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Tilak, editor of Kesari, was also tried for sedition

World history is rife with examples of sedition laws being used to silence criticism in a similar way to how they are being used against 'The Times of India', writes Dhananjay Mahapatra

Sunday, June 8, 2008

By Dhananjay Mahapatra

Journalists facing sedition charges is nothing new.

Even Bal Gangadhar Tilak faced it during the repressive British regime. As the editor of 'Kesari', Tilak on May 12, 1908, titled his editorial 'The misfortune of the country', castigating the ruthless bureaucracy.

The British police, reacting sharply -- like the Ahmedabad top cop did against TOI editor and reporter -- slapped sedition charges against Tilak under Section 124-A of the Indian Penal Code.

He was arrested on May 25, 1908, convicted by jury trial on July 17, 1908, and sentenced to six years' imprisonment in the case -- popularly known as 'Second Sedition Case'.

This is the centenary year of Tilak's conviction in the sedition case. The Ahmedabad top cop celebrated this centenary by slapping identical charges (124-A IPC) against journalists for writing against him. How identical or whimsical his allegations are will be judged by courts of law in independent India.

Sedition, as Section 124-A reads, has to be an act -- doing something diabolic against the "government established by law". One has to give his imagination wings to assume that a top cop is synonymous with a government, when at best he could be a senior government servant.

Is the slapping of sedition charges a result of the pseudo-assumption of a top cop who equates himself in stature to that of a 'government established under law'? The courts will decide.

The Supreme Court has made clear a distinction in this regard in the Kedar Nath Singh versus State of Bihar [AIR 1962 SC 955, at page 967], especially in the context of sedition charges. Crystallizing the difference between a government servant and a government, a five-judge constitution bench had said: "The expression 'the government established by law' has to be distinguished from the persons for the time being engaged in carrying on the administration."

If the jury had convicted Tilak in 1908, the same British judiciary showed admirable understanding of pre-independence political scenario in 1935 and acquitted one Kamal Krishna of sedition charges, which he faced for making a speech advocating replacement of the government with a communist regime.

Justice Lord Williams, delivering the judgment in the Kamal Krishna versus Emperor [AIR 1935 Cal 636], said: "It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of government and in favour of some other form of government might be allowed to lead to hatred of the government, and it might be suggested that such ideas brought the government in to contempt. To suggest some other form of government is not necessarily to bring the present government into hatred or contempt."

History is replete with officials suffering sedition hangups. Copernicus and Galileo faced death penalty on sedition charges in the 16th and 17th century for expounding a scientific truth -- Earth moves around the Sun -- which was diametrically opposite to then clergy-driven popular belief, of a geocentric based cosmology.

In one of the loyalty oath cases in the US, Weiman vs Updegraff, Justice Black had sounded the grave warning of misuse of sedition laws at the hands of overzealous officials, who thought it was dangerous to allow people to write critically about the government.

Coming out strongly against such officials, Justice Black had said: "We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven."

Justice Black's words retain their golden touch. For, the Supreme Court in its 1989 judgment in the case S Rangarajan vs P Jagjivan Ram had said: "Freedom of expression is the rule. Our commitment to freedom of expression demands that it cannot be suppressed unless the situation created by allowing the freedom are pressing and the community interest is endangered."

"The anticipated danger should not be remote, conjectural or far fetched. It should have proximate an direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interests.

In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a 'spark in a powder keg'."

If the articles published by the journalists had seditious value, then there would have been an uprising or public unrest against the Gujarat government by now. Whatever might be the 'spark in a powder keg' for the Ahmedabad top cop to file sedition FIRs against journalists, the merits of the accusations would have to pass the strict judicial scrutiny test.