Why treason and sedition cases are often not what they seem

The possibility of acclaimed Indian author and activist Arundhati Roy facing prosecution over a 2010 speech on Kashmir brings to mind a 2018 nationwide survey in the United States. 

In the said survey conducted by Public Policy Polling, Americans were asked a controversial question: "Which act do you consider more treasonous – coordinating with Russia to influence a presidential election or not standing and applauding for Donald Trump?"

Regardless of one's political beliefs or opinion about the sitting president, the correct response should have been "neither." 

Because, Article III, Section 3 of the US Constitution explicitly states that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

However, the survey results were surprising, with 69% favouring the former option, 14% choosing the latter, and 16% remaining unsure.

It exposed the general public's lack of understanding of the law on treason and how this ignorance is frequently exploited for political gain by misusing the treason law.

More or less a similar state of confusion is emerging in Roy's case as well, highlighting how laws related to treason and sedition can be manipulated for purposes other than their original intent.

How Roy got caught in the row 

The initial accusation against Roy was filed by a right-wing activist of Kashmiri Hindu background against participants at a conference named "Freedom — the Only Way." 

As per the complaint, the speeches made by Roy and several others posed a threat to public peace and security by promoting the idea of Kashmir breaking away from India.

During her speech, Roy recalled an incident in which she had been ambushed by a television reporter who asked her repeatedly, "Is Kashmir an integral part of India?"

"So, I said, look, Kashmir has never been an integral part of India. However aggressively and however often you want to ask me that, even the Indian government has accepted that it is not an integral part of India," Roy is heard saying in a video of the seminar.

If convicted of sedition under India's draconian sedition law, Roy could face punishment ranging from a fine to life imprisonment. 

But once again, the crucial point being overlooked is whether Roy indeed uttered words that can be classified as seditious.

What the law says

The traditional understanding of sedition refers to actions or speech that incite resistance, rebellion or insurrection against a lawful authority, especially a government.

This also aligns with Section 150 of the Bharatiya Nyaya Sanhita Bill, 2023 which deals with the offence of sedition. Though it does not use the word sedition, it describes the offence as "endangering sovereignty, unity and integrity of India."

It reads: "Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, 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; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment, which may extend to seven years and shall also be liable to fine.

Explanation — comments expressing disapprobation of the measures, or administrative or other action of the government to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section."

A charge driven by political motives

At first glance, it might really appear that Roy "encouraged feelings of separatist activities" when she said, "Kashmir has never been an integral part of India". 

But then again, did she really? Upon closer examination of her statements, a more nuanced perspective emerges.

Roy cannot be held responsible for inciting sedition, treason or terrorism in Jammu and Kashmir, as she neither initiated nor endorsed such activities. She just took a moral stance on an issue that itself is a political matter with a historical background. 

According to Barrister Jyotirmoy Barua, a Supreme Court advocate in Bangladesh, the decision to charge Roy with sedition appears to be yet another example of exploiting the sedition law for political purposes. 

"As Kashmir is a delicate issue, it has always been an unwritten law in India that no one should make a comment on it. The government may attempt to stifle dissent; it is essential to objectively examine historical events, even if it leads to taking a particular stance or opposing another," stated Barua. 

When examining recent developments in India, it becomes evident that there are increasing worries regarding the erosion of free speech. India has notably fallen in the media freedom rankings by Reporters Without Borders, dropping from 150 to 161 out of 180 countries this year. 

Furthermore, since assuming power in 2014, the Modi administration has taken steps to assert direct control over the Jammu and Kashmir region. These actions include revoking its limited autonomy and curbing democratic participation and opposition.

A history of law abuse 

If we once again take a look back at Article III, Section 3 of the US Constitution, we would see the US Founders used the word "only" while describing the treason law. They went out of their way to define treason narrowly because they knew how it had been repeatedly abused in the past.

Also in England for much of the pre-revolutionary period, the accusation was a means of suppressing political dissent and punishing political opponents for crimes as trivial as contemplating a king's future death (what was known as "compassing"), or speaking ill of the king ("lèse majesté"). 

King Henry VIII even had two of his six wives executed for alleged adultery on the ground that such infidelity was, of itself, "treason." The English abuse of treason was anathema to a nascent republic dedicated to the rule of law and the right of peaceful dissent.

