The sedition law must go

In 1960, The New York Times published an advertisement titled ‘Heed Their Rising Voices’, criticising the Montgomery police in Alabama for maltreating civil rights protesters. The ad was initiated to support Martin Luther King Jr. The Public Safety Commissioner asked the Times to retract it, and when the newspaper refused, sued the Times for defamation.

The United States Supreme Court ruled in favour of the newspaper and coined the ‘actual malice’ test, which became significant for press freedom. The court held that in order for a defamation action to hold water, it must be proved that “the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.” This standard was not met in the case.

New York Times vs Sullivan (1964) is one of the prominent cases in American constitutional history, not only because it made it difficult to sue the press with defamation, but importantly because it invoked the constitutional safeguard of free speech when it was faced with a predominant challenge. It famously proclaimed: “If the rule that libel on government has no place in our Constitution is to have real meaning, then libel on the official conduct of the governors likewise can have no place in our Constitution.”

Historically, in India and elsewhere, speech, and in particular, political speech has faced crucial tests to sustain. The press had to confront cases of defamation and contempt of court actions. But booking politicians and activists under the law of sedition has a particular political meaning to it.

In February 2016, Kanhaiya Kumar was arrested on sedition charges for making “anti-national remarks.” Shehla Rashid, a student activist, has been booked for sedition over her tweets accusing Indian Army officers of torturing civilians in Jammu and Kashmir. Most recently, sedition charges were lodged against some 49 signatories to a letter to the prime minister seeking action against mob lynching, although the charges were dropped later.

The connection between sedition and free speech can be understood in two ways. First, how sedition charges are used to dangerously restrain speech. The threat of sedition charges looming over creates a prior restraint on speech. It introduces an atmosphere of alarm and cautions people to be careful about what they write, and often what they think.

Also, laws and state actions need not prohibit speech so as to inhibit it. Even if they do not prohibit speech, they make it costly. But the right to free speech means that speech should not be costly. It should not be a burden to speak one’s mind and participate in democratic self-governance.

Second, it seems that sedition charges are used mostly to silence political speech. It is important to recognise the value of political speech to liberal democracy and the peculiar place it holds. It is in recognition of the significance of political speech that American courts employ ‘strict scrutiny’ -- a vigorous standard of assessing the constitutionality – while adjudicating state restrictions on political speech.

The concept of sedition introduces a problematic binary: those who are with the State and those who are against it. This blurs the basic need for freedom of speech in a democratic order. It also dilutes the question of what the constitutional demands of free press are. The essence of democracy is that views are not monolithic; they are interwoven, disagreed and diverse. A healthy democracy enables its free press to grow and flourish. In fact, the German Federal Constitutional Court has noted that conflict of opinion is the vital element of a free and democratic state.

Human rights organisations, including Human Rights Watch, have appealed to Parliament to repeal the law on sedition. There is an inherent irony in charging people under a law which itself does not stand the test of the Constitution and is, in all likelihood, unconstitutional. An archaic law is used as a tool to suppress dissent.

The provision is prima facie bad in law on being both vague and overbroad. For a criminal law, it is notoriously unclear. It is often left to subjective interpretation as to whether something is seditious or not. The law is also conspicuously overbroad. Section 124-A of the Indian Penal Code is worded in sufficiently liberal terms that any criticism against the government can be incorporated within its fold. Any “attempt to bring hatred or contempt, or disaffection” is sufficient to be charged with a punishment up to life imprisonment.

In the Times case, incidentally in its discussion on sedition law, the court recognised that “the restraint” that sedition law “imposed upon criticism of government and public officials is inconsistent with the First Amendment.” In India, this incompatibility between sedition law and free speech is becoming overwhelmingly apparent. The moment writers have to fear about what they must write is when we have moved a little farther from our constitutional liberties.

(The writer is a lawyer at the Supreme Court and Kerala High Court)