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.