The Law on Sedition: Five Propositions

To my limited lay understanding as a common citizen, there are five propositions which must be read together, and I do not see recognition of this in either media coverage or political statements:

Proposition 1: India’s law on sedition is derived from Section 124A of the Indian Penal Code. This section dates back to the era of colonialism and is a 19th century statute that still remains in the books.

Proposition 2: If a law was written before the Constitution of India was established on 26 January 1950, and still remains in the books, then any reading of the law after January 1950 must be a reading that juxtaposes this law against the Constitution, and interpretation of the law must now be made in the light of the Constitution.

Proposition 3: Several Supreme Court judgments have provided this juxtaposed reading of Section 124A and the Constitution (specifically Article 19 that protects the right to free speech), establishing that unless statements against India invoke an incitement to imminent violence, they cannot be treated as seditious.

Proposition 4: When a Minister of the Union takes office, he/she swears an oath of office as defined in the Third Schedule of the Constitution, and the first line of the oath states, “I do solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established”

Proposition 5: If a Cabinet Minister seeks to invoke or uphold Section 124A without considering the Supreme Court judgments referred to in Proposition 3 above, then that minister is deliberately ignoring the Constitution, and is thereby violating the oath of office that has been sworn.

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A Short Take on Anti-Nationalism

With relation to recent events at Jawaharlal Nehru University (JNU) in New Delhi, the word “anti-national” has been frequently used to describe the slogans that some people shouted at an event on 9th February 2016. These slogans set off a chain of controversial events: police action on the university, the arrest of the student union president, vigilante lawyers indulging in violent hooliganism, and more. I have not found much elaboration in mass media that offers some clarity on what this word “anti-national” means.  This has provoked me into reflecting on it, and I share some brief thoughts.

The word could have two possible interpretations, and there is a world of difference between the two.

On the one hand, it could refer to statements or actions that I find offensive to my idea of what India is and stands for.  Since the core of this definition lies in the extent to which the statement or action offends me, I will call this “offensive anti-nationalism”.

On the other hand it could refer to statements or actions that are so threatening to the stability or raison d’être of the nation, that they must be recognised as a violation of law that necessitates criminal prosecution (subject, of course, to the provision that due process of law must be followed).  Since the core of this definition lies in a violation of law,  I will call this “criminal anti-nationalism”.

It is important to differentiate between these two definitions. It is infeasible to expect that every single person will have an identical notion of what the nation should be, and it is a natural state of affairs that there will be differing thoughts on how we should define it.  So the odds are great that someone will say something about India that I will find offensive to my notion of the country. The idea of a democracy is that there is space, in both the public and private realm, where debate on these differing thoughts can occur;  and the continuing evolution of a social contract on the basis of such debate forms the foundation of democratic politics.  So if I seek to limit or constrain what a person says merely on the basis of the fact that it offends my nationalism, however offensive I may find it, then I will be undermining the foundations of democratic freedom.

One cannot allow a free reign to curb speech or action purely on the basis of offensive anti-nationalism. There must be a clear test: a threshold that defines when offensive anti-nationalism is also criminal anti-nationalism. Fortunately, this test has been defined in India by the highest court.  The law on anti-nationalism springs from Section 124A of the Indian Penal Code that defines what ‘sedition’ is as a criminal offence. This is a law from the era of colonialism, dating back to 1870, that has remained on the statute books, designed to protect the British Empire’s hold over Indians. So if it is read only by itself, it will serve imperialist rather than democratic interests. In current times, it must be read in conjunction with the Constitution of India that was established in 1950, particularly Articles 19 to 22 that protect our freedoms.  This constitutional reading of Section 124A is what the Supreme Court has done, through a set of judgments that draw a clear line between offensive and criminal anti-nationalism. The Court has established that any critique, or even advocacy of revolution, secession, or overthrow of the government, cannot be called seditious unless it invokes an incitement to violence, and the incitement is to ‘imminent’ violence (for a more detailed exposition on this see Lawrence Liang’s article in The Wire).

To me personally, I find the slogans shouted at JNU on 9th February offensive, so would unhesitatingly categorise them as offensive anti-nationalism.  But no evidence has been provided in the media that they involved incitements to imminent violence, so I am yet to come across any evidence that could convince me that they also constitute criminal anti-nationalism.  Without that evidence, I find I cannot advocate any criminal prosecution, and the only course of action is to continue the debate, even if it involves debating with people I just cannot relate to, and may even find offensive. This is because I cannot grant the right to free speech only to people like me, for it is only when I recognise human rights in the person most unlike me will I acknowledge human rights as being universal and inherent to the human condition.

What is scary is that people at high levels of government are disregarding the Supreme Court’s legal rulings on sedition law under the light of the constitution, and are so easily equating offensive anti-nationalism with criminal anti-nationalism.  These are people who have sworn an oath to uphold the Constitution of India, and are therefore obliged to appreciate and uphold the difference between offensive and criminal anti-nationalism. A government that shows no interest in this difference is more interested in suppressing dissent than in curbing anti-nationalism.  This is pseudo-nationalism.

Must Rhodes Fall?

A few days ago, newspapers carried an account that Oriel College in Oxford University has taken a decision to retain the statue of Cecil Rhodes as well as a plaque that commemorates him, despite a student movement that seeks their removal. The protesting students assert that the mask of benefactor must be removed to reveal Rhodes as a white supremacist and colonialist who caused much harm, and commemorating him with a statue or plaque celebrates the wrong values. A similar student movement at the University of Cape Town was successful, and the statue of Rhodes that stood there was removed in April 2015. Oxford, Cape Town, and other student movements (that have been tagged with the label “Rhodes Must Fall”) argue that actions such as the removal of the Rhodes statue would signify a necessary shift towards decolonising education and demolishing its elitist biases. This is, no doubt, a worthwhile goal. But will acts such as removing the Rhodes statue move us toward this goal?

