Saturday, October 25, 2008

On Section 124A of the IPC and Sedition... Time to scrap that...

The series of arrests, first of MDMK leaders Vaiko and M.Kannappan and of film makers Seeman and Ameer have foregrounded the existence of Section 124A of the Indian Penal Code (IPC) once again. And in a sense, here is an occasion to debate on whether this section must remain in the penal code at all.

It may be mere coincidence that in all standard texts on the IPC, the footnotes under this section are replete with one case law. It pertains to a trial, under this provision, that took place as early as in 1897: Bal Gangadhar Tilak [(1897) 22 Bom. 112]. Tilak was tried under the same section once again in 1908; [(1908) 10 Bom. LR 848].

Tilak pleaded innocent on both the occasions. But then, he was sentenced to six months’ imprisonment on the first instance and on the subsequent occasion in 1908, Tilak was deported to Burma for a six year period. The case, on both occasions, were based on Tilak’s articles in Kesari and considered seditious by the British authorities. Tilak was punished, as Justice M.C.Chagla, one of independent India’s fearless jurists put it: ``He was sentenced for the crime of patriotism. He was sentenced because he loved his country more than his life of his liberty’’. These were Justice Chagla’s words while unveiling a marble tablet in Tilak’s memory outside the central court room where Tilak was tried on both the occasions) in the Bombay High Court.

Section 124A was invoked once again in March 1922. The accused this time was M.K.Gandhi and Shankarlal Banker was co-accused. The trial, held at the Government Circuit House at Ahmedabad heavily guarded for that purpose, on March 18, 1922, ended in the Judge, Mr. Justice Robert Broomfield, sentencing Gandhi to six years’ imprisonment. Co-accused in the case, Mr. Banker, was sentenced for one years’s imprisonment and a fine. The case was based on a series of articles that Gandhi wrote in Young India between March 1921 and February 1922 that were held as seditious by the authorities; Banker was tried because he published Young India.

Gandhi did not plead innocent. His written statement contained the following sentence: ``I hold it to be a virtue to be disaffected towards a Government which in its totality has done more harm to India than any previous system’’. And he concluded his arguments by seeking the judge to inflict the ``severest penalty’’. Judge Broomfield, relied on the earlier judgments in the trial of Tilak, in this case. Soon after he pronounced the sentence, Gandhi stood up to say that he regarded it as the ``proudest privilege and honour’’ to be associated with the well revered name of Tilak.

That was the last occasion when the British authorities ever put the Mahatma on trial. On all subsequent occasions, Gandhi was put in jail without trial!

The point behind recalling these now is not to place Vaiko, Kannappan, Seeman and Ameer in the same league as Tilak and Gandhi. It is, instead, intended to bring out the argument that Section 124A was the most important among the provisions that were intended to suppress all those who spoke against the amoral and the illegitimate colonial administration.

In other words, such a penal provision was necessary to sustain a regime that was undemocratic in its structure and rooted in principles of un-freedom so that it could facilitate the exploitation of the people in the colony and their resources to shore up the surplus in the metropolitan. An exploitative order, based on an unjust principle, cannot be sustained, even in the medium term, without resort to undemocratic and illegitimate laws. Such sections as 124A, hence, were inevitable to sustain the colonial regime.

This, certainly is not necessary in a democratic regime that draws its legitimacy from the fact that its exists for the welfare of its own people. And where the people and their aspirations are the basis of the existence of a regime, there is no such need, for the regime, to feel threatened by dissent.

It is worthwhile in this context to examine, in brief, the instances when the judiciary, in its own way, sought to make this point. The trend began as early as in 1946 when a Judge in the Nagpur Bench held that; ``It is not sedition merely to criticize Government however bitterly or forcibly that may be done, or to seek its overthrow by Constitutional means in order that another Government, equally Constitutional, may be substituted in its place in a Constitutional way. It becomes sedition only when the intention or the attempt is to induce people to cease to obey the law and to cease to uphold lawful authorities’’ [Bhagwati Charan Shukla vs Provincial Government, Central Provinces, (1946) Nag. 865].

This approach was further elaborated and substantiated by the Supreme Court in the landmark case Kedar Nath case (AIR 1962 SC 955) and it will be relevant to recall what Chief Justice B.P.Sinha said in that case: ``Comments, however strongly worded expressing, disapprobation of the actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people …’’

The judiciary had thus ensured that convictions under Section 124A were not as easy in independent India as it was in the case of Tilak and Gandhi in colonial India. And there is no way that the judges could have gone beyond that. It was left to the legislature to do the rest and that had to be by way of scrapping that provision. The point is that the democratic edifice and the Republican foundation of independent India is not as fragile to be shattered by way of a speech in a public meeting or an article in a newspaper as it was the case with the colonial administration.

