If Malaysia's Monarchy Can Attempt to Abolish Sedition Law, What's Stopping India?

By: Anushka Singh

In early October, the Malaysian cabinet announced its decision to repeal the country’s colonial-era sedition law, however, in the same week, a man was charged with sedition for ridiculing the Malaysian prime minister. Four weeks prior to that, the 21st Law Commission in India – a day before its term was to end – published a consultation paper on August 30 seeking opinions on the repeal of the Indian law of sedition. There are thus curious analogies between the Indian and the Malaysian moments. It must be borne in mind that unlike the abolition of the offence of sedition in England in 2009 where it had become a dead letter law, Malaysia and India are actively using it.

The current political moment in Malaysia is symptomatic of a churning that is bound to have an indelible impact on the discourse around immunity enjoyed by political authorities from public criticism. For the world’s largest democracy, where the political dispensation is extremely ‘sensitive’ and unpardoning towards each and every word uttered against it, the learnings from Malaysia are far too critical to disregard.

Much like the Malaysian Sedition Act of 1948 which borrows from the English common law definition of sedition, the Indian law was enacted by the British colonial regime in 1870 defining sedition under Section 124A of the Indian Penal Code as incitement to disaffection, contempt, hatred, enmity and disloyalty against the government. The Supreme Court of India in 1962 in Kedar Nath Singh vs State of Bihar narrowed down the scope of the law to the effect that only those expressions that have the tendency to incite violence against the government would amount to sedition.

Beyond the on-surface reporting in international media regarding the impending repeal of the Malaysian law, there lies a complex interplay of the free speech discourse, political symbolism and a political regime’s obligation to perpetuate itself. In this interplay emerges the dilemma of political regimes in dealing with laws like sedition that primarily help them in self-preservation and perpetuation. The Malaysian moment is not complete – it’s ripe but may or may not achieve fruition. The ongoing developments, however, regardless of the finality, have several key political messages that have bearing on Indian democracy.

Contradictory political impulses in Malaysia

In the lead up to the victory of the Pakatan Harapan coalition in May 2018, one of the promises in the election manifesto was the repeal of the colonial Sedition Act. There is political symbolism at stake. The repeal was placed in the election manifesto in the wake of escalating use of the law by previous regime. After coming to power, the Pakatan Harapan coalition under the leadership of Prime Minister Mahathir Mohamad had also withdrawn many of the sedition cases filed under the previous regime.

Concurrently, few cases of sedition have also been filed under the new regime. In one recent case, Azman Noor Adam was arrested on October 2 for a social media post allegedly ridiculing Prime Minister Mohamad. He was later granted bail. Following the charge against Noor Adam, the prime minister while interacting with the press noted that the police should stop arresting people for insulting him and as a political leader he was ready to accept criticism. The PM, however, also stated that the repeal will have to go through legal procedures for which no timeline can be prefixed and the law in the meantime would continue to be in force.

Following this, the law minister told the press that their PM was so magnanimous that he was not offended by any remarks made against him. Pursuant to the same, he said Noor Adam should not have been charged under sedition and keeping in mind the impending repeal, the use of laws shouldbe temporarily suspended.

The incongruous developments give rise to contradictory political impulses. An announcement of the repeal allows the government to wear a liberal visage, seemingly fulfil the electoral promise and take political mileage. The law, however, continues to be in use while the brunt of arbitrary and illiberal action is put on the police. The contradiction hinges upon the predicament of the ruling power to do away with its shield – a law that is actively in force purging unfavourable political opinions.

Parallels and departures with India

The developments when placed analogous to the Indian situation make for interesting parallels and equally interesting departures. The question of the efficacy of a law can be approached from different vantage points. One of the dominant parameters evaluating a law links it to the conviction rate attained under it.

According to National Crime Records Bureau (NCRB) data, the latest crime statistics available are for 2016 where a total 34 cases of sedition were taken up for trial, including some pending cases from the previous year. Of the 34 cases, a trial was completed in three, of these, conviction was ordered in a single case while the two others resulted in acquittal, implying a conviction rate of 33.3%. Notwithstanding the conviction rate, the fact is that approximately 91.2% of cases brought before the courts remain pending. With a single case of conviction and overwhelming pendency, statistically not much can be said regarding the wrongful application of the law.

Need for examining the contemporary usage of the law in India

Another vantage point, however, to look at the utility of a law, relates to the number of times the law has been taken recourse to – irrespective of the final fate of the cases. In a country where pendency dreadfully outnumbers the disposal of cases, this approach especially acquires salience. The NCRB data for three consecutive years show that 35 FIRs were registered under Section 124A of IPC in 2016, 30 in 2015 and 47 in 2014. The figures bear testimony to the fact that regardless of the law’s ability to secure a conviction, it is being actively used.

