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Sedition in Liberal Democracies
Anushka Singh
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vii
The moral rights of the author have been asserted. Acknowledgements xi
List of AbbreviatiotlS
First Edition published in 2018
1
Introduction: Liberal Democracy and Free Speech
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the 1. Political Offences and Speech Crimes: Comparing
prior permission in writing of Oxford University Press, or as expressly permitted 28
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rights organization. Enquiries concerning reproduction outside the scope of the · ·The Past
2. Sedition and Western Liberal Democracies.
above should be sent to the Rights Department, Oxford University Press, at the 73
address above. and the Present
· tism· Sedition
3. Resistance, Suppression, and Patno · 136
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
in Colonial India
176
4. Sed 1·t·ton and t h e Ju eli eta
. I D.1scourse in Postcolonial India
225
5. Caste, Class, Community, and the Everyday Tales of Law
ISBN-13 (print edition): 978-0-19-948169-9 310
6. Indian Democracy and the 'Moment of Contradiction'
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Conclusion: The Life of a Law and Contradictions
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of Liberal Democracies
369
Bibliography 387
Index 393
Typeset in Berling LT Std 9.5/13 About the Author
d . Graph·tcs so1utlon,
. by The . New Delhi II 0 092
Prmte tn India b R krn
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ACKNOWLEDGEMENTS
This work evolved from my doctoral research at the Department of

Political Science, University of Delhi, and bears the imprint of the
efforts of no single individual but a collective. I express my sincere
thanks to all the faculty members, non-teaching staffs, and fellow
research students in the department for their support. I have been
extremely fortunate to receive the guidance of noted academics over
the years who have shaped my understanding of politics. I am thankful
to Achin Vanaik, Pradip Kumar Datta, and Pumima Roy. To Yogendra
Yadav I would always remain indebted for his unflinching support and
faith in me. I was privileged to receive the insightful comments and
words of encouragement from Anuradha Chenoy, Manjari Katju, and
Monica Sakhrani, which propelled the work forward.
The doctoral research fellowship at King's College, London, granted
by the Ministry of Culture Government of India, was one of the most
facilitating experiences fo; this research. I am extremely grateful to
the faculty, staff, and students at King's India Institute, King's College,
London. The incisive comments of Sunil Khilnani, Conor Gearty, and
Sandipto Dasgupta are reflected in this work. I am also thankful to
Robert Sharp at English PEN, for sharing his views and for putting
me in touch with those involved with the movement for abolition of
the offence of sedition in England. I thank the staff of British Library,
London, which was virtually my home for over three months, and
major parts of the work were written in its reading room which were
subsequently revised.
Lx
Acknowledgements
viii Acknowledgements
b th my grandmothers and Badi
familial love. Those who left midway- o
This work would be incomplete without the mention of my dear Ma-continue to live within me. 1 rvisor: critic, friend, and men-
friends, colleagues, and fellow researchers. Om Prakash, Prccti, Vikas, s
Ujjwal Kumar mg ,. h my doctora supe
world view ' and po1·ttiCS.
· 11o him.
Santana, Subarta, lndrajeet, Anusha, Kamal, Pooja, Kunal, and K.K. tor for life, has constantly mdy ch commitment to acttv-
Subha-1 cannot thank them enough for their comments, discussions, . ente resear , . h"
I owe my interest in praxts-on h b "11"1ance of which reflects m ts
and overwhelming support over the years. I also thank my colleagues at
ism, and engagement wt
"th law-t e n k fr
·s reflections on this wor om t
"ts
Gargi College, University of Delhi, for their cheerful support. Friends own work on the anti-terror laws. Ht various drafts, and persistent
at People's Union for Democratic Rights (PUDR) and their resilience inception onwards, critical book. I have deep respect for
to struggle have been constantly inspiring. I have benefitted enormously h ealed mto t lS . rt Over
encouragement ave cong t d yet unrelentt.ng suppo ·
from the various discussions and the work we did together. Anupama Roy who has been an unsdta e. rably failed at emulating the
Manoranjan Mohanty, Uma Chakravarti, and Gautam Navlakha have the years 1 have read h er w orks an rntse To Anupama Roy an d UJ·J·wal
never ceased to amaze and inspire me with their passion, commitment, strength and expression of her argument ts. and unconditionality.
and energy. While working on this book, I have found some of the . h .r sheer ove
Singh I owe this work, for t et
recent studies theorizing the nature of the liberal democratic states and
democratic rights within most engaging. In this regard, the contribu-
tion to the field made by Michael Held, Sarah Sorial, Katherine Gelber,
Jinee Lokaneeta, and Gautam Bhatia is immense. The conceptual cat-
egories innovated and theoretical interventions made by Laura Nader,
Julia Eckert, and Ujjwal Singh have benefitted this work enormously.
I am grateful to my two anonymous reviewers whose suggestions
for improvement were extremely beneficial, and to Oxford University
Press for their guidance and support.
1 thank the staff at the National Archives of India, New Delhi, and
the Nehru Memorial Museum and Library, New Delhi for their help.
The fieldwork in parts of Haryana, Maharashtra, Delhi, and Bihar
would not have been possible without the support and generosity of
the people there. Everywhere I went and stayed, 1 felt received and
aided. Many of the everyday stories I attempt to theorize in this work
bear the imprint of the ordinary and the extraordinary struggles of
these people and their institutions; naming a few would belittle the
struggles of the thousands.
The immense love and support received from my family, and
the autonomy I have been granted, has indelibly shaped this work.
Singh and Shweta Singh, would remain the strength behind
To U.N. Singh, Poonam Singh, A.K. Singh, Pushpa Kumar,
.K. Smgh, Kinshuk, and Tejrashi Mehrotra, among others, I
remam indebted. My soul sisters, Anamika Asthana and Shivani
Naram, have been my lifelines. I also thank Jamshed and Jyotsna for
ABBREVIATIONS
ABVP Akhil Bhartiya Vidyarathi Parishad

ALRC Australian Law Reform Commission
ATS Anti-Terrorism Squad
BJP Bharatiya Janta Party
BKU Bharatiya Kisan Union
BSP Bahujan Samaj Party
CM Chief Minister
CPA Communist Party of Australia
CPGB Communist Party of the Great Britain
CPI Communist Party of India
CrPC Code of Criminal Procedure
FALN Fuerzas Armadas de Liberaci6n Nacional
INLD Indian National Lok Dal
IPC Indian Penal Code
IWW Industrial Workers of the World (USA)
JCM Jagrook Chhatra Morcha
JNU Jawaharlal Nehru University
KKM Kahir Kala Manch
KMKU Krantikari Mazdoor Kisan Union
NIA National Investigating Agency
0BC Other Backward Class
PIL Public Interest Litigation
POTA Prevention of Terrorism Act
PUCL People's Union for Civil Liberties
PUDR People's Union for Democratic Rights
·---,
xii
Abbreviations
SAD
Shiromani Akali Dal
SIMI
Student
. . Isla mtc
· M ovement of India
SJSM
ShJValtk Jan Sangharsh Manch
TADA
Terrorist and Disru tiv . . .
UAPA Unlawful Activit" pp e Acttvtttes (Prevention) Act
tes revention Act
INTRODUCTION
Liberal Democracy and Free Speech
On 1 February 2017 at the University of California, Berkeley, USA,

mob violence erupted on campus with 1,500 protesters demanding the
cancellation of a public lecture by Milo Yiannopoulos, a British author
notorious for his alleged racist and anti-Islamic views. 1 Consequently,
event was cancelled triggering a chain of reactions on the desirabil-
Ity and limits of freedom of expression within American democracy.
The Left-leaning intellectuals and politicians were accused of allowing
the mob violence to become a riot on campus defending it in the name
of protest against racism fascism and social injustice. In defending the
rights of the protesters not 'illiberal' or hate speech on campus,
however, many claimed that the message conveyed was that only liber-
als had th e ng
· h t to free speech. 2
Almost contemporarily in 2016, in India, a series of criminal cases
registered involving the act of sloganeering in support of the
nght to self-determination of people in Kashmir. Kashmir is one of the
states of the Indian Union where the movement for self-determination
1
New York Times, 2 February 2017 'A Free Speech Battle at the Birthplace of
aM , .
ovement at Berkeley', available at https://www.nytimes.com/2017/02/02/
us/university-california-berkeley-free-speech-milo-yiannopoulos.html?_r=O,
accessed: 12 February 2017
2 .
htt . Matthew Vadum, 6 February 2017, 'The Sedition Left', available at
p.//www.frontpagemag.com/fpm/265 71 7/seditious-left-matthew-vadum,
accessed: 12 April 2017.
_,
'
3
Liberal Democracy mtd Free Speeclt
2 Sedition in Liberal Democracies
. d democracy, on the one hand, and
to bring together liberahsm an d th tate on the other. It is in the
has existed since its integration within the Union in 194 7. Notably, in cyan es ' ..
the imperatives o fd emocra ence of these confhcting ten-
February 2016, students of Jawaharlal Nehru University (JNU), New . fr 0 m the converg di . 15 ·
contestations emergmg peech' of which se a
Delhi, were charged and arrested for sedition for participating in a f 'extremes ' .
dencies, that the category o . f political speech, an expresston
meeting in which· it was alleged that slogans were raised to support . · ·s a form 0 a d state which 1s· 1:torb"dden
kin d , emerges. Sed tttonf •th vernment an '
1
Kashmir's freedom from India.3 In March 2017, in an interview given against the authority : e ate criticism, and, therefore, pro-
to India Today, Union Minister Venkaiah Naidu said that 'pro-freedom' for exceeding the limtt of legtttm eech and expression. By ratsmg the
slogans will not be tolerated and must be penalized, as they result in
t ec t e d by the right to freedomd
of s_p
htch speec
h may be freely exercised,
'th'
violence and endanger national unity. 4 In this case, the justification for issue of the conditions un er w d clition reveals a dilemma wt m
restriction on free speech was in the name of protecting the Indian or alternatively legitimately curbe , lds in the tensions between the
nation state, to which secessionism is interpreted as the biggest threat. liberal democracies. This between freedoms of citizens
The incident at Berkeley, presents with a case, in which restriction d the relations •P
relative preced ence an
on free speech was demanded and justified in the name of protect- and obligations of the state. of the many restrictions on
ing what is largely called the 'liberal-democratic' values from 'illiberal' di ti n are one . .
