorting to this Section, is mostly fire-fighting , an attempt at prevention of deterioration of public order and the intention of the government in power, is not to trample upon the freedom of expression. Procrastination by the government in ordering prosecution in such cases is proverbial.

The CID, which has expertise in dealing with such draconian laws used to be the nodal agency in the past to recommend prosecution. But these days the Commissioners of police, who have come into existence in the state, consider themselves independent of the DGP and CID and are directly dealing with government on such matters bypassing the CID. In unquestioningly accepting such deviance, the government is deprived of the expertise of the CID in such matters leading to hurried and at times ignorable prosecutions and consequent criticism of government being authoritarian. The case on Vaiko was a case of bypassing the CID and the DGP by the commissioner of police.

Interestingly, an NGOs has sought the Supreme Court to pass orders that the DGP or the CoP should personally certify that they are aware of what they are doing in such cases.

The tendency of commissioners of police bypassing the DGP, the head of the police department, needs to be seriously looked into and remedied.

In our country, where irresponsible speeches and writings are freely made, one should not easily do away with Section 124A of the IPC as many would clamour for. It has to remain in the statute as a potential deterrent, but should be invoked and acted upon sparingly with all the circumspection, restraint and care. Leaving it to the whims and fancies of lathi wielding local police without guidance from headquarters, CID and DGP would result in serious jeopardy of individual freedom.