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Before you listen to this episode of The Scene in the Unseen, I have a recommendation for
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Do check out Pullia Baazi hosted by Saurabh Chandra and Pranay Kottaswane, two really
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good friends of mine, kick-ass podcast in Hindi, it's amazing.
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The most fundamental quality of a healthy democracy in my view is that the government
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is accountable to the people.
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In India, sadly, we have long had the opposite mindset that people are accountable to the
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We behave as if we are subjects, not citizens, as if the laws that exist in this country
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do so for the purpose of our overlords monitoring our behaviour.
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Our free speech laws are a great example of this.
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Section 295A, 153A and 124A are all throwbacks from the British Empire which framed the Indian
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penal code to keep us natives under their control.
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And yet, even after independence, even 72 years after independence, we are still oppressed
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by largely the same set of laws designed to keep us in check.
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Section 124A, the law against sedition, is a great example of this.
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It is natural for an oppressive autocratic state to have a law such as this.
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But why must a responsive democracy have a sedition law?
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It's actually the duty of citizens to constantly point out the flaws in our government, to
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We live in times where those in power actually speak of strengthening the sedition law, where
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it is used to harass dissenters and to have a chilling effect on would-be dissenters.
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To speak up against this is our duty.
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Welcome to The Seen and the Unseen, our weekly podcast on economics, politics and behavioural
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Please welcome your host, Amit Verma.
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Welcome to The Seen and the Unseen.
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My guest for today is Chitranshul Sinha, who has written a fantastic history of the sedition
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law in India, Section 124A.
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His book is called The Great Repression and is basically an excellent book of history
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that places the framing of laws in the context of the political and social environments in
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which they were born, an extremely insightful book with many TIL moments.
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Before I begin my conversation with Chitranshul, let's take a quick commercial break.
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Shruti Anshul, welcome to The Scene in the Unseen.
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Tell me a little bit about yourself before we start talking about your book.
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Like you know you're a lawyer and now you've written this book which is ostensibly a book
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about law but it's really a book of history and an excellent one at that.
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So what's your background?
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How did you become a lawyer?
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It's a place in Jharkhand, MS Dhoni fame and from the same school.
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So if someone says MS Dhoni should retire, is that seditious in Jharkhand?
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I really hope it becomes seditious, those guys should be punished.
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Yeah so I'm from Ranchi, come from a background of science, I was not a arts or humanities
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student but then law happened by accident and even history happened by accident.
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I hated history till I started reading it after college.
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So both accidental things combined into this book.
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So I studied law from Pune, Symbiosis Pune, five-year course and I started practicing
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in 2009 and I'm an AOR of the Supreme Court and a partner with a Pan-India law firm and
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this is something I do on the side to keep myself happy.
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And I guess when you start studying law initially it's a subject so you're looking at the textbooks
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and you're studying law and it's the subjects and all that but it's much broader and deeper
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There are so many stories behind it and the history of law in a sense is a history of
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society and a history of people and all of that.
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At what point did you start to get interested in these sort of broader aspects?
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I would say in college.
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In college when we were studying jurisprudence and we were studying legal history that's
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when I started understanding that you can't look at law in isolation, it doesn't operate
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It has to do with what the society of that day is like.
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So you have to understand society and politics of the day to understand law.
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So you can't look at it in isolation.
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That's where I understood law and then you start reading about world history and laws
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around the world then you understand how those things correlate with each other.
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And what were the sort of great books on law or legal history that sort of influenced you?
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So I'll confess that there's no such book which influenced me.
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I have actually not read legal history because I really didn't like any, started some I didn't
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like any other than maybe A.G.
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Noorani's great trials otherwise I really didn't enjoy legal history books because they're
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very dry for my taste at least.
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Which is an interesting sort of cautionary lesson you seem to have taken because your
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book is anything but dry.
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So what's the kind of stuff that you would read like intellectually what makes you the
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What are your sort of influences outside of law?
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Outside of law I don't know to be honest I actually don't have an answer for this.
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So how did the book come about?
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So I was writing columns as this very good friend of mine Rukun who used to work with
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Penguin earlier and she said she thought that I would write a book I never thought I would
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and she connected me with Mansi who's a commissioning editor at Penguin and she sort of did an inception
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She told me I should pick a topic to write on and I gave her five options she said you
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should write on sedation I said oh should I she said yes you should write on sedation
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now you pitch the idea to us.
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So then I thought about how to go about it and then I created this structure for this
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book and then this oh fine we approve of your idea.
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So the idea which they themselves gave me they approve of the idea and that's how that
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That's very cunning what were the other four?
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So I was thinking about writing of these archaic laws which are stupid one of those laws were
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So all these Victorian laws which shouldn't have existed in post-independence India I
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want to write about all those laws but she restricted me to this one law.
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Yeah adultery 377 all of which in fact had episodes on.
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So when you decided when they asked you to pitch your idea to them I suppose you started
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thinking about it a bit more was the book that you pitched to them similar to the one
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It's almost identical it's almost identical maybe it grew a little more in scope in the
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sense that I realized that the topic is too vast to restrict it to anything.
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So the general structure remained the same but I added a little more bulk to the history
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part to the origin part.
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When I started writing I did not realize that I would spend so much time on origin or so
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many chapters on origin and pre-independence aspects of traditional law.
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But it really grew to a huge volume so I actually had to control myself stop myself from writing
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No and I found that history part especially I mean the book is a book of history and I
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found it really fascinating because I learnt stuff I didn't know about English law how
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it originated about you know how it evolved in colonial times and also all the sort of
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the political and social context that you set to everything.
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So once you I mean the narrative you pitched obviously then is how the law has evolved
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over the centuries and where we are now and at that point you realized that okay it's
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going to be a bit of a book of history.
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Did you read a lot of history?
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I read history but I did not read Indian history as much as I would have liked to I usually
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read world history and in fact when I started writing this book that's when I started looking
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at this more seriously and I realized there's a lot which went behind let's say the Indian
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So while I was writing about sedition I realized it's very important to write about the penal
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code first because you will not understand the context of this section 124A which provides
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for the offense of sedition unless you actually understand how the Indian penal code came
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And then when I started reading to be very honest I learnt while I was researching.
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I did not know these things before I started writing the book.
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So I was educating myself and writing at the same time and so when I was reading that then
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I realized that the laws which were in place before my college draft code came in before
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the East India Company took complete control of Indian courts and everything.
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The laws were indigenous there was no structure there were Hindu laws there were Mohammedan
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laws for criminal prosecutions they used Mohammedan laws just modified a little bit to suit the
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So criminal laws mostly Mohammedan and civil laws mostly Hindu.
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So that the term code which that Indian penal code the term code is sort of a misnomer here.
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Code usually is a compilation of existing laws it's like a compendium of laws but there
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was no such law in India there was no such compilation to be done in India.
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But so calling it a code as such is a misnomer but if you consider India's past as in that
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most of our laws are borrowed from the English common law system and in that sense yes because
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it was part of the British Empire so it was a code of laws which were derived somewhat
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from the British Empire and then somewhat from indigenous laws but in the true sense
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So these are things which I actually learned when I was reading about how to pitch the
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book and then when I started writing the book.
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And one of the like whenever I read a book of history one of the things that I keep doing
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is I keep going to the footnotes and I get drawn into all these rabbit holes and the
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interesting thing I noticed in your footnotes is that you know a lot of the sources are
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really arcane papers or arcane cases and not so much like I would have expected that if
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you're doing a book of popular history you'll you know all the standard historical references
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will be there but your research kind of went a lot deeper than that.
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So what was that process like and since you're not an academic you're a working lawyer you
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know did you go time to archives or libraries or did you affiliate yourself with an institution
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or did you have to just work it all out on your own?
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So I had to work it all on my own to be honest I didn't go to the National Archives as other
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researchers or historians would go on the Nehru Memorial Library.
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I was constrained as far as time's concerned and so I had to budget my time accordingly.
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So the resource that I used the most was archives.org which has absolutely everything in the world
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you just need to know how to find it.
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So when I was researching like you said it's a rabbit hole and that was the part I most
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enjoyed of the entire process that was the part I most enjoyed.
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Going down that rabbit hole was very very enjoyable because you go to the most recent
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source then you trace back to the source preceding that then you trace back to that beyond that
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and then you suddenly realize that you're reading books from the 19th century or the
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18th century and I've read texts from the 13th century and the 14th century in English
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which I could barely understand.
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And that's when you realize that to write a book where people don't point fingers at
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you you have to go to the origin you can't rely on most recent history because history
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is colored by politics history is colored by a person's bias.
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So you have to go to the source the farthest you can go you have to go there.
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It's not easy but you have to do it and just thinking about it strikes me as so mind blowing
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and so wonderful that you know because of the internet regular folks like you and I
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actually have a shot at going to these basic primary older sources and you know otherwise
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to just get access to these kind of archives you'd have to be a professional historian
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and so on and so forth and now literally anyone can I mean I'm obviously you know when we
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were talking over coffee before this I recommended Dan Carlin's podcast Hardcore History and
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you know he was basically a radio broadcaster he wasn't a historian and yet he is able to
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produce these remarkable works of history because the world is at his fingertips.
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There are too many gatekeepers of knowledge today too many gatekeepers to just to enter
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the archives you have to show your credentials that your research of some sort like a person
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like you or me can't just simply walk into it and say that I want to read something relating
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to the Mughal era or about Clive I need to show them that yes I'm a researcher for something
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otherwise I can't go there why can't I go there why can't people like you and me go
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just walk in and learn because to be honest the internet's a great resource and archives
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is an absolutely wonderful resource and I so in fact I while I was reading it I felt
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so bad about using it so much that I actually started donating to it and we have to do that
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otherwise we won't get those resources and even though it's a huge resource still archives
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have certain things which you will not find in public like the original draft penal code
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when I started writing the book it took me four months to actually find it and that too
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online I don't know whether it's in some library or not but all the people I talked to and
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I told them oh I have the original I have the draft penal code of Macaulay's code of
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1933 and 1937 and they said how did you get it people don't know it people haven't read
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what's written there they haven't seen his notes and there are things like we know that
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Macaulay drafted it but there's another person called Bethune who also came up with a draft
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code he hated Macaulay he said I want to do my own thing and he pissed this draft code
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to the East India Company back to the government then and he said my code is better but it
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was very conservative and very the punishments were very draconian so they eventually junked
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it so before writing it I did not know that such a draft code existed why don't we know
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this because we are not allowed to go into those places to learn about it so we need
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open access like archives helps but we need open access to our libraries all these archives
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we do otherwise it's not going to work people are today especially in today when people
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and learn their history from whatsapp and from social media they need to go to these
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places to verify themselves otherwise what they're relying on is again bad information
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and I guess very newbie question I guess in an ideal world what all the archives and all
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these repositories of documents should do is digitize everything put it up for free
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absolutely is that kind of happening or are the gatekeepers holding fast see where the
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laws are beyond the copyright period I think they can still be it's happening but mostly
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see I still understand the author has to get the royalty and everyone has to be paid for
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what they published but their articles like JSTOR is expensive for even for a person like
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me I could not afford to have all those articles so I used to rely on more four or five free
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articles a month that's how bad it is you have people who submit these papers academic
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papers and they themselves have to buy it back they don't have access to even the PDFs
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so even to get their PDFs they have to buy it back why is it so expensive a person who
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is himself written something he should get free access to it even he's not getting free
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access to it so today these things which if an author wants to put it out in public he
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should be allowed to if he doesn't want to earn out of it fine I understand the publishers
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put in money but beyond a period of time you should make this knowledge public otherwise
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you're not going to learn otherwise misinformation will keep spreading without verification exactly
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and I mean I'm not sure that making everything available does anything about misinformation
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because misinformation spreads because people want to be misinformed that's also true and
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because they're just lazy and they want to read the latest slice of whatsapp history
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let's let's kind of go to your book now and your book really starts off with the East
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India Company coming to India and the interesting thing here of course is that there's no India
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as such there are many different princely states and they come as traders and they're
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given trading rights and they're negotiating their way through it and I found it pretty
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interesting how they are gradually trying to figure out what laws apply to them what
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laws apply to them for internal disputes what laws apply to them on ships and on the land
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what you know how do they if there's a dispute between them and locals what happens can you
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sort of elaborate a bit on how that goes?
