It’s clear what India thinks of Mahatma Gandhi. Officially, we revere him. It’s another matter we honour his memory more in the breach than in the observance. But what would Gandhi make of us? No one bothered to ask when we marked his sesquicentennial. But I wouldn’t be surprised if we’ve embarrassed him. Indeed, at times, he might even want to disown us.
The way we use the sedition law (Section 124A of the Indian Penal Code) is a perfect illustration. As far back as March 18, 1922, writing in Young India, Gandhi called Section 124A, “The prince among political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. Now, 124A concerns “attempts to incite disaffection towards the government”. Of this, Gandhi was even more outspoken. “I hold it as a virtue to be disaffected towards the government … one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence”.
He couldn’t have been clearer. However, it took our Supreme Court 40 more years to read down the law on sedition. In 1962, in the Kedar Nath Singh judgment, the Court limited its application to action or speech that clearly and imminently provokes violence. Equally importantly, the Court distinguished this from “very strong speech” or “vigorous words” critical of the government.
Having thus ruled, the Court has repeatedly adhered to this interpretation. In 1995, in the Balwant Singh case, it ruled that “Khalistan Zindabad” is not sedition. Mere sloganeering, which did not evoke a public response, does not amount to sedition. In September 2016, the Court explicitly reaffirmed its stand: “We are of the considered opinion that the authorities while dealing with offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the constitution bench in Kedar Nath Singh versus State of Bihar.”
Unfortunately, just as we ignore Gandhi, we also disregard the Supreme Court. Most recently, the chief judicial magistrate in Muzaffarpur ordered the Bihar police to charge 49 persons who wrote to the Prime Minister expressing concern about mob lynching with sedition. The police promptly complied. Yet, as the former chief justice of Delhi, Ajit Shah, said: “Leave alone sedition, no criminal offence is made out”. So both the chief magistrate and the police acted wrongly. Gandhi would have been the first to criticise them. Today’s rulers are silent.
Although, subsequently, the Bihar police dropped the charge, the truth is our police repeatedly, and deliberately, misuse the sedition law, and each time the government lets them. It’s been wrongly used against cartoonists, students, historians, authors, actors and directors. But never has a member of the government dissented.
There have even been occasions when learned and sophisticated politicians have got it wrong. In a 2017 speech in London, Arun Jaitley said: “Free speech does not permit you to assault the sovereignty of the country.” He was wrong. That’s precisely what the Supreme Court declared in 1995 when it ruled “Khalistan Zindabad” does not amount to sedition.
Today, criticism of the government – which, as citizens of a democracy, is our right – is often punished under a variety of sections of the penal code including sedition. Doesn’t that mean we’ve forgotten Gandhi’s famous words: “I hold it as a virtue to be disaffected towards a government?”
In 1962, in his maiden Rajya Sabha speech, CN Annadurai said: “Dravidians demand the right of self-determination … we want a separate country for southern India.” Nehru may have blanched, but he accepted Annadurai’s right to free speech. That was truly Gandhian. Will Narendra Modi and Amit Shah respond similarly in 2019?
Gandhi championed the right to criticise and dissent. Arguably, it’s the core principle which determines whether a country is a democracy or not. But today, critics and dissenters are told to go to Pakistan. By the way, Gandhi might have welcomed that! He didn’t share the prevalent dislike of our neighbour.