The laws to penalize se o d ex ression. Hence it ts tmpera-
political opinions. In the Indian case, however, the restriction on the the right to freedom of speech an palysis on this account would
right to freedom of expression of individuals was justified in the name tive to mention at the democracy and the right
of coagulating state security. The brief description above pre-empts not make any sweeping clatms atho' rk is the fate of those forms
the larger framework within which this work is placed, which is the f 1S wo d · t the
to free speech. The concern o des that are uttere agams
debate over the centrality of free speech and the restrictions on the of expressions within liberal thus is the state of freedom of
same. These concerns, however, gain prominence only within a specific authority of the state. The uiliority within those forms
context. An authoritarian state which does not recognize the individual h gamst e a ·
expression that citizens ave a th liberal and democratic.
as a right-bearing citizen is inappropriate for any debate on freedom to of government that claim to be bo
take shape. The appropriate context is informed by a form of govern-
ment, which we refer to as liberal democracy, which claims to guaran- ·Amalgam or a Conundrum'?
tee the liberal right to freedom of speech and expression to all citizens. Liberal Democracy: An Life and Times of Liberal
As an ideal, as well as an evaluative framework, democracy real- wrote The d · t the
In 1977 when C.B. Macp h erson . that existe pnor 0
izes itself politically through a democratic state. The process of this he excluded the entire democracy. He counted
realization is, however, fraught, since it involves reconciling conflict- nineteenth century from the frame loh"sttofY of the western democra-
ing tendencies which inhere in the logic of 'democracy' and the logic l"tica t · the way
the pre-nineteenth-century po 1 d cracy gradually pavmg d th
of the 'state'. A liberal democratic state, it may be said, is a fraught
cies as precursor mo deIs 0 f l'beral
1 emo · n ' Macph erson argue
. . 10
at
combination of competing tendencies and traditions, since it attempts
to its emergence. In rnaki ng
this dtsttnct ' 1 d
. r to libera emo
cracy were
all models of democracy that existed eties (Macpherson 1977,. P·
3 -class soct .· hip pnv-
The Indian Express, 16 March 2016, 'JNU Row: University Report Links based on either classless or one . . al equality and c1uzens
Azadi Slogans to "Outs"d1 ers " Wtt
.h . . 11 ). The understanding was that poltttc U eople belonged to the same
Covered Faces' available at http://mdtan-
express.com/artide/indi /' d"
. .
. . . ' . .
a m ta-news-mdta/}nu-report-hnks-azadt-slogans-to- ileges belonged either to one class or a. pt Greece fitted the model of
outstders-wtth-covered-faces/' accessed: 20 March 2016. class. The Athenian democracy 1·n Anc1enth privilege of At h ens-born
4 .· hip was e u·c mode1s proposed by
Naidu's interview giv t I d" one-class society where ctttzens
. . . en o n ta Today TV Network, available at http:// ) Democra
mdtatoday.mtoday.in!story/v k · h "d
.
..
en ata -nat u-ratsmg-azaadi-slogans-treason-sedi- propertied men (Held 1987, P· 23 ·
tmn-law/1/895067 .html, accessed: 10 March 201 7.
5
t of the ushering in of represent-
Rousseau in the mid-eighteenth century or Thomas Jefferson towards governmcnt.6 This was the The form that governments
ative democracy within the hbera states.
the end of the eighteenth century envisaged societies with no class dis-
tinction (Macpherson 1977, pp. 15-16). Rousseau and Jefferson dif- took then was called liberal ld be disagreements on
. da1m ere wou
h
Contrary to Macp erson s 'd t" g these principles had been
fered from the Athenian model in the sense that they did not exclude f, f rnment eno m
the property-less from the class of citizenry but both presupposed a the fact that a orm o gove the nineteenth century. In 1885,
society in which everyone who could be called a citizen, would have put in place in the west much bhe oCre t<tution commenting on consti-
V o· t Lawoft e ons.. ,
at least a little property to work on, hence a limited property right. w hen A. . 1cey _e . . and USA particularly, he traced many
Hence, within the supposed class of citizens, there would have been tutional democracies m Bntam b k to Common law and other
inequality of property but all still belonged to the same class of prop- of the principles of liberal 'rule of law' was foremost. 7
1
ertied bodies. 'practices of liberties' in Britatn, 10 w f cc al equality of all citizens
d the idea o 1orm
Liberal democratic model, for the first time in the nineteenth Rule of law was ase onb . h l"berty of all individuals.
d . . ofthe ng t to I d
century envisaged a form of government for a society that had class before law an recogmtlon b t the temporal contexts an
divisions and the rights-bearing citizens belonging to different classes. Although there may be debates fal"bou democracy all accounts of
f, h gence o 1 era1 , th
Liberal democracy hence, as Macpherson opined, was essentially a form their corollaries or t e emer . theoretical underpinnings show e
of government for a capitalist society that sustained the class divisions the life of liberal democracy and tts ·b li ...... and democracy. The idea
d" · -li era Su•
in the society while guaranteeing the same rights in theory to different coming together of two tra tttons t was· democratized in the
1
classes of citizens. (Macpherson 1977, pp. 9-20). of individuals as capable of self-deve citizens. The democratic
Liberal democracy came to be identified with a form of government sense that this was now applied y ·ghts and at the same time,
h . div• ua s n ' 8
that guaranteed equal rights to all citizens, rule of law, basic civil liber- government was to protect t e 10 d from unlimited state power. In
ties, and popular sovereignty. It is evident in Macpherson's argument the individuals were to be protecte
that liberal democracy was an imperative of the liberal state based on
. . on Moore Jr., 1966, Social Origin of
capitalist relations. Hence, liberal democracy is referred to as a form of 6 Refer to Chapters 1 and 3 10 Barnngt fthe advent of capitalist democracy
government that became liberal first and then democratic. David Held ·
D emocracy and Dzctators h"1p, 10ran account 0 · · hts
. trU lefor liberal democrattc ng ·
brings forth this argument in tracing the historical emergence of mod- in England and USA through bourgeoiS s gg d to Introduction to the Study of
em state in the west in which he makes reference to liberal state and . h r's Forewor
7 See the Editor, Roger MIC ene
k
. h d.10 1962 based on his wor a cen-
. pubhs e
liberal democracy as two different forms of modern states (Held 1992, LAw and Co1zstitution by A. v· Dlcey f l · three constituent parts-
.. f rule o aw m . f
p. 89). The liberal state was founded on the idea of constitutionalism 5 tury ago. Also see Dicey's defimtlon o f rnment secondly, the rdea o
art o gove ' . 1
that is, an idea of a limited government, private property, and firstly, absence of arbitrary power on P b the result of the ordinary aw
. . allawto e
economy. It upheld the right to life, liberty, and property of the citizens legal equality, and thirdly, constitution
hut the citizens were essentially the property-owning male adult class. ofland. See Dicey 1962, pp. 183-205· l . y of liberal democracy into
s Macpherson classified the historica JOdumel pmental democracy, and the
It ':as only in the course of many struggles fought for voting rights that the eve o S
umversal adult franchise was established as a governing principle of three models: the protective democracy, d T" es of Liberal Democracy. ee
equilibrium democracy in his work The Life an rm riated by David Held,
Macpherson 1977. The earlier t-.vo models we;e app::e demo·cracy was based
5
th d which emerged as a principle of liberal states, became later to denote the phase of liberal democracy. rotec democracy talked about
. h"l developmenta1
, e e. feature of liberal democratic states as well. Constitutionalism or on the idea of constitutional1sm w 1 e . . l"1 m as a necessary mea-
garantiSme as Sartori · . d participation in political life along with constltllutlodna ;lopment of individuals.
. ' Wntes, m mo ernity is believed to be teleological where thefu est ev
th e te1os IS securing rights t . d" "d . by limiting the power of the sure to secure individual rights, to ensure
o m lVI ua1 c1tizens
government. See Sartori 1962, pp. 853 -6 4 . See Held 1987.
6
Liberal Democracy and Free Speech 7
sum, it was the individual and her rights that were at the centre of the
philosophy of liberal democracy. democratic tradition represente d porttica. · 1 lity1'and. popular saver-
hts and liberty
It is evident hence, that the trajectory of liberal democracy, and this eignty while the liberal tradition stood for 10 tvt ua s ng Th
is strictly speaking for the west, places the liberal tradition before the to he guaranteed as a consequence o . f f limitation Ion state power.basede
democratic one at least in the historical time line. Bhikhu Parekh argues . · the exerctse o popu ar
latter imposed restncttons on f diti" ns that according to
that liberal democracy is 'liberalized democracy', that is, democracy . Th . t nee o two tra o '
on political equahty. e exts e . d d 'both perfect liberty
defined and structured within the limits set by liberalism. 9 Liberalism her, could never e pe ec
b m tl rationa 1tze rna e
ssible' (Mouffe 000, p. 10). Liberal
believes in the idea of individual as prior to state and possessing rights 2
and perfect equality become tmpo d . ti"ally a paradox that
that are above and before the state. The democratic system arranged democracy, hence, m . Mourre « •s wor s' 1s essen ·
within the liberal paradigm then accepts the state to maintain a sys- 1 · · ti" t nsions within it.
resu ts m persts ng e ·nts out to such per-
tem of individual rights in which people can control and compel the . , .. 0 f l"beral
1 democracy pot
Carl Schmttt s cntique h . . e oflt"beral democracies,
government and the authority of state (Parekh 1992, p. 165). Within . . d c"ng 1 is cnttqu
sisting tensions. Schmttt m a nta democracies, wrote that lib-
this arrangement it comes to fore that the nature of state within liberal which he referred to as the parhame ry .ty (Schmitt 1926). Prior
.th rt ·n homogenet
democracy is defined along the parameters of liberalism. The state is a eral democracies work wt ce at . th d ocratic tradition had
human creation, created to safeguard the rights of individuals, and the to the emergence of liberal democractes, only for those who
individuals retain the right to withdraw support from political author- worked on the principle of substantivthe equalt d d others For Schmitt,
ity if it violates the rights it was supposed to protect. 10 12 · d e occ u e ·
were equals. The oth ers remame a liberal idea and not
This is not to say that liberal democracy stands out to be the per- . . . I d "t their status was
equality of all mdivtdua s espt e th . dividualistic ethics of
fect peaceful amalgamation of the two different traditions, as Chantal "b t· t lked about e m
a democratic one. Lt era Jsm a ·es as Schmitt writes, are
Mouffe writes, this union was full of struggles and imposed many limits h d m democract ,
equality of all persons. T e mo IJ) that claim the equality
on how liberal democracies were to function. 11 According to her, the 'a confused combination of both ( 1926 'p.l the homogenised equals.
1 "ghts to on Y
of all persons but grant equa n h ry person is automatically
9 Th f I. b ]"eves 1 t at eve
Bhikbu Parekh makes the argument in context ofliberal democracy and it e liberal idea o equa tty e ti"c conception of equality,
The democra ,
being a form of government specific to a context, that is, the western societies, equal to every other person. who belong to the 'demos
and its universal applicability is something that the world outside of the west however, distinguishes between those t about the inequality
must 1"t The argumen
10 be apprehensive o£ See Parekh 1992, pp. 160-75.
band those who are exterior d th
to • •
uals gatns asc
endance as one of the
d etween the equals an e uneq th" k focuses upon.