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So yes when the East India Company came it's very interesting actually so we used to keep
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reading about these factories that they had set up so it's not a manufacturing factory
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it's a place where East India Company's factors established their trade factors were people
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who would trade with the indigenous native traders and then send some back home and then
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So factors are basically like the agents like agents the ship comes it leaves the factors
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the factors and negotiate we will sell you this we will buy this
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Yes they're like middlemen mostly and that's how the term factory comes in no that term
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where what they use the Surat factory and the Madras factory that's how the term factory
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comes in and when they got their factories they realized that they have to fortify these
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factories so they got their own militia let's call them the militia they are not like really
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British soldiers they are militia private mercenaries so they got them they set up these
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forts and they set up their own communities but the trouble was that there was life beyond
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these communities also they would try life beyond these four walls which was called referred
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to as the Mofasil so that term still exists when we call when we talk about Mofasil towns
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that small town in India they use the term Mofasil to be places which are beyond these
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limits of these presidency towns like beyond Bombay or beyond Madras the presidency towns
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I'm not talking about the region in general I'm just talking about town even for example
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Bombay what you call town today the fort today was actually what the town of Bombay was beyond
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similarly Thane was Mofasil yes Thane was Mofasil Dadar was Mofasil everything was Mofasil
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so even in so Calcutta the town was presidency controlled by the president of the factory
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and anything beyond that like Murshidabad, Hooghly everything was Mofasil so trouble
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started when there were disputes between Indians and the British or there were disputes amongst
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the British themselves there was confusion that how what law should apply initially started
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with if someone did something some British citizen did something on a ship then yes martial
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law could be applied but what if he did something on land what law would apply so there was
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confusion so there's a very interesting incident where the East India Company and the British
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courts the presidency courts had a major conflict and there was Zamindar who was being prosecuted
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by the British courts like when I say British courts not the East India Company courts and
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he was being protected by the company troops and the company courts so then they realized
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they changed the law eventually and they said that okay fine if you are a British citizen
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or there are disputes between two British citizens then the British law would apply
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but if you're an Indian citizen and it's just something criminal in nature then Nizami laws
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would apply which is a left over from the Mughals so this actually continued till very
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very late this continued till I would say the latter part of the 19th century so it
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was all about even after the IPC was no after the IPC so IPC only extended to presidency
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towns so all these princely states and autonomous provinces had their own laws Dadar had its
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own law yeah like I don't know what Dadar but Jammu and Kashmir for example the Ranveer
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penal code it's till date they have their own penal code which I am assuming will go
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now so they had their own systems and own structures in place like you mentioned about
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how eventually the East India Company evolved to a status where they looked after what you
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call Diwani rights which is a civil justice the revenue rights the revenue rights and
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the Nizami or the criminal justice powers remained with the Nizam and his administrators
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another very interesting part of the book was as far as local laws are concerned how
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the locals were sort of administered was that as far as civil laws or personal laws are
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concerned depends on you know the Hindus had their own thing the Muslims had their own
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thing but as far as a criminal justice system was concerned it was a Mohammedan law which
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sort of applied yes but that was true for the natives not for British subjects if there
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was a British subject under prosecution he had to be prosecuted by a presidency court
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or if a company court prosecuted him then it had to be done according to British laws
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so how did sort of then these laws evolve so initially the East India Company comes
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they're only traders they've got factors in there these factors and eventually the
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you know factories are made the militia comes in to look after them you have these towns
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coming the presidency is coming up with a more facile around them how are the laws evolving
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initially it's okay if there's a dispute between two British guys or British laws apply
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if it's on a ship it's martial law but then eventually you become a part of the local
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society which had has its own thing going on where you know they have their own criminal
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laws their own whatever through the period that the East India Company was here until
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the IPC the IPC of course came 1861 I think yeah IPC was 1860 yeah so until that point
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in time how has it evolved in the centuries before that so there were laws it's not as
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if they did not have specific statutes even when areas controlled by the company they
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had certain laws so there were regulations there were things called the Bombay regulations
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there were things called the Madras regulations and Bengal regulations for criminal law Bengal
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regulations were mostly used even Bombay and Madras for criminal prosecutions and criminal
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justice system so they had regulations they had some random laws for certain things so
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they it's not as if they did not have any laws they had these statutes which were typically
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derived from British laws the common law system because England does not have a typical legal
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system where everything is in the books it it evolves from the from law of the courts
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a court decides something it becomes a law it's not the other way around that like in
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India the statute dictates what the court can do but in England the courts dictated
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what the law became so what you call the common law system common law system there's no origin
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document as such it just evolves over a period of time and yes so but there were laws there
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were these regulations which kept getting modified from time to time to suit the need
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of the hour so it's not as if they did not have anything they had laws but yeah it was
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not uniform across the country so for example in the Calcutta presidency a Bengal presidency
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the punishment for forgery was death similarly and for example if you steal one rupee and
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the punishment is ten years stealing thousand rupees also ten years stealing one lakh is
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also ten years so it was not proportionate at all so that is something which Macaulay
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also wanted to reform he points out that these laws number one that for the same offense
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there's no proportionality with regard to the gravity of the offense then there are
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certain offenses which disturbed the local populations view so basically it's something
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which even today religious law or a customary law you may feel that no it's necessary to
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have such a law like sati when sati was being banned then it led to a huge uproar when the
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age of consent to have intercourse was raised from 10 to 12 it led to the first edition
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trial in 1891 1891 so even people at that point of time they were major discrepancies
#
like one of the interesting cases that you've written about in your book is king versus
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Maharaja Nandkumar yes which is his root called Nandkumar who gets into this sort of ego battle
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with war and his strings tell me a bit about how that panned out so it's been referred
#
to as a judicial murder in history it's been referred to as judicial murder the Chief Justice
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of the Calcutta High Court was Elijah M. Pei and him and Hastings were buddies and Nandkumar
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was this was a native who rose to a status of a divan and was referred to as Raja and
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he became very rich and he made allegations against Hastings corruption allegations against
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the history which was absolutely true at that point it was true but to cut him to size Hastings
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and M. Pei colluded and they accused him of forgery and like I said forgery was punishable
#
with death so they got together and it was a farce of a trial he did not see proper legal
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representation that he did not allow the proper lawyers or he was not allowed to plead his
#
case properly the evidence was murky at best and they got together to kill him to be to
#
if I can just put it they got together to kill him I mean he was convicted for forgery
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and he was sentenced to death it was referred to as a judicial murder which raised the uproar
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even back in London the parliament talked about it even in India there was this populace
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sympathy for Nandkumar for what he was going through and actually showed at that point
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of time that there was a technical aspect involved with the Nandkumar could be even
#
tried in the British laws because like I said he was a native who did not live in Calcutta
#
he was from Murshidabad and the British law did not apply to the natives of Murshidabad
#
so what they did was they arrested him in Calcutta and they tried him under British
#
laws under these tyrannical laws and as a result a lot of natives left the Presency
#
town they just ran to these muftiul towns because they thought that even for a minor
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crime they could be executed so there was an exodus from Calcutta after Nandkumar's
#
case and since it was being discussed in parliament and Hastings of course was very controversial
#
back home he was eventually impeached eventually impeached was there a sort of one did it lead
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to a great rise in disaffection among the local people and two did the British themselves
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feel that hey we got to you know chill out a bit and get this under control so Hastings
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and MP they were instrumentalities of the British Crown the East India Company as such
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the other officers of the East India Company were more sympathetic to Nandkumar so in
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fact there was a huge conflict between company officers and these British instrumentalities
#
now when that happened they actually did realize that there was an exodus of the natives from
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Calcutta from Calcutta to the muftiul places where the law doesn't apply so they realize
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that when they go out people stop paying revenue when if they don't like you they would rather
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pick up arms rather than pay revenue to you and they relied on that revenue they relied
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on trade so a message was sent that this shouldn't have been done a message was sent
#
across Hastings was eventually recalled so yes there were definitely was conflict and
#
it did subsist for some time but at the end of the day there was no India as such then
#
so there was no unity as such so it was more like a dispute between Nandkumar and the Crown
#
rather than anything else so people eventually got around yeah so it's just you know new
#
cycles yeah just like today people move on to outrage about something else let's kind
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of you know before we sort of dive into the 19th century in India and the birth of the
#
IPC let's you know you have a chapter in your book about Bentham Mill and Macaulay and the
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impact that they had on British law especially Bentham and his impact on British law now
#
you've spoken about English law and you've spoken about English law as basically something
#
that has evolved through this process of spontaneous order and has come down through the years
#
a common law system and then but Bentham is a seminal figure in how it evolves tell me
#
a little bit about that so Bentham is a person who's responsible for the term codification
#
so in fact let me correct you there Bentham did not have that big influence on English
#
laws than he had on other countries laws mostly on French law he had a huge influence on French
#
law then it that which extended to the colony of Louisiana and America which was governed
#
by the French back then so his influence actually was more on French and Indian law than English
#
law because the the English still don't have a criminal code in fact there's an interesting
#
quote in your book about how Bentham saying that he's a royalist in England but a Republican
#
in France yes so Bentham lived through the revolution there so Bentham is a very interesting
#
character Bentham opposed he was a he was a rebel of the day he was not like a glamorous
#
rebel but he was a intellectual rebel there was this gentleman called Blackstone we still
#
read Blackstone's law dictionary in India and everywhere across the world so Blackstone
#
was considered a authoritative figure on criminal law and Bentham completely disagreed with
#
him and he said that I would he Bentham actually said things like I want to burn the statutes
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of England I want to burn this Lord on and build something now and he did not find popular
#
acceptance in England so he actually went to France he was depressed he went to France
#
and he built on that his philosophy there like for the greatest greater good for everyone
#
the greater utilitarian philosophy and that's where codification began Bentham himself wasn't
#
very successful if you if I can say so but his followers his disciples are more successful
#
than him was they actually put this to work like Mill was a Bentham follower McCauley
#
not so much even though he does borrow from Bentham but he was not like a Benthamite as
#
much as Mill was but eventually the system of codification was something which Bentham
#
envisaged and today we are actually having the benefit of that.
