"What constitutes an insult, what causes offence, and what can be construed as hate are deeply subjective issues."
“Take again Section 124-A of the Indian Penal Code,” Jawaharlal Nehru said during a parliamentary debate centred around freedom of speech in 1951. “Now as far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place…in any body of laws that we might pass. The sooner we get rid of it the better.”
Ironically, the sedition clause not only remains on the statute book but is used periodically against human rights activists, journalists and intellectuals. The latest victim of this anachronistic colonial era law, for which the maximum punishment is life imprisonment, is a young cartoonist, arrested for no more than lampooning the corrupt and venal state of affairs in the country.
Even if one were to admit, for the sake of argument, that some may find his work offensive or in bad taste, it is bizarre and unpardonable that he should be put behind bars on charges that include exciting “disaffection” towards or bringing “hatred and contempt” against the government. The use of sedition to silence speech has a long and infamous history in this country. When Mahatma Gandhi was charged with exciting disaffection in 1922, he pleaded guilty, saying cheekily that “affection cannot be manufactured or regulated by law.”
Prosecuted twice, Bal Gangadhar Tilak sought to know whether he was guilty of sedition against the colonial government or India’s people. Recently, the sedition law was misapplied to convict civil rights activist Binayak Sen and register a case against writer Arundhati Roy and others for speeches they made on Kashmir.
While upholding the sedition law, the Supreme Court said it should apply only to cases where an accused person intended to create public disorder or incite violence (Kedar Nath Singh v. State of Bihar). However, in carrying out arrests and slapping charges, the police and their political masters have rarely, if ever, respected this restriction. In the wake of the ruling against Binayak Sen, Veerappa Moily, then Law Minister, had announced there was a need to review the sedition law.
With the continuing misuse of the law, however, there is only one reasonable course: scrap it at once, and quickly. It is no accident that the other charges against cartoonist Aseem Trivedi are the controversial ‘hate’ and ‘insult’ provisions in the Information Technology Act and the Prevention of Insult to National Honour Act.
What constitutes an insult, what causes offence, and what can be construed as hate are deeply subjective issues.
This ambiguity gives governments the legal handle to exercise an insidious form of censorship and control that goes well beyond the “reasonable restrictions” on free speech that the Constitution allows.