• The social contract tradition within liberalism in the writings of, primar-
tly, Thomas Hobbes and John Locke took the above position regarding the .l d . that ts wor .
t emmas of liberal emocractes f the liberal democratic
emergence o .
nature of state and conditions of political obligation. In Hobbes' thoughts, right
While this holds true fior th e ld the liberal democrattc
to rebel was a right available to individuals only when threatened with life by .. . fi th t of the wor
tradttton m the west, or e res . . l of liberal democracy
0thfeh
t state.. See
h Jones
d 2002, p. 19. Locke, however, laid down a systematic defence idea travelled through colonialism. The prmctp es
e ng t to issolve
responsibilities t t dtheS sovereign
h government when it failed to fulfill its
XI . , rus · ee Jo n Locke, Two Treatises of Government, Chapter
Edztion, Corrected in 11 of
Of the Dissolution , , Government', in The Works of John Locke. A New
1 - --
of struggles as the tensions between liberty and eq uallty have persisted. See
W Sh d ' en vo umes. Vol. V. London: Printed for Thomas Tegg;
G ·.ffi an Son; G. Offor; G. and J. Robinson; J. Evans and Co.: Also R.
n 11 nan Co. Glasgow; and J. Gumming, Dublin 1823. · Mouffe
12 2000. f tradition in Europe
Chantal Mouffe calls th· · f . I .. David Held opined the same about the democra 1\ to this tradition
d th at pre-dated the emergence of h"b eraI d emo cracy. dHe re.ers
ox an d t he reason why the h·ts umon
t fo t·b
two nva trad1ttons a democratic para- th Athenian society.
ts ory o 1 era1 democracy has always been full as t he Classical model of democracy, pnman
· ·tY base on e
See Held 1987, p. 23.
9
. idea of liberal democracy that went back
democracy was a normative h' k On Liberty Mill stated
were truncated by the colonial state in terms of the denial of liberal f J h St art Mill In IS wor ' ' d
to the writings o · o n u · t that those who governe
rights, which otherwise universally belonged to all individuals. The idea . form of governmen f
that it was wit h t h IS new th lers-external to the class o
of colony was that of an exception to the universal, conditioned upon ·fied ·th ople rather an ru d d
were identi WI pe Th h governed were electe an
the 'differences' with its colonizers, not yet capable of exercising the
subjects over whom they ruled. hoselwtod them The people retained
right to liberty otherwise presented as a universal norm (Chatterjee le w o e ec e . f If
hence responsible to t he peoP d h This was the age o se -
1993, p. 18). Despite the denial of the basic principles of liberalism ho goveme t em.
power over t h e ru1ers w . h' h th tyranny of the government
by the colonial state, the idea of modern state that it represented . him m w IC e ·
d
government accor mg to ' . k dd however, that even m
was implanted, which was later appropriated by postcolonial societ- f ·t H was qutc to a ' ill
was not the greatest o evi s. e 1 did not always represent the w
ies to strive for the same liberal democratic state whose model was
the age of self-government, the ru ers th rule of each by himself
showcased by colonialism (Kaviraj 2003). While this proves to be an asn't always e ft th
of all and self-government w . of the people, more o en an
important historical digression for an analysis of the concept of liberal 11
What prevailed in the name of the W1M'll the tyrannY of majority was
democracy, it is politic to return to the context which saw the birth of
the idea of liberal democracy, the west. For the postcolonial world, the
f
not was the will of the majority. For I the government. Thus, for a
a g;eater evil compared to the tyranny o ·oritarian will, he proposed
mimesis of liberal democracy created further dilemmas that this work
society to be truly free from the each individual: first, the
would explore. st be exerctse t
th
three basic liberties at mu d freedom to pursue tas es
What eventually emerged as the liberal democratic form of govern-
ment, as discussed earlier, premised itself upon the right to liberty of
freedom of thought an
d di ssion· secon '
scu dt fr dom to unite without b emg .
that do not harm others; and lastly, eh ee on others. It would be read
individuals. Despite the contradictions that persisted in realizing the
forced to do so and WI'thout 10 · flicting farm liberal democracy wo uld h ave
universal equality of all individuals in exercising their liberty, the indi-
along that for him, a genuine fonndo t individuals (Mill1999, PP·
vidual's right to liberty formed the core of the idea of liberal democ- , h ki ds of free .oms o d th . ht
guaranteed these t ree n lib rties he prioritize e ng
racy. One of the essentials of the right to liberty is the freedom to
45-57). In the category 0 f these baste . e '
express onesel£ The historical route, as well as the theoretical models,
to freedom of thought and discusst:· ht and discussion shows why
establish the centrality of the right to freedom of expression of indi-
Mill's advocacy of freedom of oug. ty for its usefulness. Within
viduals, within a liberal democratic state. Aligned to this proposition, ted in a socte
is the question-why is free speech valuable within this framework?
free speech must b e protec . th advocacy was b ased on the
the framework of Mill's . ety 13 Mill was of the opinion
1 1n socte ·
'l'ty kn
idea of free speech being a utt . bl' atory for the society, to ow
The Value of Free Speech and the Category that freedom of speech in socte 'tytSO tg f
tion that truth o ce rt' am
of 'Extreme Speech' the truth. His theory reste d on the. assumP d n1 if they are a11owed t 0 be
beliefs or judgments can be determtn.: He based his argument
The value of free speech has been recognized in western liberal dis- debated and deliberated upon freely 1 p
course both for its normative as well as instrumentalist presence. The
defence of free speech within liberal democracy follows many strands like pleasure, happiness,
within which the right to free expression against the author- 13 d · arious ways · k \ike
UtUity could be interprete In v
0
f the utilitarian thin ers
Ity IS read as an implied right.
economic wellbeing, and so on, · the. thoughts Utilitarianism expanded the prin- ..
While tracing the historical emergence of democratic forms of gov- Bentham and James Mill. J.S. Mill 10 his book to certain ends but was tn
ernments, Macpherson referred to developmental democracy as a vari- ciple of utility saying that utility was not a ted that utility is desired In a
ant of liberal democracy guaranteeing effective freedom and an equal itself Thus, the principle of utility 1998, p. 82.
right to self-government for all (1977, pp. 50-64). Developmental society as it results in general happtness.
W!IPC
I
10
Liberal Democracy and Free Speech II
upon two hypotheses, first, that the opinion which is being suppressed
h I pear to be attempts to bring
in society is possibly true and its suppression denies truth to the society, of these defences of free speec a so ap ti' t dt'ti'ons ofliberalism
b n the compe ng ra
and second, he propounded, it may be probable that the opinion is about a rapprochement etwee k I of ideas' is a liberal way of
false, in which case its expression would make its falsity known to the d Wh'l the 'mar etp ace
and emocracy. 1e ether another argument offered
world and there would be no need for its constant denial (Mill 1999, holding liberalism and democracy b ' democratic way of doing
by Alexander Meiklejohn appeare to e a
pp. 59-60). Search for truth enhanced the utility in a society, eventu-
ally leading to the well-being of the entire society. the same.
M 'kl . h as an advocat e of the First Amendment
Seemingly, Mill's theory is a moral discourse on the objective Alexander e1 eJO n w ld th 'ght to freedom of speech
idea of what constitutes the truth, and truth itself being a utility in to the US Constitution that uphe e Speech and its Relation
S .. He wrote n'f!e
the society. Mill's argument, however, has a lot to offer in terms of and expression to U Citizens. I f free speech in functioning of
. · the roe o
the consequences of conflicting opinions in society and the ways of to Self-Govemment outl mmg a form of government
'kl . h democracy was
dealing with them towards increasing the efficiency of a democratic a democracy. For Mel eJO n, d . order to self-govern people
government. Eric Barendt opined that Mill's argument about freedom where people govern of electorate. Right to free
of expression relates to the imperiousness of political opposition in a must possess all information as f fio y ti'on and made democracy
. fr fl 0 w o m orma
democracy. Only when the opposition has the right to freely challenge speech ensured t h IS ee h 'ght to speak but the right
t muc on n ,
the actions of the government by judging them on parameters different vibrant. His focus was no so . ll kinds of views that the best
from that of the ruling power can there be a possibility of appropriate to hear, as it was only after listenmgd freedom of speech does not
action (Barendt 2005).
judgment could be made. He argueth t eryone worth speaking shall
k but a ev
Mill's theory finds resonance in a similar argument defending free mean that everyone sh aII spea ' hi'slher views apoear to be
speech, which is the 'market place of ideas'. The reference to this argu- b 'I d because ·
speak. No person shall e Sl ence believed that all political opinions
ment is found in the United States Supreme Court verdict in Abrams conflicting, false, or dangerous. He h ted at the heart of the idea
14 d b use t ey res
v. United States, 1919. According to this argument, extreme ideas deserved to be expresse eca h pie govern themselves, they
should he allowed to be circulated in the society in the hope that such thatw en peo
of self-governance. It meant the content and the nature
arguments would be argued against and eventually rejected. Justice alone have the right to pass a JU . . dgment ld be ensured only when aII
on
in landmark case in 1919 in USA outlined this idea while of the speech and no one e se. 1 Th1s cou
d (Meiklejohn 1948, pp. 24-7) ·
Issentmg With a majority decision in the court in case of a prosecution kinds of thoughts are allowed to ?e has been an emphasis on pro-
under the Espionage and Sedition Act 1917. Holmes' much quoted dis- Within the free speech scholarship, h'ch h s an important utilitarian
sent note 'the b t f th . . . I speechl6 w 1 t·ti· aal speech is often worded
es test o tection given to pohttca
accepted in the c · tru
· fIs the
h powerk 'ofs the thought to get itself . for po 1 c b
f h ompetitron
o t e theory that M'U h d o t e mar et 1 is a classic application angle of defence. This protection h fi r self-governance (Gel er
. the language of the consequenc e it as o
In
ti
an th at the argum 1 t af ' propounded.
k I It is of consequence to men-
l1'bera1de!ence
c of & en ° mar
h etp ace of ideas' was also a typically 2010, pp. 304-24).
. .
fi di free speech based on the
· · de en ng d
accorded hi h ri speec within a liberal democracy. The argument Another maJor mtervention 10 d tic principles was rna e
eren t 0 d g P onty to free speech and interpreted freedom with ref- 11
Philosophy of liberalism as we as
on emocra
.J .1 Fx:pression. This theory
ce Ynamism d b b 'T''h 0f Freeaom 0'l .
an enefits of a free market (Blasi 2004). Some y Scanlon in his work A 1' . of liberalism that believed 10
Premised itself on the basic pnnctple
14
250 u.s. (1919). 16 [I of speech about or against the
To categorize political speech as a or:m I of the ways of defining
IS Abrams v. United States, 250 U.S. (19I9). &ovemment, state, or the politica I au thon'ty ts on Yone
Political speech, which this work subscribes to.
12
Liberal Democracy and Free Speech 13
individuals as rational beings capable of self-development, an argument

that also lies at the heart of Mill's philosophy. According to Scanlon, possibility of exercising those ch mces . by e nablingf informed
t· . 1 'd as decision-
the rationality of individuals makes them capable of self-governance, making and reducing the scope 0 f sup P ression o po ttica fr d t e f. olt'ti-
much on the lines of Meiklejohn's study. He says, an act of expres- John Rawls in his Political Lt'bera z·tsm t alked. habouth . eed' om 0 p
'd al has an
.
cal speech as part of basiC erties up l'b
1 . on whtc
. eac · 10 tvt u
(R Is 1993 p.
sion is any act that is intended by its agent to communicate to one or
. . d t • eate a JUSt soctety aw ,
more persons some proposition or attitude which includes display of equal amount of clatm 10 or er o cr . . while making a staunch
symbols as well as failures to display them (Scanlon 1972). In devising 340-48). Carole Pateman and Anne Plulhps, t lked about revi-
f th · · I'b 1 al democracy, a
his theory, Scanlon talks about speech acts such as incitement, advo- feminist critique o e eXIsting edr c king sexual inequality a
. . . calle ,or rna
cacy, conspiracy, and so on to commit certain actions that are likely to sions within it. T he reviSIOn IS ld t ·1 more substantial
dd d d that wou en a1
produce harm and defends them as acts protected under freedom of concern to be a resse an . Philips 1993). They
expression based on what he calls the 'Millian' principles, extending active participation of feminists (Patemanb 2012 h 'd in order to make a
Mill's defence of freedom of thought and discussion. c
essentially re1er to t h e ng · ht 0 f women to ecc ear t lks of creating a true
. I po t·ttica
substantia . I d·a: 1nerenee· Chantal .Mouneal a pace to antagomstic . .