#
So what's the rationale behind codification like why did Bentham feel that he wanted to
#
burn all that there was before and that codification was I mean you spoke of burning there's an
#
aside that in 1953 Ambedkar said that looking at what the constitution has become today
#
I feel like burning it yes but which is completely unrelated to all of this and not seditious
#
in the least but so to get back to my question about Bentham what was it about law as it
#
then was in England that he wanted to burn and what was the necessity what was the rationale
#
for needing to codify something.
#
So if laws are not codified it leads to confusion it leads to uncertainty we are lucky we got
#
the IPC I am saying so we are very lucky we got the IPC it's a great gift from the English
#
In the sense of the concept of codification what the code itself is you can debate.
#
Right so the concept of codification was excellent for India because we are very diverse we had
#
different traditions customs across the country like I said indigenous laws were completely
#
different someone in the kingdom of Travancore or Mysore might have something completely
#
different for that which may be different in the central provinces so and there are
#
certain things may be offenses in one part not an offense in another part so it was very
#
important to have a uniform system of penal law everyone needed to be on the same page
#
where they knew what they can do and what they could not do that is where codification
#
becomes important without a code you would have hundred different statutes and hundred
#
different parts hundred and then there is some overlap then there is a confusion so
#
at the end of the day for certainty in law you need a code.
#
So India has the civil procedure code the criminal procedure code which the criminal
#
procedure code came later after the IPC was enacted and CPC also came later but at the
#
end of the day these codes have had a major impact or rather they have shaped the Indian
#
judicial system procedure is derived from the criminal procedure and the civil procedure
#
codes penal offenses are derived from the IPC now we have penal offenses other statutes
#
as well but there is no overlap in many cases most cases there is no overlap in certain
#
cases there may be overlap but then they are very very specific in nature like you were
#
just discussing about UAPA and IPC like UAPA is very specific in nature that is why as
#
opposed to 124A which is general in nature so but at the end of the day mostly we have
#
certainty which was which was how a code becomes helpful in India or anywhere else.
#
So essentially you are saying the importance of a code basically is that the rule of law
#
needs to be both transparent and accountable and predictable and once you have a specific
#
code out there everyone knows what the rules of the game are.
#
But England doesn't have a code.
#
Yes, England doesn't have a code and they suffered because of it for a very long time
#
there was there is a lot of confusion because of common law I don't consider myself an authority
#
on that but broadly from what I have researched there was no certain there is no consistency
#
in law which they have remedied to a certain extent now because earlier there was no statutes
#
as such also now there are specific statutes for certain things at the end of the day like
#
like a money laundering or a bribery has a separate statute money laundering has a separate
#
statute offense against the state has a separate statute so they had these they have these
#
separate statutes for these specific laws but they haven't brought it together.
#
Let's sort of get back to Bentham and you know one of his protégés was James Mill
#
and as you point out you know through his 40s and then gradually as he turns 50 he becomes
#
sort of the you know one of the key bureaucrats in charge of India who sort of looking into
#
Indian affairs and he sort of influences the birth of the IPC in the future tell me a bit
#
about that and the role he played.
#
So Mill was in India House and he was responsible for communication between the East India Company
#
and the Parliament he was sort of a go between and a very important go between.
#
In fact he wrote which he himself calls a seminal history of India but he had never
#
So historians have a lot of problem with his history but he did write a history of India
#
In fact you have a long snide remark by McCauley on his history.
#
So and McCauley and Mill in fact didn't get along at all.
#
McCauley very very famously in Parliament when the reforms were going the charter reforms
#
were happening he made very very accusatory statements about Mill saying that this person
#
does not even know the history has never been to the country doesn't know history but he
#
has written a book on history on Indian law and it's very interesting because when they
#
decided to form the first law commission they wanted to send someone there and McCauley
#
and the East India Company did not get along again because he was a member of Parliament
#
a very young one at that he was in his early 30s he was in his early 30s and he used to
#
criticize the East India Company about everything that they were doing in India.
#
So and Mill also did not get along with McCauley.
#
So it was very surprising that when they eventually had the reforms then the 1830s the charter
#
reforms happened and they decided to have the first law commission and they asked for
#
Mill who they should appoint as the first law commissioner he recommended McCauley despite
#
having all his differences with him and it was not taken well by the company so Mill
#
actually had to convince the directors to send McCauley and their relationships improved
#
after that they repaired after that it's very interesting that two people on the opposite
#
ends of an issue worked together to get us the code.
#
Why did he want McCauley?
#
Because he had a lot of belief in McCauley's intellectual capacity and he respected McCauley
#
for that personally they may have had animosity but he respected McCauley for his intellectual
#
And what was McCauley's approach to like 1833 the commission was set up to sort of
#
draft the IPC he took around four years to do it and working practically alone as you
#
find out without any assistant what was his approach given that he's not exactly writing
#
on a blank slate because India though it's not India then but India as it is then the
#
lands that he's making this legal code for is like you pointed out so diverse they have
#
so many different kinds of customs and traditions and peoples and ways of doing things.
#
So what are the sort of unifying principles which he brings to bear on that?
#
So like I said we had regulations then so it was not really a clean slate but he had
#
a major issue with those regulations and in his notes he mentions that there's not a lot
#
of popular support for a penal code in India that is one of the reasons why the code not
#
come into effect for 30 years after it was originally drafted.
#
So when he was looking at the law in his notes he mentions when he was sending it to Auckland
#
for his consideration he mentions that he's studied other indigenous laws he studied these
#
regulations and he feels that he does not have anything to refer to create these laws.
#
He feels that nothing is reliable.
#
So he actually goes back on old English laws and common law in place there and that is
#
why I said that it's not technically a code because this is not something which was brought
#
together it's not a product of bringing together of Indian laws indigenous laws it's a foreign
#
product at the end of the day.
#
So typically a code would be that you take a bunch of existing laws and you make sense
#
of them rationalize them.
#
And this is almost sui generi.
#
He's having to come up with a lot of things and that too without help like I said almost
#
all the members were sick or back in England or just did not do any work.
#
So what are his guiding principles I mean Bentham of course was an influence so I guess
#
the whole utilitarian funda is there but what are his guiding principles otherwise?
#
His guiding principle mostly was proportionality and certainty.
#
He wanted that and he wanted clear categories of offenses to be created.
#
If you look at the draft code it's arranged in a way in which if you're talking about
#
laws against the human body then they all flop together like we have in the IPC today
#
So he wanted extreme clarity as far as application of penal laws was concerned.
#
And you know you sum it up very nicely where by quoting McCaulay when McCaulay says about
#
the IPC quote our principle is simply this uniformity where you can have it diversity
#
where you must have it but in all cases certainty stop quote and this principle was new at the
#
time and is still the driving force.
#
It is the driving force for most laws in India today that we have to have certainty as far
#
Let's take a short commercial break now and let's come back and talk more about McCaulay
#
On Edges and Sledges the guys talk about the T20 match between India and Bangladesh.
#
On Geek Fruit Tejas and Dinkar are joined by the IBM producer Abbas.
#
They talk about the new Terminator film Dark Fate and the past and future of the franchise.
#
On Football Shoot Ball we have an exciting episode as our hosts discuss the aftermath
#
of the biggest game this season Liverpool versus Manchester City.
#
Is the children's day special in IBM life says Madhuri, Alika, Rutika and Abbas talk
#
about pop culture they consumed as children and reflect on how they perceive it now.
#
On Gaby CD Suneetra and Farhad share the list of their first from their first kiss to their
#
first queer experience to the first time queer representation in art moved them.
#
It's a list you definitely don't want to miss.
#
On the Habit Coach Ashwin talks about measuring and visualizing the progress of our habits
#
with the help of paper clips.
#
On the season finale of Keeping it Queer Naveen and Farhad discuss their understanding of
#
a break up and how to get over them with maturity and with that let's get you on with your show.
#
Welcome back to the Scene in the Unseen I'm chatting with Chitransul Sinha about his
#
excellent book The Great Repression the story of sedition in India and we've just spent
#
40 minutes talking not about sedition per se but other general matters.
#
So now we get the first glimpse of sedition in the draft IPC which is created by McCauley
#
and this is clause 113 of the draft code which basically I'll just read out this bit very
#
similar to what later became the sedition law quote, whoever by words either spoken
#
or intended to be read or by signs or by visible representation attempts to excite feelings
#
of this affection to the government established by law in the territories of the East India
#
Company among any class of people who live under that government shall be punished with
#
banishment for life or any other term from the territories of the East India Company
#
to which fine may be added or with simple imprisonment for a term which may extend to
#
three years to which fine may be added or with fine stop code that was one sentence.
#
Yeah your lawyers really love your clauses oh yes that's how we earn our money because
#
no one else understands it.
#
So did you while you were writing this book which is written in extremely readable and
#
interesting language did you have to stop yourself from putting clauses in long sentences?
#
Many times many many times I had to control I had to unlearn whatever I had ever learnt
#
to write this book and even to read the law I had to stop many times to understand what
#
they had originally written.
#
So were you you know just to continue with this brief digression were you were did you
#
like to write before this did you ever think of yourself as a future writer?
#
Oh yes I did always I always thought of myself as a novelist I had these stupid novel ideas
#
in my head ever since I was in school but that never happened.
#
Yeah I used to edit my the college law review and I started writing articles for digital
#
publications two years back and yes I would write and I always loved writing and reading
#
but I never thought that I would write a book so soon and that too on a legal history topic.
#
I always thought my first book would be a novel but sadly it was not.
#
Your first book reads like a novel.
#
So tell me a little bit now this is the first glimpse of the sedition law and the interesting
#
thing I found from your book is that you know Britain did not have a sedition law.
#
You know you write court rather than have a single offense called sedition.
#
Seditious offenses were categorized as seditious words, seditious libels and seditious conspiracies
#
stop code and yet the need for it was felt in India tell me a bit about why that is so.
#
So I'll just go back a little bit why this is important is that you have to understand
#
In England till the 13th century there was no uniformity of government or no uniformity
#
of control even the crown wasn't respected the crown was essentially just seen as a useful
#
instrument of organization not more than that and the state and the crown actually feared
#
any uprising they wanted their own safety and they wanted to be loved and respected.
#
So this law is very very literal in a sense that you couldn't say anything against them.
#
When it started it was essentially to protect the church from criticism because we all know
#
that that history is tainted and even the state wanted to be protected from criticism
#
because I've also mentioned it in the book that in fact the queen at the time was stoned
#
by people when she was going to the tower and that's when they started prosecuting
#
And when Chitran Shul says stoned by people he does not mean she was given drugs or made
#
to smoke weed she was literally stoned.
#
This is a family podcast.
#
These can do weed together but I've never done weed but I don't know what you're talking
#
Yeah so I mean it's interesting because you know you talk about the 13th century and about
#
how we think today with the benefit of hindsight of England as this largely homogenous people
#
but actually there were different people you had the Normans and the Saxons and the Celts
#
and all of that sort of fighting for dominance and therefore for the centralizing authority
#
that cropped up in the shape of the king and especially Edward the first who was like you
#
point out of a legislative bent there was the importance to have laws which would keep
#
these people in check and that is perhaps the birth of what you call clause 34 of the
#
statute of Westminster.
