The Press Club of India, under its #PCIConversations initiative, organized a book discussion on Rohan J Alva’s book A Constitution to Keep: Sedition and Free Speech in Modern India on 20 May at its Raisana Road premises.
Alva, a Supreme Court of India lawyer, has also authored the book Liberty After Freedom: A History of Article 21. The discussion was conducted by Dr Manisha Sethi, who teaches issues related to law and society at New Delhi’s Jamia Millia Islamia and author of the book Kafkaland: Prejudice, Law and Counterterrorism in India.
The discussion delved into the history of sedition law in India and the nuances and dynamics of the Constitution dealing with free speech. “With the advent of digital and the Supreme Court’s judgments in leading newspapers, citizens are getting more and more interested in the content and history of the Constitution of India. These judgments are no longer behind closed doors and much more accessible to the general public, which has given a fillip to the growing body of scholarly literature,” Alva said. The book deals with the fundamental right to free speech.
Dr BR Ambedkar, in a speech in November 1949, said, “History has shown us that you can have the most fantastic document and it can be a certain failure. You can have a badly worded document that is implemented well.” Ultimately, the success of a Constitution depends on how it is implemented, Alva shared.
British historian Thomas Babbinton Macaulay was given the responsibility of framing the Indian Penal Code by the British government. According to Alva, when the Indian Penal Code (IPC) came into effect in 1860, the British administration realized that the sedition provision was absent.
The government wondered how such an important provision was skipped and introduced it again in 1870 in Section 124A. The section states, ‘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 shall be punishable with Life Imprisonment.’
The provision went into cold storage and was not used for the following three decades as the government couldn’t understand what exactly ‘disaffection’ meant. The standing counsel of the British government said it is an atrociously framed law that will be weaponized against the press. The law was difficult to be implemented, as was brought out by Tilak’s trial of 1897 for his views in Kesari, his Marathi-language newspaper, Alva said.
Justice Strachey, in the judgment, himself said that he did not understand what ‘disaffection’ meant. It could mean anything from ill-will, contempt, hatred and dislike. Tilak said if “you cannot understand the meaning of the offense, on what basis are you convicting me and people like me.” He (Tilak) then filed an appeal in the privy council, the supreme appellate authority for the British colonies. He was represented by Asquith who tore apart the law, saying, “It doesn’t matter what is the subject matter of the discussion, what matters is the object.” If the subject matter is used as the basis to criminalize, what you have essentially done is banish Indians from the public space, Alva asserted. The condemnation by the British government came in 1898 when the entire provision was re-enacted.
There was a continuous backlash when the court was trying to convict people under sedition when the nationalist movement was at its height, according to Alva, which continued till 1947 when there was a new provision for sedition under the Federal Court that proposed to see a relationship between ‘speech’ and whether it disrupted the ‘public order.’
The advisory committee under the leadership of Patel, made it pretty clear that sedition would not be protected by the Constitution of India. Sedition, would thus, not be a fetter on free speech. B N Rau was appointed to draw up a draft constitution and in that he eliminated sedition. When B N Rau’s report was then taken to the drafting committee, many members brought back sedition in November 1948. The constituent assembly, however, voted to do away with sedition, Alva said.
In Article 19 of the Constitution of India, sedition was absent. When the Constitution came into effect in 1950, sedition was also absent from its text. In the first amendment to the Constitution in June 1951, it was decided that an amendment needed to be made to Freedom of Speech, and new grounds were introduced to curb free speech. Sedition, now needed to be reworked or reworded to somehow make it constitutional, Alva said.
A constitutional revolution occurred in 1951, and a new word ‘reasonable’ was introduced in the free speech right. The reason why sedition was revitalized was public order had to be protected, and, therefore, a law such as sedition was necessary. There were grounds such as the sovereignty of the state, on which freedom of speech could be curbed. Sedition came back to life in 1962, he said. And the primary idea was unless it harms the security of the state, political speech can’t be regulated.