The Millian principle recognizes the individuals as equal, autono-
mous and rational to the effect that individuals are 'sovereigns in liberal-democratic society that would give sf those voices within
voices thereby upholding the right to expressiOn o ..
deciding what to believe and in weighing competing reasons for their d . ·17
actions' (Scanlon 1972, p. 21 5). According to Scanlon the autonomy of a polity that are dissident an competing. the ri ht to free speech in a
the individuals enables them the power of judgments hence each indi- While considering the arguments about . d that the question
· · t be borne m mm
vidual is responsible for his/her actions. If the individual wa; incited to liberal democratic soctety, tt mus h . threat to its violation.
. . h . ly when t ere ts a .
act a certain way, the responsibility of the act committed because of the of upholding th1s ng t anses on th kind of speech that ts
incitement rested with the individual who acted upon it because he/ No society would feel the need to suppress bile outlining his theory of
she had the autonomy to decide whether to act upon the incitement or either pleasant or inconsequentta · I. Scanlon w d eof expression becomes
freedom of expression mentione · d that free om ches having harmful con-
not. In case the state exercises the right to protect people against false
expressions by restricting those expressions in public space, it infringes a significant doctrine only when those speel talks about the minimal
sequences are 10 . question. . Kent Greenawa t hould not intenere _£ •
10
0ufon the autonomy of the individual as it does not concede the right
the individual to decide upon the consequences of the .
principle of ltberty t h at says th e government h th s commumcation . . m1g . ht
Free speech, hence, enables the exercise of autonomy. communication unless to preven t harm t at e
. s have been given many
c f express1on
nt.Greenawalt
sequenttalist talks about the consequentialist and the non-con- cause (1989, p. 10). Sueh IOrms 0 h d so on. This work refers to
1·u t'fi . f
tags such as harmful speech, hurt speec :an ;,., and Hare in their work
ti on constders
. s t t cat1ons
pr . fofi free speech. A consequentialist justifica-
t o certam
0
. desirableeCtion these expressions as extreme speech · Wemste... e speech as that form of
st t 0 f ccree• speech
o I'k an
h imperative, as it contributes define extrem )
of truth• tn . d'tVtdual
. a e 1 alCatrs I e dan onest government, discovery
dev
Extreme Speech and Democrac::' . of legitimate protest (2009, p. I ·
J·ustificat' lks e opment, an so speech that goes beyond the limtts ch as a broad category of
ton ta about th . f fi on. A non-consequentialist t me spee .
someth'mg about the e· Imperative o ree speech in the sense that This work, however, treats ex re . . of any liberal democratic
f t'
10 e funct10nmg
its conseq uences (GrpracttceI o free speech is right without regard to those expressions that th e rou The category of extreme
c . t0 h
value premt' f I'b eenawa t 1989). These justifications rest on the society finds discom1ort10g f ressions like hate speec •
ses o 1 eralis h h . I
speech is diverse me u mg a ran d' ge o exp
that free speech b . m rat er t an the favourable consequences
both kinds of . gs about. According to him, in a liberal democracu
JUs t cation h0 ld th J•
democracy res ts on t h e cho. s up
c f . . e value of free speech. A liberal M ffe calls an agonistic model of
Such a society is based on
17 ou
t es o ctttzens, and free speech ensures the democracy. See Mouffe 2000, PP· 9S--IOS.
15
. . l f llective deliberation among free and
pornography, libel, and so on. Sedition is also referred to as a category process in a pohty ts a resu t 0 co th h lity where all
. b sured only roug equa
within extreme speech. Many argue that the centrality of right to free equal citizens. T h ts can e .. h ts to question to inter-
'ty 'to tmttate speec ac ' ,
speech within liberalism is countenanced in a way that it provides have the same opportum , nhabib 1996, P· 70). This is equally
space for extreme speech. Freedom of expression, as Oliver Wendell rogate, and to open debate. (Be h dit' ns that is based on his
linked to Habermas' idea of tdeal speec tothat only those 'action
Holmes Jr. said, is 'not free thought for those who agree with us but . . 1 Habermas wn es
freedom for the thought of those we hate' (Soutphommasane 2006, p. notion of discourse pnnclp e. h a: cted could agree as par-
. h l1 those w o are aue
norms are valid tow h tc a p 107-8). By 'action
33). The defence of extreme speech, thus, also follows several strands . 1 d' e' (Haberrnas 1996• ·
of thought. ticipants in rattona tscours . th behaviour of people and
norms' he means general rules governhmg . te rest could be affected by
Sorial and Mackenzie talk about three kinds of defences for extreme ,h those w ose m e
speech (2011, pp. 165-88). The first argument is that the speech that by those 'affected e means . Rational discourse for him
. f th actlon norms.
urges violence is remote from actual occurrences of violence; hence, it the general practtce o ose . d t achieving an understand-
is not a cause of direct harm. This argument, however, does not find is a process by which an attempt IS rna ati'on Hence the process of
h h commumca . ,
much support even among the defenders of extreme speech, as it has ing over action norms t roug . ld be considered valid only
« . 1 w making wou
been often argued that the harm is not always direct. Literature deal- rational discourse anecting a - ££ ted and since laws affect
. . . . f all who are anec •
ing with hate speech or pornography has mostly refuted this defence, tf it has the partictpatton ° ..
. the partiCtpa 1
t'on of all. Habermas does
arguing that the nature of harm does not always have to be physical all, the process would requtre . . ti' arrive at a consensus. The
h 0 P artiCtpa ng
and evident. th
not mean that all ose w are . ·f th who are not agreeing get
· valtd 1 ose d
The second argument says that it is often difficult to distinguish process of decision-rnaking ts . their opinions and are trie
d freely votce
between extreme speech and criticism of the government, hence, an opportunity to equa11Y an hy a certain decision must
restriction on extreme speech many a times results in restriction on to be convinced by those who agree the conditions of ideal
legitimate criticism of government as well. The third argument is about be taken. This is another way of saymg onsequence of the rational
·d and are a c
maturing of a democracy. It advocates that a mature democracy should speech ensure that laws are valt
be able to tolerate ideas expressed by extreme speech as it would have discourse. h in democracy, the common
long-term consequences for democratic living. Both these arguments In all these arguments defending speefc mmon good or good of the
. idea o co h
correspond to a democratic functioning where the values of democracy running thread is that of a certam 1 tion of extreme speec ·
d through to era
are accentuated to justify toleration of extreme speech. Defending society that can be promote .. blic debate that extreme
'button to pu ld
extreme speech along the same lines, Ben Saul argued that unless we There is a certain logic of . . d that extreme speech shou
able to hear and understand the views of our political adversar- ideas can make, if tolerated. It tS tmplie£ 'ts democratic utility, either
h but10r1
Ies, we cannot chan ge th etr · mm · ds th at t h ey are wrong or change our not be protected as extreme speec ' dt's idea of shielding away from
own behaviour to a da . posttions.. going by Mill's truth argument or Bren d . £ rm of words have lesser
'gh ccommo te opposmg that' turn out to be elease tn IO
:
1
t pp. 868-86). These defences of extreme speech argue Violence as discontentment once r h N ssbaum talks of the same
. . . 1 e Mart a u h th
dcreating a deliberative sphere of adversarial political opinions. possibility of erupting m v1o enc · b'l'ties
11
approach, w ere e
1 defence of free speech through her capa h onditions to all citizens
tht era . emocracies are commttte . d to d elib eration because it is one of
· t enable t e c
e pnmary ways that ensure ctttzen
·· . . . and engagmg
parttctpation . with argument is that, lawgtverS mus .£ The prominence given to
those wh o h old extrem . b t owards a goo d conceptton · of human. 1ne. · ·
bout the constitutive
(Soria1 and Mackenz1e . e VIews must e a part of deliberative process . fr e IS hence a
2011, p. 169). f reedom of speech within t h ts am l bt'lt'ties (Gelber 2010,
. f . di ·dua capa
As per the deliberati d f · role of speech in formation o m Vl
legitimac f d ve mo e1 o democracy, the rationality and
yo emocracy can only be established if the decision making p.315).
17
Liberal Democracy Free Speech
. used b a speech, there have been stud-
Soria] and Mackenzie opine that there has to be considerable dif- On the question of to predict the reception of a
ference between extreme speech with a purpose to affect the public ies that have proved that It IS d' n the hearer speaker and
. h nge depen mg upo ' h
sphere positively and extreme speech which intends to propose reso- speec h as meanmgs c a t ffected by the same speec
., 0 H h ay people may ge a
lution of issues in public sphere through violence (2011, pp. 175-6). context.- ence, t e w . different. These studies have
11 be the targets, IS
Though there are always contingencies attached to allowing extreme even though t h ey may a h . question is not always the
'b. the speec m f
ideas to be circulated in public, as the consequence may turn out to suggested that proscn mg . d education on the lines o
be violent, however, the unintended consequences are not to be the
·t bl . fact persuasion an
best remedy avat a e, m n as impact the aggressor
th et group as we
basis of judgment. Their logic is that even if there is propagation of toleration help protect e targ
tile politics or goals of a so called terrorist organization, that must be (Weinstein and Hare 2009, P·. lOS). the causal connection between the
allowed to be heard as that would help the society make better sense The question about how tightly h been one of the most pro-
of the act of violence resorted to and also the nature of deprivation . « be drawn, as 09
speech and 1ts enects can . . f free speech (Post 20 , P·
and oppression that may have resulted in such acts. But this does not nounced defences against proscnption tlo requirement of proving the
mean that the propagation of a violent act, urging people to take up 134). In any case, no mater t how severe h.
le f h
de the contingency o t e
b speec IS ma ,
arms, should be allowed. This is based on the logic that propagation · conjectural harm cause d Y a ·th . most likely that a speech not
ay WI • 1tIS
of extreme ideas about violence may contribute towards culling out argument cannot be one aw d h ful occurrence to follow may
the truth in society and help in rational decision-making. But the same having enough ·mcttemen· t for any arm h having met all th e require- ·
ideas in form of incitement to violence do not serve the same purpose result in the unanticipated, and a speec fa harmful speech may not
hence should not be protected. IS . h parameters o
ments of proscriptiOn on t e . the question that emerges
The above argument offers a ground saying tllat there will be . A . t these dilemmas,
result in any act1on. gams
instances of expression of extreme ideas resulting in violence in society. is what can words do?