#
Yes because what happened was that because of these this heterogeneous population of
#
England they did not even have uniformity of language like we don't realize this but
#
they did not speak English back then so they did not have uniformity of language or culture
#
so when these people got together they literally formed an alliance because they were tired
#
of warring they're tired of spending all the resources on fighting with each other so say
#
they decided that they should come together and live as a people as a nation but even
#
then they were bound to be differences like in India the different classes different communities
#
there's still friction so that friction which originated that union which originated in
#
war had a lot of friction so a Saxon king would not be loved or respected by the Celts
#
and vice versa so that is why I keep saying that this was a very very literal law you
#
just couldn't say anything doesn't matter if you say the king killed his wife even if
#
he had actually killed his wife he the person who says the king killed his wife would be
#
prosecuted for seditious libel truth would not be a defense as indeed it wasn't at one
#
stage of 124a yes I want to read out that laws 24 of the statute of Westminster of 1275
#
just so that you can appreciate Macaulay who had earlier quoted a little bit more quote
#
for as much as there have been often times found in the country divisors of tales whereby
#
the scourge or occasion of the scourge has many times arisen between the king and his
#
people or great men of this realm for the damage that hath and may therefore ensue it
#
is commanded that from henceforth none be so hardy to cite or publish any false news
#
or tales whereby the scourge of slander may grow between the king and his people or the
#
great men of his realm and he that doth so shall be taken and kept in prison until he
#
hath brought him into the court which was the first author of the tale stop quote and
#
this is basically you can sum this law up in three words right no fake news yeah
#
no not even fake news don't say anything against the church or the state okay even if it's
#
real it doesn't matter you can't call a priest a pedophile even if he's a pedophile it was
#
as simple as that in fact that sounds a lot like Shakespeare and like Shakespeare a lot
#
of people I'm sure did not understand it then as they don't understand it now but at the
#
end of the day it was very simple don't say anything against establishment well I'll correct
#
you there and this is nothing to do with the subject of the show but Shakespeare actually
#
like I teach this course for Takshashila on how to write op-eds and one of the one of
#
my little modules there is about how Shakespeare would write great public policy because he
#
most of his plays are written in iambic pentameter iambic of course is the stress non-stress
#
alternative way of speaking kind of but pentameter was that you basically have broadly speaking
#
five units of two syllables each ten syllables in a sentence because that is how much we
#
can speak without needing to pause right so his sentences were his language was written
#
in such a way that actors would find it easy to say and therefore you will not find a single
#
sentence in Shakespeare which is as long as the one I read out so for your Twitter audience
#
this is a hashtag TIL moment for me too yeah that Shakespeare actually was a beautifully
#
elegant writer and let's let's get back to the subject at hand which is so there is this
#
law which aims to protect you've also pointed out the distinction between two kinds of laws
#
which is that there are laws which protect you from other citizens which are meant to
#
stop citizens harming other citizens and there are laws which are meant to protect the state
#
yes and and this is sort of in the category of that but broadly apart from this as English
#
law evolves and common law happens there is really no equivalent to the sedition law that's
#
coming up see I'll just add to what I was saying first so the all these statutes which
#
are created to act as a protection of the states from its people it was because there
#
was a lot of chaos there was there was fear of overthrow every day and that's how this
#
law in fact became a terrible tool because tomorrow a criticism could be seen as encouragement
#
of to the masses to rise against the king what I meant was that that there was no law
#
on sedition now sedition is a broad category sedition is just an umbrella term that's being
#
used sedition can be of various types like it can be liable where you publish or speak
#
against speak seditious these categories these categories and seditious conspiracy was more
#
about these violent acts which would take place seditious acts which would take place
#
so by saying there's no equivalent yes because the Indian law uses the umbrella term but
#
in fact it was better to have these categories like instead of having a law against sedition
#
a more ideal situation could have been a law against seditious libel a separate provision
#
for seditious conspiracy because today we club everything together and the punishment
#
is the same for saying something or actually causing an uprising so yes that equivalence
#
doesn't exist and you know in one of the things that you keep talking about in your book and
#
demonstrating in your book is that you can't just look at laws in isolation you see them
#
in the political context of the time the social context of the time and so you know Macaulay
#
between 33 and 37 works on this code he gets it out but then it's kind of stuck in the
#
bureaucracy and is being debated back and forth and like you pointed out Bethune does
#
an alternative version of it and so on but then a strong impetus is given to it by circumstances
#
which is basically the revolt of 1857 can you tell me a little bit about that and you
#
know how the British crown then had to take command and then therefore needed a penal
#
code and hey this was it so yeah so 1857 as you know was the they called it the first
#
war of independence but it was more a unorganized mutiny across the country so and it again
#
was on mostly on religious grounds and I don't need to really go into that as such so they
#
had a makeshift law when the mutiny happened they got a makeshift law in where they provided
#
for an offense against the state that which is somewhat and I won't say similar to sedition
#
but it was the first step towards having a log in sedition where you can't criticize
#
the government or say anything is the government and it had to be tried and there was a summary
#
trial with no appeal provided if you did something like that so when the mutiny ended and it's
#
called the 1857 revolution but at the end of the day it went on till 1858 and 1859 it
#
finally ended in around 1859 and that's when in 1860 the new law comes in but when the
#
crown took over they realized that they have to establish themselves and they have to stop
#
this from happening again so that's when they dusted the draft code and they handed it over
#
to Barnes Peacock to write it again and to make it a better law as such define it a little
#
more so the penal code was an exercise in having a unified penal provision unified penal
#
provisions in India to control the masses and to avoid another 1857 from happening so
#
that is how the crown wanted to assert itself and it strikes me that there are two sort
#
of simultaneous imperatives here which is driving the British to sort of impose this
#
penal code and one is of course to protect themselves and to control the people but the
#
other also is a transformative one to sort of to bring about social change which is something
#
you know even McCauley for example is notorious for having spoken about the civilizing impulse
#
of empire and so on so that does the IPC sort of contain reflect both of these imperatives
#
yes it does in fact I would be amused to mention that McCauley as such wasn't your ideal administrator
#
his philosophies find origin racist thought he like you mentioned he wanted to civilize
#
the masses the education system that he brought about in the country that was also to civilize
#
the masses so there was a racist bone in his body but so the law sort of even if you look
#
at like the law of adultery like women were treated as chattel as property thankfully
#
that laws gone now so only a man would be punished for adultery not the woman who participated
#
in that act in fact the man who slept with the wife of someone else would basically be
#
prosecuted for theft because he was taken yes the property was the wife this is a Victorian
#
law we did not have such a concept in India back then so he wanted that concept to be
#
brought in he wanted that was a complete that was foreign to us he wanted that to be brought
#
in because then you elevate or rather denigrate a woman to a status of a of property similarly
#
like like social reform if you say that they wanted to reform in fact the great leaders
#
of the day like Tillak also they did not oppose it in principle he personally did not oppose
#
it in principle but he thought that it should be left to the natives to the Hindus to do
#
it themselves do a reform have awareness program like about the age of consent bill where they
#
there's this tradition of which was the garbadan that on the first night itself the child bride
#
would sleep with the man and it didn't matter he was 30 or 40 and there was a death which
#
happened because of that now people did not react well to these changes and these changes
#
were brought they tried to impose these changes through legislation which was alien for people
#
back then so there was the like you said they did try to civilize the masses if I may use
#
their language rather than our language they did want to civilize the masses through these
#
laws in fact it's best used in inverted quotes because the transformative effect that they
#
wanted to have sort of seemed to me to fail in two ways in one of course they are imposing
#
victorian values on India which you could say are actually a step backwards from where
#
we are yes and to even when they are trying to bring about positive social change the
#
point of Tillak and this is a classic conservative criticism which many others I mean Tillak
#
I don't think was a classic conservative but the criticism itself is very Berkian is that
#
you cannot change society in a top-down way you have to change it from within you have
#
to change the culture and just having a law doesn't so in fact it's very interesting
#
so Tillak did not actually oppose this reform but what he said was that you should make
#
people take a pledge that they will not force their girls into marriage at 10 or they will
#
not force their girls to do Garbadan on the first night and none of his fellow reformers
#
nobody wanted to do that nobody wanted to take that pledge he said no first you may
#
create awareness you make people do this voluntarily don't impose it on them so Tillak while approaching
#
this from a conservative place he was not against reform but he knew the reality of
#
the day that people will not accept this they if let's say someone like Tillak would have
#
initiated the idea people would have been more welcoming of it but because the idea
#
did not come from Tillak it came from the British so anyway resentment had started that
#
was the period when actual resentment against the government had started that was where
#
the I would say the freedom movement had started taking form they were not the freedom movement
#
that's a bit anti British movement had started taking form so they thought there is a foreign
#
influence why should we listen to foreign influence why should we listen to these people
#
who not even from here why should we listen to the white skin people so Tillak was right
#
in a way that it has to come from within but yes people generally averse to these reforms
#
even Sati was opposed if you think about it today I for the life of me can't imagine why
#
it was opposed like I don't know why it was opposed yes customs religion everything but
#
to kill someone just because their husband is dead doesn't sound sound nice to me today
#
but at that time it was opposed because it was the British who brought it so it was more
#
and more resistance to foreign reforms than reforms themselves yeah and I had Jerry Rao
#
on my show last week talking about Indian conservatism and his point about conservatism
#
I think would be that conservatives are necessarily opposed to reform but they are very concerned
#
about the manner of reform that if you try to impose it in a top-down way or try to do
#
it radically things can go wrong though of course my counter argument to that is that
#
for something like Sati you have to be animated by first principles that taking someone's
#
life is wrong coercion is wrong so you don't then wait for society to change once you have
#
figured out that these are your values so people could argue that not everyone shares
#
those values now the interesting thing about the IPC when it's accepted I think first
#
Jan 1862 is when it comes into effect is that at that point in time that sedition law is
#
not there yeah you know it's whether it's an oversight or whatever you know it's it's
#
slip through the cracks basically yes that's what they say we will never know why there's
#
no literature on why it was not in the Indian Penal Code we there's no literature they
#
blame it on the carelessness or they blame it on oversight but we will maybe we'll never
#
know why it was not brought in the first place but very soon there is as you describe in
#
your book a movement to sort of bring the sedition law back and one of the things driving
#
it which might be a TIL for many people listening to show is a Wahhabi movement the growing
#
Wahhabi movement in India which is you know and this is really before the organized freedom
#
movement in India really takes birth and the Wahhabi movement is the chief sort of circumstance
#
which makes the British think that okay we've got a bunch of laws after 1857 to keep the
#
natives in check but we need more we need the sedition law tell me a bit about so the
#
Wahhabis the Indian Wahhabism does not find its origin in Saudi Wahhabism Indian Wahhabism
#
finds its origin in in Uttar Pradesh of all places like Bareilly and so the Wahhabis at
#
the time of the mutiny in 1857 they in fact did not participate in it they were not nationalistic
#
they were communal they did not want a India without the British they wanted an Islamic
#
India so they sort of stayed away from the movement so they actually did not play any
#
role in it maybe minor role here and there but they did not play any role in it but after
#
that ended and before it happened they was they earlier they fought they were fighting
#
the Sikhs then the Sikhs were defeated by the British and this again they refocused
#
on the British they wanted to just drive away outsiders from the country and create a Islamic
#
nation so after 1857 there were a lot of conspiracies from across the country from the Bengal presence
#
from Dhaka to Punjab and this was discovered over a period of time and there were major
#
trials which happened that happened in Amala in Patna and Delhi and Wahhabi leaders executed
#
but it just refused to die down so they actually felt that they need this against the Wahhabis
#
because they could not deal with another uprising that close to the mutiny so that is the most
#
proximate cause for section 124A being enacted.
