When #sedition was inserted into the IPC in 1870, it had the ill odour of #colonial discrimination about it. There is no good reason why this colonial relic should continue to exist in #India
The arrest of young environment activist Disha Ravi and the attempts by Delhi Police to apprehend two other activists, Nikita Jacob and Shantanu Muluk, have once again brought the law of sedition into the spotlight.
Carrying a term of life imprisonment, Section 124-A, which makes it a criminal offence to foster “disaffection” against the government, was inserted into the Indian Penal Code (IPC) in 1870, during the colonial period.
The British discriminated against Indians when they introduced this provision into the statute books. Sedition was made a far harsher offence here than it was in England.
The IPC was enacted and brought into force in colonial India in 1860. At the time, it had no section concerning sedition. There are two theories for why sedition was not in the original text. The official version is that it was a blunder—though sedition was supposed to be in the final version of the IPC, it was left out by mistake. This is hard to believe.
On the other hand, it is quite likely that sedition was excluded from the IPC because it had virtually ceased to be an offence in England by that time. According to one 19th century British author, prosecutions for sedition in England from 1832 onwards were so rare that the offence had virtually ceased to exist.
The IPC was part of the colonial experiment of codification. There were no codes in England at that time, as the “common law” was contained in cases decided over centuries. The great Indian “codes”— the IPC, the Indian Contract Act, the Indian Evidence Act — were meant to be models for adoption in England.
India, the colony, was used by the followers of Jeremy Bentham as a laboratory for England. In all likelihood, it is for this reason that sedition was left out of the IPC — the draftsmen probably hoped that this would soon be used as a template for an English Penal Code.
When sedition was finally inserted into the IPC in 1870, it had the ill odour of colonial discrimination about it. Englishmen who were accused of sedition back home were entitled to be tried by a jury of their peers. These juries tended to be sympathetic towards their countrymen and it was, therefore, difficult to secure a prosecution for sedition.
By contrast, in the colony, Indian patriots accused of sedition were tried not by a jury of their peers, but by a racially stacked jury, consisting of a majority of white jurors. So, for instance, Bal Gangadhar Tilak was found guilty of the crime of sedition by a jury composed of nine members, with the six white jurors voting against Tilak, and three Indian jurors voting in his favour.
Since around 1832, the offence of sedition in England penalised only those who attempted to incite violence against the government or encouraged others to take up arms against the government. In R v. Sullivan (1868), Justice Fitzgerald famously said that the “very tendency of sedition is to incite the people to insurrection and rebellion”.
However, in India, even those who did not incite violence against the government could be found guilty of sedition if they got their listeners to entertain feelings of mere disloyalty towards the government. As Justice Arthur Strachey of the Bombay High Court famously told the jury in Tilak’s case, sedition in India means the “absence of affection” towards the government.
This was not the law of England since 1832. It was perhaps for this reason that Gandhi referred to sedition as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.
Going by Strachey’s definition, since nearly any anti-colonial leader could be accused of generating “disaffection” against the colonial government, sedition was, in Gandhi’s words, like the “sword of Damocles”, forever hanging over the freedom movement.
It took many years for the definition of sedition to change in India. In the Federal Court in 1942, Chief Justice Maurice Gwyer explained that the offence of sedition was not meant to “minister to the wounded vanity of governments”. Even “vulgar abuse”, he said, was not sedition, as it was the “stock in trade of the demagogue”.