If the ideas, however, were expressed independent of an intention to
result in violence then the undesired consequence must be tolerated hA Reconsidered
for the goodness of the intention with which the idea was expressed. Sedition as a Speec ct, f which sedition is a
f
treme speech, o
This line of reasoning concludes that if the speech in question cannot When we focus on the fate ex0 minence. If speeches can
h assume pro h
he used to justify its contribution to the betterment of society then it kind the consequences of speec . the meanings that speec es
, theonze h·
should not to he protected. The argument about societal good being mean harm it is of our concem to b t consequences. The P I-
' . bring a ou .
tllrough free speech also contains, within itself, the possibil- contain and how these meamngs . . and while domg so, the
. theonzatlon ed F
Ity of a counter argument. If the purpose of speech is to contribute losophy of language he1ps t h IS . ds to be complicat · or
positively to a society, when a speech affects a society deleteriously or distinction between speech and acttons neeh act theory is parocuIar1Y
·
, k the speec th .
certain sections of the same, it ought to he restricted. This argument this purpose J.L. Austin s wor on d f the speech act eory IS
has been advanced by many scholars on hate speech specifically. 19 helpful The' assertion that can be maeo on its addressees (Btl u er
. . . . us impact up
18 that language can have an 10JUf1°
• kinSorial and Mackenzie, while giving the above argument defending cer-
tam
. . ds of extrerne speech an d not defending the others, say that this logic . . theory approach, studied
1S app11cable for th · · h h . muolcation h
. ose soc1et1es t at ave a functioning liberal democracy. For 2.0 Leets and Giles, through therr com the impact of racial speec
0 th er Circumstances ho d d ·gns to see d' th t
19 wever, a vocacy to violence might be tolerated. three different experimental case esl . ll thereby conclu mg a
Gelber uses Nussbaum's argument to revert it to say that if hate ·II t results 10 a ' · t
on people and came up with d 111 eren ps and proscription 15 no
sGpelebc °es not enhance the individual's capabilities, it must be prohibited See •10 11 target grou
the attribution of harm is different a
e er 20 IO,p.318. · 997 ·
a1ways what is required. See Leets 3 nd Giles 1
19
to the intentions of the utterer and
resulting in an act may be contraryd' f the audience. An illocutionary
in accordance with t h e uncierstan tng while perlocutionary act 1·s
0
1997, p. 16). Austin in his work, How to Do Things with Words, talks dc
about three ways in which speech and action are related; firstly, saying 1 aning an torce th f
act has a conventiona me . A ti supplements his eory 0
something is to do something; secondly, in saying something we do · t rpret1ve. us n b bal
non-conventiona1 and 10 e . d s not always have to e ver
something; and thirdly, by saying something we do something (Austin nt that 1t oe · nd
speech act with t h e argume . con)· oins the illocuuonary a
1962, p. 108). 8) h. ch sometunes f .. a
(Austin 1962, p. 11 • w 1 h t For example, an acto nus10g
The study of speech act signifies that language performs action,
hence the distinction between language and action does not exist.
perlocutionary effects of a :c .
act of intimidation, at the same
stick will constitute the ry ffect of deterring a person from
Searle, in Philosophy of Language, says that speaking a language is time it may have the e 'llocutionary effect, raising the
performing speech acts, such as making statements, giving commands, doing something. In the case o ltimidation while in the case of
referring, predicating, and so on (Searle 1969, p. 16-9). Speech act, to stick has a conventional meaning o 10 ay not be deterred. This may
the person may or m
put it simply, is the act performed in the utterance. The utterance may perlocutionary euect
cc
f speech act may not always be
or may not be verbal, could be symbolic, just as speech is also a non- mean that the perlocutionary effect o ; dith Buder writes, that illocu-
verbal form of communication. The study of speech act is the study of produced. Interpreting Austin's theory, ulapse of time as the speech act
the symbols produced in the utterance, imperative to understanding c f ns without any . ts proceed
tionary acts penorm ac 10 ) The perlocutionary ac .
the intention and the purpose of both the utterer and the utterance. 1 7
itself constitutes action ( 1997 • p. · not be sequentially followmg.
According to Searle, this kind of study of theory of language is neces- h t maY or maY k b ·nto the
by way of consequences t a h ry this war pro es 1 ful
sarily the study of theory of action. Drawing from the speech adct t .e: :nd thereby between harm b
Austin explains speech acts as having two kinds of effects-illocu- relationship between speech an actto The speech act theory esta -
tionary and perlocutionary. An illocutionary act is the performance of speech and the harm that it can injurious effects. Hence, the
an act in saying something rather than performance of an act of say- lishes that speech is capable of pro ucds to be revisited from the van-
ing something (1962, p. 99). This means that an utterance has already eech nee h t blished that
entire question of extreme 5p d Th0 ugh Austin as es a eli
produced an effect while being performed. This effect is called the
tage point of harm through wor s. senses, th ere h ave been stu all es
illocutionary effect. A perlocutionary act is that which is produced as a all speech acts are conducts in narrow esulting in further acts, not 11
consequence of saying something. Such an act results in a perlocution- · actscc or r Hence the propost'tion that a
that argue that despite b e10g
speeches can produce the same euects.t be genera11Yasse rted ·
ary effect, which the audience of an utterance feels consequently. It
.
is the actual effect of the speech act whether intended or not by the c 1' 't us performattve
words can mean harmful effects canno t of a 1e tCl o ffi
utterer (Austin 1962, p. 101). The basic difference between the two is Judith Butler talks about the acts can \
that in case of an illocutionary act the speech itself constitutes an act which is based on the idea that not a rmative is that in w tc
while in case of perlocutionary act, the act is the consequence of the on their addressees. A felicitous perfo effect (Butler 1997, p. 17)h.
speech. For example, in a Christian wedding, if a couple pronounces roduces some . b tween speec
speech that performs an act P h equivocatton e h
'I do' in front of a priest, that speech has an illocutionary effect as Hence within the speech act theoryht ethe effectiveness of the sp:ec
the act of marriage is solemnized in saying what they said. Example and is not the only debate t -un.i\e considering the 'barmal
of a perlocutionary act would be the act of convincing. An utterance . 51'gnt can . vvu . ·thin 1i er
act in producing effect ts more 'ts restrictton Wl
or speech that is making a statement to convince someone does not rm1ing ror 1 ry extreme
argument of a speech and. a o-·· e that because . ld
constitute an act in saying but it may lead to an act as a consequence (if
democracy, it is not suffictent to arguth t may be injunous, tt shou
the audience is convinced). .£arms acts
speech is a conduct and pen• . . a st take mto · account the
Austin, however, says that the effect of the perlocutionary act is b e proscribed. The deb ate on restrtctton mu
not always as intended by the utterer. The consequences of the speech
!?'!T" 5 !!!fflfM
20 Sedition in Liberal Democracies Liberal Democracy aud Free Speech 21
effectiveness of the extreme speech in performing acts that produce . eech act can produce depends upon
harmful effects. what she says, the effect that a S h S rial alternatively writes as
whtch ara o
the context of its utterance , . p. 172). Hence, any argu-
Before we get into the nuances of determining the f' bl" ntext (Sona 12012 ,
between speech and harm, it is imperative to understand the dtffer-
the criteria o ena mg co ds to be cautioned agams . t
. . peech act nee k
ent ways in which sedition as a form of extreme speech/speech act ment towards restnctmg a s . I The following chapters ta e
· · 1 0 f assessmg larm.f the identity of t h e spea ker,
using general pnne1p es
can constitute the illocutionary and perlocutionary effects. As has been . d" . the parameters o h b . f
up cases of se ttton on d equentiality as t e asts o
discussed above, the illocutionary act in saying something is constituted f . harm an cons
the intention o causmg t ·n being injurious.
by force of convention. This implies that illocutionary utterances have
determining the effectiveness of an ac t. b th a methodological and a
conventional meanings-meanings that have a general acceptance. In .. . speech act ts o th ffi
deciding the illocutionary effect of the speech act, however, it is of Constructing sed ttton as a h . t ntion is to probe e o en-
theoretical question for this democracy for which the
utmost significance to see who the utterer is. For example, banging of f d .. vtthm I era h
a hammer by a judge in a court constitutes the act of silencing and sive connotation o se ltiOn ' . I It helps examine t e extreme
disciplining the people in court but the same speech act performed
cr
speech act theory oners an e ff,ecuve too f· the potentiality o f t h e act to
by a lay person on the street may not have the same meaning. Sarah speech in question on the the practice of the speech act
produce harm while juxtaposmg tt Wlk p in the following chapters.
Sorial outlines three criteria for a speech act to take illocutionary force; on ground through t h e case studies ta en u
first, the speaker/utterer must have the appropriate authority over a
domain of audience who are the addressees of the speech act; second,
the speaker must have an intention to constitute the act he/she tries d. · · hin the L 1.bera1 Democratic Logic
Placing Se ttlon Wlt h the distinction
to constitute through the speech; and third, the addressees must rec- of extreme speec , .
ognize the speaker's intention (2012, p. 95). It is also the fulfilment of While considering the category erges on the bas1s of who
these criteria that ensures the efficacy the speech has over the action it between different classes 0 f speech acts femparticular kind o f extreme
constitutes and the effect it produces. their target is. Accordingly, the : takes shape. Sedition as a
For a seditious speech to have an illocutionary effect, and for it to speech or the rationale for its. for the author-
be restricted within a liberal democracy, it must be assumed that the class of extreme speech is restncted . of the state. One of the most
speech constitutes the act of violence/harm on its target. This work ity of the government and the secunty rity discourse of the state
considers the possibility of a seditious speech act against the state to
ks
dominant framewor to exp lain the secu °
ft n interprete d as an ffence
constitute illocutionary effect if-the speaker has authority over the is the 'reason of state'. Sed ttton,
.· most .oh" e the 'reason o f state • pa ra -
I
against the state finds exp anatiO n wtt m
· · . e of unrestricted panopIY
domain in question, the intention to constitute the act, and the audi- • th exercts C I
ence recognizes the intention. In such a scenario, would a seditious digm. Reason of state advocates with existential challenges. . ar
speech act having illocutionary force, constitute the act of violence of measures by the state when face • provides for considerations,
against the state? This question reverberates through the chapters tak- J. Friedrich suggests that 'reasons _of;t:teinsure [that] the survival of
0
ing up an array of cases of sedition for scrutiny. Which exist 'whenever it is reqmred responsible for it, no matter
. d" · ua 1
For a speech act to have perlocutionary force, it is the consequence the state must be done by the 10 lVI h s in their private capact"ty as
of the act that needs to be weighed. Austin marked the specific charac- how repugnant such an act may be tot em). These const"dera ti s are'
17
teristic of perlocutionary acts, that is, the consequences produced may decent and moral men' (Singh 20° 7• P· h"ch aim at preservmg the
however, important m . taki ng· decisions w 1
or may not be intended. Butler in her work also reiterates the argument
that speech acts have effects that we cannot predict. While arguing in existence of the state. f t are normally understood as
context of hate speech she writes, while the speaker is responsible for
. I con d"tions
°
The considerations of the reason sta he e the state is facmg
w er
. a cnsls
··
ernerging out of exceptwna 1
23
. f son of state Foucault was clear
In context of the considerations 0 rea '
situation This calls for measures that are extraordinary or exceptional . d not only when the state was
to address a crisis that is neither routine nor ordinary (Singh 2007, that they were at work all the time an 'th bl" would
. p1 saying e repu tc
p. 17). This argument brings into play the distinction between routine warding off danger. Foucault cttes a azzo ' . e if it were
d would have no continuanc
and exception. Reason of state is a manifestation of an exceptional con- not survive for a moment an . . d b n art of govern-
. t and ma1ntame Ya
dition imperilling the existence of the state, the answer to which lies in not revtewed at every momen S lf- then
1978 3 41
an exceptional non-routine legal provision. 21 Liberal democracies have ment assured by raison d'etat' ( • p. ks)St: be able to
becomes the logic on which the state wor : a e rt which Foucault
witnessed the enactment of sedition laws in response to an immediate This reqwres an a
crisis situation; however, in the course of history, these provisions have strengthen themselves and end ure. 377 _8). It is rational
been extended beyond the exceptional situation leading to the regular- calls 'Political Rationality' state perpetuation.