#
So section 124A comes back and it's also very interesting that you talk about two preventive
#
laws to supplement section 124A the first you point out is a dramatic performances act
#
of 1876 which is court intended to prevent performances of a seditious defamatory or
#
scandalous nature and of course all of that is open to interpretation and anything can
#
be and you point out very interestingly and the title of this play could be really modern
#
you talk about this play called Chai Ka Darpan which was a proximate cause for the enactment
#
of the law because Chai Ka Darpan was a play that portrayed owners court portrayed owners
#
of tea plantations and promoters of migration to tea growing districts as evil persons who
#
exploited migrants both physically and sexually stop court and as you point out in one of
#
the witticisms that pepper your book if there is one rule you don't break it's that you
#
do not mess with the Englishman's tea.
#
So these plantations which were across Assam, Bengal they sort of fed England the tea went
#
from here but the lot of exploitation was happening on these plantations so migrant
#
labour was being badly exploited number one we were subject and number two they were even
#
the financial overlords so it was rather a communist movement if I may say so that people
#
got together and they started writing and writing plays and performing plays where they
#
criticize all this so the British government was spurred into action because it's one
#
play there were other plays also and other poetry and stuff.
#
There's a play exists Chai Ka Darpan exists.
#
So I couldn't locate it myself but this play existed and they had to ban it.
#
So what I meant was have you read it does it exist now?
#
No I couldn't find the text of the play I had to glean it from the trials and from the
#
history of the law and the speeches which were delivered before that act was brought
#
So when that happened that's when these laws came into supplement the laws that okay fine
#
we have a general law but let's have these laws also separately.
#
Right and the other law which I also found interesting the other preventive law was the
#
vernacular press act of 1878 which was quote enacted to place newspapers published in local
#
languages under the control of the government for repressing seditious writings which are
#
intended to produce disaffection towards the government in the mind of native stop code
#
and when I was reading this it kind of struck me that we don't have that law today but
#
effectively the same kind of pressures and incentives can still apply.
#
You still for example no FM radio station will ever dare to talk about politics or broadcast
#
actual news because their license could be taken away or for that matter you know different
#
kinds of pressure can be put on all kinds of publications because a lot of publications
#
depend on government advertising for their revenue.
#
So these pools and pressures still exist except that there is really no need of a law to sort
#
It can be controlled economically rather than anything else.
#
Let's talk about the first sedition case now and which of 1891 and before we talk about
#
the first sedition case and it's very interesting how what dovetails into this is one of the
#
British again trying to bring about social change in India and there is obviously you
#
point out that girls are being married as young as 10 years old and you know expected
#
to conceive very soon and you talk about this child bride called Phoolmani who was 10 years
#
old in 1889 married off to a man named Hari Mohan Mehti who was over 30 years of age and
#
he has sex with her and she dies that night itself.
#
He's charged for her rape and murder and that leads to the coinage of the term Hari maitism
#
which I must confess I haven't heard till I read your book.
#
Hari maitism for the court practice of consummation of marriage with child brides stop court and
#
he's acquitted because the law against rape does not apply to the marital rape of a girl
#
of 10 years of age and at this point the British government enacts the age of consent act of
#
1891 which raises the age of consent from 10 to 12.
#
So that was a huge leap of two years and everybody goes nuts.
#
Tell me a bit about that.
#
So again like I said the reforms for being resisted and the Bengali intelligentsia that
#
took up issues with it and wrote severe editorials against this reform saying that the British
#
come in and they're touching our Hindu cults terms and traditions they're destroying everything
#
and they say if this keeps happening we'll have to throw them out that I'm just I'm paraphrasing
#
Let me read that bit out where translated extract of the first offending article which
#
was cited in the case goes quote the English ruler is our lord and master and can interfere
#
with our religion and usages by brute force and European civilization.
#
The Hindu is powerless to resist but he is superior to your nation in good morals in
#
gentle conduct and in good education.
#
Hindu civilization and the Hindu religion are in danger of being destroyed.
#
The Englishman stands revealed in his true colors.
#
He has a rifle and bayonet and slanders the Hindu from the might of the gun.
#
How are we to conciliate him?
#
Stop quote and when I read this I thought ki Englishman ke jaga mein elites daal do.
#
This seems very very familiar doesn't it sound familiar.
#
You go on social media doesn't it sound familiar today that this is the exact same thing we
#
The Hindu majority is victim.
#
At that time you could say they were sort of the victim.
#
So anyway so this guy comes up with this thing that how dare you raise the age to 12 you
#
know what are 11 year old girls to do and no but but but the age for marriage were not
#
raised only the age for intercourse was raised.
#
So you could still have a 10 year old child bride but if you have sex with her before
#
she turned 12 that was marital rape which seems very bizarrely legalistic because there's
#
no actual way of whoever is implementing the law to assert any of these things.
#
So they may be they wanted to appear to be doing some good.
#
It's very interesting today that even today there's a debate on marital rape happening.
#
That there are petitions pending in the Supreme Court and the High Court where they want marital
#
rape to be criminalized.
#
So in fact British did criminalize marital rape for 10 and 11 year old girl child.
#
So I guess what you could say is progress is basically the age of marital rape rising.
#
Jesus I don't even know what to say about that.
#
Let's talk a bit about this sort of first case where the proprietor editor manager and
#
printer of bongobashi are all charged in a case known as Queen Empress versus Jogendra
#
Chandra Bose and others.
#
What do I know about legal language and one of the defenses of course is that hey you
#
know we didn't kind of write it I mean the writer is anonymous and he's not here so don't
#
blame us and that's kind of thrown out.
#
Now the debates around the sedition law especially the terminology especially the word disaffection
#
kind of start from this case where Justice Pethiram Pethiram Pethiram Pethiram yeah Justice
#
When I read this I couldn't figure out if he is an Englishman.
#
So not Pethiram but Justice Pethiram and so tell me a bit about the debate around this
#
case and kind of what happens.
#
So what they did was that they wanted to interpret what disaffection actually means.
#
So what he said it doesn't what the presence of the letters dis between affection means
#
it has to be the opposite of affection.
#
So the opposite of affection is hatred.
#
So it doesn't matter if it's a legitimate criticism.
#
If they if he asked the jury to decide whether they felt that was this intended to create
#
hatred against the government or not doesn't matter no violence ensued doesn't matter that
#
it was a legitimate criticism I say legitimate because of what people felt that back then.
#
So he made a very very literal interpretation of the term disaffection and said that hatred
#
anything to inside hatred against the government would lead to the offense of sedition.
#
And the sort of counter interpretation of this is that you know you don't that the word
#
disaffection in a legal senses evolved to mean something else and the way the sedition
#
law has also been interpreted is that merely criticizing the government to inspiring hatred
#
against it isn't enough.
#
You also need to incite people to specific acts of violence against it only then is it
#
So that that actually happened later that happened in the 1960s prior to that there
#
was no such interpretation built into the law.
#
It is actually the Supreme Court which read down the law to include this that actual incitement
#
of hatred has to happen.
#
But before that mere criticism which which would cause disloyalty or hatred against the
#
government was enough to be punished for sedition.
#
But this is Petram's interpretation of disaffection that there were other interpretations which
#
Other interpretation was Maurice Goyer which happened a lot later in the 1940s and he sort
#
of said what Kedarnath judgment said eventually that unless there is incitement to violence
#
you can't punish a person for sedition but it was quickly set aside with the Privy Council
#
Let's move on to the Tilak case you know Tilak was you know a member of the Governor's Legislative
#
Council and he was a very big guy within local circles at the time and he had this newspaper
#
called Kesri and the first case against him really comes because he seems to justify violence
#
especially in the context of Shivaji where you know he essentially argues that Shivaji
#
was justified in killing Afzal Khan in the way that he did that it was an act of self-defense
#
and therefore to use that as an analogy against the empire that there are modern circumstances
#
contemporary circumstances in which case such violence may be justified and obviously he
#
was hold up for sedition.
#
What are the sort of arguments going back and forth at this time?
#
So what had actually happened was that there was a plague in Pune prior to all that and
#
a lot of people died and they were really resisting the government's effort to rescue
#
victims or to quarantine people.
#
So there was this plague commissioner Rand and so people really detested him.
#
In fact Tilak himself had a huge hand to play in getting people to accept government help
#
getting them into hospitals leave their homes because they were very afraid of British help.
#
And what these Britishers were basically doing is they were coming home and if they found
#
a victim just send them off to the hospital and burn all their possessions because they
#
may be so you're having people whose homes are being invaded their relatives being sent
#
away to a hospital and their things being burnt and sometimes if there's no one else
#
at home the house is just left like that.
#
So basically that's why the natives of Pune they felt that this was an act of aggression
#
against the local population in fact they were trying to help them and soon after that
#
the Shivaji festival was I would say it was reborn in the years around that time and when
#
he delivered this speech sometime after that days after that Rand was assassinated because
#
of this plague relief work.
#
Now the British then need an excuse to cast Tilak for something even though he was a member
#
of the legislative council and he was a very important man but they still detested him.
#
He was seen as a power center separate power centers again it was very political and the
#
other newspapers the Anglo Indian newspapers like the Times of India and other English
#
language newspapers were really against these vernacular papers or Indians running English
#
papers like the Maratha was actually an English paper and Kesari was the vernacular paper
#
So when these were reported when these speeches which he delivered and other people delivered
#
in those in Raikhad they tried to join it they have tried to create a proximity with
#
the assassination and when they raided him they found literature which he still he claimed
#
that it was not his so they found literature about subversive activities so they actually
#
arrested him at that point of time to send a message to the vernacular press and to the
#
people around at that point of time and his defense was that this is not sedition his
#
defense was there is nothing in his speeches where he tries to incite hatred against the
#
government so he actually tried to raise a defense within the law.
#
He tried to defend himself he did not have legal help he did everything himself so his
#
defense was that he did not say or utter anything which could incite hatred against the government
#
in fact looked at my other work that I have done I am actually supporting the government
#
and the government's efforts that was his defense.
#
And at one point he when he couldn't find anyone to defend him Rabindranath Tagore got
#
him these two notes from Calcutta and you know one of those lawyers say something really
#
interesting in his defense of Tilak which you know leads me to my sort of next question
#
which is a digression which is quote if the government seriously believed Tilak guilty
#
of the abetment of murder it ought to have openly accused him of it the very fact that
#
he has not been so charged but prosecuted under 124A shows the weakness of the government's
#
case stop quote at which point it makes me wonder that if the issue of sedition is the
#
violence and the damage to property and all of those things you already have laws against
#
So why do you then need a sedition law at all?
#
It's a political tool it's not a law to punish a person for an act as such it is a law to
#
punish a person for his thought for his ideology so that was what happened with Tilak as well.
#
And to what extent since it's a political tool as you said to what extent is it used
#
as a chilling effect whereby you know prosecuting Tilak under the sedition law the proximate
#
purpose is that okay he has done something you disapprove of and you want to punish him
#
for it but the larger purpose is that everyone else shuts up because they don't want it
#
Absolutely because at the same time there were some other trials also which had a larger
#
effect of the vernacular press being suppressed so that was a larger issue.
