Sedition is perhaps the very vaguest of all offences known to the criminal law. The offence of sedition was pitchforked in the news recently, be it “Delhiriots” during President Trump’s visit in February this year: be it the “Tukade-Tukade” gang of JNU which advocated fragmentation of India, or be it the prosecution of dissident MLAs in Rajasthan in June-July this year under Section 124-A of the Indian еnal Code, 1860.

It was rightly observed by Counsel Paulus Pleydell in “Guy Mannering; or The Astrologer” (a second of the Waverly novels by Sir Walter Scott) that “a lawyer without history or literature is a mechanic, a mere working mason: if he possesses some knowledge of these, he may venture to call himself an architect. For analytical jurists the present is more important, for philosophical jurists the future, but the historical jurists attach greater importance to the past. Law is not a disjointed phenomenon or a static entity but an organic and a living mechanism to keep pace with society. Let us track down the historical evolution of the offence of ‘sedition’ in India.

The offence of sedition was extant in ancient India. Dharma-Sutras” bear ample testimony to this. From very early times, the lawgivers treated the king as the embodiment of the state. There were two entities – one the king, the individual and two the kingship, the institution- which represented the state. Arthur Coke Burnell. who has translated ‘Manu Smriti’ in “The Ordinances of Manu’, has cited Manu – the ancient lawgiver -to the effect that ‘a king is not to be despised….. (pp 227-228). Kautilya has also echoed similar views in his Artha Shastra (1.13). Even in such early works as the ‘Rig Ved’ there are hymns glorifying the office of king (Rig Ved IV 42). It should be noted that it was not the king but the kingly office that actually carried special dignity and sanctity and invoked re spect and any offence against this office was treated very severely indeed. For offences against the royal office Narada has prescribed monetary and corporal punishment (Narada Smriti, Parikirnaka, 13). The ‘Matsya Puran’ advocates aggravated punishment for interfering with the authority of the king (‘Matsya Puran’ 227.185). Brhaspati was much lenient and suggested lighter punishment for a person inimically disposed towards king (Brhaspati Smriti XVII).

It is significant that Kamandaka emphasised that there was no punishment, other than death, for the offence of subverting the state (Kamandaka Nitisara XIV 16). In Mudrarakshasa there is an instance of Sreshthi Canadandasa being taken to the execution ground for doing what was politically unwholesome Rajapathyakarinam (Mudrarakshasam VII). Manu has stated that in a king’s realm there is no thief, nor adulteror, nor libellor. According to Burnell libellor’ here means ‘one with an injurious voice and sentiments towards the king’ (“The Ordinances of Manu’ p. 239). Medhatithi has opined that no communication must be had with the man who excites hatred towards the king nor should he be allowed to en ter the house. Disloyal feudatories were kept under check after the failures of rebellion and were subjected to various indignities (Epigraphia Indica XVIII pp. 43-46). It is quite clear that royal policy measures were not always liked by the people and that some political crimes were committed during outbursts of resentments. Thus, our ancient legal texts prohibited the people from despising and diffusing hatreр against the office. There are various references to instances where people were punished for exciting disaffection towards the king (Mrcchhakatikam VI). The ancient regimes in our country realised that a government n has the right to object when its populace wander off from criticism to calumny. Those who excited evil prejudices and stirred up discontent against the king and the kingdom were the producers of mischief of the gravest character. Those who distilled and sold the poisonous product of ferment to saturate the gullible masses with evil thoughts of king and kingdom were repressed with a strong hand. During the medieval period there was a disintegration of the ancient Indian empire. Muslim invaders captured our territory and a cultural conflict ensued wherein the ancient legal mores were subdued. Consequently, the laws of these invaders held sway and added to the extreme fluidity of the contemporary legal system. Muslim laws had an ethico-religious tinge and were prone to subjective application. Strictly speaking, Islamic law did not have a distinct corpus of “criminal law”. It divided crimes into different categories depending on the offence. Huddud were crimes against God. Their punishment was prescribed in the Quran and Hadiths. Qisas were crimes against an individual or family Their punishment was equal retaliation as per the Quran and the Hadiths. Tazir were crimes whose punishment was left to the discretion of the ruler or judge. Siyasah were crimes against the government. The offence of sedition, as such, was not in vogue but we find instances of revolt by the Muslims themselves against their rulers. Aram Shah provoked rebellion against the regime of Altmish. Similarly, re bellion incited by Ali Mardan. again against Altmish, was quelled. Razia Sultana had to suppress the upsurge of soldiers against her regime. It is, therefore, noticeable that the offence of exciting disaffection, which included disloyalty and all feelings of enmity, against the Muslim rulers was not unknown in the medieval period also. Any incitement and disparaging exhortation against the Muslim kings was dealt with an iron hand.

By: Shrawan Sawhney (IAS Retd.)

The Views expressed by the author are personal.