In the late 19th and early 20th centuries, the Dreyfus Affair in France involved the wrongful conviction of Alfred Dreyfus, a Jewish French army officer, for treason. Dreyfus was accused of passing military secrets to the Germans. His trial and conviction were tainted by anti-Semitism and political motives, with influential figures in the French government using the case to maintain power and divert public attention from their own mistakes.

During Joseph Stalin's rule in the Soviet Union, treason laws were frequently used to eliminate political rivals and dissenting voices. Numerous individuals, including high-ranking officials and military officers, were accused of treason and subjected to show trial, often resulting in execution or imprisonment.

During the Cold War era in the United States, Senator Joseph McCarthy and his allies accused many Americans of being communist sympathisers and traitors. The McCarthy era is infamous for the Red Scare and the persecution of individuals in the arts, academia and government who were suspected of disloyalty, often with little or no evidence.

In more recent times, some governments have used treason laws to target political opponents and critics. For instance, in countries like Russia and Turkey, individuals who have spoken out against government policies or expressed dissenting opinions have faced treason accusations, often in a climate of increasing authoritarianism.

Also, in the aftermath of the 2021 Myanmar coup, opposition activists were charged with treason, potentially resulting in the death penalty. Similarly, in Yemen, numerous individuals have received death sentences for treason since the civil war began in 2014, including 35 parliamentarians sentenced to death (in absentia) on treason charges in March 2020. 

Notably, in December 2019, a Pakistani court imposed a death sentence (in absentia) for treason on the country's former ruler, Pervez Musharraf, as a reminder that in the contemporary world, treason remains an active capital offence. 

The death sentence, however, was later annulled by the Lahore High Court. Musharraf died in Dubai in February 2023 after suffering from a prolonged case of amyloidosis.

Funnily enough, former Pakistan captain Shahid Afridi was also dragged to court in 2016 for 'committing treason' and 'hurting the sentiments' of Pakistanis, following his statement that the national cricket team was 'loved more in India' than in Pakistan. 

A call for overhaul 

The colonial sedition law in British India was also instituted to stifle opposing viewpoints. It was formulated by the British historian-politician Thomas Babington Macaulay in 1837, defining sedition as any act wherein "whoever, by words, whether spoken or written, or through signs, visible representations, or otherwise, endeavours to promote hatred or contempt, or incites or attempts to incite disaffection towards the government established by law in India."

The Sedition charge, incorporated into Section 124A of the Indian Penal Code, was primarily wielded by the British Colonial government to suppress the writings and speeches of prominent Indian freedom fighters. 

Influential leaders such as Mahatma Gandhi, Lokmanya Tilak, Subhas Chandra Bose, Lala Lajpat Rai and Jogendra Chandra Bose had their writings stifled, and they were prosecuted under the sedition law for their criticisms of British rule.

The charge was later inherited by India, Pakistan, Nepal and Bangladesh in their respective post-independence societies. As a result, just like the Roy case in India, or the Musharraf or Afridi cases in Pakistan, Bangladeshis often find themselves caught in the trap of sedition charges even up to the present day. 

Barua doesn't support such practices, as he believes that the criminal justice system in Bangladesh, which is largely governed by laws established during the colonial era, no longer aligns with modern values, societal changes and human rights principles. 

Mentioning that India has recently taken steps to adopt a fresh Penal Code, CrPc and Evidence Act, Barua demanded that Bangladesh too needs to overhaul its colonial-era criminal justice system. "It's 2023, and it's unreasonable to be governed by laws dating back to the 1800s," Barua stated. 

He further called for a revision of Bangladesh's sedition laws, pointing out that there is currently a lack of clarity in this area. "Critiquing the government should not be considered sedition. 

In 2016, the Indian Supreme Court made a significant ruling distinguishing opposition to the government from opposition to the state. People have the right to criticise those who are funded by taxpayers and elected into office," said Barua. 

"However, our courts lack a specific ruling on this matter, creating room for exploitation that requires rectification," he added.

Indeed, the misuse of treason laws continues to undermine not only the rule of law but also democracy and human rights, underscoring the vital need for reform.