#
So you know one of the things that you know as we've seen earlier in the narrative that
#
McCaulay's code was basically languishing until 1857 creates a political imperative
#
and something has to be done and it comes into being and here again I think a lot of
#
us forget the environment of the early 1900s early 20th century when you know contrary
#
to the peaceful Satyagraha based movements which we now remember from the 20s and 30s
#
and 40s there was actually a lot of violence in the early years of the 20th century which
#
worried the British people.
#
Lot of revolutionary crime.
#
So what about that and how that shaped the government's approach to you know the sedition
#
law itself and other laws like prevention of seditious meetings act in 1907 that you
#
So this phenomena which I talk about revolutionary crime it was it originated in Bengal subsequent
#
to the partition of Bengal.
#
There was a lot of resentment against the partition they thought they were driving a
#
population against each other.
#
In fact the Nawab of Dhaka initially was against the idea but subsequently got around to it
#
because the British promised him power over that region.
#
So it originated there but the influence was largely Russian.
#
There was a Russian revolution where they discovered the power of a bomb and that spread
#
to India to Bengal and to Punjab and they started creating this age of the bomb.
#
They started throwing bombs crudely made bombs but they were trying to get heard then secret
#
societies formed all over Bengal and what is East Bengal and West Bengal all over East
#
and West Bengal which were called Anuselin Samitis.
#
What these Samitis would do is they would train youngsters as people as children as
#
young as 15 16 18 to just do violent acts violent acts of revolution against the government
#
send a message across to the government that we are not going to sit silent.
#
So this age as such was a very very violent age it was more than anything political.
#
It was actually hated against the government and because of the partition and they just
#
discovered these bomb making techniques and literature which came from Russia.
#
So it really helped them and it's interesting that you know if one looks at the freedom
#
movement there's obviously the division between the moderates and the extremists and the moderates
#
like you know Gokhale, Ranade, Agarkar and so on believe in the power of petitioning
#
and they want to sort of work with the power of cooperation and all that and the so called
#
extremists like you know Tillak and Ani Besant and Banerjee are figuring out that has its
#
So B R Nanda in a great biography of Gokhale once said something to the effect of the moderates
#
are extreme in their moderation and the extremists are moderate in their extremism.
#
So they weren't all that far apart but the thing is this seems to me about that point
#
in time where people are realizing the futility of trying to negotiate with the colonial government
#
though Gandhi is trying that in South Africa and he comes back and he continues trying
#
that till you know the second half of the second decade but and now all these violent
#
impulses are beginning to play out there's Aurobindo Ghosh and his brother there's what
#
is happening in London I mean there are two recent biographies on Savarkar which talk
#
about India house and the stuff that is happening there.
#
In fact his brother Ganesh Savarkar was as you pointed out in your book convicted for
#
Yes this was in Nashik he was convicted for writing poems which were considered subversive
#
And Savarkar is Vinayak Savarkar is very pissed off at this he's in London at the time and
#
he gets an allegedly gets an associate of his Madanlal Dhingra to go and assassinate
#
And assassinate the wrong guy.
#
Assassinate the wrong guy and that sets off a chain of events which leads to Savarkar
#
being sent to Kalapani for 10 years where he is completely radicalized and then he comes
#
out and writes Hindutva.
#
So what would have happened if he wasn't arrested.
#
Yes there's so much sort of I mean the counterfactuals are so incredibly fascinating you should one
#
day write a book of fiction about it.
#
Yeah I know what you're talking about a wink.
#
So all of this is happening and at this point sort of you know there are other laws coming
#
up like there's a prevention of seditious meeting acts coming up and Tilak himself is
#
convicted again in a second trial because he praises the making of bombs.
#
And they raid his home and they apparently find bomb making manuals.
#
So this is not really bomb making manuals it didn't teach people how to make bombs
#
but it related to bombs like it mentions certain kinds of explosives and stuff like that.
#
And when his house was raided he was not even there.
#
So it could have been planted.
#
It could have been anything.
#
This is not his and he says even if I have it how does it matter I have not acted upon
#
Have you known me to make bombs.
#
So that was that was completely orchestrated again.
#
He was they waited for him to turn up in Bombay before they could arrest him.
#
They didn't want him tried in Pune.
#
They wanted to try him get him tried in Bombay.
#
In fact he turned up there because a buddy of his was to help a buddy of his with a seditious
#
That was the Kal trial.
#
Paranchpe was being tried for sedition and he had turned up to create his defense.
#
In fact it's very interesting that Damodar Savarkar also was in Bombay at the same time
#
and when they were agitating against he was arrested outside outside the police station
#
then and he was arrested and convicted for not for sedition or something else and he
#
gets out and then goes back.
#
So it's again a very interesting core connected story all these are connected with each other.
#
So yes it was again a political exercise.
#
And again what he did was that he again defended himself within the confines of the law.
#
He again had to foot his own legal defense he had to do everything himself.
#
He stood up and spoke in court for more than 24 hours like combined total of 24-27 hours.
#
Practically a filibuster of speech which his speech started on 15 July and concluded on
#
Where the jury had to go and check their mail.
#
So that was that speech and unfortunately.
#
And he reproduced some of the speech but thankfully not all of it.
#
The speech is a book in itself.
#
I'll quote a bit from it because I kind of underlined it and I know you don't like people
#
desecrating books but I underline furiously.
#
This is Tilak speaking as part of his 21 hour speech quote if the writer's motives are good
#
if he is trying to secure constitutional rights for the people trying in a fair way and persevering
#
manner he is entitled to express his views fully and fearlessly.
#
The mere fact that the views of the writer are not correct or are even absurd or that
#
he expressed them in violent language would not make him seditious.
#
Stop quote and I wish a lot of the nationalists of today who sort of seem to revere Tilak
#
would you know pay a little more attention to his support for free speech.
#
So yeah but that didn't help him.
#
The jury was almost all or not almost it was all white Europeans and Englishmen.
#
So whatever you would have done that was it was premeditated and in fact it's very interesting
#
that the judge who tried him was his lawyer when he was first convicted.
#
Justice Dwar was his lawyer when he got bail for Tilak in the first sedition trial and
#
Dwar's son was Tilak's lawyer during his second sedition trial and another man who was involved
#
was Muhammad Ali Jinnah.
#
Jinnah was his actual lawyer.
#
So and but eventually Tilak had to again argue himself.
#
But so it was all premeditated it was very interesting because Dwar when what he argued
#
to secure bail for Tilak in the first trial decided exact opposite in the second trial.
#
So it was you could see the kind of bias or rather the kind of anger against Tilak which
#
He had become an all powerful figure.
#
He was in fact the bigger than Gandhi at that point of time or rather Gandhi came later
#
but Gandhi was well known in India he was a giant in South Africa but Tilak was the
#
giant of the day in 1916.
#
So yes it was again completely political I keep repeating myself that and I'm kind of
#
struck by you know you quote Dwar's words after Tilak is convicted and I'm struck by
#
how vituperative they are where Dwar says of Tilak quote it seems to me that it must
#
be a diseased mind a most perverted intellect that could say that the articles which you
#
have written are legitimate weapons in political agitation they are seething with sedition
#
this preach violence a speak of murders with approval and the cowardly and atrocious act
#
of committing murders with bombs not only seems to meet with your approval but you hail
#
the advent of the bomb in India as if something has come to India for his good stop quote
#
and that's what I said the anger against Tilak was whether everyone's minds are prejudiced
#
he couldn't even if you had spoken to 42 hours at a stretch you still would have been
#
convicted it was a foregone conclusion.
#
And it's in sort of an interesting question that kind of strikes me and I think about
#
this in other contexts as well that if we are to look back today with the values of
#
today we would say that you know what the British having a sedition law to prevent people
#
rising up against them is understandable and rational from their point of view at the same
#
time looking back today we can say that we are completely on Tilak's side and the side
#
of all of these people who were fighting the empire though that qualifies as sedition and
#
therefore unlawful at that time but the other aspect of it also and you know where Gandhi
#
diverged from the likes of Tilak was when it comes to the means that a lot of these
#
you know the Aurobindo Ghosh, Savarkar to some extent Tilak in his tacit support for
#
violent means seem to say that our end is noble we want to get rid of the empire and
#
therefore any means are justified and to me even sitting here with this passage of time
#
it would seem to me that is wrong that the end doesn't justify the means and that a lot
#
of the moral judgment if you are to pass any on those people has to do with the means also
#
and not the end so the you know I'm just thinking that one can't just look at a sedition
#
in the classic one-sided way that of course it is a tool of political oppression but also
#
A you see why it is necessary and B some of the people that the act was being used against
#
were basically killing people they were assassins so let's look at it this way I won't I'm not
#
saying that one supports murder here one supports assassinations here but you have to look at
#
a way look at the context of that day that the government they were under the subjects
#
of whom they were subjects was not a government of their choice it was imposed on them the
#
laws were imposed on them the language was imposed on them the culture was imposed on
#
them they completely came and changed Indian society and they looted from India the famines
#
which happened they exported grains didn't leave anything for the natives so when you
#
look at the anger what they felt we will not be able to understand it today so even to
#
try to contextualize it today I don't know I don't think we can do that I don't think
#
because we are too used to being corseted in a nice democracy and yes we are used to
#
living under the rule of law we are used to checks and balances it may be getting wiped
#
away but today we are used to that at that point of time the rule of law only existed
#
for the British would you say that that situation is analogous to what Kashmir and Kashmiris
#
are going through today or is it seditious even to bring that thought up that's a very
#
controversial topic but because if we were to say that we would in a sense we could be
#
accused of sedition but they can try they can try for sure no but until and unless someone
#
asks someone to pick up arms against the government that's not seditious this is simple whenever
#
someone asks me that oh is this seditious or not so if someone says oh Amit Verma said
#
this about Kashmir oh my god he should be prosecuted for sedition I said did he cause
#
violence did he bring the state down or did he try to bring the state down if you did
#
not it is not seditious exactly I hope everyone pays heed to these words of yours let's let's
#
move on now to sort of the 1970-1918 period where there is on the one hand you have the
#
Montague-Jamsford reforms which are being driven by the British Parliament and are largely
#
progressive and good for us and respectful of us but on the other hand you also have
#
the Rowlatt Commission or the Sedition Committee as it is which is meeting and deciding how
#
to keep the natives in check and what we have is inadequate more what more do we need to
#
do tell me a bit about you know what the committee comes up with and the reactions of the Rowlatt
#
Act so the committee basically goes through one and a half decades of revolutionary crime
#
it chronicles everything and goes to the causes of the crime and then it was supposed to make
#
its recommendation on whether the law should be reformed or when I say reform it should
#
be made stricter to prevent this because you have to understand that it also coincided
#
with the first world war in Punjab and in the rest of India the defense of India act
#
was in play so they could not have afforded revolution on one hand war on the other so
#
they wanted to prevent this in future so what the Rowlatt committee did it wanted to make
#
the law stricter it wanted to make the law stricter but ironically it also built a safety
#
wall in that law it said that this law can only be imposed what they call the Rowlatt
#
Act and or the black act as the Indians called it they wanted it to be imposed only upon
#
a declaration of emergency a declaration of necessity for imposition of such law so that
#
could only be done in cases of uprising an absolute uprising which was largely not accepted
#
by the people in fact that the law was a paper tiger it died a natural death it never came
#
into effect but if you look at the law today even though we are not under the British government
#
there is no safety wall built into the law it was left to the supreme court to finally
#
interpret it and even that interpretation is not being followed today nobody even the
#
law enforcement officers don't know what this law is actually about and there's no safety
#
wall even the UAPA does not have any safety wall you can apply this the police can arrest
#
anyone at any point of time there's no necessity of the situation let's say in a Chhattisgarh
#
that there's a mass uprising a next slide movement all across the state and that's when
#
you impose 124A it's not the case even in peaceful you are reading a book in Darjeeling
#
and you say oh this shouldn't happen and we should have a change of government and this
#
that and some nice nationalistic fellow will come across and say oh you're being seditious
#
yeah I mean people have been arrested for Facebook posts Facebook posts they've been
#
arrested for receiving messages on a whatsapp group yeah or rather just receiving random
#
messages which they had no nothing to do with so anything anyone and anyone can be just
#
arrested for it so it's not the trial because I mentioned that they say that there's been
#
two convictions in the last four from 2014 2016 but there I could not find a single conviction
