By Aditya Khajwania
“Where the mind is without fear and the head is held high,
Where knowledge is free.
Into that heaven of freedom, my father,
Let my country awake!”
Rabindranath Tagore
Michel Foucault, a notable French philosopher, claimed that knowledge and power are inextricably linked and that power functions via knowledge. He felt that the prevailing discourse in society impacts how individuals think, talk, and act. This knowledge/power idea may be applied to many sectors of society, including the judicial system. Sedition laws may be viewed as a means for knowledge and power to work together to perpetuate the status quo and repress opposition. This essay will look at Foucault’s idea of knowledge/power in relation to Indian sedition laws.
For a long time, India’s sedition legislation has been a source of dispute and contention. Sedition is the act of speaking or working against the government, and it is punishable by law in India. The law has been utilised to repress dissent and criticism, prompting accusations that it is being used to limit free expression.
The theory of knowledge/power developed by Foucault provides a valuable framework for studying the operation of sedition laws in India. According to this view, power is exercised via knowledge, and people in authority utilise knowledge to govern and manage the behaviour of others who are subject to that power. In this essay, we will look at Foucault’s theory in regard to Indian sedition laws, looking at how power is exercised through the limitation of speech and expression.
What are sedition laws?
Sedition is a legal word that relates to speech or behaviour that encourages people to revolt against the government or use violence to overthrow it. Throughout history, numerous governments have employed sedition laws to punish dissenters and crush nationalist movements.
In India, sedition laws stretch back to the British colonial era. Initially, the legislation was used to stifle Indian nationalism and the sovereignty struggle. The law remained in effect after India attained independence in 1947, and successive administrations utilised it to repress dissent and opposition. In Indian law, any remarks, signs, or representations that incite or seek to incite hatred, contempt, or disdain for the government are deemed seditious. Sedition is punishable by up to life imprisonment.
The use of the sedition statute in India has been criticised as being extremely wide and imprecise, resulting in the punishment of legitimate expressions of dissent and criticism. Opponents believe that the rule is being exploited to restrict free expression and has a chilling impact on public conversation. In recent years, there have been calls in India to remove the sedition statute. Sedition is a criminal crime in India under Section 124A of the Indian Criminal Code (IPC). The clause defines sedition as any speech, writing, or action that fosters or seeks to foster hatred or contempt for the government of India or any state government, incites violence, or disrupts public order.
In India, sedition can result in imprisonment for up to three years, a fine, or both. Sedition is a non-bailable offence, which means that the charged cannot be granted bail until their case is heard. This allows the government to hold individuals under arrest for extended periods of time.
Sedition Laws as an Exercise of Power
Sedition laws may be viewed as the state’s attempt to restrict and govern speech and expression. The government has the authority to define seditious speech and penalise individuals who engage in it. Sedition laws have been used to repress criticism and crush nationalist movements in India. The legislation has been utilised by the government to punish journalists, activists, and regular residents who have criticised the government or its policies.
The government can strengthen its authority and control over the public by employing sedition laws to penalise opposition. Fear of being punished with sedition might dissuade individuals from speaking out against the government or criticising its policies, effectively restricting the scope of public political conversation.
Foucault’s Theory of Knowledge/Power:
Foucault’s theory of knowledge/power provides a useful framework for understanding how India’s sedition laws work. According to this view, power is exercised via knowledge, and people in authority utilise knowledge to govern and manage the behaviour of those under their influence. According to Foucault, power is more than merely a negative force that represses or oppresses individuals. Power is also productive in that it generates information and shapes how people think and behave. Power is exercised through disciplinary procedures that govern the actions of people and groups.
The jail system is one example of a discipline mechanism. Prisons are intended to discipline and punish those who have disobeyed the law. The jail system generates information about crime and changes the behaviour of those who are subjected to it. The legislation establishes a framework within which some types of speech and expression are judged “anti-national” or “disloyal,” and hence punishable. The historical context in which the legislation was adopted, especially the British colonial era, when sedition laws were employed to crush nationalist movements and opposition, has moulded this framework.
Sedition laws, in this sense, are an example of how information (in the form of legal discourse and definitions of “anti-national” speech) is applied to strengthen existing power relations and preserve control over specific types of speech and expression. According to Foucault, power is not just wielded by the state or people in positions of authority. Power is distributed throughout society, and everyone, in some manner, participates in the exercise of power. Teachers, for example, wield authority over their students, affecting their thoughts and behavior.
