Why the draconian sedition law must go

Faizan Mustafa in The Indian Express

Whether people in a free country committed to the liberty of thought and freedom of expression can be criminally punished for expressing their opinion about the government is the moot question. Does the government have the right to affection? What is the origin of the law of sedition in India? How did the framers of the Constitution deal with it? How have our courts interpreted this sedition provision?

In the last seven years, an extreme nationalist ideology actively supported by pliant journalists repeatedly used aggressive nationalism to suppress dissent, mock liberals and civil libertarians and several governments routinely invoked Section 124-A that penalises sedition. An 84-year-old Jesuit priest, Stan Swamy, and 21-year-old Disha Ravi were not spared. A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges. NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent. Of the 96 people charged in 2019, only two could be convicted.

On Thursday, a two-judge bench of Justices U U Lalit and Vineet Saran observed that “every journalist is entitled to the protection under the Kedar Nath judgment (1962)” on the petition filed by journalist Vinod Dua. Dua had sought the quashing of an FIR against him filed by a BJP leader of Himachal Pradesh. The bench took eight months to pronounce its order as arguments had concluded on October 6, 2020.

Justice Lalit in his 117-page historic judgment demolished all the arguments against the wider application of the sedition provision. The court entertained Dua’s writ petition under Article 32 as the Himachal Pradesh police failed to complete the investigation and submit its report under Section 173 of the Code of Criminal Procedure. The Court found that statements attributed to Dua that the Prime Minister had used deaths and terror threats to garner votes were indeed not made in the talk show on March 30, 2020.

The Court relied on the Kedar Nath judgement in which the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder. Section 124A read along with explanations is not attracted without such an allusion to violence. The Court concluded that statements made by Dua about masks, ventilators, migrant workers, etc. were not seditious and were mere disapprobation so that Covid management improves. The same were certainly not made to incite people to indulge in violence or create any disorder. The Court in Para 44 concluded that Dua’s prosecution would be unjust and would be violative of the freedom of speech.

Governments of opposition parties, including the Congress, have also indiscriminately invoked sedition charges against intellectuals, writers, dissenters and protesters. In fact, it was a Congress government that had made sedition a cognisable offence in 1974. Arundhati Roy, Aseem Trivedi, Binayak Sen and even those who opposed the nuclear plant in Kudankulam, Tamil Nadu and the expansion of the Sterlite plant in Thoothukudi were booked under Sec 124-A.

Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war. It was Sir James Fitzjames Stephen who subsequently got it inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime. While introducing the Bill, he argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule. Stephen himself was interested in having provisions similar to the UK Treason Felony Act 1848 because of his strong agreement with the Lockean contractual notion of allegiance to the king and deference to the state.

Mahatma Gandhi, during his trial in 1922, termed Section 124-A as the “prince among the political sections of IPC designed to suppress liberty of the citizen”. He went on to tell the judge that “affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give fullest expression to his disaffection so long as it does not contemplate, promote or incite to violence”. Though Justice Maurice Gwyer in Niharendu Dutt Majumdar (1942) had narrowed the provision and held that public disorder was the essence of the offence, the Privy Council in Sadashiv Narayan Bhalerao (1947) relying on Explanation 1 observed public disorder was not necessary to complete the offence.

Strangely, the Fundamental Rights Sub-Committee (April 29, 1947) headed by Sardar Patel included sedition as a legitimate ground to restrict free speech. When Patel was criticised by other members of the Constituent Assembly, he dropped it. Constitutionally, Section 124A being a pre-Constitution law that is inconsistent with Article 19(1)(a), on the commencement of the Constitution, had become void. In fact, it was struck down by the Punjab High Court in Tara Singh Gopi Chand (1951).

Justice Lalit ought to have clarified the distinction between “government established by law” and “persons for the time being engaged in carrying on the administration” as the visible symbol of the state made by the Court in Kedar Nath. The very existence of the state will be in jeopardy if the government established by law is subverted. This observation did require some clarification by the Court as the state and government are not the same. Governments come and go but the Indian state is a permanent entity. Criticism of ministers cannot be equated with the creation of disaffection against the State. No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection. India of the 21st century should not think like Stephen who was too worried about Macaulay’s code not penalising criticism of the government, however severe, hostile, unfair or disingenuous. We must understand that no slogan by itself, howsoever provocative such as “Khalistan Zindabad” can be legitimately termed as seditious as per the Balwant Singh (1995) judgment of the Supreme Court.

The Congress’s loss in the 2019 general election is attributed to, among other reasons, its manifesto’s promise that it would remove the sedition provision if voted to office. In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech. Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law. A political consensus needs to be forged on this issue.