ization of these laws. Paradoxically, sedition laws emerge as measures knowledge that leads to the techntq . F cauit is not concerned
. ccording to ou
for crisis situations; however, they are used as ordinary routine laws for The logic of state perpetuatton a · wt"th the state and
I Th only concern 1s
ordinary times, thus complicating the defence of sedition laws based on with any general rule or aw. e f st t The entire argument
. . . 11 d h eason o a e.
the reason of state. Its exigencies, whtch IS ca e t e r th h rt of the fact that states
· t· ested at e ea
The idea of reason of state stems from the argument that it protects ab out govemmenta l rat10na tty r th th h nge 10 · context how-
. ·dWi eca '
the state, hence protects those who reside within. The rights of people should exist and were mamtame ·
are the cost of the security they enjoy. When it comes to the context of ever, this rationality also changed. . the fact that now the
. h l"b l d mocractes was
liberal democracies, however, it has to be deduced whether the logic of What changed Wlt 1 era e . der the will of the sov-
d I . ·th subJects un
'reason of state' operates any differently, and in doing so, it is Foucault's rul:rs were no ea mg WI d with rights and interests' (Rose
work that assumes significance. Foucault traces the evolution of the eretgn but with 'mdivtduals entroste ed the logic on which the state
concept of reason of state. The modern state, as it came to be recognized 2006, p. 149). This change also rnmental rationality. Colin
10
in the sixteenth and the seventeenth centuries, worked on the principle operated meaning thereby, a change gove It meant by governmen-
of reason of state understood differently from the times of the liberal G ordon in attempting to d e fi ne what Foucau
f th" king about the nature of
· wrote, •a way or system o 10. what governing is· what
t a1rat10nahty
·
democracies. Foucault treats liberal democracies as a phenomenon that
saw emergence in the eighteenth century. According to Foucault, the the practice of government (who can e forn1 of that
f making som
sixteenth-century conception of the reason of state was essentially a or. who is governed), capabl e 0
. ractitioners and to those upon
'conservative' idea that talked about identifying what is necessary and thtnkable and practicable both to tts p ) Within liberalism, with
199 3
sufficient for the state to exist and maintain itself in its integrity. He Whom it was practised' (Gordon entity and the need
emphasized that it was not a principle of the state's transformation, the recognition of the individual as a ng th rights of the individual,
of th
or even of its development but rather the perfecting of features and estate and the governmen °
t t protect e
d fr 0 m that of its sixteenth-
chara
. · · t h at a1ready constituted the state. In that sense, it was an
ct ensttcs the rationale of the reason of state change "ty and conservation.
. . d t 0 state secun
Idea of conservation of the state and its maintenance. 22 century logic which was hm1te . . this changed context and
10
Now, liberty was the condition of secunty
JJWat s·tngh explains the existence of extraordinary laws within Indian
21 u-·
democracy with inhe t d . provtsiOns
..
, ren un emocrabc presented as ,emergent' and
temporal' laws desig d dd ' . the ·ruler in form of libels and
Singh . ' ne to a ress crisis situations that are exceptional. See
2007 relation to the rebellion of subjects agamst S d"tion and rebellion were
22 dts d th ho govern. e 1
. _In his lecture, Foucault outlines while citing the views of Bacon those courses against the state an ose w th b"ects or discontentment
sttuattons that manifested th e ,reason of state' in the sixteenth century. The
' sit- cond·tttons
. emanating from et"ther poverty of e su J
.
. and sedition. Sedition was understood
uations were the occurrences of reb e11IOn frorn the rule. See Foucault 1978, PP· 348-52 ·
25
Organization of the Book

a violation of liberty would have actually meant not just violation of
h lationship between liberal democ-
rights but ignorance about how to govern (Gordon 1991, P· 20) · This work is primarily about t e re . n with other liberal democ-
Under these changed circumstances, the principle of reason of state . I d' While companso ed
racy and sedition m n ta. . ture of historically situat
th are m t 1le na
demanding the submission of rights of individuals for the maintenance racies has been done, t: • 'b t the debates on the concept
of the state by any means, negated the values of liberalism. . nd contn ute o .
illustrations to mtervene a E 1 d USA and Austraha to
. h en are ng an , , .
wrote, 'the game of liberalism (was)-not interfering, allowing free of sedition. The countnes c os b n the right to expresston
movement, letting things follow their course; laissez-faire ... basically h tussle etwee
study a common aspect-t e . k b rrows from Tush net's concept
and fundamentally means acting so that reality develops, goes its way, and the concept o f sed .ttton. · Thts wor d 0 f mparative constitutiona1
and follows its own course .. .' (1978, p. 70). For this theoretical claim . . . h. stu y o co ·f
of normative umversahsm 10 ts . al (11ushnet 2008). So 1
. 1 s are umvers
to take shape in reality, the governmental rationality had to operate law, which says that certam va ue h . a universal value, it helps
through other means rather than direct physical force. 23 Foucault by no h . ht t free speec ts th th
it is assumed that t c ng d different principles at e
means argues that liberalism is all about individual liberty and minimal- · ·
to assess the restncttons 0 n 1t base ll on
ist state and does draw a distinction between the theoretical claims and .JUrisprudence o f d'ccmeren c t ountries fo ow.
. . re1ation
rticularities tn . to
existing realities (Gordon 1991, pp. 14-27). Studies on contemporary . ent certatn pa .
The three countnes repres h ept of sedition owes tts
. rk T e cone
liberal democracies have shown that violence is integral to the working the central concern of thts wo · lib 1 democracies have been
of the liberal democratic states despite its official denial. 24 t other era .
genesis to English law an d , mos eli . . England. England ts also
1 f se tton m f
For our purpose, however, it is imperative to interrogate these theo- influenced by the Common aw 0 . h e abolished the offence 0
retical claims on which liberal democracies have been founded. If so, . l'b 1 d ocractes to av . th
one of the earhest 1 era em t liberal democracy tn e con-
does this governmental rationality allow the curtailment of individual sedition. The US is seen as the stronges b t free speech jurisprudence.
liberty for the sake of security of state? Is the concept of reason of state 1 ed a ro us
temporary world and has deve op . . l USA has retained t e aw
h l
essentially anachronistic to the principles on which liberal democracies h prmctp es, .
Despite the strongest f ree speec h made one of the ear1test
operate? Or is it the fact that the imperative of the state supersedes the ·b 1 d mocracy as b . .
of sedition. Australian lt era e l age of sedition to nng It
d'fy the angu .
other imperatives in a way that liberal democracies are left to be no and definitive attempts to mo 1 B 'des in recent times, parttcu-
. l tions. est ' .
exceptions in terms of upholding the liberal democratic rights? Within the counter-terror 1egts a f th ontemporary literature on
This work addresses these explanations while probing into the 0
larly between 2005 and 2010, most h e selected represent
theoretical defences of liberal democracies in retaining the law of sedi- sedition is Australian literature. The t ree .· h developed world wh'tch
c
tion and whether this retention truncates the value premise of liberal d rticular 1Yt e . r thi
different parts of the world an pa t of liberal democracy. It ts 1or . s
democracy. has come to hegemonize the concep d' ase becomes interestlng,
. . h the In tan c . -
reason that their companson wtt 1 . society shares the tmpres
23
For Foucault, the answer lies in govemmentality, the art of governing. For
l . l deve optng
where India being a postco onta ' . h h se countries.
the purpose of this work, however, the problematic is not governmentality but sion of being a liberal democracy wtt t he t r on four legal regimes,
the fact whether the changed governmental rationality within liberal democra- t've c ap e
The first chapter is a compara 1 d I dia dealing wit P0 ttl-
h t· .
cies help explain the existence of sedition as an offence. namely England USA, Austra1ta,
. an n nalyses two particu · 1
ar
24
Jinee Lokaneeta in her comparative work on US and Indian liberal , ' . . The chapter a h
cat offences and speech cnmes. . . as an offence-first, t e
democracies argues that these states continue to rely on excess violence as a
h
. of sed1t1on f r , d
Paradigms to study t e ex1stence h sical act 0 torce an
mode of controlling and governing the modern societies and this reliance is
conditioned by the vagaries within the law in defining the threshold of permis- conventional paradigm o f •v10 · 1ence as a fP, Y· lence through word s' ·
d' m o VlO
sible violence. See Lokaneeta 2012. second, the non-conventional para tg
27
"ud ments and deduce a theory of sedition coming from_ the.judiciary.

Within the first paradigm, sedition is compared with the allied political J g . I ments as contnbuting to the
The chapter treats the judicta pronounce th .
offences of; (a) treason, (b) incitement to disaffection/violence/over- .d tify what emerges as e cnme
throw, and (c) political conspiracies. Within the second paradigm, sedi- study of sedition as a speech act to 1 en .
I . ·d·cal regime in Indta.
of sedition within t h Iega -JUfl
1
tion is compared with four speech crimes: (a) personal libel, (b) hate d tandin of sedition emerging
speech, (c) blasphemy, and (d) pornography. Both levels of comparison The fifth chapter JUXtaposes the f thg law on the ground.
. d" . "th the practtce o e
offer deductions about specificity of sedition as a political speech act from the higher JU tctary Wl h" h 100ks at sedition in its
· · ·1 field-based, w lC
creating a discord within the value framework of liberal democracies. T h e chapter ts pnman Y . d based on caste class
. d . h the socta1 or er , ,
The second chapter leads to separate inquiries into the political everydayness intertwme wtt d th h a study undertaken of
. . I d" It procee s roug
history of the law of sedition in each of the three western democra- an d commumty tn n ta. h d Pun1·ab The regions
H Maharas tra, an ·
cies, based upon legislations, judicial trials, and targets of the law and three specific regions of aryana, th erged as field areas fol-
· . · fact ey em
its relationship with counter-terror legislations. In each country, there are not chosen as fi eld sttes, 10 '. h h "ntertwined dynamics of
h 0 d 10 . whtc t e t
is one specific moment in relation to sedition that gains prominence lowing the case law met d "t different character. This
. t· · 1 ariables 1en 1 a
through the course of study. The chapter offers a framework of three sedition wit h soctopo ttica v . . ws and the attempts to
. . f: t face 10tervte ,
specific moments, namely, 'abolition', 'restriction', and 'modernization' included personal vtslts, ace 0 • . f th actors involved, both, at
I" d eaht1es o e
that most aptly define the place of sedition in that particular country. partially experience t h e tve r th . This has also involved the
. . nd erwtse.