While it is rumoured that Oriel College’s decision was influenced by some donors threatening to withdraw funding if the statue was removed, the official statement of the college justifies the decision by noting that “the continuing presence of these historical artefacts is an important reminder of the complexity of history and of the legacies of colonialism still felt today. By adding context, we can help draw attention to this history, do justice to the complexity of the debate, and be true to our educational mission.” This statement needs further exposition, for Oriel College has not revealed what it will do toward “adding context”, or how it will “do justice to the complexity of the debate”.

The weight of the argument depends on how we view history. There is a conventional view that history is solely about moments that existed in the past, disconnected from the present and the future, and only of academic interest to scholars. If we acknowledge history at all, it is only to claim a foundational tradition for ourselves by marking what we celebrate in that past.  If we accept this view, then we must align with the students in the “Rhodes Must Fall” movement. But this would be a view of history that is neither contemporary nor critical, which would not do justice to what history actually is. History is not about the authenticity of the past, and is actually a contemporary moment of continually looking back at the past in order to critically choose what is worth remembering. History is continually infected by the present, and this is its strength. Without this, it would be a dry esoteric subject only of interest to obscure scholars, but by defining it as a contemporary moment we all have the opportunity to live history as a means of examining our own lives.

This requires that we ask why we must remember, and here we must note that history must also be critical. There are some things we will remember because we celebrate them, but there are also some events we must remember because they are terrible and we do not want them to repeat again. And those evil things are not unique aberrations, they usually result from an innate human impulse to do bad things with good intentions. A person like Rhodes did not consider himself as evil: he felt ethically justified in promoting Anglo-Saxon supremacy, arguing that the future of civilisation as a whole was better off if the ‘superior’ races colonised as much of the world as possible. He did not see his philanthropy and racism as contradictory; in his eyes both were altruistic goals aimed at making a better world. And he lived in an era where this was an establishment point of view, and therefore an institution like Oxford University could commemorate him with statues and plaques.

Today we realise this is an ethically unjustifiable attitude, so it would be unquestioningly wrong to commemorate Rhodes with a new statue today. The question we face is what we should do with a statue of his that exists from earlier imperialist times. We could say that having recognised the evil in Rhodes, we must forget him, erasing him from our historical memory. We should then concede to the demands of the protesting students, remove statues and plaques to erase all visible traces of Rhodes from our lives. But if our approach is to erase all historical traces of imperialism, over time we will forget about imperialism.  We will forget that imperialist impulses often mask themselves with altruistic claims, and imperialism is therefore a perpetual possibility that could reoccur, albeit in a different form. And in our forgetting, we lay the grounds for imperialism to rise once again. If we want a world that seeks to rid itself of forms of evil such as imperialism, racism, and exploitation, we must never forget that they once existed: we must leave the historical record of their existence visible in our midst so that we stay perpetually alert to resisting their continued occurrence.

A lot depends on what Oriel College does from this point onwards.  If it lives up to its promise to acknowledge the “complexity of history”, to continue “adding context”, and to “do justice to the complexity of the debate”, then history will be honoured in all its depth and fullness by leveraging the presence of the Rhodes statue to continuously and critically confront imperialism and racism. But if this is a single publicity statement to alleviate a momentary problem, and is not followed by critical action, that will be another form of forgetting: one that facilitates a covert continuation of what Rhodes stood for.

This challenge is of relevance to India at this moment in her history. Some years ago, Rahul Dholakia co-wrote (with David Donihue), co-produced (with Kamal Patel), and directed a film called “Parzania”. The narrative of the film is inspired by the true story of a ten-year old Parsi boy who disappeared, never to be found again, after getting caught in the middle of the communal riots in Ahmedabad in 2002. When the film was released in 2007, it could not be publicly screened in Gujarat as cinema owners refused to screen it. The controversy over this refusal found coverage in many panel discussions that were aired on television, and many people (particularly those from Gujarat) attempted to justify this refusal. While they acknowledged that the riots were an evil event that should never have happened, they also said nothing was served by screening this film, for that would be an uproductive act of clinging to the misery of that moment. They argued that the time had come to forget about it, leave it behind us, and to move on.

This impulse to forget has dominated mainstream public discourse in India. An active and constructive remembering would have bred a critical resistance to the potential for evil in society. As a result of this forgetting, we confront today a resurgent virulence that exhibits itself in communalism, caste discrimination, gender bias, class exploitation, and other forms of social suppression. This virulence ensures that vigilante justice, public lynching, rape, suicide by the dispossessed, and other forms of cultural violence remain items of everyday news. And this is encouraged by a political dispensation that actively forgets, propagating a historical sensibility solely built on a mythical celebration of a glorious past, with scant disregard for whether facts or logic validate this celebration. Any public attempt to recognise an alternative historical narrative is dismissed as unpatriotic, seditious, or propelled by selfish motives.

We cannot be selective about the context that we inhabit. We must accept the entirety of our history, warts and all. While we may justifiably gain joy from commemorating what is worth celebrating, we do a disservice to the future if we confine our cultural memory to what we like in our history. It is only by actively remembering what we do not like, by allowing its traces to co-exist with our lives, will we build an idealism that resists evil by remembering it. A failure to do this will condemn us to be forever trapped within George Santayana’s prophecy (written in 1905), “Those who cannot remember the past are condemned to repeat it”.