The Indian state of Jammu and Kashmir, presents a miserable picture of an economy shattered by decades of constant turmoil, death and military vigilance. In an effort to voice the stories of Kashmiri citizens and, in particular, Kashmiri students in India’s capital of New Delhi, a group of 10 students from the Democratic Students Union (DSU) organised a cultural event titled: ‘The country without a post office’ in Jawaharlal Nehru University (JNU) on 9 February 2016. The event saw the participation of poets, writers and cultural activists united in the fight against military excesses and State paternalism in Kashmir and in solidarity with the Kashmiri people. Unfortunately, the event was denied permission minutes before it was scheduled to start. The Sangh Parivar machinery (often criticised as Hindu fundamentalists), led by students of the Akhil Bharatiya Vidyarthi Parishad (ABVP), gathered around the venue of the event alleging that such activities were ‘anti-national’ (a term that has been used in reference to sedition).

This was followed by a brutal attack on the organisers and arrest of three former DSU leaders on grounds that dissent in university spaces which could excite or cause disaffection towards the lawfully elected government was considered ‘anti-national’ under Section 124 A of the Indian Penal Code (IPC)—India’s sedition law. Consequently, although the matter is currently sub-judice and the accused have been granted bail by the Delhi High Court, the tactical and logically unsound application of India’s sedition law has raised important human rights questions. This article discusses the need to strike down Section 124 A of the IPC following the JNU incident.

Section 124 A of the IPC makes it an offence to utter words of hatred, contempt, or those that excite disaffection towards the government established by law in India. Such an offence could lead to life imprisonment. Three explanations are included in the provision. The first states that ‘disaffection’ includes disloyalty and all feelings of enmity while the last two explanations exempt mere criticism of the Government in power.

The word sedition had been left out of the Indian Constitution because of fears expressed by some members in the 1948 Constituent Assembly Debates including K.M Munshi, who stated that the provision was ‘notorious’ and could be ‘construed too widely’. These fears, hinting at the susceptibility of sedition laws to abuse, are validated by current practice under Section 124 A of the IPC. Recent occurrences that are widely believed to be an abuse of sedition laws include the arrests of Bharat Desai (newspaper editor) in 2008, Laxman Choudhary (journalist) in 2009, Noor Bhat (Kashmiri lecturer) in 2010 and Sudhir Dhawale (social activist) in 2011. Section 124 A has thus turned out to be a tool for harassing, threatening and intimidating Indian citizens.

The legal legitimacy of Section 124 A can be found in the 1962 Indian Supreme Court decision in Kedar Nath Singh v State of Bihar where it was held that so long as activities did not create or have the potential of creating ‘disorder’, there would be no case of sedition. Naturally, therefore, the provision was consistent with Article 19(2) of the Indian Constitution as a reasonable exception to the freedom of speech and expression. However, there are certain inherent dangers in the provision that the Court arguably overlooked. First, it is the executive (read: police) that applies penal provisions in practice, which makes it paramount not to leave any scope for ambiguity or abuse of power within the textual layout of the penal statute. If this is not done, the executive is left with unchecked powers to harass and intimidate those involved in ‘anti-India’ activities. Second, the judgment (at Paragraph 15) relied on the original British parallel of sedition, the application of which has fallen into disuse with the introduction of the UK’s Human Rights Act 1988.

The JNU incident highlights the need to recognise the likelihood that Section 124 A may unfairly condemn the innocent to life imprisonment or a similarly harsh sentence. Open–ended words such as disloyalty or disaffection are highly vulnerable to abuse. Such open ended and vague terminology, especially in penal statutes, was held by the US Supreme Court in United States v Reese to be a singular ground for declaring a law unconstitutional. Therefore, after 145 years of unfounded validation, it is high time for Section 124 A to be struck down as unconstitutional in an effort to combat the government’s use of rhetoric to establish a false idea of ‘nationalism’ amongst Indians.