Sedition and Public Order

July 17, 2021

by — Posted in Politics

Whenever someone is arrested under the sedition law of Section 124A of the Indian Penal Code (IPC), we talk about how it is a colonial hangover that we haven’t shaken off, about how India’s freedom fighters like Gandhi and Tilak were arrested under it and if you are of the more liberal bent of mind, you may talk about doing away with it even if you know how improbable that is with a right-wing government in power.

Although sedition related cases have increased in the recent past, all blame cannot be placed on the Hindutva doorstep. The law has seen no serious challenge to its existence regardless of which party has been in power. During the Constituent Assembly debates, despite the memory of being at the receiving end of the law and the lofty idealism of the moment, India’s founding fathers did not have the courage to build a future without it. In fact, almost all countries have a version of the law in their books regardless of whether they were the colonisers or the colonised. The question is – Why?

Sedition is among the restrictions on speech that the state places on citizens and it is that broader context that we should look into its legitimacy. To many, curbs on free speech that maintain “public order” are justified. In their view, freedoms are not absolute, and these restrictions are not just prudent but essential. They still support people’s right to express themselves because such a right is in the interest of democracy, but they do not see an intrinsic value to free speech.

In Kedar Nath vs the State of Bihar, the courts used public order to bring sedition in line with restrictions mentioned in Article 19(2) of the Fundamental Rights and prevented it from becoming unconstitutional. Public order was also a lot of what the infamous First Amendment to the constitution had to do with, when it was added to Section 19(2) as one of the restrictions on free speech after a couple of Supreme Court judgements that the government was unhappy with. Why is public order such an important justification for speech restrictions? The question may sound silly at first glance, but one that may be worth asking all the same.

Are we so prone to violence? Are we incited to violence more often by provocative speech than we are organized for it? Even if in rare cases we are, why should the state assume a preventive role?  How much of the violence has to do with the state itself?

In his book “Humankind: A Hopeful History”, Rutger Bregman uses research and challenges most of the narratives that lead many of us to believe we are inherently violent to make the opposite case that – despite our complexities and contradictions – we are compassionate beings. We have been made to believe that we are the violent, ruthless creatures that Thomas Hobbes made us out to be in his ‘Leviathan’ using which he justified the need for a state. In ‘The Origins of Political Order’, Francis Fukuyama says that Hobbes, John Locke and Jacques Rousseau were all wrong in assuming that humans were individualistic by nature. Science has established that Aristotle was right all those years ago – we have always been social animals and have learnt to live together for millennia. Capitalism may have increased individualistic tendencies today but that is not our biological predisposition. We are not individuals forced to live together by the state. We have been living together long before the state arrived.  

It is this pessimistic view of human nature that led Hitler and Churchill to bomb London and Dresden respectively during World War 2. The idea was that when the bombs tear a hole in the state-layer protecting society and deactivate it temporarily, lawlessness would prevail without the state able to protect public order as people resort to their base selves. But the dog-eat-dog scenario that they envisioned never came to be. Instead, it brought people together and they helped each other out in the absence of the state. Instead of a lack of public order enforced by the state undermining the war effort and leading to sagging spirits, the bombs were spectacular failures that had the opposite effect and strengthened their resolve. Something very similar had happened decades earlier in Paris when Bismarck had laid siege to the city during the Franco-Prussian war and bombed the city in the same hope, with the same result. Admittedly war is a unique circumstance, but if the people of Paris could survive for two months during the Paris Commune of 1871 without the coercion of a hierarchical state to maintain public order, the argument and what it says about us needs to be revisited.

Those brief moments of war-induced vacuums that lifted the curtains of political power give us a peak into a different possibility – that the state may be overstating its importance in maintaining public order. But those are not the history lessons we are usually taught.

Why does it feel like our institutions are still designed keeping a warped view of our nature in mind? Shouldn’t laws be more suited to what science says about our natural predispositions? Aren’t our everyday interactions and the lack of violence in them proof that we know how to interact with each other without the state monitoring our speech for the sake of public order? Yet why has the state assumed the power to censure speech as a preventive measure to ensure public order? Thankfully, it hasn’t felt the need to prevent us from stepping out at night or dressing in a certain way to prevent crime. It hasn’t prevented people from owning weapons. Yet when it comes to sedition, in Judge Deepak Gupta’s words, “Disaffection is such a broad term, that anything could amount to sedition.” Why?

Because this is not about the people. It is about the state, its power, its legitimacy and those who hold its reins. Everyday crime is not a threat to its authority. People owning firearms only serves to reinforce that the state is the sole entity with a legitimate monopoly over violence.  But free expression can question the legitimacy of its actions so the state assumes a preventive role. The state uses the pretext of public order to assume powers that it should not have, and it pretends to do so in our interest. We have grown so used to this that we refer to these restrictions as normative.

The public order argument for justifying restrictions on expression needs more debate.  How we approach it could affect several speech restrictions in India including sedition.

The French Revolution and the political journey it began has helped, but there is a long way to go in negotiated a better arrangement between the power of the state and our rights. We have been brought up on histories that justify state power. No wonder we have been asked to believe in a worse version of ourselves. After all, if history is written by the victor, there has been no bigger victor than the state.  

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