The Curious Case of Dr. Binayak Sen's conviction on Sedition

One of the things, I really do not appreciate among the intelligentsia, whether in India or abroad, is their propensity to see things only through their rose-tinted glasses and to denounce all contrarian views as fascist or rightist .... What really makes me go mad in the brain and red in the face is the fact that these so-called mandarins of morality are often found to be appeasing to a fault to certain sections of society and critical to a detail to the others.... This is where my path diverges from these mandarins of morality for I believe that there should be the same set of laws for both the parties ... that it's important not only that Caesar and his wife should be above the law but also the entire retinue that associates itself with Caesar!

Still, there are times, when my own stand is found to be very much in sync with these custodians of public morality.... Contradictory? Well, I am quite a bundle of contradictions and so lately on one issue I have found myself closing ranks with the intelligentsia to a very large extent ... the case is that of the life-imprisonment imposed on Dr. Binayak Sen on charges of sedition.

This is indeed a curious case and a curious sentence for a crime under a curious charge... the charge of Sedition! And specially so, in a country like ours which got independence after a long battle wherein many of our national leaders like Bal Gangadhar Tilak were time again accused and imprisoned on the grounds of Sedition!

The question that I seem to be asking myself regularly these days is a simple one ... does a charge of sedition actually deserve merit in a democratic country and if yes, under what circumstances can the charge be made? And the more basic question is, does the concept of democracy allow for the charge of Sedition .... and finally, was the sentence proportionate to the crime, if any? Being a common man, I can only speak my heart on the last part, the learned judges do have much more material in connection with the case than a lay person like me to discuss the subtleties of the case, however I do think being an aware citizen of India, I can and should have a point of thought on the concept of Sedition....

The Indian constitution is a remarkable piece of art, in that it incorporates the best of all constitutions and provides for the loopholes in each and every constitution on Earth... Indeed, Indian ingenuity has to be appreciated that it can provide such a constitution and then tear it to shreds too ....

Para III of the Preamble to our Constitution underlines the Fundamental Rights of the Citizens of India.... Here I will not be concentrating on all the different rights including those enshrined in Articles 15-18 for in the current discussion, the important part of Part III that needs to be discussed, is enshrined in the Articles 19, 20, 21 and 22 ... in totality, these 4 articles give the citizenry of India the following rights:

• Freedom of speech and expression (although the phrase, "freedom of press" has not been explicitly defined, freedom of expression for all intent and purpose includes freedom of press.)
• Freedom to assemble peacefully without arms
• Freedom to form associations or unions
• Freedom to move freely throughout the territory of India
• Freedom to reside and settle in any part of the territory of India (This article does have a safeguard for the Tribal Regions, by restricting non-tribals from purchasing or moving into tribal lands. This has been done to protect them from exploitation of any sort. Furthermore, Article 370 restricts citizens from other Indian states and Kashmiri women who marry men from other states from purchasing land or property in Jammu & Kashmir.)
• Freedom to practice any profession or to carry on any occupation, trade or business.

In addition to the above, the constitution also guarantees the citizenry the fundamental right to life and personal liberty, which in turn cites specific provisions in which these rights are applied and can be enforced. They are as follows:

• Protection with respect to conviction for offences is guaranteed in the right to life and personal liberty. According to Article 20, no one can be awarded punishment which is more than what the law of the land prescribes at that time.
• Protection of life and personal liberty is also stated under right to life and personal liberty. Article 21 declares that no citizen can be denied his life and liberty except by law. This means that a person's life and personal liberty can only be disputed if that person has committed a crime.
• Rights of a person arrested under ordinary circumstances is laid down in the right to life and personal liberty. No one can be arrested without being told the grounds for his arrest. If arrested, the person has the right to defend himself by a lawyer of his choice. Also an arrested citizen has to be brought before the nearest magistrate within 24 hours.

None of these rights are absolute; the constitution imposes restrictions on these rights. The government restricts these freedoms in the interest of the independence, sovereignty and integrity of India, and also in the interest of morality and public order, the government can impose restrictions on these rights. However, interestingly the right to life and personal liberty cannot be suspended, even in an emergency.

Let us now try and define Sedition: In simple words, Sedition is the stirring up of people against the government in power and is very much different from the much more intense word, Treason that means levying a war against the state.So if you look at it closely, Sedition is any overt act of a citizen or an organized group that not only criticizes the government of the day but also exhorts that people to start thinking on similar lines.... In the Indian scheme of things, there is a specific law against Sedition ... Sec124A of the IPC.

Sec 124A states, "Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”

This brings us to an interesting point.... .the concept of Sedition as outlined above can be applied in equal measures to anyone in the state, a leader of an opposition party who may have an axe to grind against the ruling party can call on to the people with a stated objective of getting the people to change the government... should that be considered as Sedition? If yes, does that not sit heavily on the rights as enshrined by Para III of the Indian Constitution?

Secondly, if you look at Section 124A, it can be argued that the spirit of the law goes very much against the right to life and liberty as enshrined in Articles 20 and 21 ... to the letter of the law, they may be different but if the person on the basis of a speech or an action is construed to be acting in defiance of a government in power and arrested,  and his fundamental rights abrogated, in the interest of the nation or public mortality, then without a shred of doubt, even his right to life and liberty in endangered, even before the court of law can take due course and find out if the accused in indeed a perpetrator of dissatisfaction or a victim of government mores.... this defeats the very purpose of the founding fathers of the Indian Constitution!

I think a democracy, as defined by Abe Lincoln, is the government of the people, by the people and for the people and so a democracy can have varied viewpoints and there need not be a consensus to the differences within. If we get to a stage where a criticism to the government can constitute a case of sedition, isn't it the end of democracy as we know it? To take things to the conclusive end, this is a draconian act that can be used by the opponents of Democracy to stifle every voice of dissent .... If Sedition is allowed to be a part and parcel of the democratic process, wherein constructive criticism can be put into the garb of Sedition, time if not far when a welfare state would be converted into a police state for lack of space for political dissent and opposition.

I do not advocate that Sedition should be per se removed from the annals of Indian legal code but I do firmly believe that in a democratic setup, the concept of Sedition has outlived it's requirement.... It can only be brought to the light only and only in times of emergency, and even then should be used only for acts that challenge the independence, sovereignty and integrity of the country.... such a law does not have any need in a society that's democratic, mature and has a stomach for digesting dissent.... which is the most notable power in a democratic setup.... else what Sahir wrote for a fascist state can be true of India as well:

Bediyaan Aaj Bhi Pehney Hai Azeezaan-E-Watan
Farq Itna Hai Ki Zanjeer Mein Aawaaz Nahin Hai....

The handcuffs are still bound on the hands of the patriots of my land,
the only difference being, they don't scream their presence like in the past (Transliteration)