And hence it is time that Section 124A is scrapped from the statute book. The need for such a measure is as much legitimate and urgent as it is with Section 377 of the Indian Penal Code. In other words, the unity and integrity of India and the legitimacy of the Indian state are not as fragile as it was in the case of the British colonial regime to be threatened and shattered by the speeches or the writings of a section of the political class.


Blogger Ashfaque Ismail said...

sir you said that judiciary in India believes that conviction under section 124 a is not an easy task. Comparing 124 a with IPC 377 you emphasised that the section should be dropped from the statute book. Is this the only way out? Can't the legislature amend the provisions to get the required results? When Gandhi and Tilak were tried and subsequently imprisoned under the provision, it was due to the hostile regime at that time. The regime which was hostile towards the rights of the people of India. So what has gone wrong with the legal system that the judiciary can not get the conviction under this particular law? The government using the only tool of amendments tries to bring more transparency in the law. So instead of going for an amendment why to scrap the law totally? one more thing which i find unnecessary is that you caompared IPC 124 a with IPC 377. If i am not wrong, 377 belongs to homo sexuality. Its either i could not undderstand your stand properly or you are doing a wrong comparision. so why have you compared two unrelated sections? if it is justified then what are the reasons.?

1:43 AM  
Blogger Communist said...

Do you think amending the law or scrapping and passing a new law in its place would alter the class character of Indian state? The question of legitimacy of Indian state is a complicated one which involve number of factors and law is only one among many. A Marxist should rather use this instance as an opportunity to expose the brutal character of Indian state instead of 'recommending' the legislature to amend or scrap and pass a new law. So in that sense you are a indigenous bourgeois thinker helping the Indian state to overcome the structure imposed by metropolitan capital during colonial period by resorting to the gospel of 'republican' 'democratic' and 'constitutional' India. This also fantastically bring out the limitation that 'free' lancer like you have in enforcing radical change in our society. A 'free' lancer can never be free from accepting the bribery from native bourgeoisie! Hence a resort to the gospel of 'republican' 'democratic' and 'constitutional' India!

1:43 AM  
Blogger V. Krishna Ananth said...

I am sad that this self proclaimed communist presumes that I should also think like him, write like him and behave like him.

I hope that such people do not get to power in India.

And if that happens, I will still be on the other side.

6:53 AM  
Blogger Communist said...

You be what you are. No one force you to think like us, act or behave like us. We only say remain what you are now but remain so by removing/changing the title of your blog. Keep it as PERMANENT PEACE and work. Don't betray Marxism and rape the working class. Your gospel will not sell in the premises of factory where labour is exploited and alienated.

7:30 AM  
Blogger Ashfaque Ismail said...

I wonder people who always find an excuse to trigger a revolution can talk about Peace. Before advocating any idea people should get a whole hang of what they are going to say. Peace and rhetoric are two different things. Peace comes after a long battle faught with the weapon of truth. The Communist who goes on to extent to suggest Krishnaananth should look in his own backyard. The entre Marxist ideology is based on class conflict, warring strata of society. So how can one expect peace from such an organisation whose routes lie in the doctrine of revolution?

1:02 AM  
Anonymous Ashfaque Ismail said...

And further it can be added that the injustice meted out to the poor, I am confining this to a working class, in the name of any legislation can not be accepted. The problems of poverty lie not IDEOLOGY but in POLICIES of the government. If we think that ideologies can eradicate poverty then its a mirage that will again betray us as we reach close to it. The retrenchment of the workers was again part of a new policy of the concerned company. The "Layoff" was not spurred by any communist or capitalist nation. It was part and parcel of a new corporate policy that can be seen almost every where in the country. To sum up, relating any "inequality" to ideology is wrong. It is more of a policy. The time is rife that we did a rethink about our policies especially to remove poverty

1:14 AM  
Blogger Communist said...

Mr.Ashfaque Ismail - I gather from your post that you never touched a single book of Marx. At least Mr. Krishna's post deserve response but not your post. You can defend him in a better way than what you are attempting. Perhaps Mr. Krishna will come to your rescue. So I will let you go.

2:35 AM  
Blogger V. Krishna Ananth said...

I find this ``communist'' speaking for many like him. Notice the ``us'' instead of ``me'' in his comments.

Now, on a serious note: I am not at all claiming to be a revolutionary as this ``communist'' claims. I am clear insofar as the need for change and also clear that the change cannot and shall not be on the lines of what happened in the name of Marxism-Socialism in the Soviet Union or whatever is happening in China.

