Cheering Pak's victory in a cricket match? Sedition easy to allege but difficult to prosecute

Those who cheer a loss may lack discretion and fraternal feelings but their conduct is not seditious

Indian Muslims today are wary of being seen in the vicinity of a cow. They soon will have to be wary of watching any India Pakistan cricket match on television. Any victory by Pakistan, is followed by arrests of Indian Muslims on charges of sedition. Inevitably there are allegations of bursting crackers and celebrating an Indian defeat. This is then topped up by the invocation of S.124-A of the Indian Penal Code, the crime of sedition, which is punishable with imprisonment for life.

India’s defeat this week, saw the Madhya Pradesh police, acting against fifteen Muslim men, who were accused by neighbors of celebrating Pakistan’s victory. After initially booking them under S.124A of the penal code, the police seem to have charged them with other sections instead. The actions of the police authorities are certainly not lawful. There is no crime in law, called not supporting India in any sport. There is also no crime called cheering for Pakistan.

Sedition is easy to allege but difficult to prosecute. Nationalism is easy to profess but difficult to define. Shouting “Pakistan hai hai” through a match is cheap nationalism, but fun nevertheless. Indiaa, Indiyaa or Sachin Sachinnn may put you into devotional zone, but does not necessarily make you a better citizen. One can be a nationalistic cricket lover, but can abhor supporting a team which has a Bumrah, thoughtlessly no balling his way out of a win. One cannot be a genuine cricket lover without appreciating a batsman who scores a century which brings his team a long desired victory. Similarly, like the Chennai crowd of 1999, one can even cheer the winning cricket team of a country that has gone to war with your own and yet not be seditious in law. Sedition in the statutory sense requires a perpetrator who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.” Hatred or contempt of a sports team is simply not covered by the section.

The Madhya Pradesh police, probably deliberately invoked wrong charges of sedition, knowing full well that no court could have taken cognisance of those charges without an express sanction by the State government under Section 196 of the Code of Criminal Procedure. In this case, the State government seems to have declined such sanction, leading to dropping of charges. But the men are still not free. Other charges have been invoked, which too cannot stick. The most charitable explanation for the arrests, is that the police jailed them to protect them against mob action. The police sometimes resort to harsh sections, only to slake the mob’s desire for deterrent action. Pontius Pilate like, the police wash their hands off the need to be just in investigation.

In independent India, after the constitution came into force, the crime of sedition has inexplicably continued on the statute book as a useful tool to be invoked against useful idiots. While introducing the first amendment to India’s constitution which imposed restrictions on free speech, Jawahar Lal Nehru had no doubt said: “...Take again Section 124A of the IPC. So far as I am concerned, that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons — in any body of laws that we might pass. The sooner we get rid of it the better.”

Despite Nehru’s protestations, sedition was invoked against sundry communist speeches and communalists of all hues. Doubts arose about the constitutionality of the Section after the fundamental right to freedom of speech was guaranteed by the constitution in 1950. Answering these doubts in 1962, in Kedarnath vs Union of India, the Supreme Court’s Constitution bench ruled:

“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence… It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”

The Supreme Court’s balancing act has, however, been largely ignored by administrators when it comes to enforcement. Every person whose inconvenient view sparks outrage ends up being charged under this section or Sections 153A and 295A. However, most of these prosecutions are withdrawn or fail when faced with strict legal scrutiny from a superior court.

Cartoonist Aseem Trivedi’s innocuous cartoons during the Anna Hazare agitation saw the Maharashtra government invoke this section. The Advocate General of the State later withdrew these charges in court. Arundhati Roy and Syed Ali Shah Geelani’s speeches at a Delhi conference in October, 2010 resulted in prosecution for sedition on the orders of a trial court. Binayak Sen’s possession of Naxal literature was the basis of his conviction and life sentence under this section by a Chhattisgarh sessions court. The Supreme Court later granted him bail pending an appeal to the High Court.

The test of sedition must be to invoke or excite a hatred or contempt, or disaffection towards the government or nation resulting in public disorder or disturbance. Much as we think otherwise, legally speaking, cricketing or other heroes are not the nation, nor do they symbolise it. Their achievements may bring joy or sorrow. But there is no duty in law to cheer, nor is there a penalty for jeering. India losing at a sports event, or at any cherished contest is an emotional upheaval and just that. Those who cheer a loss, at such an event may lack discretion and feeling for their fellow men, but their conduct is not seditious.

The nation can bear a cricketing loss or two. But it cannot afford to enforce support for its cricket team, by criminalising any cheering of its opponents. The Norman Tebbit Test of patriotism, can be useful political signalling, but it cannot be used to criminally punish anyone whose sporting support does not conform to the majority's choice.

Sanjay Hegde is a Senior Advocate of the Supreme Court. He tweets as @sanjayuvacha