IT is truly astonishing that throughout the Third World leaders of the freedom movement, who suffered under repressive laws framed by their colonial masters, had no qualms whatsoever in retaining those very laws on the statute book and enforcing them against their own citizens in order to buttress their power.

One of the most hated provisions of the law was Section 124-A of the Indian Penal Code, 1860. It defines the offence of ‘sedition’ in broad general terms, and makes it punishable with imprisonment for life. It originally figured as Section 113 in Macaulay’s Draft Indian Penal Code of 1837-39. It was unceremoniously dropped when the Code was enacted in 1860 but was restored by an amendment in 1870.

A recent case has aroused public anger against this archaic law. A respected academic Dr Binayak Sen was convicted of sedition by a sessions court and sentenced to life imprisonment. Section 124-A punishes anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government”. ‘Explanations’ clarify the meaning. It is not an offence to criticise “the measures of the government” provided you do not “excite hatred, contempt or disaffection”. The government must be loved, not hated.

There were conflicting rulings during British rule. Matters came to a head in 1942 in the Federal Court of India. In a masterly judgement by the great judge, draftsman of the Government of India Act, 1935, Sir Maurice Gwyer, the chief justice, held that “public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence”.

Sir Zafrullah Khan and Justice S. Varadachariar concurred. Predictably, the Privy Council disapproved of it. The Supreme Court of India followed the federal court and held that the words used must reflect “the idea of tendency to public disorder by the use of actual violence or incitement to violence”.

Some of the observations made by the court are wide of the mark. The case was decided on Jan 24, 1962. A review is called for. Section 124-A needs to be redrafted; better still, deleted. As Sir Maurice Gwyer remarked: “Many judicial decisions, in particular cases which were no doubt correct at the time when they were given, may well be inapplicable to the circumstances of today.”

The Supreme Court of India said that the very creation of “disaffection” leads to a “feeling of disloyalty to the government ... or enmity to it imports the idea of tendency to public disorder by the use of violence”. It upheld the constitutionality of Section 124.

The citizen owes no loyalty to the government; only to the state. “Disaffection” inevitably follows from censure. Lord Bridge sharply pointed out in a judgement of the Privy Council in 1990, that “the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office”.

He viewed a law which criminalises statements “likely to undermine public confidence in the conduct of public affairs with the utmost suspicion. … It would on any view be a grave impediment to the freedom of the press if those who print, or a fortiori those who distribute, matter reflecting critically on the conduct of public authorities could only do so with impunity if they could first verify the accuracy of all statements of fact on which the criticism was based.”

A law which penalises such criticism is violative of the constitutional guarantee of freedom of speech and is, therefore, unconstitutional. In Britain, there have been no prosecutions for sedition since 1947. A leading barrister who specialises in cases concerning freedom of speech remarked in 2002 “the offence now serves no purpose in the criminal law” and is violative of the guarantee of free speech embodied in Article 10 of the European Convention on Human Rights.

In 1951, the Canadian Supreme Court delivered a landmark judgement in which it remarked “probably no crime has been left in such vagueness of definition … and its legal meaning has changed with the years”. A criminal law which is ambiguous in its definition of an offence is unconstitutional for that reason alone.

The court emphasised on the intention of the alleged offender. “The seditious intention upon which a prosecution for the seditious libel must be founded is an intention to incite violence or to create public disturbance or disorder.” A law commission recommended its repeal.

We have gone way beyond the submissive citizen in the early years of independence from British rule. The citizen is more assertive, articulate and better informed. He has learnt the techniques of organised protest — angry and rebellious.

One is reminded of the famous dissent of Justice Oliver Wendell Homes in the US Supreme Court in 1925. “Every idea is an incitement. It offers itself for belief and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.

“…If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

In 1962 the Supreme Court of India did not consider the considerable progress in Britain and elsewhere in liberalising the law on sedition. The very existence of Section 124-A of the Penal Code has a chilling effect on freedom of speech and expression. It deserves speedy and unceremonious burial.

The writer is an author and a lawyer based in Mumbai.