A draconian law has been laid to rest, but when the Courts have to do it, the system has failed

A colonial-era draconian law is on the road to be put to permanent rest a law which the Supreme Court itself feels has been more often misused than used judiciously, to hurt and inflict a lot of pain to democratic and proud Indians who used their pen, their voice and their expressions to correct injustices of their land. As the Court’s judgment indicates, they were patriots who loved their land, their flag, and their motherland but chose to say that this “mother” was not getting the liberties, freedoms, and democratic ideals that the founding fathers of India’s Constitution provided for her.

On May 11, the Supreme Court suspended this law saying that the law has been misused by governments to quash dissent. It also said that the law was backdated and not in tune with the times. The Supreme Court has opened the door to freedom. Hundreds of people who were jailed under the law have become eligible for bail. 

The May 11 Supreme Court judgment is a harsh reminder that law, instead of being an enabler has become a disabler. Instead of protecting, it has become a tool of harassment. The law not only imprisons people, it also imprisons the very spirit of the Constitution and the land. It does not embolden Indians, it betrays.

Ultimately what is the state and what is governance? Governance is a privilege given to a chosen few by the real masters, the people. Those who are chosen are expected to act parental, like guardians who are protectors but who are also friends and well-wishers. 

Shouldn’t the system of governance, therefore, introspect if a law like the sedition law been used to truly find and punish those who are were an enemy of the State, or were most of them defenders of the spirit of that Constitution and in the process may have criticised the then-current system of governance?

The law acts against those who, in the opinion of the state, “excites or attempts to excite” disaffection towards, the Government established by law in India” and shall be punished with imprisonment for life or three years (with or without fines) and in some cases just a fine. What is important to note is what the word ‘disaffection’ means in the context of the law. Here disaffection includes disloyalty and all feelings of enmity.

Can we as true Indians place a hand on our hearts and ever say that Father Stan Swamy the gentle priest excited or attempted to excite “disaffection towards” the government? Can a man who sacrificed his life for the Adivasis and lived in the jungles only to serve, be disloyal or have feelings of enmity with the country?

And since the list will be long we cannot take all names of those who simply worked towards equality, liberty, removal of poverty and often took on the system for not upholding these values.

It is clear that the reason why this law came into force in the last century is long gone. The times have changed, India has moved on, our country and its systems rub shoulders with the rest of the world, and our scientists and our soldiers are equal to if not above their counterparts internationally. Can this archaic and out of line law ever hold?

The origins of the law date back to the 1800s. Thomas Babington Macaulay drafted the Penal Code in 1837 but interestingly the sedition law was not included in the original penal code. It was finally added in 1870 on the suggestion of James Stephen, a British legal hand in the Indian government due to increasing Wahabi activities, and fearing that religious preachers would incite religious war in the Indian subcontinent. The British Raj introduced this section under the title “Exciting disaffection”.

In 1958 the Allahabad High Court declared the sedition law void in the Ram Nandan case followed by the Punjab High Court. But in this see-saw battle, a Supreme Court judgment introduced sedition back into the Constitution, stating, however, that it only applies if there is “incitement to violence”. Interestingly it was Prime Minister Indira Gandhi who made sedition cognizable for the first time in the 1973 CrPc.

All that will be thing of the past. The protection against the further misuse of the sedition law is very welcome and timely. But it also gives us a strong message, that when the courts have to rule in this manner, the system has failed.