In the context of India’s sedition laws, Foucault’s theory indicates that the state has control over people and organisations through regulating speech and expression. The state generates information about what is deemed seditious and then employs that knowledge to govern the behaviour of people and groups. The state has the authority to determine what speech is labelled seditious, and this authority is frequently misused. The government can utilise the sedition statute to muzzle opponents and repress dissent. As a result, citizens are hesitant to speak out against the government for danger of being charged with sedition.
Misapplication of sedition laws has major consequences for democracy and human rights. When the state uses the law to quiet criticism, it undermines the core democratic ideals of free speech and expression. It also limits citizens’ and civil society groups’ capacity to hold the government responsible.
Sedition Laws and the Regulation of Speech
Sedition laws in India are intended to limit freedom of expression. The state has the authority to choose what speech is deemed seditious, and this authority can be used to repress dissent and criticism. Sedition laws also illustrate the dangers of abusing and misusing authority. The wide and ambiguous meaning of sedition can be construed in a variety of ways, and it can be used to target people or groups who oppose the government. This results in arbitrary and uneven power distribution, supporting existing power structures and further marginalising alternative voices.
Moreover, sedition laws may be viewed as a sort of “knowledge creation” in which the state has the authority to decide what is and is not acceptable speech and expression. The government’s concept of sedition becomes the mainstream discourse, moulding public views and supporting the government’s authority and legitimacy. The restriction of speech, according to Foucault’s notion, is an act of power. The state regulates what individuals say and how they express themselves via knowledge. The state generates information about what is deemed seditious, which is then utilised to influence the behaviour of people and groups.
Speech restriction through sedition legislation has major consequences for free expression and democracy. When the state has the authority to determine whether speech is seditious, it may be used to silence opponents and repress dissent. As a result, citizens may be frightened to speak out against the government for fear of being prosecuted with sedition.
The employment of sedition laws to control speech can result in self-censorship. Those who are aware that some speech is considered seditious may refrain from speaking out or expressing themselves in specific ways. This has the potential to reduce the range of ideas and viewpoints voiced in public debate, which is vital for a functioning democracy.
The Regulation of Knowledge
Foucault’s theory emphasises the significance of knowledge regulation in the exercise of power. The state has the authority to generate and broadcast information on what is deemed seditious, and this information is used to regulate the behaviour of people and groups.
The state can utilise its authority to influence information flow and affect public opinion. The state can regulate the media and limit access to information, resulting in a system in which individuals only have access to specific forms of knowledge. This has the potential to limit the range of ideas and perspectives voiced in public debate and to be utilised to support the government’s objectives.
Knowledge regulation can also be used to quiet opposition. Those who are only introduced to specific sorts of knowledge may be unaware of alternate points of view or lack the information required to create their own judgements. This can make it more challenging for citizens to question the government’s policies or organise resistance. Foucault’s theory of knowledge/power offers a useful framework for understanding how India’s sedition laws work. According to this view, power is exercised via knowledge, and people in authority utilise knowledge to govern and manage the behaviour of those under their influence.
The Indian sedition legislation is an illustration of how power may be used to control speech and expression. The state has the authority to choose what speech is deemed seditious, and this authority can be used to repress dissent and criticism. Speech regulation through sedition laws may have major consequences for free expression and democracy.
Foucault’s theory emphasises the significance of knowledge regulation in the exercise of power. The state can regulate the flow of information and mould public opinion, which it may employ to advance the government’s goal and quiet criticism. In India, the sedition legislation is an instrument of authority used to control speech and expression. The law can be used to repress dissent and criticism, with major consequences for free expression and democracy. It is critical to oppose the misapplication of sedition laws and to promote the ideals of free speech and expression, which are necessary for a functioning democracy.
In order to address the challenges posed by Foucault’s theory of knowledge/power and the usage of sedition laws in India, a multifaceted strategy involving legislative reform, policy reforms, and social awareness campaigns is required.
