The anti-colonial movement in India in its quest for political self-rule produced a vocabulary of political rights which gave salience to dissidence as legitimate citizen action. Did the founding moment of the Indian Republic accrete this vocabulary and what is the relationship it shared with the post-foundational legal order? The two questions can be analysed through a biography of sedition in India. A political etymology of sedition demonstrates that it was a substantive site of challenge to notions of colonial legality. The law against sedition criminalized the possession and promotion of a range of emotions against the colonial regime, including disaffection. These host of emotions, or affect, criminalized by the law, however, were reclaimed by the nationalists particularly under the Gandhian leadership as rightful dissent. The crime of affect was translated into the affect of patriotism, exemplified in Gandhi’s call for sedition as the highest duty of every citizen against an unjust state.
This anti-colonial vocabulary of sedition was deliberated at the founding moment and the initial years at two substantive sites which possibly resulted in a duality of meanings- first in the Constituent Assembly’s deliberations on restrictions on the fundamental right to freedom, and second in the Provisional Parliament’s enactment of the First Constitutional Amendment. The Assembly’s choice between retaining or deleting sedition as a constitutional restriction on freedom of expression was governed by the tension between relative precedence and the relationship between freedom of the individual and obligations of the state. The long and encompassing list of restrictions demonstrated the preponderance of the security discourse of the state over the right to freedom but sedition was removed from the list. The removal was tethered to the argument that the law against sedition ignited the memory of colonial repression for many of the Assembly members who had been charged under it. A law which criminalized affect was removed from the constitutional text, very much on affective considerations. An ‘originalist’ account would hence conclude that sedition was not a constitutional restriction on free speech for the makers of the Constitution. If the law continued on the statute book, it was the task of the legislature to repeal it, but also a task specifically not undertaken by the Provisional Parliament- the second avatar of the Constituent Assembly. The Provisional Parliament, instead, inserted ‘public order’ as a constitutional restriction on free speech and during the debate on the Amendment Bill, one of the members famously remarked that sedition as preaching of disaffection cannot be criminalized but sedition as an offence against public order surely would.
Is there a constitutive split between how the Constituent Assembly and the Provisional Parliament read sedition? While the Assembly did not explicitly assume the anti-colonial vocabulary of sedition which celebrated the act of disaffection, it certainly did not criminalize it. The Provisional Parliament while debating the First Amendment, perhaps did the same by transcending the affective dimension of the law to the effect that the law should not criminalize mere possession and spread of emotions, but only threats to public order. However, by creating the possibility of reading sedition alternatively as a public order offence, it substantively diluted the element of political dissent in it. A task that was completed by the Supreme Court in 1962 by upholding the constitutionality of sedition as a crime against public order, marking the complete erasure of its anti-colonial vocabulary. The lived reality of law in the succeeding decades of the commencement of the Republic, is another story to tell where the quotidian uses deviate from the public order conception of the law. The executive discourse of the state, in which the law was routinely being used, until it was suspended by the apex court on the ground of glaring abuse in 2022, in fact has restored its affective dimension, with the law being used in cases marked by an absence of affection, read dissidence, for the government.