#
I did not find a single judgment so it's not about trial or whatever it's about what happens
#
before that that arrest and persecution it's a chilling effect it's a chilling effect like
#
today we have to keep even disclaimers that we're not seditious right so that is what
#
happens otherwise you you won't have this fear of speaking to the public about this
#
someone did once threaten to file a sedition case against me by the way I wrote a column
#
about it as well yeah oh wonderful so I had spoken out against 295A and 153A and somebody
#
said no no you're spreading this affection against the government I'll file a case on
#
124A oh they should have done yeah we should have had a why we should have gone up to the
#
Supreme Court to get the law settled again and you won't even defend me because you do
#
I'm sure you would have paid me well I don't have any money bro I'm bankrupt actually you
#
know maybe then you would have come good for me I want to move on now to a chapter of yours
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called Gandhi Azad and Nehru politics of sedition and you begin this with a quote by Gandhi
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which is in in his sedition trial in 1922 which I found profoundly impressive so I want
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to quote the full thing which is quote I would like to state that I entirely endorse the
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learned Advocate General's remarks in connection with my humble self I think that he was entirely
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fair to me in all statements that he has made because it is very true and I have no desire
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whatsoever to conceal from this quote the fact that to preach disaffection towards the
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existing system of government has become almost a passion with me and the Advocate General
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is also entirely in the right when he says that my preaching of disaffection does not
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commence with my connection to young India this is a magazine he ran but that it commenced
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much earlier I do not plead any extenuating act I am here therefore to invite and submit
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to the highest penalty that can be inflicted upon me for what in law is a deliberate crime
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and what appears to me the highest duty of the citizen stop quote and your chapter of
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course talks about different trials in which Gandhi Maulana Abul Kalam Azad and Jawaharlal
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Nehru all pleaded guilty of sedition and when I read you know and this sort of this was
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a you know all of all of the quotes that you've reproduced in this chapter were very clarifying
#
for me because the thought that struck me with your earlier chapter when Tilak and all
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these guys were under trial is that why were they defending themselves they were guilty
#
of sedition and they should just stand up proud and say that yeah of course I am disaffected
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I am preaching disaffection you know so what is the crime and Gandhi Azad and Nehru actually
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do this and they are all people who are protesting against the British by peaceful means using
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non-cooperation and civil disobedience and so on and this sort of refreshing honesty
#
owning up to what is quote and quote a crime you know seems to bring a moral force to the
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See this has this has a lot to do with the change in strategy I would call it the Tilak
#
of 1897 and the Tilak of 1916 did not want a British free India they did not want freedom
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as such they wanted the power to govern themselves within the commonwealth within under the patronage
#
of the crown, dominion status, autonomous status they never in their life at that point
#
of time had imagined that India could be completely free of the British so this Poon Swaraj thing
#
which happened with Tilak and when he coined the term Swaraj is my birthright and I will
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have it that happened later that did not happen even at the time of a second trial right so
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there was a shift in the Indian political scenario after 1919 when Gandhi came here
#
and Gandhi in fact had become very unpopular which I talk about just before his sedition
#
trial he had become very unpopular for calling off the civil disobedience movement because
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of Chauri Chauri he called it off and the people were very disillusioned in fact if
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the British wouldn't have prosecuted him maybe the Gandhi that we know of today wouldn't
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have existed maybe wouldn't have assumed the kind of relevance that he did after that.
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Yes so see exactly so we should maybe call it the Gandhi effect so basically what they
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did was they wanted complete freedom they wanted Indians to go on India they wanted
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Indians to frame their own laws they didn't want laws from England to run the country
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here so what they did was they said that I refused to recognize the law they say fine
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this is sedition if you say it is sedition it is sedition I refuse to recognize it Gandhi
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called it the prince of political offenses right so what they did was they said I refuse
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to recognize your authority over me if you say it is sedition fine then I am seditious
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I have done it you punish me for it and all of them asked for punishment nobody said let
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me go they said give me the maximum punishment possible Gandhi in fact said when they said
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that Tilak got six years so you should also get their six years Gandhi said he was privileged
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to be acquitted with Tilak for getting six years Nehru simply went up to the magistrate
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and said you punish me I don't even want to fight you there shouldn't be any trial
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I am admitting to everything and the magistrate said please don't do this he said please don't
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do this I will get you out of it and he said I will make sure you don't have to face any
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prison Nehru said thank you so much but I don't want it I want the maximum penalty
#
and I want to quote something that Nehru says about the Congress here which of course the
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Congress then was a very very different beast from what it is today but quote in the Congress
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we have nothing to do with loyalty we are this loyal and it is our business to preach
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this loyalty are you going to be loyal to those people who humiliate your people who
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degrade your country or are you going to be loyal to your own country to your own people
#
Indian nationalism and British imperialism are at close grips with each other British
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imperialism may succeed in suppressing Indian nationalism but remember this also that while
#
Indian nationalism will grow again but British imperialism will be suppressed once and for
#
all by Indian nationalism stop quote and a lot of the people who are talking rubbish
#
about Nehru today should you know really read up a little more and the sort of moral the
#
man almost spent 10 years in jail he was in jail when his wife was in on her deathbed
#
in fact he was only released because she was very sick his father was in his deathbed when
#
he got arrested when he came back to Allahabad and he made that speech for which he eventually
#
got arrested his father was unwell and his father was unwell because he had been arrested
#
previously and he also refused to defend himself they spent their lives getting arrested yes
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they were in he was in prison for about 10 years his wife was in prison mother went to
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prison and his father went to prison everyone at that point of time went to prison and they
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were proud of it I mean I must say this you know a lot of people sort of look at people
#
like Nehru and Savarkar in very binary points of view that one is good and the other is
#
evil and I'd say there are it's more complicated than that for example it often comes up on
#
twitter that hey Savarkar apologize to the British and you contrast that with what Nehru
#
is doing now but it is also true that Savarkar went to the cellular jail in Andaman's non
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Eskalapani where the sort of tortures inflicted on him were beyond anything any other and
#
not just physical torture yeah mental torture Damodar Savarkar talks about it when in their
#
stories it's clearly mentioned this man he would he would soil himself standing up he
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lost control of his bowels yeah they weren't allowed to go to the they weren't allowed
#
this is really they weren't allowed to clean themselves yeah and they were supposed to
#
toil in the sun if you've been to the Andaman you'll realize how harsh that sun is and their
#
cells were the cells were so small as it's I know some hotel rooms nowadays are very
#
small but it was even smaller than that you couldn't stand up properly you had to be bent
#
all the time in fact the two recent biographies of Savarkar by Vaibhav Forandare and Vikram
#
Sampath both deal with this at some length and you can go to the prison diaries of Savarkar
#
himself and other people who were imprisoned with him to see how bad it was so I would
#
just say that we shouldn't always rush to judgment absolutely I think Savarkar did some
#
truly despicable things and gave rise to despicable ways of thinking in the 20s onwards especially
#
with his horrendously bad book Hindutva but at the same time had he died in 1910 he'd
#
probably be remembered as a hero today absolutely because what he did in England he he set up
#
India house there the revolutionary activity in England he sent pamphlets from there to
#
Bombay so both the brothers had a huge role to play at that point of time it's only after
#
Kala Pani that their politics changed and I don't really I may be criticized for this
#
but I don't really blame him for writing a letter mercy petition yeah I would do the
#
same thing the kind of suffering I mean Gandhi Nehru and all these people were basic they
#
were treated in a very civil way they were treated with a lot of respect they had access
#
to books they had access to visitors they had they could write letters Nehru wrote his
#
books while in prison I mean it was the only way he could have written or maybe today people
#
could write but maybe we should throw some people in prison for them to write and you
#
know I have a huge amount of criticisms of Nehru for his economic policies post independence
#
but the point is all these people contain multitudes and we should remember before we
#
rush to judgment that's why I said that this access to history is very important that we
#
need to understand this I did not know half of all this when I was researching it's only
#
after I read all this that I understood the context of the actions back then.
#
So we have to wind up in 20 minutes before you have a flight to catch so I want to move
#
on from Gandhi Nehru and Azad and talk about two sort of important cases just on the cusp
#
of India getting independence where important judgments were made regarding 124A and one
#
of them is Nihar Hindu Dat Majumdar versus a king emperor which is administered by the
#
federal court the sort of predecessor to the supreme court and this is a very interesting
#
So basically that's when the court created a distinction between mere speech seditious
#
speech as they call it and actually inciting violence so sedition as it was understood
#
more or less remained the same from Bongo Bashi to Tilak to the 1940s the interpretation
#
did not change so the first time Justice Maurice Goyer he brought in the interpretation which
#
we today rely upon eventually in the Indians Supreme Court also interpreted the same way
#
that mere criticism is not seditious until and unless it causes violence.
#
So just speaking simply this is what he said and eventually it had to be set aside because
#
the criminal justice system of the day and the politicians of the day thought that this
#
man is ruining everything for us and it was set aside eventually and the old system was
#
again destroyed in the second case.
#
And the other case you talk about is the Privy Council judgment of 1947 which sort of takes
#
Yes because they said that Goyer is wrong he's gone beyond what is written in the statute
#
and he should just stick to what the statute says.
#
And all of this has bearing you know there's also a drama playing out when the Indian constitution
#
is being written because you know for example what should our free speech laws be like how
#
much free speech should be guaranteed and there are sort of debates about this.
#
Some people are arguing for you know the like US style free speech where you know which
#
I also am broadly in agreement with where it's more or less absolute and others are
#
saying that no we need caveats and the questions come up what should the caveats be and there's
#
a fierce argument about whether the word sedition should be one of the restrictions.
#
Tell me a bit about that and how that pans out.
#
So the first draft of article 19 today was originally article 13 and one of the restrictions
#
on free speech back then was seditious speech.
#
So it was supposed to be it wouldn't have been protected by the fundamental right to
#
freedom of speech and expression.
#
So that's when certain people in the Constituent Assembly and on the fundamental right subcommittee
#
They said that Patel is framing this from the point of view of a constable because translating
#
that means that someone has to maintain law and order the constable or the lowest police
#
officer is responsible for maintenance of law and order.