The third chapter is the first specific chapter on India. It discusses th e level of state institutions a 0 h" s memorialization. They
• f, . to arc tves a
the idea of sedition from its inception within the legal code by the colo- process of archiv10g, re emng l f ·maginations borrowing
. d paces o 1 '
nial regime and the different meanings that it acquired within colonial are the creation of memones an d · 2003) 'Traces' brings
, • (Appa urat ·
India. This chapter proposes that the idea of sedition within colonial from Appadurai's idea of traces. di "d t·zed notion of traces, like
. The 10 v1 ua 1
India took shape within two different discourses-the judicial and the t h e notion of wh at rema10s. . . also forms a part of the
· agtnations,
political. These two discourses are treated as two frameworks to look people's lived experiences an d 1m
at the different meanings, deployments and the politics of sedition, everyday narratives of laws. merging in the working of
· the patterns e
through a detailed study of the use of the law and various trials related The sixth chapter th eonzes . ·fie themes along which
. b 1.d tifytng specl
to it. Subsequently, it tries to see how the colonized subjects responded the law of sedition in Indta Y en ti"dian life of the law in the
n the quo
to the concept of sedition within the two discourses to conclude what the law has been used. It fiocuses 0 th wer oflaw enforcement. It
hands of the state executives w . .
orary times, its use agamst
sedition meant in colonial times. The focus of the chapter is on the
· in contemP
early trials involving the nationalists and the emerging idea of sedition ch ronicles various cases of sediuon . . s communal politics, the
, rgamzatton ,
as political resistance. The colonial literature, available as part of archi- anti-nuclear movement, students 0 Through these narratives, also
records, serves to he the most exhaustive source for constructing a dominant discourse of nation, and so on. . ·ngs and its identification
. blic jmagtnt
htstory of sedition within colonial India. emerges the idea of sedition tn pu . l' deshdroh. It also theorizes
. d , ti-nauona or . al
. The fourth chapter traces the discourse on freedom of expression Wtth what is loosely terme as an f clition and the exception
. law o se
postcolonial idea, the security imperatives of the state, the political the relationship between th e rouune Th h the patterns identified,
1 roug
htstory of the law of sedition post-Independence and its journey within or extraordinary counter-terror aws. d acy being characterized
. I di l"h ral emocr
the courts. Through this, an attempt at conceptualizing public order t h ts chapter identifies the n an e . 1
the offence of sedition.
of state and other grounds along which the act of sedition by a 'moment of contradiction' in relation to ther the common and the
penaltzed'. is made. Th"ts ch apter b egms
. wtth
. debates on sedition within The conclusion attempts to weave .tolge eech the offence of sedi-
t h"gh
e Constituent Assemhi y an d systemattcally
. · takes these debates to the ·h olittCa sp 1
uncommon between the ng t to P th f0 ur countries.
h 1 er courts · 1 d"
m n ta emp1oymg . legal hermeneutics to read into the tion, and the liberal democratic frame of e
29
Political Offeuces and Speech Crimes
. with other political offences and

. arative perspecttve f eli .
are put m a comp . ecificities to the offence o se tion
speech crimes to see tf there are sp
ratic predicament.
that result in a liberal d emoc
I
. · a1 Offence
Conceptualizing Po1ttlC .
. n to the family of offences constd-
Political offence is the name gtve d . rnment. Often these are
. h t te an gove
ered to be crimes agamst t e s a . t the nation, largely woven
POLITICAL OFFENCES AND d to be agams d"
also crimes that are construe . d ublic order. Accor mg to
SPEECH CRIMES · l secunty an P k
into the discourse of natJona h that require state to ma ·e
. . l . mes are t ose . d b
Michael Head, pol 1t1ca en S) They are beheve to e
Comparing Legal Regimes
laws related to seIf-preserva tion (2011,. P·. ·political system, t h e ··mstJ- ·
. t the extstmg . d
offences that have in t h e1r targe Th0 ugh the target onente
emment. cc 1
tutions of the state, an d t h e gov f defining political ouences,
understanding is the most common wahy o aning of 'political' in rela-
d"ng t e me d"
there are debates, however, regar 1 l .c ·ous and often contra 1C-
. 1 ds to mu tuan
tion to these offences. T h1s ea
The questions related to restrictions on the category of extreme speech tory definitions of political offences. distinguished from other
have always posed a dilemma for liberal democracies. Sedition is a kind Most commonly, political offences based on the pur-
of extreme speech that targets the political order and is thus consid- f king out Hl' . . l a:
crimes in society by way o mar d innings. Pohttca onences
. ·d 1 ·cal un erp
ered a political offence. The act of sedition, therefore, falls into the pose of the crime and tts 1 eo og1 d political cause, more
category of both political offences and speech crimes. To understand 0 f 1·deology an d"
are linked with the questions f normativity. Accor mg
the dilemma that sedition poses for liberal democracies, the specific . . h aspect o
often than not, by bringmg 1n t e h se committed by persons
conceptualization of both these categories of offences needs to be con- 1 . s are t o •
to Stephen Schafer, politica cnme larger cause. He says a con-
sidered. This chapter, therefore, offers an enquiry into the legal regimes having a certain conviction linked to somel "stic motives while other
of four liberal democracies, namely, England, USA, Australia, and India. . . for a tnu 380 7)
Victional' criminal commtts a cnme (Schafer 1972, PP· - ·
It proceeds through a comparative study of different political offences crimes are committed for selfish motive hat still finds acceptance
and speech crimes, and the parameters on which they are distinguished Schafer's understanding is debatable,_ buht wotion of purpose. Political
from each other. It employs two particular conceptual frameworks . · 1 ·mes 1st en
Within the debate on po1tttca en
to mark out these distinctions-firstly, the conventional paradigm of
'violence as a physical act of force' focusing on the specific category ·mes· crimes committed
. f olitica1 en . . .
of political offences, and secondly, the non-conventional paradigm of I Some literature describe two kinds pdb the government. The dtstmc-
'violence through words' focusing on the specific category of speech against the government and crimes commltte .yst the government are always
crimes. tion between the two is that crimes the crimes committed by the
With the changing course of liberal democracies, the legislations treated as crimes against the existing order w I e ts in defence of the order. See
nted as ac ·tt d
defining sedition have also changed. This chapter explores the early authorities/government are always prese ·gues that crimes commt e
Roebuck Weeber 1978. This work, howevder, ::od as acts in defense of the
conceptualizations of sedition within each of the four countries to ds to be un ers
study the actual form in which the offence of sedition was
. ls
In maintaining the order a 0 nee d b the existing order.
. represente Y
Interest of those whose interests are ·
within different liberal democratic regimes. These early conceptions
31
Political Offences and Speech Crimes
t blished authority is also against
crimes may or may not be committed for an altruistic motive but they what is against the interest o f th e es a 1 t t
. 1 ·ety or the arger cons rue
are crimes committed with a political motive which has a cause affect- the public. Public or people can tmp y I a hence allows
h tion of the po 1ttca orrence, ,
ing a collective. This argument largely finds validation in the fact that of the nation. T e concep
. . that a po1ttica ac
. . 1 ti'VI'ty targeted at
acts of political violence are often justified in the name of bringing for such fluidity of mterpretation tl be construed as an
ld . er curren y, can
about political change towards a just order. On similar grounds, Hagan those who may e b h 0 mg pow t' of the category of
. . The construe ton
refers to political crimes as criminal activity committed for ideological activity against the enttre nation. f flatt'ng and merging
ks t the cost o con
purposes. Political offenders carry out activities that they believe 'are political offence, thus, oft en wor a .
nt and nation.
guided by conviction that supersede the existing laws of the society, categories such as state, governme . , l'k "1"l k also focuses on the
1' . I nmes 1 e 1 ur ,
hence, often take form of crimes against the government' (Hagan 1997, Ingraham's work on po tttca c .. • A rding to Ingraham, the
. . 1 thonttes. ceo
p. 2). Hagan's understanding of political offence deals with those people response from th e po1tttca au d b its targets but by the 'legal
who acknowledge themselves as offenders conscious of violating legal nature of political crimes gets define not y ) His argument is that
79 19 ·
norms for a purpose. response the act evo kes • (I ng raham 19 th• P· thorities choose to treat
. . I ·me when e au
Not all conceptions of political offence are linked with the ques- a crime becomes a po1tttca . I aham's approach, however,
tion of normativity. The measures taken to deal with them also mark it in the legal idiom as a pohtlcal ngr oach of defining political
. I 1 d t 0 the ear ler appr
out the specificity of these crimes. Austin T. Turk writes about politi- Is not complete y unre ate d th onses the offence evokes
f th 0
ff< an e resp
cal crimes in relation to their differences from ordinary crimes in the crimes. The targets o e ence th ts of the offence are that
. . 1 vho e targe
society, which he calls conventional crimes. His argument is that while are intertwined. It IS prectse Y \ ld be This is to say, because
onse wou ·
conventional crimes are treated to be deviant social behaviour hav- determines what t h e IegaI resp th authority of the govern-
ing conventional laws to deal with them, laws against political crimes . . k
a certam act IS ta en to e a c b hallenge to e d hence gets treated like
1' . l offence, an , ,
are created explicitly to deal with greater challenges and resistance to ment, it is construed as a po ttica ll'tical then rests on those
.. f nme as po
political establishment and for the process of political ordering. He one legally. The recogmt1on ° a c . th crime. Kenneth D. Tunnel
identifies three specific features of such laws (Turk 1982, pp. 54-68). who have the power to legally act agamstht e 'der political economy in
h t ·tis e WI
First, laws defining political offences are publicly justified as defences also argues in the same tone t · a 1 . which particular act would
of the polity and its governmental structure, and assert primacy of Which a society functions that accepted as not offensive.
collective or ruling group over sub-collectivity or individual. This cir- be criminalized when and what the existing political-economic
culates an image of the authorities acting on behalf of the people and This determination is made keepmg
in their best interest, which in turn legitimizes the laws dealing with system intact (Tunnel 1993). . nalize activities such as
l ·b 1 democracies pe .
political offences. Second, these laws are extremely ambiguous. Third, By and large, most 1 era . assassination, terronsm,
blv esptonage,
they provide for abrogation of usual legal restraints. For Turk, political sedition, rioting, unlawful assem J• nspiracy against the state,
. t the state, co .
