Question Before the Supreme Court:-
Should people have the right to incite violence against the government? This would be an inevitable question in front of the judiciary while it decides on the fate of the law of sedition (Section 124A, IPC).
Four petitions are currently in the Supreme Court challenging the constitutionality of the law; the latest was filed by the PUCL on July 16. This question, however, is a flawed statement of the problem and would be detrimental to the debate.
The hearing in the SC on the first petition filed by two journalists — Kishorechandra Wangkhem and Kanhaiya Lal Shukla — was to begin on July 12, which was predictably adjourned as the government sought two more weeks to file a response despite having been issued a notice on April 30.
Kedar Nath Singh (1962) :-
The push-back from the executive to the judicial admission that the interpretation of sedition given in Kedar Nath Singh (1962) requires reconsideration is obvious, as the law has allowed successive governments to suppress political dissidence at will.
The point of attention is this judicial act of “reconsideration” and its possible consequences. If the legal challenge is efficacious, the SC will declare the law unconstitutional but if the court resorts to an alternative and instead reads down the law to a stricter and more limited interpretation of the offence, would that resolve the crisis of free speech that the law of sedition has currently posed in India?
To address this question, one needs to return to the earlier question about the right to incite violence against the government.
Originally defined as the act of inciting disaffection, which included feelings of enmity, hatred, contempt and disloyalty against the government, Section 124A was read down in Kedar Nath. The court ruled that unless an act of disaffection imports the tendency to result in disorder through incitement of violence against the government, the charge of sedition cannot be upheld.
The criticism against Kedar Nath is that it laid down an ambiguous test where the speech is measured on the parameter of its “tendency” to result in public disorder, through incitement of violence against government, without clarifying how the tendency of a speech was to be gauged.
Restricting oneself to a criticism of the existing doctrinal test would mean that while the use of a subjective word like “tendency”, prone to multiple interpretations, is a problem, the interpretation of the offence of sedition as the act of incitement of violence against the government, is not.
Incitement to violence against the government cannot be protected as free speech, it can only be subjected to a clear judicial test to delineate other forms of expression against the government which fall short of incitement to violence.
Sedition in USA:-
The American free speech test laid down in Brandenburg v. Ohio (1969) which calls for expressions to be penalised only where there is incitement to “imminent lawless action” is often cited as the ultimate standard to protect speech and has already been adopted as the threshold for upholding the right to free expression by the Indian Supreme Court in Indra Das (2011) and Shreya Singhal (2015). Subjecting sedition to the Brandenburg standard, hence, would answer the problems emanating from the 1962 test.
What escapes scrutiny in the above line of reasoning is the fact that the understanding of sedition as “incitement to violence against government” was an idea introduced by the court in Kedar Nath. To uphold the constitutionality of section 124A, the court needed to establish a relationship between expressions against the government and their repercussions on public order and security of state.
An Abstract Idea:-
The act of inciting disaffection was reinterpreted as importing the tendency to disorder through incitement of violence against the government. Incitement to violence was an imagined act, an afterthought that connected feelings of disaffection to consequences of public disorder.
Based on this abstract idea, the call for abolition of the offence of sedition is posed against a lacuna in the law which would allow for incitement to violence against government to be covered under protected speech. Consequently, the demand to nullify the law criminalising sedition can be perceived as protecting the right to incite violence against the government.
Counterposing the two weakens the demand for abolishing the law of sedition. To enter the question of the constitutionality of the law of sedition through this abstract idea of inciting violence against the government, creates a false dichotomy between freedom of expression and the right to resistance and debilitates the actual grounds on which the law should be assessed. Sedition was not an offence against public order or security of state. It was deliberately constructed as one to withhold the challenge of constitutionality.
In admitting a petition by General (Retd) Vombatkere on July 14, the Chief Justice of India asked the Attorney General representing the government “if the colonial law is still necessary after 75 years of independence”.
With the law of sedition granting the executive the power to persecute expressions against itself in the name of public order and security of state, the court can no longer raise questions but will have to resort to measures.
Attempts to read down the law or institute procedural mechanisms to forestall its arbitrary enforcement will not take away this power to persecute. Anything short of abolishing the offence of sedition will not help the restitution of the constitutional right to free speech.
Conclusion:-
The Law Commission also released a consultation paper in 2018 that said “In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way.” While issuing fresh guidelines and safeguards is one way of quelling the potential for its misuse, it will be more helpful if Section 124A is struck down altogether.
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.