Post-colonial authoritarianism

The human-rights activist Binayak Sen was sentenced to life imprisonment in the central Indian state of Chhatisgarh late last year. His case has sparked a new round of debate on an out-dated law – in India and internationally.

By Siddharth Narrain

Last year, two incidents of the use of the archaic sedition law in India made headlines. A court in Delhi filed charges against Arundhati Roy, the novelist and essayist, and other political activists who took part in a seminar on Kashmir in New Delhi. The seminar’s title was “Azadi: The only way” (“Azadi” means freedom). None of the accused were convicted, however.

Much more shocking was the life sentence for Binayak Sen, passed by a trial court in the central Indian state of Chhattisgarh in late December. Sen is a human-rights activist of international acclaim and a medical doctor. He was accused of a “conspiracy of sedition” and also charged under the Unlawful Activities Prevention Act as well as the draconian Chhattisgarh Special Public Safety Act, a state-level law designed to fight a Maoist insurgency (“Naxalism”).

Sen was accused of passing on messages from an inmate of the Raipur jail, Narayan Sanyal, who is accused of being a Naxal leader, to Piyush Guha, who allegedly passed the messages on to the Naxal leadership. Sen visited Sanyal a number of times in jail for medical treatment and as a human-rights activist. He had the permission of the jail authorities and only met Sanyal under their close supervision. Sen’s conviction is based on flimsy evidence, mostly given by police witnesses.

The sedition law has an authoritarian, anti-democratic history. The British colonial power used it to arrest leaders of the national independence movement, including Mahatma Gandhi. It is ironic, to say the least, that it is once again quoted in the name of “national security” and “public order”.

Sen played an important role in publishing a report that was critical of the government of Chhartisgarh which, in the fight against left-wing extremists, relies on support from a vigilantes group called Salwa Judum. The Salwa Judum is a violent outfit and has displaced thousands of Adivasis (tribal people), many of whom now live in makeshift camps. It is quite likely that this report was what bothered the state government most.

After India became independent, the Constitution Assembly debated whether to include sedition as an explicit exception to the right to freedom of speech and expression. For good reasons, the Constitution does not use the term. However, the section 124A of the Indian Penal Code (1860) was never repealed. Thus, it still makes it illegal to “bring or attempt to bring into hatred or contempt, or excite or attempts to excite disaffection towards the Government established by law”. The maximum punishment is life imprisonment.

This law was challenged in the courts. In 1964, the Supreme Court in the Kedar Nath Singh case held that it was constitutional, but limited its application to acts that involve an intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

Nonetheless, successive governments in India – especially at the level of the states – have repeatedly used this law to harass political opponents and clamp down on dissent. In most cases, the sedition charges do not stand legal scrutiny in the long term, but the people affected are burdened with tedious and long legal processes.

Sen was already in jail as an undertrial from May 2007 to May 2009, when the Supreme Court finally granted him bail. Now he is back in prison. His arrest has won international attention and sparked a fresh round of debate on the draconian and undemocratic nature of the sedition law in India. Civil-society activists all over the world and in India too are campaigning on his behalf. Even if Sen is set free at some point in the future, he is a victim of post-colonial authoritarianism.

It must not be forgotten, moreover, that Binayak Sen was not the only one to be condemned to a life sentence in a matter like this – and poor people with little education and no public profile are far less likely to prevail in long-term legal battles.

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