Book review: A Constitution To Keep: Sedition And Free Speech In … – Maktoob media

Book Cover of A Constitution To Keep: Sedition And Free Speech In Modern India

On 11 August 2023, the Government of India proposed a new draft of the criminal code of India. Since coming into the public domain, the said draft has sparked heated debate and controversy. According to the government version, the proposed draft would overhaul the criminal codes drafted and enacted by the colonial rule of the British, which, in turn, would be a significant step in the direction of decolonization. However, the critics of the proposed draft have proffered the argument that behind the veneer of decolonisation, the government is not just retaining the laws, but has made it even more egregious.

Though there are many vantage points from which the claim of decolonization could be challenged; however, discussion pertaining to the legal and political life of sedition law in India would bring out the intent of the government more prominently.

Among all the colonial laws in India, sedition law has been perhaps a subject of great controversy since its enactment in 1872. any scholarly works have studied the sedition law, which includes looking at it from a lawyers perspective as well as political philosophy ((I think Anushka Singhs book reference would suffice).; analysing whether it enables free speech or not.

However, Rohan J Alvas A Constitution To Keep: Sedition And Free Speech In Modern India doesnt just add to the existing literature on the intersection of free speech and sedition law, but makes two interesting points, which I shall engage with subsequently.

Rohan J Alvas book is divided into 14 chapters covering the journey of sedition law from colonial to post-colonial India, and capturing its different iterations. The journey is divided into three timelines: the colonial period, the period of Constitution-making, and the post-colonial period ( Constitutional democracy). The book is a well-grounded account of the history of free speech jurisprudence in India while keeping sedition at the heart of the discussion. This book offers a technical aspect of the history of sedition law and offers a compelling case as to why section 124A should go away. The compelling case is made through the two separate yet related arguments. First, that sedition violates Article 19(1) of the Constitution of India and does not fulfil the criteria enshrined in Article 19(2) of the Constitution of India. Second, that sedition does not sit well with democratic principles.

The author begins the book with a harsh remark on the absurdity of achieving uniformity under the guise of modernising existing criminal justice systems, especially given that the English criminal justice system, which was launched in Britain, could now execute people for minor offences.

Sedition in its etymological sense can be linked to the Latin word sedition, which means riot. However, in India, the term sedition did not necessarily refer to rioting and could instead be applied to simple criticism of the government. Alva points out that the vague term disaffection in the provision had no clear definition, example, or standard punishment; instead, one could receive a life sentence or a three-year sentence. Unlike in England, sedition in India could be used even for mere criticism against the authority. The interpretation of the word disaffection in the cases of Queen-Empress vs Jogendra Chunder Bose And Ors (1891), Emperor v. Bal Gangadhar Tilak( 1908), and Queen-Empress vs Amba Prasad (1897) strengthened the clause. It was interpreted in varied degrees, ranging from hatred, contempt, and ill-will toward the government to defection and it also included disloyalty towards the government

The need to suppress dissent was seen as sine qua non for the Crowns survival in India. Though the sedition was left out of the first draft of the IPC in 1860, however, in the wake of the Wahabai movement, it was added in 1870 as a response to deal with it. The goal, in essence, was to prevent any dissatisfaction.

With the establishment of the Federal Court in the 1930s, a new iteration of what constituted sedition was rendered by the court. In Niharendu Dutt Majumdar And Ors. vs Emperor (1939), The Federal Court established a precedent by restricting sedition to incitement of public disorder. However, in Sadashiv Narayan Bhalerao(1947), the Privy Council decided that simple instigation of animosity toward the government was sufficient to warrant a trial. The Councils judgement would result in fodder for resurrecting sedition in India, supplemented by restrictions on Fundamental Rights. The author then goes into detail about the debates in the Constituent Assembly about free speech and sedition. Somnath Lihari (a communist and trade unionist from Bengal) recommended a revision to the sedition statute. In the argument over civil liberties, an enraged Lahiri stated Many fundamental rights have been framed from the point of view of a police constable

After a lengthy debate about free speech and sedition in India. It was K.M Munshis opinion that was endorsed by B.R Ambedkar, and therefore on the day India became a republic, sedition was no longer a constraint on free speech under the constitution.

Sedition and post-colonial India

Although it appears that sedition was removed from the restrictions on free speech enshrined under the Constitution, the law was still in use. Parliament had not scrapped the sedition from the IPC. The debate around sedition soon entered the domain of the judiciary. In Ramesh Thapar v. The State of Madras and Brijbhushan v. State of Delhi cases Court gave importance to the freedom of speech.

In response to the ruling of these two judgements, the first amendment was proposed. The amendment added the words Public order and relations with friendly states into article 19(2). However the word reasonable was added as a prefix to protect the freedom of speech and expression from the restrictions.

Alva also discusses that J.L. Nehru was cautious of the fact that his stand should not be interpreted in defence of laws like sedition. Nehru considered sedition as highly objectionable, obnoxious and it should have no place both for practical and historical reasons. He also stated that public order had no relevance.

It was in the year 1958 when the first major constitutional challenge arose against the sedition in the Ram Nadan case. In this case, the court relied on Nehrus speech and held that sedition was not part of public order. Within the span of four years, the judgement was overturned in Kedarnath.

