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Swallowing its pride the BJP-led NDA government has woken up to the realisation that the archaic sedition law evolved by the British colonisers to scare away freedom fighters needs to be urgently revisited. This has happened after the arrest and release of Jawaharlal Nehru University Students Union (JNUSU) president Kanhaiya Kumar under this draconian measure. The overreach of the Delhi police by invoking the sedition provision against university students has been widely criticised. Opinion is divided among legal experts whether Section 124-A should remain on the statute books. Its abuse impairs a critical feature of dissent in a democracy.  Importantly, the essential ingredient of this section dating back to 1860 -- an imminent threat to public order -- was absent in the case.

It has now become a major impediment for free speech guaranteed by Article 19 of the Constitution.  Former CPI (M) general secretary Prakash Karat criticised the Modi government for bringing universities across the country under siege. ""There have been constant attempts to impose ideological hegemony on universities."" As the former JNUSU president he stressed ""this crisis at JNU has also been directed by the top government machinery. RSS has always called JNU a den of anti-nationals."" The role of the Akhil Bharatiya Vidyarthi Parishad (ABVP), the student wing of the BJP, cannot be undermined. Egged on by the RSS and the Sangh Parivar, it has played its part in whipping up frenzy against the so called anti-nationalists. The presence of ABVP activists on campuses in different parts of the country has been insignificant in the past. With the BJP led NDA government in power for nearly two years the ABVP has been galvanised into action.

Definition of Sedition too wide

The government acknowledged that the definition of sedition was too wide and it was being referred to the Law Commission. Union Home minister Rajnath Singh assured that an all party meeting will be convened once the Law Commission submits its report to the centre.  The 1971 report of the Law Commission wanted to expand the term relating to inciting ""disaffection towards the government established by law"" with regard to the Constitution, Parliament, the government and legislatures of the States, and the administration of justice. While upholding sedition as an offence under ""public order"", the Supreme Court ruled it ought to be invoked only if a particular speech or action had a ""pernicious tendency to create public disorder"". Words such as ""attempts to bring hatred or contempt"" are unacceptably vague, and further explanation that 'disaffection' includes ""disloyalty and all feelings of enmity"" compounds the problem. Two High Courts had declared Section 124-A unconstitutional before the Supreme Court upheld the section in 1962 in Kedar Nath Singh v. State of Bihar. The Law Commission should take into account recent developments especially the flagrant instances of misuse of the sedition law and the tendency to invoke it against those involved in strident forms of political protest heaping scathing criticism on the government.  One way to limit its mischief is to narrow the definition; but a more rational and constitutional option would be to scrap the provision altogether. Leader of the opposition in the Rajya Sabha Ghulam Nabi Azad expressed apprehensions that given the wide definition of the sedition law ""half of the parties will be anti-national if there is a ban on speaking against the government.""

He wondered whether those engaged in the machinations of ""communal divide"" will also be brought within the ambit of the sedition law after the review.  Minister of State for Home Affairs Kiren Rijuju made it clear in the Rajya Sabha that he was not defending the action of the Delhi police. It may be recalled that in the early years sedition came with severe punishments including the perpetrators having their ears cut off for a first offence and being put to death for committing it time and again. Later it became punishable up to life imprisonment and/or a fine and in most cases ""not only truth was no defence but the intention was irrelevant.""  The relevance of the Shreya Singhal v. Union of India case last year declaring unconstitutional the notorious Section 66A of the Information Technology Act the court ruled that the speech howsoever offensive, annoying or inconvenient cannot be prosecuted unless its utterance have, at the least, a proximate connection with any incitement to disrupt public order. What is significant is that it freed online speech in this country from the threat of arrests and prosecution.

Can there be democracy without dissent?

It is widely believed there cannot be a democracy without dissent. There are inevitable peoples' movements waging a perpetual struggle against whosoever is in power in Delhi. It was only during the dark days of the Emergency that any kind of dissent was throttled. It has also never been suggested that an opinion contrary to that of the government is inimical to national interest.  Dissent is anything but anti-national. This nation has been built on dissent at crucial times in its history. It is time that vague definition of offences which result in mindless prosecution based merely on the wording of the Act that allows provocative and innocuous speeches being treated as criminal is stopped. Newly appointed Law Commission Chairman Justice Balbir Singh Chauhan acknowledged that the sedition law required ""reconsideration."" He made it clear that the panel will not jump to any conclusion before hearing all stakeholders. ""We do not know what the problems and difficulties are. We will hear all stakeholders and consult criminal lawyers,"" the former Supreme Court judge observed. Meanwhile, the Hindu Centre for Politics and Public Policy held a panel discussion on ""Free Speech and Sedition in a Democracy"" where Justice K Chandru, a former judge of the Madras High Court observed ""it (sedition) was political and always misused by the political class"" in this country. He gave the evidence of singer Kovan in the southern state being booked under sedition. ""If a law is likely to be misused, then it is an arbitrary law,"" Justice Chandru added. The discussion was held in Chennai last Thursday.

(T R Ramachandran is a senior journalist and commentator. The views expressed here are personal.)"