The courts’ on sedition
- Tara Singh Gopi Chand v. The State (1951)
In sovereign India, this was the first instance where the legality of sedition was contested. Referring to the word of sedition in the Ramesh Thapar case, the Federal Court’s reading of sedition where incitement to violence or public disturbance was required was adopted by the High Court. According to the ruling, the limitation on the right to free speech and expression is not covered by a fair restriction. According to the ruling, rebellion limits the freedom of speech and expression.
- Sabir Raza v. The State (1955)
The Allahabad High Court ruled in the Sabir Raza case that maintaining public order cannot be construed as a prohibition on speech or expression that incites hostility towards the government. The Court further ruled that only when there is a challenge to the political structure can it be said that the security of the state is in danger. A danger to the security of the state is not just a threat to the individual in a position of authority or an energising sentiment of hate, contempt, or disaffection towards the system. Sedition was therefore deemed to be against the law.
- Ram Nandan v. State of Uttar Pradesh (1959)
The Allahabad High Court declared sedition to be illegal in the case involving a farm labour campaigner. It was noted that the potential of public unrest rendered limitations on the right to free speech and expression inadmissible. It is impossible to claim that the state is threatened by a democratic political philosophy that differs from that of the governing class.
- Kedarnath Singh v. State of Bihar (1962)
In this instance, the Supreme Court of India first addressed the validity issue. Sedition was deemed to be constitutional by the Court, in contrast to the rulings of the top tribunals. However, the Court significantly expanded the treason statute. Following the reading of the Federal Court, it was decided that sedition can only be legal if it seeks to instigate violence. Even the exclusions to the crime of sedition would only be valid if they didn’t result in violent public disturbance. The Court additionally released instructions for applying Section 124A.
- Balwant Singh and Anr v. State of Punjab
The accused in this case shouted the phrase “Khalistan Zindabad” in front of a cinema theatre after Prime Minister Indira Gandhi was killed. The judge came to the opinion that two individuals casually raising slogans could not be regarded as inciting opposition to the government. Clause 124A would not apply in this instance due to the circumstances.
- Aseem Trivedi v. the State of Maharashtra
In 2010, sedition-related accusations were brought against Aseem Trivedi, a prominent political cartoonist and campaigner known for his anti-corruption efforts and drawings against corruption. The following year, he was granted parole and freed. According to the complaint made by Amit Katarnayea, a legal counsel for a Mumbai-based NGO, Trivedi is charged with displaying “insulting and derogatory” sketches at the Anna Hazare-organized anti-corruption activism and uploading them to social networking sites, including one that depicted the Parliament as an outhouse and another that showed the National Emblem with the lions replaced by wild animals.
- Shreya Singhal v. Union of India
Because it called into question the constitutionality of Section 66A of the Information Technology Act, 2000, and ultimately succeeded in having it repealed because it was found to be in violation of Article 19(1)(a) of the Indian Constitution, this case has a significant impact on the Indian legal system. The Mumbai Police detained two teenage females for posting remarks on Facebook that expressed their displeasure with a demonstration that the Shiv Sena had organised after Bal Thackery’s passing. Law student Shreya Singhal submitted a plea in 2012 to change Section 66A of the Information Technology Act, 2000 on the grounds that it contravenes Article 19(1) of the Indian Constitution.
The case was eventually settled in 2015 after three years of litigation, with a difference made between “advocacy” and “incitement,” with only incitement being criminalised. The court ruled that unless someone is directly involved in the conduct of violence or the instigation of public disturbance, they cannot be charged with sedition.
- Kanhaiya Kumar v. the State of Delhi
On February 12, 2016, Kanhaiya Kumar was taken into custody by the Delhi Police for breaking Articles 124A and 120B of the Indian Criminal Code. At a JNU student-organized gathering honouring the hanging of Afzal Guru, he was charged with insulting the nation’s integrity by shouting slogans that were offensive to the nation’s dignity. Kanhaiya Kumar asserted that he did not say anything seditious and refuted all of the allegations. Right and left-wing political activists in the United States were furious about his arrest. The event was investigated by the university, which also fined Kumar Rs. 10,000 and instituted discipline measures against those responsible.
The Delhi High Court later overturned the punishment, stating that the committee’s choice was “illegal, uncommon, and arbitrary.” The university’s management was unable to operate as a result of the walkout that was started after the arrest.