#
This is Somnath Lahiri who said this and Munshi talks about how this how his father and his
#
grandfather they were punished for sedition and now this is being imposed on citizens
#
So there's a quietly it was it was just removed from from the restrictions on free speech
#
by Patel but it reappeared again and again faced huge criticism from the Constituent
#
Assembly from a lot of people.
#
So it was eventually removed from that and the interesting thing is that if it was eventually
#
removed you would assume that 124A would also go because what basically happened put simply
#
correct me if I'm wrong is that we took the entire IPC as it was and we basically said
#
that whatever in it is contradictory to something in our Constitution is immediately repealed
#
otherwise it stays as it is.
#
So the assumption was that because the word sedition has been removed from Article 19
#
that therefore the sedition law which is 124A will also cease to be active and that in
#
fact an early ruling was to that effect but then the First Amendment we made to our Constitution
#
So basically what the courts did was they gave their blessing to the law and they in
#
fact went back to the interpretation given pre-independence interpretation given.
#
So it actually made the situation even worse than what the Assembly feared that was what
#
was happening because early India early Democratic India was not able to actually they were still
#
fearful that hangover was still there they still felt that people because they had just
#
seen a anti-establishment movement they still felt that people still have those tendencies
#
I did an episode with the historian Gyan Prakash and he spoke about how when the framers
#
of the Constitution were in that locked room sort of framing the Constitution there was
#
violence all across the country outside it was by no means a given that we will stay
#
They just come out of the partition violence.
#
So again you see the context of violence 1857 then the revolutions of the post Bengal splitting
#
the sort of early 20th century and now again the post partition violence and that is determining
#
how draconian the laws are.
#
Because then the violence was not a national not nationalistic in nature it became religious
#
so they had still had that fear the every government has that fear that it will be overthrown
#
not maybe for political reasons but maybe for religious reasons so that is why they
#
allowed the law to exist on the books.
#
So now let's get to this seminal case called Kedarnath Singh versus state of Bihar.
#
As you pointed out earlier what happens with the first amendment is that one of the caveats
#
introduced is public order and the courts therefore now begin to argue about whether
#
the introduction of this caveat means that the sedition law is constitutional after all
#
and you basically have the Patna High Court saying that 124A is constitutional the Manipur
#
High Court says is partly unconstitutional the Allahabad High Court finds it to be completely
#
unconstitutional and then comes Kedarnath Singh versus state of Bihar.
#
So the politics of the time the Communist Party of India was quite popular and quite
#
powerful and we were at a time where the Congress was the largest party and the second largest
#
party was the Communist Party and in Bihar this gentleman delivered a speech where he
#
called police the dogs of CID and said that he was spoken as a bureaucracy so he was arrested
#
for sedition under the Congress government and he was arrested for sedition.
#
So eventually when the court and he was convicted for it as well and this was not the only case
#
this was actually a batch of matters from UP and Bihar and when these matters eventually
#
reached the Supreme Court what the Supreme Court held which applies till date is that
#
till that time even though they went back to Maurice Goyer's interpretation in Niranudu
#
and they simply said that public order if there's a decision public order on free speech
#
that means that there has to be public disorder for that speech to be seditious as long as
#
public order is not disturbed that cannot be curtailed that speech cannot be curtailed.
#
So public disorder means violence it means just disturbing the status quo somewhere causing
#
law and order problems.
#
So till the time a writing or a play or a movie or a speech does not incite violence
#
or public disorder or have the tendency of doing that that test has to be there for anything
#
to be declared as seditious.
#
So very simply put that today if I say something and that causes people to take up arms against
#
the government or it may cause people to take up arms against the government any such thing
#
will not be seditious till the time that have that test is met that it can cause violence
#
or incite violence against the state because you have to understand it's not just violence
#
against a community or violence against a group of or of a political party the law is
#
categorized under the offense of against the state so it has to be by that very very simple
#
logic it has to be violence against the state and the state today is all powerful 20 individuals
#
cannot overthrow the state 1000 individuals cannot overthrow the state the state is not
#
brittle today so what that judgment did was that it introduced a test of violence being
#
caused or likelihood of violence to be caused but unfortunately it is not being followed
#
In fact a lot of people don't even know many aspects of the procedural implications of
#
124A like one of the ways in which you point out it has evolved is for example in the state
#
of Maharashtra you know it's not enough for someone to say file a case of sedition against
#
me it has to also be approved by the government of the day before I can be hauled into court
#
but many constable level police inspector level cops don't actually know this and therefore
#
the sedition law has become a tool of harassment I mean anyone can just google what this is
#
In fact in all of India only Maharashtra has these guidelines and these guidelines also
#
arise out of court case when Asim Trivedi was being prosecuted for sedition after he
#
drew those cartoons 2014 I think yes so the court simply said it may be distasteful you
#
may not like it but does not make it seditious it did not incite any violence nothing happened
#
so why is he in jail for sedition so they set down guidelines they said that a person
#
cannot even be arrested for under section 124A till the time there is a written opinion
#
of a law officer and the investigation has to be done by a senior police officer among
#
many other things so it laid down these guidelines other than Maharashtra no other state has
#
these guidelines even when the PIL was filed in the supreme court saying that you have
#
to enforce Kedarnath the court simply said follow Kedarnath it did not lay down any guidelines
#
again so today what situation is that across the country there is no sanction required
#
for arrest a sanction is only required when a charge sheet is to be filed and charges
#
are to be framed against you but prior to that there is no sanction required otherwise
#
it is required under 196 of CRPC so to arrest someone for sedition is very easy to fire
#
a person to go to court and get a fire registered for sedition is very easy so what I spoke
#
about here to build a safety wall here as well is that create a provision or create
#
a or at least issue guidelines across it should be from the central government to all the
#
states that even to arrest someone under 124A you need prior sanction or the approval of
#
a high ranking or IGDG level police officer without it you can't even arrest someone
#
for sedition and the argument is that we do have other laws like UAPA so we don't really
#
need sedition which is a very stringent law it is a draconian law in itself we should
#
go by itself but you're saying it's a political reality is there to stay so why not at least
#
do away with sedition I so you know we'll have to wind up soon so I'll have one final
#
sort of question for you and I'd urge all the listeners to read the book and if we focused
#
on the historical aspect of it so far that's what the book also does extremely well and
#
which is extremely important but to read the later chapters about how the sedition law
#
is in modern times do read the book my question to you is this and here I will be slightly
#
mischievous and I will invert Mr. Tilak's argument and use it against the law which
#
was used to imprison him which is Tilak's argument back in the day when the age of consent
#
law was passed was that look this is a necessary law but society is not ready for it most people
#
agree with this so change has to happen gradually it cannot be imposed top down now in the modern
#
time you and I are sort of elite liberals who don't believe in all of these free speech
#
laws like 124A, 153A, 295A we would just like them to go right but a modern day Tilak could
#
make the argument that society actually agrees that free speech should not be absolute and
#
these laws are necessary and that the state is absolute and it is a crime to be against
#
the state and therefore society is not ready for these laws to go and we need these laws
#
how would you respond to that?
#
No, so I would say let the data scape speak for itself then if you look at NCRB data on
#
124A which they started compiling from 2014 the number of FIRs are measly the numbers
#
are very very low they claim there have been two convictions the NCRB report claims one
#
conviction the MHA in parliament claims two convictions I haven't found even a single
#
conviction in these two years.
#
So your argument is no one is getting convicted under it but the chilling effect is massive.
#
So what I'm saying is today at the end of the day in these three years now with the
#
2017 report coming out from 2014 to 2017 only six addition trials have been concluded only
#
six trials have been concluded and if that is the rate at which trials have been concluded
#
and no one's been convicted and most cases are dying even before charge sheets are being
#
filed then what are you doing with this law why is this law in existence?
#
I mean one could then argue that there are also good laws with low conviction rates so
#
does that mean don't have the laws on the book?
#
Could be could be but this law when you have UAPA when you have laws against via destruction
#
of public property so that is what everyone is being accused of if they say violence even
#
though the violence is only against public property no one can overthrow the government
#
the government is not brittle I keep saying this that the government is not brittle today
#
so all they say is someone burnt a few buses so convicting for sedition is not right there
#
are other laws to take care of that there's laws to take care of murder there are laws
#
to take care of arson of everything's in place you don't need this.
#
So let me ask you a postscript to my final final question which you can answer very briefly
#
before you run through Bombay traffic to try and get to your flight in time good luck with
#
that and the question is that you know I remember writing columns 10 years ago against 377 against
#
the adultery law and they're both gone today that you know things evolved to a stage where
#
they could go naturally with no outcry and no interest groups insisting on keeping those
#
laws are you hopeful of a time and if so how long will it take that before many of these
#
raccoonian laws especially these sort of free speech laws and even laws like the UAPA you
#
know that our society matures enough to say that hey we don't need this in a healthy democracy.
#
Society may mature enough to say so our political parties have to mature enough to do that is
#
that a demand and supply no it's not really because at the end of the day they are the
#
ones who come to power it could be a congress it could be a BJP it could be a TMC it could
#
be anyone but for them it's a very useful tool to have why would they give it up why
#
would they give it up so it's the political party which has to mature and say you know
#
I'm not afraid of this so they are the ones who have to mature at the two hopeful statements
#
were made very recently by two supreme court judges one of whom will become the chief justice
#
of India after the tenure of the next two and and he says that when a cartoonist is
#
arrested for sedition the constitution weeps and just as Deepak Gupta recently gave a speech
#
in Ahmadabad where he criticized the law of sedition so hopeful statements are coming
#
forward but then at the same time we have a Rajnath Singh and Amit Shah and other politicians
#
of the BJP saying that this law is required and we will make it stronger so that's why
#
I'm saying people may still believe that law should go it's a political parties were to
#
be mature enough to say they're not afraid of criticism they're not afraid of people
#
saying that what you're doing is wrong they have to take it sportingly they know that
#
the country cannot be overthrown by a motley group of critics it's as simple as that.
#
After doing so much to come to power why on earth would you give some of it up on that
#
hopeful note. Chitran Shul we could have spoken for hours more you should have a flight tomorrow
#
morning. Thank you so much for coming on the scene in the unseen. Thank you so much for
#
If you enjoyed listening to this episode do hop over to your nearest bookstore and pick
#
up the great repression the story of sedition in India by Chitran Shul Sinha. You can follow
#
Chitran Shul on Twitter at ghair underscore Kanuni let me spell that for you G-H-A-I-R
#
underscore K-A-N-O-O-N-I ghair underscore Kanuni on Twitter and Instagram. You can follow
#
me on Twitter at Amit Verma A-M-I-T V-A-R-M-A you can browse archives of the scene in the
#
unseen at scene unseen radhaiya and IVM podcast dot com and thinkpragati dot com. The scene
#
in the unseen is supported by the Takshashila institution post graduate courses at the Takshashila
#
institution start in January do hop over to takshashila.org.in to check them out. Thank
#
How aware do you think you are of your laws and rights? Do you look up to laws when you
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are caught up in situations? Do you know what your rights are when you are stuck somewhere
#
bad? Well, here's a show that can help you move an inch closer to being aware of what
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your rights are. Tune into Know Your Kanun with me, Amar Rana. This is a podcast meant
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to answer all your law related queries. Catch Know Your Kanun every week on the IVM website
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or the app or anywhere you get your podcast from.
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I'll see you in the next episode.
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