Decolonisation in name only: Sedition and free expression in India

11 Dec 2024 | India, News and features

What connects cricket fans, protesters and journalists in India? They have all fallen foul of India’s outdated sedition law. 

According to the Indian watchdog, Article 14, between 2010 and 2021, 13,000 people have been charged with sedition. When the conviction rate for concluded cases remains low – approximately 0.1% – and those accused of sedition spend an average of 50 days in prison until a court grants bail, the bite of this law is not necessarily a prison sentence, but the long and unpredictable time spent in pre-trial detention. 

The original clause was not of India’s own making. It formed part of the Indian Penal Code (IPC) that was imposed by British colonial rule. However, following independence, successive Indian governments found the code to be a helpful cudgel when trying to restrict free speech. In 2023, the Indian Government, led by Narendra Modi’s BJP party, proposed the Bharatiya Nyaya Sanhita (BNS), a reform to the penal code to remove the colonial stain from India’s law books. When the bill was presented to parliament, the Home Minister Amit Shah said this about the existing penal code: “The foundation of these procedures was to protect the British, not the common people of India.” 

But the reform was an example of decolonisation in name only. 

In terms of sedition, the bill did little to protect the “common people of India”. In fact, it went further than simply transferring the existing sedition provisions – it modernised and expanded them. The new section 152 of the BNS covers online and financial actions that “excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India”. 

It is hard to shake the belief that the motivation underpinning the reform was to maintain the government’s ability to shut down independent and protected speech, under the guise of taking back control. The relabelling of the sedition provision came after the Supreme Court, in 2022, heard petitions related to the existing sedition provisions in the IPC. The court stated that “we hope and expect that the State and Central Governments will restrain from registering any FIR [First Information Report], continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.” However strongly held the hope was, it was not strong enough to curtail the government’s legislative intentions.

Only a week after the BNS bill was put into effect on 1 July 2024, two freelance journalists Zakir Ali Tyagi and Wasim Akram Tyagi had First Information Reports, or FIRs, lodged against them for their reporting on an alleged lynch mob attack in Uttar Pradesh. While not using the sedition clause, this was only a sign of things to come.

The co-founder of Alt News, Mohammed Zubair, is no stranger to pressure and threats related to his journalism, fact-checking and use of social media. Two years ago he was stuck in a seemingly unending cycle of persecution following his online reporting of statements made by a BJP spokesperson. A cavalcade of FIRs were issued against him and whenever he was granted bail in one case, another FIR would be lodged. Ultimately six were lodged against him, ensnaring him in a 24-day cycle of arrest, bail and re-arrest. It took the intervention of the Supreme Court to break the cycle but it didn’t take long for the threats to escalate.

On 29 September 2024, the controversial Hindu priest Yati Narsinghanand held an event at Hindi Bhavan in Ghaziabad, Uttar Pradesh, during which he allegedly made “objectionable remarks against Prophet Muhammad”. Zubair used his X account to highlight these remarks, as well as others allegedly made by Narsinghanand in relation to the role of women in politics, and soon found himself the target of a FIR, brought by the priest’s supporters, which was lodged on 6 October. 

However it was not until 27 November that it was revealed that the sedition clause of BNS had been invoked against Zubair, alongside a number of other charges. On the same day, Zubair claimed that police officers from Uttar Pradesh and Karnataka visited his family house and the house of his neighbour inquiring after his location, searching their property for him and searching their computers and mobile phones. 

The case is expected in court in the coming months after a bench of judges at the Allahabad high court recused themselves during a hearing last week. But this case should put to bed any hopes that the BNS had taken the sting out of India’s brutal, ineffective and out-dated sedition provisions. 

When it comes to threats to civil liberties and free expression in India, it is a decidedly crowded field. The BNS is not the only vehicle of jeopardy for anyone speaking out.

For instance, the Unlawful Activities (Prevention) Act (UAPA) is similarly directed at threats of terrorism and anti-state agitation but has been used to stamp out dissent, most notably in the Kashmir and Jammu region. Online speech has similarly been restricted through the extensive use of the Information Technology Act and IT Rules and the widespread use of internet shutdowns, for reasons as diverse as elections, protests and school exams. Many activists, academics and campaigners have rung the alarm bell regarding the recently passed Telecommunications Act as another legislative threat to online speech. These laws lay a narrow path through which people in India can express themselves free from the threats of judicial persecution. 

As long as the “world’s largest democracy” holds onto outdated and repressive laws, relabels colonial era laws instead of reforming them, and presents independent reporting as a threat to the state, this title holds little meaning. Like the BNS, it is little more than a name.