On 12 February 2016, two policemen in plain clothes arrested the president of the student union of the Jawaharlal Nehru University (JNU), Kanhaiya Kumar. On 9 February, students from JNU had allegedly shouted slogans at an event marking the death anniversary of Mohammad Afzal, who was convicted in the 2001 terror attack on the parliament. On Tuesday, 23 February, Umar Khalid and Anirban Bhattacharya, two of the alleged organisers of the event, surrendered themselves to police custody following an eleven-day-long manhunt. Kumar, Khalid and Bhattacharya have been charged under the Indian Penal Code (IPC) Section 120B, which deals with criminal conspiracy against the state, and 124A, which contentiously attends to sedition.
Though few have ever been convicted by the Supreme Court for sedition, many have been booked under Section 124A. Most recently, before Kumar, Khalid and Bhattacharya, section 124A was invoked against Hardik Patel from Gujarat, who has been asking for reservations for the Patidar community. Sedition in India is a cognizable (not requiring a warrant for an arrest), non-compoundable (not allowing a compromise between the accused and the victim), and non-bailable offence. The penalty can range from a fine to three years or life imprisonment. But these penalties would be awarded after the judgement, which can take a long while to come. Meanwhile, a person charged with sedition must live without their passport, barred from government jobs, and must produce themselves in the court on a loop. All this, while bearing the legal fee. The charges have rarely stuck in most of the cases, but the process itself becomes the punishment.
Section 124A did not make it into the IPC until 1870 (although a section corresponding to it was present in Thomas Macaulay’s Draft Penal Code in 1835). It was brought in 10 years after the IPC was introduced, possibly, to counter the surging Wahabi activities in the subcontinent. At that point, it was a law against “exciting disaffection.” The first case was registered, in 1891, when the editor of a newspaper called Bangobasi was booked for publishing an article criticising an “Age of Consent Bill.” The jury could not reach a unanimous verdict and the judge, in that case, refused to accept any verdict that was not unanimous. The editor was released on bail, and, after he issued an apology, charges against him were dropped.
The trial that changed the effect of section 124A was that of Bal Gangadhar Tilak in 1897. The British government claimed, according to an article in the Economic and Political Weekly, that Tilak’s speeches on the killing of Afzal Khan by Shivaji, had prompted the murder of two British officers in Pune. Newly promoted Justice James Strachey presided over this trial, and broadened the scope of section 124A in the proceedings by equating “disaffection” to “disloyalty.”He interpreted that the term “feelings of disaffection” meant hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government. Tilak was charged with sedition. He was released a year later, following German economist and jurist, Max Weber’s intervention. But on the basis of Strachey’s interpretation, the section was used repeatedly against nationalist leaders by the colonial government. Tilak himself went on to face the same charge again, twice, and ended up spending six years in prison for an editorial published in his newspaper, Keasari.
In 1922, Mohandas Karamchand Gandhi was brought to court for his articles in Young India magazine. Gandhi famously denounced the law against sedition in the court: “Section 124A under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”