Legal reform
One of the most urgent problems with the application of sedition laws in India is their ambiguous and too wide scope. The existing definition of sedition in the Indian Criminal Code is exceedingly wide and ambiguous, making it difficult to decide what speech is and is not seditious. Because of the law’s lack of clarity and precision, it can be abused to stifle genuine criticism and dissent.
As a result, legal reform is required to solve this issue. Sedition’s definition should be updated to make it more explicit and less vulnerable to misuse. The law should define seditious statements explicitly and include a need of intent to promote violence or overthrow the government.
Policy changes
To address the abuse of sedition laws in India, policy reforms are required in addition to legislative reform. The government must implement measures that support free expression and the open interchange of ideas and opinions. This can involve things like protecting whistle-blowers, encouraging investigative journalism, and providing legal help to someone accused of sedition.
The government should also be more open in its decision-making procedures and hold those who misuse power accountable. This may be accomplished by establishing independent supervision mechanisms and fortifying existing institutions such as the court and the press.
Abuse of sedition laws
According to Foucault’s theory of knowledge/power, the application of sedition laws may be readily exploited to promote the goals of those in power. The government has the authority to determine what speech is labelled seditious, and this authority is frequently misused.
Sedition laws have been used to quell opposition and repress dissent in India. The law has been utilised by the government to penalise people who criticise its policies, such as journalists, activists, and regular residents. As a result, many are hesitant to speak out against the administration for risk of being charged with sedition.
Misapplication of sedition laws has major consequences for democracy and human rights. When the government uses the law to quiet criticism, it essentially undermines the core democratic ideals of free speech and expression. It also limits citizens’ and civil society groups’ capacity to hold the government responsible for its acts.
Social awareness campaigns
Social awareness efforts can also help to combat the abuse of sedition laws in India. These efforts can educate the public on the value of free expression and the perils of repressing dissent and criticism. Social awareness campaigns may be organised using a variety of methods, including social media, public rallies, and seminars. These campaigns may also include the participation of civil society organisations, non-governmental organisations, and other relevant organisations.
Finally, Foucault’s idea of knowledge/power may be utilised to comprehend the intricate ways in which sedition laws function as a type of power and knowledge in India. Sedition laws are an instrument of power employed by the state to govern and control speech and expression seen to be dangerous to its authority.
Sedition is, without a question, a contentious notion that must be delicately weighed against our right to free speech, which is guaranteed by the constitution. Every citizen should have the right to freely and openly express their opinions about the government, even though no citizen should be allowed to incite unwarranted hatred among the populace or to incite hatred and violence against the government (especially in a country founded on the principles of non-violence).
Some people have referred to the law’s implementation as “draconian” because there are instances where the legal interpretation provided by Indian courts and how the law is put into practise conflict. It might be the appropriate moment to think about changing this rule at a time when people are becoming more and more conscious of their rights and individual liberties as well as a growing feeling of duty and responsibility in this democratic system.
To maintain the protection of democracy and human rights, governments must adhere to the ideals of free speech and expression. The use of sedition laws to muzzle dissent should be limited to cases involving a clear and present risk to civil safety or national security. Misuse of sedition laws must be punished, and the government should answer for its acts. The idea also indicates that there is a need to confront and oppose the state’s exercise of power. This can be accomplished through a variety of tactics, including as advocacy, public discussion, and legal challenges. In India, activists and civil society organisations have been trying to combat the abuse of sedition laws and increase awareness about the value of free speech and expression.
To address the challenges posed by Foucault’s theory and the abuse of sedition laws, a multifaceted approach involving legislative reform, policy reforms, and social awareness campaigns is required. These efforts can serve to foster the concepts of free expression and democracy, which are necessary for any community to function properly.
In conclusion, Foucault’s theory of knowledge/power gives a useful framework for understanding how India’s sedition laws work. The idea emphasises the importance of authority and knowledge in determining the usage of the law, as well as the possibility of abuse and misuse. The use of sedition laws to stifle dissent has major consequences for democracy and human rights, and there is a need to oppose and fight the state’s exercise of power. This can be accomplished through activism, public discussion, legal challenges, and education and awareness efforts. Working together, we can ensure that our rights to free speech and expression, as well as democracy and human rights, are maintained.
—Aditya Khajwania is a third-year BBA LL.B. (Hons.) student of Symbiosis Law School, Pune
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