This kind of use of law needs explication. The 21st Law Commission while inviting opinions has noted that expression of strong condemnation of state institutions cannot amount to sedition. It cites judicial precedents to affirm that sedition law must be used only in acts where the intention is to overthrow the government through violence or illegal means.

The contemporary use of the law, however, is symbolic of a wide range of acts being labelled as seditious that deviate from the judicial definition of the law, such as dancing to a song that described “mujahids” who “threatened” India (Rohtas, Bihar, June 2018), writing ‘I support Pakistan’ Facebook post (Badaun, UP, August 2017), marking Jammu and Kashmir incorrectly on the map of India (Shahdol, Madhya Pradesh, July 2016), uploading songs on the internet critiquing state government’s liquor policy ( Tamil Nadu, October 2015), not standing up for national anthem in a cinema hall (Thiruvananthapuram, Kerala, August 2014).

Instances such as these where Section 124A has been invoked are numerous, and in the majority of such cases, the FIR has been registered after political groups – in most cases, either the local wing of BJP, ABVP or Bajrang Dal – complain to the police. Much like the Malaysian case, technically speaking, the blame of ‘misuse’ of law falls on the police. The NCRB started collecting information on sedition only in 2014 and has data related to 112 cases registered in three years. Despite many cases like the ones illustrated above being included in the 112 total ones, the number of instances in which the government has withdrawn the case is zero, reaffirming that police action has the sanction of the political masters.

Political use of sedition law

Politically motivated use of the law is neither new nor specific to any regime. In the 1980s and early 90s, members of Shiromani Akali Dal were charged under the law of sedition on the alleged charge of pro-Khalistani expressions each time the Congress government came to power in the state of Punjab. In all the cases, the charges were either set aside by courts or acquittals were ordered. Similarly, in Haryana, the Indian National Lok Dal had used sedition rampantly against the Kisan movement led by Bhartiya Kisan Union in the early 2000s. In the state election of 2005, Congress had promised the release of Kisan leaders (mostly Jat – also the biggest vote bank in Haryana) and withdrawal of all cases of sedition if voted to power. Congress won and withdrew all cases much like the national government currently in Malaysia.

Unique use of the law in India

Liberal democracies such as the US or England where the law of sedition has gradually fallen into disuse have witnessed a particular pattern of relationship between the executive and the judiciary. Judicial pronouncements that made the scope of the law narrow and evolved stricter parameters to evaluate restriction on political speech resulted in falling rate of conviction. Without being able to secure the conviction of political adversaries, the laws gradually became unattractive for successive governments and fell into disuse. In the case of India, there emerges a unique pattern of continued use of the law in the hands of the executive in cases that do not qualify the apex court’s definition of sedition, in the absence of instances of conviction and regardless of higher judiciary’s reiteration to follow the Kedar Nath Singh 1962 guidelines in registering cases under Section 124A IPC.

The question thus arises – what allows the executive the liberty of defying the judiciary, a question that needs to be understood in the context of the public reception of the law of sedition. The literal translation of sedition in Hindi as an offence against the government also referred to as offence against the state, would be rajdroh. In popular parlance, however, sedition is translated as deshdroh (anti-nation). Much of it needs to be attributed to the increasing use of sedition in cases that have nothing to do with political dissidence but relate to banal nationalism that finds expression in acts such as the defeat of the Pakistani cricket team. Not too long ago in March 2014, 67 students of Swami Vivekanand Subharti University in Meerut were charged for sedition and suspended from the university for cheering for the Pakistani team in a cricket match with India.

What is new and specific in the use of sedition in the 21st century in India is a proliferation of a popular discourse where the act of sedition is interpreted as anti-nation at a time when nationalism is one of the dominant electoral agendas. Within this discourse, prosecution in the name of sedition meets with public approval. In effect, a law designed to grant protection to political authorities from public criticism is kept alive and also used against the very public with public consent.

The Malaysian moment at this juncture departs from the Indian moment despite both countries having laws against sedition actively in use. While the discourse around sedition in Malaysia is being deliberated within the contours of restriction on free speech and the right to dissent, in India the debate takes the form of nationalism versus anti-national. This is why Malaysia with support from a government that at least seemingly exhibits the political will to abolish its colonial vestige has been able to announce the repeal of sedition.

The responses to questions raised by the 21st Indian Law Commission regarding the repeal of sedition will be received and deliberated upon by the succeeding Law Commission, the constitution of which remains unknown so far. The least that the civil society needs to do at this juncture is to put the debate back in perspective, ie, freedom of expression versus reasonable restrictions and liberate sedition from the vocabulary of nationalism.

Anushka Singh teaches at the School of Law, Governance and Citizenship, Ambedkar University Delhi and is the author of Sedition in Liberal Democracies.