Daniel Dennett's seven tools for thinking

Cognitive scientist and philosopher Daniel Dennett is one of America's foremost thinkers. In this extract from his new book, he reveals some of the lessons life has taught him

• 
• • Daniel Dennett
  • The Observer, Sunday 19 May 2013

Daniel Dennett: 'Often the word "surely" is as good as a blinking light locating a weak point in the argument.' Photograph: Peter Yang/August

1 USE YOUR MISTAKES

We have all heard the forlorn refrain: "Well, it seemed like a good idea at the time!" This phrase has come to stand for the rueful reflection of an idiot, a sign of stupidity, but in fact we should appreciate it as a pillar of wisdom. Any being, any agent, who can truly say: "Well, it seemed like a good idea at the time!" is standing on the threshold of brilliance. We human beings pride ourselves on our intelligence, and one of its hallmarks is that we can remember our previous thinking and reflect on it – on how it seemed, on why it was tempting in the first place and then about what went wrong.

1. Intuition Pumps and Other Tools for Thinking
2. by Daniel C Dennett
3. 

1. Tell us what you think: Rate the book

I know of no evidence to suggest that any other species on the planet can actually think this thought. If they could, they would be almost as smart as we are. So when you make a mistake, you should learn to take a deep breath, grit your teeth and then examine your own recollections of the mistake as ruthlessly and as dispassionately as you can manage. It's not easy. The natural human reaction to making a mistake is embarrassment and anger (we are never angrier than when we are angry at ourselves) and you have to work hard to overcome these emotional reactions.

Try to acquire the weird practice of savouring your mistakes, delighting in uncovering the strange quirks that led you astray. Then, once you have sucked out all the goodness to be gained from having made them, you can cheerfully set them behind you and go on to the next big opportunity. But that is not enough: you should actively seek out opportunities just so you can then recover from them.

In science, you make your mistakes in public. You show them off so that everybody can learn from them. This way, you get the benefit of everybody else's experience, and not just your own idiosyncratic path through the space of mistakes. (Physicist Wolfgang Pauli famously expressed his contempt for the work of a colleague as "not even wrong". A clear falsehood shared with critics is better than vague mush.)

This, by the way, is another reason why we humans are so much smarter than every other species. It is not so much that our brains are bigger or more powerful, or even that we have the knack of reflecting on our own past errors, but that we share the benefits our individual brains have won by their individual histories of trial and error.

I am amazed at how many really smart people don't understand that you can make big mistakes in public and emerge none the worse for it. I know distinguished researchers who will go to preposterous lengths to avoid having to acknowledge that they were wrong about something. Actually, people love it when somebody admits to making a mistake. All kinds of people love pointing out mistakes.

Generous-spirited people appreciate your giving them the opportunity to help, and acknowledging it when they succeed in helping you; mean-spirited people enjoy showing you up. Let them! Either way we all win.

2 RESPECT YOUR OPPONENT

Just how charitable are you supposed to be when criticising the views of an opponent? If there are obvious contradictions in the opponent's case, then you should point them out, forcefully. If there are somewhat hidden contradictions, you should carefully expose them to view – and then dump on them. But the search for hidden contradictions often crosses the line into nitpicking, sea-lawyering and outright parody. The thrill of the chase and the conviction that your opponent has to be harbouring a confusion somewhere encourages uncharitable interpretation, which gives you an easy target to attack.

But such easy targets are typically irrelevant to the real issues at stake and simply waste everybody's time and patience, even if they give amusement to your supporters. The best antidote I know for this tendency to caricature one's opponent is a list of rules promulgated many years ago by social psychologist and game theorist Anatol Rapoport.

How to compose a successful critical commentary:

1. Attempt to re-express your target's position so clearly, vividly and fairly that your target says: "Thanks, I wish I'd thought of putting it that way."

2. List any points of agreement (especially if they are not matters of general or widespread agreement).

3. Mention anything you have learned from your target.

4. Only then are you permitted to say so much as a word of rebuttal or criticism.

One immediate effect of following these rules is that your targets will be a receptive audience for your criticism: you have already shown that you understand their positions as well as they do, and have demonstrated good judgment (you agree with them on some important matters and have even been persuaded by something they said). Following Rapoport's rules is always, for me, something of a struggle…

3 THE "SURELY" KLAXON

When you're reading or skimming argumentative essays, especially by philosophers, here is a quick trick that may save you much time and effort, especially in this age of simple searching by computer: look for "surely" in the document and check each occurrence. Not always, not even most of the time, but often the word "surely" is as good as a blinking light locating a weak point in the argument.

Why? Because it marks the very edge of what the author is actually sure about and hopes readers will also be sure about. (If the author were really sure all the readers would agree, it wouldn't be worth mentioning.) Being at the edge, the author has had to make a judgment call about whether or not to attempt to demonstrate the point at issue, or provide evidence for it, and – because life is short – has decided in favour of bald assertion, with the presumably well-grounded anticipation of agreement. Just the sort of place to find an ill-examined "truism" that isn't true!

