Musings on the Life & Times of Chinnaswami Subramanian Bharathi Narasimhan Vijayaraghavan 52

Musings on the Life & Times of Chinnaswami Subramanian Bharathi
Narasimhan Vijayaraghavan
52i

Bharathi was rich in thought. But poverty and penury never left him in life. ‘India’ folded as ‘Suryodayam’ rose. And ‘Suryodayam’ then set. For, the Britishers were not watching from the sidelines. They found Bharathi more than a handful to handle. He was not a lone man. He ‘was a one man army’ as V O Chidambaranar said when he called on him at Pondy, after he was released from prison having undergone rigorous imprisonment for six years on charges of Sedition. The word ‘Sedition’ rings a bell. The instinct of an attorney never takes a backseat. It may not be foreground at all times. But never takes leave, as it hovers above. V O C was charged with ‘Sedition’ by the colonists as they construed
, he was guilty of.

These are ‘Musings’ In idea, concept and construction. My ‘Musings’. ‘Sedition’ is too compelling a word to let go. Even today, the debate is on. How can one miss a detour or digression. Does it belong here while we muse on Bharathi? Sorry, I say, it does. And so it does. After all Bharathi’s life and times were amidst these Sedition charges being slapped on one too many as Bal Gangadhar Tilak, Aurobindo Ghosh, V O Chidamabaranar and several more. And unhappily, the ‘Sedition’ charges come in handy for our political class forgetting what the freedom fighters said, faced and denounced it for. We are like that only.

On July 14,2021 The Supreme Court chose to examine a petition filed by a retired Army General, who said a nearly 60-year-old judgment of the court that helped sedition survive in the Indian Penal Code, was behind time and needed a relook.A Bench led by Chief Justice of India (CJI) N.V. Ramana listed the case for hearing and asked Major-General S.G. Vombatkere (retd.), represented by advocates P.B. Suresh and S. Prasanna, to serve a copy of his petition to Attorney General K K Venugopal. Criticism is not Sedition quoted a 1962 ruling in Kedar Nath.

The petitioner argued that the Kedar Nath verdict was old and antiquated and outlived its shelf life, if it had. Kedar Nath which upheld Section 124A (sedition) of Indian Penal Code, a relic of the colonial legacy, was given at a time when doctrines such as ‘chilling effect’ on free speech were unheard of. “The doctrine of ‘chilling effect’ on speech considers the probability of a legal provision causing psychological barriers in the free exercise of the right.This doctrine had not sufficiently developed in 1962. Even in the US, the doctrine was established only as late as 1967. The most concrete pronouncement on a statutory provision causing a chilling effect on speech is as recent as 2015 in Shreya Singhal v. Union of India,” he submitted.

The Kedar Nath judgment was delivered during an era when the extent, scope and inter-relationship of fundamental rights like liberty, equality and dignity were “rather restrictive”, the plea said. In the judgment, the court had reasoned that without Section 124A, the State would be in jeopardy if the government was subverted. It, however, said that Section 124A would apply only to expressions that either intended to or had the tendency to cause violence were punishable as ‘sedition’. The maximum punishment was life imprisonment. The offence was classified as ‘cognisable’ and ‘non-bailable’.

This judgment could hardly be seen as a beacon of light now, the petitioner contended. He referred to the Supreme Court’s recent judgments decriminalising homosexuality ( Navtej Singh Johar) and declaring privacy as a fundamental right (Justice K S Puttaswamy ( Retd)) as testaments of how the times and attitudes have undergone a “sea change” over the years. “The Constitution is a living document. All constitutional provisions have to be construed with regard to the march of time and the development of law,” he stated.

The petition said Section 124A criminalised expression based on vague terms such as ‘disaffection towards government’, ‘contempt towards government’, etc. “The provision, by employing phrases like disaffection and contempt toward government, which are incapable of precise definition, causes a chilling effect on speech, constituting an unconstitutional invasion into the right of free speech,” it said.

The Kedar Nath judgment had been “impliedly overruled” in a series of apex court judgments in the past decades. In these orders, the court had clearly held that restrictions on fundamental rights should be for “legitimate purposes” and there should be sufficient safeguards put in place to prevent their abuse by the State. Besides, the burden was on the State to prove that a restriction on fundamental freedoms was ‘necessary in a democratic society’, it submitted.

Contextually, how can one overcome the author’s constitutional instincts having mused on ‘ Constitution and its Making, Musings, Anecdotes, Episodes,2020 and Constitution and its Working, Musings, Anecdotes, Episodes,2021- both from the house OakBridge Publishing. Or miss out on an authentic voice ( borrowed, of course, what else) in Gautam Bhatia, a young constitutional scholar from his work ‘Offend, Shock or Absorb’. The origins of Sedition and its continuing constructs in courts which is still in our midst in 2021, even as we are stepping into 2022.

“The crime of sedition was originally conceptualized in monarchical England to insulate the King, and a largely unelected parliament, from public criticism. In 1704, Chief Justice Holt explained that ‘if people should not be called to account for possessing an ill opinion of the government, no government can subsist. For it is necessary for all governments that people should have a good opinion of it’.Consequently, unlike cases of ordinary defamation, ‘truth’ was not considered a defence. In fact, the greater the truth, the more harm it was likely to cause to the reputation of the government, the preservation of which—whether deserved or undeserved—was treated as the ultimate end. With India serving as a laboratory for British legislators, it is unsurprising that sedition also found a way into our criminal law.