Alva then goes on to talk about the famous case of Kedar Nath Singh v. State of Bihar (1962). This was the first conviction under the sedition law of independent India. Alva argues that this sedition law was revived under the pretext of public order. In addition to misinterpreting public order and public disorder, the court done the hat of the legislator and interpreted sedition in a way that was neither in accordance with the wishes of Parliament nor consistent with free speech. Additionally, the bench broke with the Romesh Thappar norm of a broader bench. In 1963, the 16th Constitutional Amendment inserted a new restriction to freedom of speech and expression, namely, sovereignty and integrity. It led to the enactment of the Unlawful Activities (Prevention) Act or UAPA in 1967.

Alva believes it is incorrect to question the constitutionality of sedition merely in terms of how it is used in the penal law. Since the sedition provision would still be in effect under the UAPA (under section 2(1)(o)(iii)), he claims that the current trial is a path to a pyrrhic victory

Contextualising the underlying themes

Exception Becoming Rule

Carl Schmitt famously says in his work, Political Theology: Four Chapters on the Concept of Sovereignty, The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. In the exception the power of real life breaks through the crust of a mechanism that has become torpid by repetition.

When we look at the Fundamental Rights chapter of the Indian Constitution, we can see that it enshrines and envisions various rights for citizens and non-citizens. However, simultaneously it places limitations on those rights. Article 19(1) enshrines the right to freedom of speech and expression, which is subject to a number of restrictions outlined in Article 19 (2) of the Indian Constitution.

In chapter four The Many Lives of the Prince of the book under review, Alva while discussing the journey of sedition law in the Constituent assembly debates makes a similar type of argument. He says that the law attained many lives during its gestation period in the constituent assembly. He argues that, while addressing the issue of the freedom of speech and expression, the deliberation of the Drafting Committee seemed to focus almost exclusively on fine-tuning the kinds of restrictions that should be imposed on speech.

He says Critics were worried that civil rights ( enumerated in the draft article 13) were riddled with so many exceptions that the exceptions have eaten up the rights altogether. He further argues that many in the Assembly did find Dr Ambedkars explanation for the litany of respections on speech a bitter pill to swallow. Quoting K.T Shah, Dr. Ambedkars colleague from the advisory committee that Civil rights being overrun with exception.

So, if we try to understand Schmitts rule and exception concept in the context of freedom of speech under Article 19. It could be said that the exception given under Article 19(2) is the rule as it decides what not to say.

Restriction on free speech in Liberal Democracy

Throughout the book, the author considers the vitality of democracy and the necessity of saving it. He argues that preserving democracy is essential to ensuring that civil liberties and rights are enjoyed by people. The author on various occasions in the book talks about the importance of freedom of speech especially political speech in the democratic sphere. However, my close reading of those lines leads me to believe that the author does not clarify which type of democracy he is referring to. In the ninth Chapter of the book under review Triumph of Democracy, the author gives examples of the US and U.K. and seems to point towards liberal democracy and how these liberal democratic jurisdictions treat political speech. He argues that, both the U.K. and the U.S. have scrapped the law of sedition and has shown his optimism in the liberal democracies. He argues that since, both these liberal democracies have abolished the sedition law, India being a liberal democracy should follow them and scrap the law.

It is also pertinent to mention that a three-judge Bench of the Supreme Court of India in S.G Vombatkere V .Union of India (2022) dealing with the petition challenging the constitutionality of sedition law given under section 124-A of IPC, 1860, had directed that all pending trails, appeals and proceedings concerning the charges framed under the said section be kept in abeyance. In this case, the petitioners made a similar kind of argument as given in the preceding paragraph. Petitioners did raise the issue of free speech, however, another reasoning provided by the petitioners was that the many liberal democracies such as the U.K., U.S. and Australia have already abolished the law. So, India being a liberal democracy should follow the same path and repeal the law.

In a way, both petitioners and author consider liberal democracies as a source of optimism. However, it is worth noting that the restrictions on political speech are still prevalent in liberal democracies and while the laws of sedition have been repealed in Western countries, anti-terrorism laws continue to empower the state to penalise citizens for what would earlier be considered as Seditious speech albeit without using the word sedition.

Similarly in the context of India, Anushka Singhs work that the anti-terror legislation contains provisions to restrict free speech which is seditious in nature. For example, the UAPA 1967(as amended in 2004, 2008, 2019) penalises an act that intends to cause disaffection against the Government of India. She further argues that Indian Liberal democracy provides an example in which sedition and terrorism are both embedded in languages with anti-national connotations. So, which means even if sedition goes away, the essence of the sedition as the offence remains. This poses a serious question on how liberal democracies treat political speech and can liberal democracies do without laws such as Sedition, UAPA and Preventive Laws.

Despite my criticism on the issue of liberal democracy, I still strongly believe that this book is one of the major contributions to sedition in India. What distinguishes this book is its technical treatment of sedition in the Indian setting. In contrast to other contributions, this one maintains sedition at the forefront when considering free expression in contemporary India. The authors distinctive writing style is something I appreciate. This book is fascinating to read not just because of its arguments and extensive research, but also because of its prose and the authors excellent choice of chapter headings and chapterization.

Saqib Rasool is a LLM student at Azim Premji University

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