4 ANSWER RHETORICAL QUESTIONS

Just as you should keep a sharp eye out for "surely", you should develop a sensitivity for rhetorical questions in any argument or polemic. Why? Because, like the use of "surely", they represent an author's eagerness to take a short cut. A rhetorical question has a question mark at the end, but it is not meant to be answered. That is, the author doesn't bother waiting for you to answer since the answer is so obvious that you'd be embarrassed to say it!

Here is a good habit to develop: whenever you see a rhetorical question, try – silently, to yourself – to give it an unobvious answer. If you find a good one, surprise your interlocutor by answering the question. I remember a Peanuts cartoon from years ago that nicely illustrates the tactic. Charlie Brown had just asked, rhetorically: "Who's to say what is right and wrong here?" and Lucy responded, in the next panel: "I will."

5 EMPLOY OCCAM'S RAZOR

Attributed to William of Ockham (or Ooccam), a 14th-century English logician and philosopher, this thinking tool is actually a much older rule of thumb. A Latin name for it is lex parsimoniae, the law of parsimony. It is usually put into English as the maxim "Do not multiply entities beyond necessity".

The idea is straightforward: don't concoct a complicated, extravagant theory if you've got a simpler one (containing fewer ingredients, fewer entities) that handles the phenomenon just as well. If exposure to extremely cold air can account for all the symptoms of frostbite, don't postulate unobserved "snow germs" or "Arctic microbes". Kepler's laws explain the orbits of the planets; we have no need to hypothesise pilots guiding the planets from control panels hidden under the surface. This much is uncontroversial, but extensions of the principle have not always met with agreement.

One of the least impressive attempts to apply Occam's razor to a gnarly problem is the claim (and provoked counterclaims) that postulating a God as creator of the universe is simpler, more parsimonious, than the alternatives. How could postulating something supernatural and incomprehensible be parsimonious? It strikes me as the height of extravagance, but perhaps there are clever ways of rebutting that suggestion.

I don't want to argue about it; Occam's razor is, after all, just a rule of thumb, a frequently useful suggestion. The prospect of turning it into a metaphysical principle or fundamental requirement of rationality that could bear the weight of proving or disproving the existence of God in one fell swoop is simply ludicrous. It would be like trying to disprove a theorem of quantum mechanics by showing that it contradicted the axiom "Don't put all your eggs in one basket".

6 DON'T WASTE YOUR TIME ON RUBBISH

Sturgeon's law is usually expressed thus: 90% of everything is crap. So 90% of experiments in molecular biology, 90% of poetry, 90% of philosophy books, 90% of peer-reviewed articles in mathematics – and so forth – is crap. Is that true? Well, maybe it's an exaggeration, but let's agree that there is a lot of mediocre work done in every field. (Some curmudgeons say it's more like 99%, but let's not get into that game.)

A good moral to draw from this observation is that when you want to criticise a field, a genre, a discipline, an art form …don't waste your time and ours hooting at the crap! Go after the good stuff or leave it alone. This advice is often ignored by ideologues intent on destroying the reputation of analytic philosophy, sociology, cultural anthropology, macroeconomics, plastic surgery, improvisational theatre, television sitcoms, philosophical theology, massage therapy, you name it.

Let's stipulate at the outset that there is a great deal of deplorable, second-rate stuff out there, of all sorts. Now, in order not to waste your time and try our patience, make sure you concentrate on the best stuff you can find, the flagship examples extolled by the leaders of the field, the prize-winning entries, not the dregs. Notice that this is closely related to Rapoport's rules: unless you are a comedian whose main purpose is to make people laugh at ludicrous buffoonery, spare us the caricature.

7 BEWARE OF DEEPITIES

A deepity (a term coined by the daughter of my late friend, computer scientist Joseph Weizenbaum) is a proposition that seems both important and true – and profound – but that achieves this effect by being ambiguous. On one reading, it is manifestly false, but it would be earth-shaking if it were true; on the other reading, it is true but trivial. The unwary listener picks up the glimmer of truth from the second reading, and the devastating importance from the first reading, and thinks, Wow! That's a deepity.

Here is an example (better sit down: this is heavy stuff): Love is just a word.

Oh wow! Cosmic. Mind-blowing, right? Wrong. On one reading, it is manifestly false. I'm not sure what love is – maybe an emotion or emotional attachment, maybe an interpersonal relationship, maybe the highest state a human mind can achieve – but we all know it isn't a word. You can't find love in the dictionary!

We can bring out the other reading by availing ourselves of a convention philosophers care mightily about: when we talk about a word, we put it in quotation marks, thus: "love" is just a word. "Cheeseburger" is just a word. "Word" is just a word. But this isn't fair, you say. Whoever said that love is just a word meant something else, surely. No doubt, but they didn't say it.

Not all deepities are quite so easily analysed. Richard Dawkins recently alerted me to a fine deepity by Rowan Williams, the then archbishop of Canterbury, who described his faith as "a silent waiting on the truth, pure sitting and breathing in the presence of the question mark".

I leave the analysis of this as an exercise for you.