[Book Review] A Thorough, Unbiased And Engaging Legal History Of The Contentious Sedition Law

SEDITION: Macaulay to Modi. Rijul Singh Uppal. KW Publishers. 2024. Pages 187. Price ₹650. Click here to buy.

In August 2023, Home Minister Amit Shah tabled in Parliament the amended Criminal Procedure Code with a new name — Bharatiya Nagarik Suraksha Sanhita (BNSS).

Nevertheless questions arise. Why did this penal code continued well into the post-independent era? What is the politico-legal history of sedition law?

If one wants a comprehensive, unbiased and interesting legal history of the sedition law, then the book Sedition: Macaulay to Modi (KW Publications, 2024) is a must read. Written in a lucid style by Rijul Singh Uppal, the book will interest those who are interested in legal history as well as decolonising as a process beyond rhetoric.

The book provides an overview of how sedition law was used against a galaxy of freedom fighters, well known and not well known. Each of these cases and the way in which the judgements were delivered gain importance as we see how the law was used in post-independent period.

The book points out that the 1898 amendment had a new provision, Section 153A, which brought within the ambit of sedition not only words and speeches but also ‘visible representation’.

Though not mentioned in the book, this actually led to government scrutiny of prints showing Mahishasuramardini as possible artefacts of political sedition.

The author has quoted arguments and verdicts from sedition cases against Tilak, Gandhi and Nehru, providing the readers a very essential understanding of the legal history and the important operational features of the law.

The history of the first amendment to the Constitution in free India that placed ‘reasonable restrictions’ on the free speech, makes a riveting reading. Mostly it was aimed at restricting the pro-Hindu elements in polity highlighting the problems that Hindu minorities in east Pakistan faced.

It was not as much as hate speech as it was highlighting the fast deteriorating conditions of basic human rights of Hindus. The author juxtaposes the propaganda that Syama Prasad Mukherjee carried on bringing public awareness to the problems faced by minorities in East Pakistan.

He demanded that Pakistan cede one third of its territory for the massive rehabilitation of refugees from East Pakistan on the one hand and on the other hand he demanded that government of India brings about the peaceful exchange of two populations between East Pakistan and West Bengal.

Today, in retrospect both the demands, had it been even fulfilled partially could have averted two of the most heinous genocidal tragedies that post-independent subcontinent saw, namely 1971 genocide in East Pakistan and subsequent 1979 Marichjhapi massacre in India.

That aside, it was this situation that led to the first amendment in the Constitution. What precipitated the need for amendment seems to be Shaila Bala Devi case judgement in Patna High Court, in which Justice Sarjoo Prasad observed, based on previous Supreme Court verdicts that "if a person were to go on inciting murder or other cognizable offences through the press or by word of mouth, he would be free to do so with impunity as he would claim the privilege of exercising his fundamental right of freedom of speech and expression".

The subsequent discussions in which Jawaharlal Nehru, C Rajagopalachari (Rajaji), J B Kripalani, Dr B R Ambedkar and many other eminent leaders discussed the problem of restricting free speech that could threaten the unity and harmony of the new Indian state while giving paramount importance to the protection of freedom of speech.

Dr Ambedkar was squarely on the side of Nehru that there should be reasonable restrictions on the freedom of speech when it concerned nation’s unity and inciting violence.

While with respect to the aforesaid court judgement while Nehru did not criticise the judiciary but sought an amendment to the Constitution, Dr Ambedkar was dissatisfied with the judgements.

The judges who gave verdicts that supported unrestricted Freedom of Speech ignored this implicit aspect of the Constitution.

Further, Dr Ambedkar was also concerned that the Directive Principles of the Constitution which though not justiciable, but which implicitly contain doctrine of implied powers, and which are obligations implied by the Constitution upon the various governments to take specific directions in their operation, were not taken seriously by the judges.

The chapter on the First Amendment provides a view of how this important amendment which placed ‘reasonable restrictions’ on Freedom of Speech came into existence through heart-agonising churning of the founding fathers of Indian State and as such reminds the reader of the justifiably proud legal heritage of independent India.

The rhetorical criticism of extreme trad-right that the Indian Constitution was a mere kichidi of various Western Constitutions, is falsified by this chapter. In fact, the incorporation of salient features of democratic constitutions from around the world is more in tune with the Rig Vedic dictum "let noble thoughts come to us from everywhere".

The noble and visionary contribution of Alladi Krishnaswamy Iyer in identifying the problem of unfettered free speech in a newly formed Indian State engulfed by the turmoil of Partition, and secessionist lurking for their own opportunities, even as recognising the sanctity of Freedom of Speech.

The book points out that as early as 4 April 1947, he wrote to B N Rau, constitutional advisor to the Constituent Assembly, the violence happening in various parts of India have convinced him "more than ever, that all the fundamental rights guaranteed under the Constitution must be subject to public order, security and safety though such a provision may to some extent neutralise the effect of the fundamental rights guaranteed under the Constitution".

He also later upheld the constitutional validity of the amendment when it was questioned by the then president of India Rajendra Prasad as the amendment was being considered before a fully elected Parliament was in place. The book also describes how Nehru’s cabinet took serious note of the secessionism of the Dravida Munnetra Kazhakam (DMK).

Thus on 21 January 1963 amendment was made to Article 19 that made demands of secession from India would "impose restrictions against those individuals or organisations who want to make secession from India or disintegration of India as political purposes for fighting the elections".

Subsequently, C N Annadurai the founder of DMK and its most charismatic voice, unequivocally declared that the DMK not only, once and for all, gave up the demand for a separate Dravida Nadu but also would sincerely stand for the sovereignty and unity of India.

The book also gives an overall view of anti-sedition laws in various democracies worldwide. Then it goes on to discuss the individual bills brought recently trying to amend the Section 124 A.

On the whole, this book is a must read for students of politics and legal history. It gives an unbiased narrative of history and makes one understand the issues surrounding this important part of legislation without falling into the traps of extreme binaries.

The author should be congratulated for making this book reader-friendly for non-experts while not diluting the contents. It also is a lesson to students of present day political science to look into any issue taking into consideration ground realities, historic necessities, immediate solutions while not losing sight of the universal values enshrined in the Constitution.

It is a perfect antidote against both constitutional fundamentalism as well as constitutional trad-loathing.