As for Permanent Revolution, I do not see it the same as what this ``communist'' represents. Trotsky was one among those who used that expression and he was assasinated by Stalin's mercenaries in the name of ``communists''. Meanwhile, the concept of Permanent Revolution is integral to Gandhi too who sought the disolution of the Indian National Congress the moment it turned into an establishment! Please do not insist that everyone must stop thinking and allow their thought process to be dtermined and goaded by whatever Marx, Lenin and Stalin said.

2:58 AM  
Blogger Communist said...

Mr.Krishna, Thanks for clarification. You could have done it in one short sentence. You could have said you are not a Marxist. Removing revolution from Marxism is stripping the soul of Marxism which is what you are committing. For this you are also distorting Trotsky and Gandhi. You are serving the interest of corporate class in India and elsewhere by distorting Marxism, Trotsky and Gandhi.

3:40 AM  
Anonymous ashfaque ismail said...

Thanks for letting me go. It is the fact that I have not read a single book on Marx or whatever his philosophy is. I can only claim to have a miniscule knowledge about the Marxism and the 'communist manifesto', which I acquired during my school days. Above all I am only a student still learning from the people like you who have unmatchable calibre. As far as defending Mr Krishnaananth is concerned I never intended that. I just wanted to put forward what I thought about your post that proposed Mr Krishnaananth to change his blog title. Everybody knows that "Communism" talked about "Revolution". And as far as my "little" knowledge about revolution is concerned, it is nothing but a change. To acquire that change through peaceful means was the mantra of Gandhi. He wanted to free the state of India from the oppressive colonial rule.

7:08 AM  
Anonymous Communist said...

Mr. Ashfaque Ismail - Sorry if I was harsh. Glad that if you are still learning. You are right that Gandhi worked peacefully for change and also communism is for change. But there is a difference in content between the implication of Gandhi's change and change worked out by revolution. It is the question of private property. Gandhi's peaceful change maintained the status quo of property holders whereas revolution only abolish private property and to do it we need a state dictated by workers!

7:58 AM  
Anonymous ashfaque ismail said...

Here is a point.Do you think that Gandhi's change was not a revolution? As per my poor knowledge it was the biggest revolution that the last century saw. In this case there was no working class that was given he reins of the country. There was no bloodletting unless a few committed by the oppressive regime over the peaceful demonstrators in this case the great freedom fighters. And thanks for encouraging comments after you realized that I was still a learner. I don't carry an "L" sign every time I post a comment on my blog. Because I think the profession I have adopted as mens of my bread and butter requires a period of time. In this profession progress is as slow as my speed of earning. But I always try to learn at least a thing any way.

8:36 AM  
Blogger Jiby said...

Sir, karthik told me about this article on express. The link you made between the most recent application of Sec 124 with Tilak's and Gandhi's cases was brilliant...i guess this is what happens when a historian, lawyer and journalist comes together in one person! :)

12:31 AM  
Anonymous dipanjan said...

Sir,I dont know if I am qualified to compliment you but the article was extremely educative.I second Jiby's comment and add politician too.
I am tepmted to say that I am proud to know someone who tries make a difference in the present situation and does not pretend to be a user of internet from a forest in Jehanabad.

7:11 AM  
Anonymous Anonymous said...

Dear Communist, your anger is interesting but laughable. It is this lazy but useless anger that has made your ilk a marginal force in a country where even today there are 41 percent people earning less than 1.25 dollars a day in PPP terms.

Communists should ideally have had a field day here, but this rather Brahminical obsession for textual purity has made them clowns. Not to forget the hypocrisy that goes behind this purity.
In Bengal a Communist government bent over backwards to accommodate private capital, and ended up raping and maiming farmers. The high Brahmins of Marxism then said that CPM was not a Left party at all. But when the great Maoist Prachanda was begging the Indian bourgeoisie for private investment in Nepal, one could only laugh at this popcorn radicalism.

And please shed this obnoxious privileging of theory -- this book and that book. India has made sufficient strides in social egalitarianism to take the Communist Brahmin (or Bhadralok ) very seriously on the ground that he has memorised some book uncritically....

6:55 PM  
Blogger பிரபு ராஜதுரை said...

I just rang my friend to ensure whether he had seen this blog earlier.

On friday, on his preliminary objection to the application by a congress advocate to cancel the bail granted to ameer and seeman, my said friend, egged by me referred about the prosecutions of tilak and gandhi.

well, the informations provided in this blog may be useful to us, when we make our final submissions.

one can add our own voc, who too was at the receiving end of this provision.

9:33 AM  

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