Sedition Laws, Kudankulam and Criminalisation of Dissent

This report of The Hindu emphasises growing criminalisation of dissent, as illustrated by the use of the charge of sedition against protesters opposing the Kundankulam Nuclear Power Project. This is the latest episode in a long series of cases where the Indian state has resorted to use of criminal law to repress popular struggle against development projects, anti-corruption movement, human rights activists and numerous other forms of legitimate exercise of political freedom. Such characterisation of any opposition to government view as ‘anti-national’ is a dangerous portent for sustenance of the democratic space in this country.

   

We must also not lose sight of the fact that in many such cases, the very process of criminal law, as much as final conviction, which is used as a tool of intimidation. As V. Suresh, the National General Secretary of the Peoples’ Union for Civil Liberties (PUCL), states:  “At the national level, the conviction rate in sedition cases is less than five per cent, but the accused and their families undergo tremendous torture, financial distress and emotional trauma during the trial that takes years to conclude.”

One cannot help but also point out the hypocrisy of the middle class that resonates through its silence on the use of ‘sedition’ as a charge, especially just after the justifiably vehement protests against the arrest of Asheem Trivedi by Mumbai police on the same charge.

Reviewing the Constitutional Validity of Section 124-A

The endemic arbitrary use of sedition law has also reignited the debate on its constitutional status. It must be noted that while the Allahabad High Court had declared Section 124-A to be unconstitutional in Ram Nandan v State in 1958, it was overruled by the Supreme Court of India in 1962 in the case of Kedar Nath Singh v Union of India (AIR 1962 SC 955). While saving the constitutionality validity of the provision, the Court had read down its scope and asserted:

“the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”

The Court was motivated by the well-established rule of construction that “if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction.” 

However, fifty years of practice has placed a question mark over this presumption of constitutionality. Clearly, the law enforcement agencies have not paid much heed to ‘interpretative incision’ done by the Supreme Court. Thus, it is time that the entire provision is struck down as violative of our fundamental freedoms for its existence in statute-books grants a license for arbitrary exercise of state power.