11 March, 2011

The law on sedition is often seen as a colonial legacy ?

Where words run free

The law on sedition is often seen as a colonial legacy. However, its problem is not so much that it is colonial as that it is archaic. Sedition is a law that has its roots in societies which did not want change and which privileged the preservation of order above everything else. But democratic societies must by nature be inherently unstable - because it is from this instability that change arises.

Scholars have shown that the etymology of 'sedition' is conflicted - on the one hand the Greek roots of the word 'stasis' imply changelessness or stalemate and on the other stasis also is a synonym for revolt or movement. Similarly, the Latin 'seditio' conveys the idea of 'a turning back onto oneself and the tension of movement, of separation from the other'. It is astounding that a word with such an interesting legacy came to represent such reactionary politics where people could be, and are, incarcerated for life for opposing the political views of an established state.

Most modern states have a conflicted relationship with this law - not wanting it because it clearly runs against the right to free speech, and not wanting to dump it because it helps contain criticism of the state. In the US, the Sedition Act of 1798 had so much opposition that Thomas Jefferson allowed it to expire when he became president. Former president Adams, his political rival, had used the Act to imprison his supporters. Later, southern states tried enacting sedition laws primarily to prevent any criticism of slavery. However, sedition did not find its way back in the American Constitution till World War I, and then too it was restricted to criticism of the state's war efforts.

Today, sedition is not applicable to American citizens and is used primarily against what Americans call 'aliens'. In Malaysia, sedition laws are used to control hate speech, primarily against Malays or to pre-empt any criticism of the state. Maintaining 'order' in Malaysia thus means maintaining Malay supremacy and sedition laws are an instrument to ensure this.

India's relationship with sedition has also been a troubled one and it is incomprehensible that, given the level of opposition there was to retaining it in the Constituent Assembly, it was nevertheless retained. Most stalwarts of the assembly, including Nehru, spoke vehemently against it, but the clause stayed! In 1962, the Supreme Court upheld Section 124A of the IPC, the sedition clause. However, the court clearly recognised that there was a problem in implementing the law as it was framed. So it set about imposing very strict conditions which had to be met in order for someone to be convicted for sedition.

In looking at whether the Act was merely a colonial act or not, the court found that since it was a general British law there was no real reason to strike it down. This was almost 50 years ago. However, England started the process of removing sedition from its books as far back as 1979, but because of the Northern Ireland imbroglio, this was delayed and it was only in 2009 that sedition and seditious libel, as common law offences, were abolished. If, in 1962, the Supreme Court retained 124A because England had it, is this not enough reason to junk it now that this is no longer the case?

The 1962 judgment also imposed strict conditions under which sedition could be applied. It was to be limited to acts where there was a clear intention or tendency to create disorder, or incitement to violence. Effectively it would therefore require not only speech which caused 'disaffection' or 'disapprobation', but also a clear intention to create disorder or incite violence.....read more

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