Most of the ills of our Penal Code are commonly attributed to Macaulay, that doyen of Victorian moralizing and crude orientalism. Interestingly however, the sedition provision, while present in an early draft Bill, was absent from Macaulay’s final version of the Code. It was inserted in 1870, at the instance of James Fitzjames Stephen (who also drafted the Indian Evidence Act), as a response to the rising Wahabi political movement.Section 124A read: Whoever excites…or attempts to excite feelings of disaffection…to the Government…shall be punishable with transportation for life.Following this, a proviso stated that ‘disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government’ remains lawful.

The meaning of ‘disaffection’ (as opposed to ‘disapprobation’) was clarified by Petheram C.J. at the Calcutta High Court, in Queen-Empress v. Jogendra Chunder Bose and Ors.As the editor of the magazine Bangobasi, Bose was prosecuted for an article that was highly critical of the Age of Consent Bill. The article accused the British of ‘forced Europeanisation’, while nonetheless disavowing open rebellion, on the ground that Hindus were incapable of it. Nevertheless, it was argued that the piece was aimed at stirring up thoughts of rebellion. Petheram C.J. instructed the jury on the meaning of ‘disaffection’, and his observations deserve to be quoted in full: Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them .

Section 124A was used almost exclusively by the British to contain and repress the freedom struggle. Nationalist politicians (such as Gandhi, Tilak, and Annie Besant), editors, and journalists were its most frequent targets. In addition, as the Ganesh Savarkar prosecution demonstrates, it was used not only in the domain of politics, but in that of culture as well. The force of the law was turned against attempted resistance through the means of culture. For instance, Aravind Ganachari lists thirty-nine dramas that were prosecuted for dissemination of sedition, as well as readings of kirtans and the Puranas.With this ignominious history, one might have expected that consigning the sedition law to the dustbin of history would have been on or near the top of the Constituent Assembly’s priority list. Nonetheless, the Fundamental Rights Sub-Committee—comprising, for the most part, of veterans of the freedom movement, and chaired by Sardar Patel—in its first draft of a bill of rights, expressly included sedition as a ground for restricting free speech.

When the draft came up for debate on 29 April 1947, it was trenchantly criticized by Somnath Lahiri. Did Patel, he asked sarcastically, think that the incoming, popularly elected government needed even more powers than the autocratic and alien British did, to protect itself? Lahiri also warned—presciently enough—that sedition would be used to crush political dissent, as it had been used in colonial times. The next day, however, Patel himself moved for the deletion of the seditious speech proviso—only for it to make a reappearance in the Draft Constitution of 1948.

Once again, there was strenuous opposition. Sardar Hukum Singh specifically pointed to the similarities with the Press Act,and warned about the scope of repression that blanket immunity for sedition law could provide an intolerant government (recall that at this time, the free speech restrictions were not qualified by the word ‘reasonable’). In the teeth of much resistance, the sedition proviso was withdrawn once more.

The strength of feeling against this colonial provision is perhaps best illustrated in this anecdote, courtesy Seth Govind Das: My great grandfather had been awarded a gold waist-band inlaid with diamonds. The British Government awarded it to him for helping it in 1857 and the words ‘In recognition of his services during the Mutiny in 1857’ were engraved on it. In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great-grandson by seeking to uproot it. For this I was prosecuted under section 124A and sentenced to two years’ rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word ‘sedition’ is also going to disappear.What are we to make of the Constituent Assembly’s decision to consciously withdraw the word ‘sedition’ from its list of permissible restrictions upon free speech?

Shibban Lal Saksena, for one, clearly felt that only laws relating to the remaining categories (morality, undermining the foundation of the State, defamation, and others) ‘will remain on the statute book’.Ananthasayaman Ayyangar provided the theoretical rationale, which was directly grounded in the shift from a colonial regime to one based upon principles of self-government: it was the fundamental right of citizens to non-violently overthrow an entrenched government by exposing its faults and persuading each other that it ought to be removed. Consequently, unless it rose to the level of ‘the entire state itself [being] sought to be overthrown or undermined by force or otherwise, leading to public disorder…any attack on the government itself ought not to be made an offence under the law.’It therefore seems clear that in terms of the free speech clause that came into being with the Constitution, sedition was inconsistent with it.The Constituent Assembly itself, of course, was not into the business of repealing legislation. Consequently, it inserted into Article 13 a proviso that rendered void all existing colonial laws that were inconsistent with the Constitution, from the moment the Constitution came into force. Common sense would dictate, therefore, that from early 1949, Section 124A became unconstitutional—a dead law on the statute books, waiting to either be repealed by the first legislature, or be struck down by the courts. The legislature, however, seemed not to be interested, and so the battle moved to the courts.” And it has lasted all these years and decades into 2021-2022 too.

I profusely apologise for this rather lengthy legal digression from Tilak, Ghosh,VOC and inevitably Bharathi too, for references to Sedition. One fell for one’s constitutional instincts and impulses. Time to get back on track with Bharathi waiting in the wings in Pondicherry. I do apologise.

( Author is practising advocate in the Madras High Court)