Like Indians battled to overturn law criminalising homosexuality, we must fight sedition statute

The filing of a sedition case by the Mumbai Police against 51 participants in the February 1 Queer Azaadi event is one more instance of a twisted application of a colonial law. Section 124-A of the Indian Penal Code criminalises “exciting disaffection against the state”. In the case of the Queer Azaadi event, this provision was invoked against people who allegedly chanted, “Sharjeel tere sapno ko hum manzil tak pahuchaenge.” Sharjeel, we will fulfill your dreams.

Video footage of the event makes it clear that the slogans were a roll call of names, honouring the memory of dissidents. The participants name-check Dalit student Rohit Vemula who died by suicide after a run-in with the authorities in his university in Hyderabad, Najeeb Ahmed who went missing from his hostel room at Jawaharlal Nehru University and several others.

Activist Sharjeel Imam, who has been detained under the colonial-era sedition law for a speech given at Aligarh Muslim University about the Citizenship Amendment Act, was among the people mentioned in the chants. The slogans read together were an expression of dissent against the policies of the government.

If one were to examine whether what the sloganeers did came within the law of sedition as declared by the Supreme Court, one is hard put to see any offence. In a constitutional bench decision in Kedarnath Singh v. State of Bihar in 1962, the Supreme Court clearly delimited the use of sedition to only speech that had the tendency to incite violence against the state.

In the Supreme Court’s words, “Comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal.” Thus unless there is an “excitement to public disorder or the use of violence”, this provision is not attracted.

Policemen chastised

In Balwant Singh v. State of Punjab in 1995, the Supreme Court adjudicated the question as to whether shouting slogans including, “Khalistan Zindabad” in a crowd the day Indira Gandhi was assassinated amounted to sedition. The Supreme Court noted, “We find it difficult to hold that upon the raising of such casual slogans, a couple of times without any other act whatsoever the charge of sedition can be founded.”

The Supreme Court went on to chastise the policemen who filed the case. “It does not appear to us that the police should have attached much significance to the casual slogans raised by two appellants, a couple of times and read too much into them,” the court said.

The court concluded, “The prosecution has admitted that no disturbance, whatsoever, was caused by the raising of the slogans by the appellants and that inspite of the fact that the appellants raised the slogans a couple of times, the people, in general, were unaffected and carried on with their normal activities. The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government as established by law in India, Section 124A IPC, would in the facts and circumstances of the case have no application.”

A combined reading of Balwant Singh v State of Punjab and Kedarnath Singh v. State of Bihar, if applied to the facts of this case, indicate the utter inapplicability of the charge of sedition. In this case, there is absolutely no evidence that that the slogans used excited any disaffection, far less incited violence against the state. There was no disturbance in the crowd after the slogans being chanted and the event proceeded as planned. In fact, after the sloganeering (without a mike), the person who led the part of the crowd in shouting the slogans went to the dais and, on a mike, led the entire gathering in a public and collective reading of the Preamble to the Indian Constitution.

If in Balwant Singh, the Supreme Court felt constrained to point out that the police may have over reacted in seeing a couple of isolated slogans as inciting violence, then in this case the fact that the sloganeering did not even cause a ripple in the crowd and was immediately followed by an open and public declaration of constitutional faith, gives the lie to the charge that what happened, merited the invocation of Section 124-A of the IPC.

In fact, what the person who led the sloganeering did was not “excite disaffection against the state” but rather declare their affection for the Constitution. They were acting in accordance with the fundamental duty under Article 51A (a) “to abide by the Constitution and respect its ideals and institutions”.

Travesty of justice

All of these facts only lead to the inevitable conclusion that it was a gross travesty of justice to wrongly invoke the charge of sedition against persons who have merely dissented from the viewpoint of the government while continuing to keep faith in the Constitution.

While the history of the use of the sedition law ever since its origins in colonial India illustrates the potential for abuse by the state, what is disheartening about the Queer Azadi case is the seeming complicity of members of civil society in the abuse of the law. The statement by the Queer Azadi Mumbai states, “we completely dissociate ourselves from and strongly condemn the abrupt radical slogans in support of Sharjeel and/or any other slogans against the integrity of India at the gathering.”

As the facts above indicate, the Queer Azadi Mumbai organisers are at the least guilty of misrepresenting what happened by de-contextualising and isolating one slogan in the midst of many and willfully misreading an expression of dissent against the policies of the state and concocting it into a “threat to the unity of India”. This malicious misrepresentation combined with a concerted social media campaign to stigmatise an act of dissent as threatening the integrity of India had its tragic dénouement in the sedition case being filed against queer people in a queer gathering.

To those who have been a part of the struggle against Section 377 of the Indian Penal Code, which criminalised homosexuality, the irony of a sedition charge being invoked in a queer gathering could not be more telling. Both Section 377 and Section 124-A, apart from sharing a common colonial origin, are provisions in which the vague language is an incitement to abuse.

The language in Section 377 criminalising “carnal intercourse against the order of nature” was so vague that it gave the policeman license to extort, harass and demean queer people. So too the language of “exciting disaffection against the state” has also historically been a way for the state to criminalise all forms of dissent right from Mohandas Gandhi in 1922 to Jawaharlal Nehru University student union president Kanhaiya Kumar in 2016 to a play about the Citizenship Amendment Act by school children in Bidar in 2020.

The other similarity between both provisions is that they have been read down by the Supreme Court. The reading down of Section 377 restricting its application to only non-consensual sexual relationships was accompanied by a huge public campaign resulting in an informed public opinion that has largely been successful in curbing the abuse of the law. However the restriction of Section 124-A to only incitement to violent acts was not accompanied by a public campaign and hence has had comparatively little press coverage. The absence of a public campaign that would otherwise have resulted in a public better informed about the limits of sedition law has given the state and the police a free pass to continue to use the sedition law to target dissent.

Flimsy charge

If the history of the use of the sedition law is any indication, there is no doubt that the flimsy charge in this case will eventually result in acquittal. But in a sedition case, the process is the punishment. That perhaps is the intention of the state in even filing the FIR.

Therefore, there is no way out but to demand the repeal of Section 124-A as the provision hangs as a Damocles sword over any expression of opinion to which the state takes objection. If the Indian Constitution matters and we take seriously the fundamental right to freedom of speech and expression, there is no option but to repeal what after all is nothing more than a colonial excrescence that has no place in a constitutional democracy.

Arvind Narrain is a lawyer and writer based in Bangalore.