offences are attributed to persons that are considered by the authorities sub version, waging war agams n !'tical offence then IS an
. 1 ffences. ro 1
as intolerable and the ones not been socialized into the political order reb ellion, and so on, as poli ttca 0 ·th both commonalities as
.a t offences Wl
hence, do not follow the political norms. Political offence overarching category of d meren . ·th· these offences appears
. d' . tton Wl m
in the form of political resistance and reaction to that resistance Well as distinctions. A maJOr lstmc . ffi Ian Ross in his work has
IS political criminalization. to be on the question of violence. Je er:Y violent and non-violent
Thrk's understanding of political offence brings to fore an argument divided the family of political offences mto
a. b outthe' publ'1cness• of t h ese offences. The concept of political offence Oppositional crimes (Ross 2012). f£ t the cost of some gener-
always woven into the discourse of public interest, public order: pub- Along the same lines, this chapter ers,takinds of political offences
IC tranqui']'t
1
y, and so on, bringing about an implicit projection' that . . a distinction
a1IZatton, . b etween tw dineren °
33
The category of physically non-violent political _would
on the basis of the conception of violence within them-violent politi- . I d ff h as certal·n degrees of treason, seditiOn, espiOnage,
me u e o ences sue .ti al acts are penahzed . not rror th e
cal offences and physically non-violent political offences. The reference
here is not to the abstract idea of violence but specifically to violence
as a physical act. There are some political acts that deploy violence in
conspiracy and so on. T hese pol1 c
overt but for the understated meaning or
actions. The result of such acuons
. also be v1o ence ut t ese ac
.
e:
f th ·
I may physical violence. Th e category of

their commission. They are called violent political offences. There are in their commission do not d ep oy th t ts as the violent
also some political acts that do not deploy violence or use physical acts cr have e same arge
non-violent politicaI onences can . th d It ·s within this cat-
of violence as their tool but the consequence may lead to some form h d'll 1 · the1r me o · 1
political offences t ey er ted of which sedition is a type.
of violence in society. These acts may involve advocacy of violence egory that speech cnmes can be satua ' d ct becomes stark in
but do not resort to immediate acts of physical violence. These acts offence an an a
The relationship b etween an . . l cr nces Acts of physical
would be called non-violent political offences strictly by the standards . l t po11t1ca orre .
relation to some of the non-v 10 en ll . . but regarding activi-
of violence as a physical activity. Consequently, two kinds of political . . 1 in a socte0 es
violence are consid ered cnmma th debates A physically
offences emerge-those that deploy physical violence in their com- . ll . lent ere are .
ties that are not Ph ysaca Y v10 '. fr the point of view of the
mission like assassination and those that do not, like publication of ed ffens1ve om
non-vio1ent act can b e term 0 d b ·t may not be a crime in
defamatory literature against the government. The latter kind of politi- . h ·t · directe , ut 1
authorities against w h 1c 1 1s Th n-attribution of physical
cal offence becomes the dominant frame for this chapter within which c f the act e no
t h e eyes oftI1e penormer 0 · c ar categorization of those
the category of political speech crimes germinates. · · · · d'sallows 1or c1e
vio1ence to certam act1v1t1es 1 b one oflegal interpreta-
To mark out the overlapping category of political offences and . Th then ecomes
activities as offens1ve. e matter d rstood through the prism
speech crimes, the analysis in this section is limited to crimes related . . h be best un e
tlons. Speech cnmes, ence, can
to political speeches. While all speeches may be considered politi-
of legal subjectivities. h . es political offences get
cal, the specific usage of the category of political speech in this work 0 f speec cnm '
Specific to th e category d surrogate-illegal offences.
refers to those forms of expressions that target political authorities. In
delineated into two-illegal offences. ;" 1 offences are those when
addition to political offences, the category of speech crimes includes 11
According to Roebuck and Weeber, surrogate illegal offences
a wide range of social offences as well, like hate speech, incitement 1
actors violate established legal e rposes of social control or
to racial violence, incitement of one class against another, and so on. he ror pu
are those when lega1co d es are aPp (l978 p 20). For instance,
The purpose is not to devoid these speeches of their political content . · fthe act ' ·
punishment after the comm1SS10n 0 .11· d S seditious. There may be
not including them within the category of political speech. The . . h h b en labe e a .
constder an expresston t at as e ression but the authon-
mtent is to only limit the study to speeches that target the political . . I . ttering an exp h
nothing inherently cnmma tn u l 0f sedition if they find t e
authority.
ties may treat it to be so and invoke the aw r may not consider his/
. Violent political offences are those that are explicitly physically h the uttere
speech act, offensive. In sue cases · that the person may not be
Vtolent in their approach and commission of their acts. They include her expression as seditious. This means . . a political crime while
offences such as assassination, political riots, and so on. Assassination is conscious of the fact that he/she is commttting
1 1ca1onence
a. form of P0 t·t• a that physically attacks the life of the person
making the utterance. . . . s eech crimes that has con-
m question
. · Polit'tea1rtots
· a1so gtve · a calI to violence; they are politically 1
It is this unique aspect of the pohttcda p f expression and interest
motivated invol vmg · some tussIe between either social groups or with free om o al
sequences for the larger debate on b . fl discuss these four leg
t h e'bauthorities· s·tmt'lar1y, sab otage is a form <;>f political offence that
0 f th e state. The next section
· wo uld dne diY in relation to the place
d elt erately atta cks pu bl·tc property as a mark of protest against the li an 1n a,
regimes of England, USA, Austra a, . ·nal ·ustice system.
government. · In al1 of t h ese ouences
a the targets of violence are either of political speech crimes m · wider cnm 1 1
· t h etr
persons m the government or public property.
35
Political Offences atld Speech Crimes
. . Th American Congress had approved
independence from Bntam. e d . di 'd d into 54 titles. Title 18
Situating the Offences in Four Different Legal Regimes the US Code in 1926. The US Co e tsd vtWeithin this title the Code
· ·nal Proce ure.
The four illustrations of liberal democracies provide for a unique case deals with Crimes and C nmt . .ti. s within USA in an alpha-
d fi ll crimina1acttvt e
of comparison through their respective criminal justice systems. As all outlines an d t h en e nes a ff< s appear in Chapter II 5,
three countries have been erstwhile British colonies, the influence of betical order, chapter-wise. Politica1 0 ence
the English legal regime is evident on Australia and India overwhelm- Part I, Title 18 of the US Code. C nwealth of Australia, for
kn s the ommo
ingly, and on USA, marginally. Each country has charted its legal regime 11
Australia, forma Y own a d }system based on Common
. th turv ha a 1ega ft
in varied ways, however, there are striking similarities in terms of cat- most part of the twentle cen ·.}: dominion for many decades a er
egorization of offences. The focus is on the particular category of politi- law offences. Australia was a Brtttsh . ·n 1901 and the legal
lth of Austra1ta t
cal offences which would help locate the place of sedition and similar the formation of Commonwea U h Crown. Along with these
offences within the wider criminal jurisprudence of each country. regime was defined in terms of the st tutes enacted both in colo-
« th ere vanous s a .. 1
This section proceeds through an analysis of four types of texts pri- Common law ouences, ere w functional simultaneous Y·
nial times and post- Ind epen
dence that were
de only towards the en o
d f
marily: (a) the texts conceptualizing offences against state/crown/gov-
ernment within English criminal law, (b) the US Code with reference The effort to codify the legal system was ma st ...., of law. This resulted
h niform sy e...
to Chapter 115 on 'Treason, Sedition, and Subversive Activities', in the twentieth century to ave a u hich abolished all Common
5
Part I, Title 18 on 'Crimes and Criminal procedure', (c) the Australian in the Australian Criminal Code of 199 1": Code deals with political
l aw offences. Chapter tve 0
p· f the Austra tan
Criminal Code 1995 as amended in 2005 and 2010 with particular , d , rging violence'.
reference to Chapter Five titled 'Offences against the security of offences under the heading 'treason ;e three above, as India has a
Commonwealth', and (d) the Indian Penal Code with particular refer- The Indian case is different from·fi db the colonial regime. There
ence to Chapter Six titled 'Offences against State'. Written legal system, which was codl el cyde (IPC) enacted in 1860
are two major texts-the In d tan . Pena 0 (CrPC) that deal wt'th 1aws
The English case stands apart in comparison and allows for the
1973
selection of no single text to map out the space for political offences. and the Code of Criminal Procedure . olitical offences are con-
. . I dia Vanous p th '
England does not have a codified criminal legal system; instead it has a related to criminal justice m n · d 'offences against e state ·
number of Common law offences and statutes. Common law offences tained in the IPC, in Chapter Six, name largely modelled on the
· 1 regtme
are those defined by the courts over time in the course of judgments, The IPC was enacted by the co1orua e mostly adopted in post-
1 . \laws wer
and have no legislations on them. Statutory offences are those that are English Common law. T h e co oma ·fi ation.
in the form of written enactments passed by the legislature. In England, independent India without much modt c dit'on as a political offence
1 · es se 1 tJ
the category of political offences then gets constructed through a com- As seen within different lega regtm ' ainst state/govemmen
f offences ag h
bination of various Common law and statutory offences emerging as appears under the category 0 • The purpose is to see ow
offences against state/crown/government appearing at different junc- crown/commonwealth and their t'tles are and how simi-
'thtn ese 1
tures in Common law as well as statutes. A substantial source for the similar or different the categories Wl
same is James Stephen's History of Criminal Law in England, written in larly or differently are they defined. b e of a single legal code
. the a sene «
1883, regarded as the standard conceptual history of law in England. As has been mentioned earlier, tn of political ouences
d the category h . . 1
The US has a codified legal system, though it has had a history of on criminal offences in Eng1an ' d d on Englis cnmma
ture pro uce f
Common law practices as well, as an erstwhile colony of Britain. In needs to be drawn out. In t h e 1iter.a . . 1 ffence, lower degree o
1812 however, through a federal court verdict, all Common laws were l fi
aw, within the sped c category 0
f poliuca o )
h 0 ffence of treason , se -
di
American federal legal system since then operates through treason, misprision of treason t e d ·ncitement to mutiny,
t· · sptracY an 1
a wntten code of laws, known as the United States Code, which is ton, incitement to disaffectton, con
a compilation of the permanent statutes enacted in USA since its
37
What comes through these literatures is a family of political offen.ces

emerge as allied or filial offences. They can be termed as filial offences
because they are all defined in terms of offences that target the author- inclusive of certain kinds of treasonable acts,
. Wh'l E lish law ma es 1s ca
ity and endanger the security of the existing political order. In addi- cies, along with seditiOn. 1 e ng c .t.. th three countries
f . d'1fi d nature IOr ..;ne o er
tion to a common target, all these offences in their commission do not difficult because o 1ts unco e. this family of offences is relatively
involve the physical acts of violence. In common parlance, they arc also in question the task of constructmg . Ch ter 115 of
termed as 'non-fatal political offences' .2 James Stephen's work evolves simple. In the US Code, political offencesdappbear The
. d'fon
1 1 an su ver .
a category of 'offences against the state' under which he conceptual- Title 18, which reads treason, se h di e namelv treason
th mon ea ng ar ' Jl '
d
o
izes treason and misprision of treason, along with two other similar offences mentioned un er IS com . b Won or insurrection,
. . consptracy, re e
offences, namely, seditious offences and crimes related to attempts, misprision of treason, sed ttious . tration of certain organi-
f h emment, regts
incitements, and conspiracies (Stephen 1883). h
advocating overt row o t e gov all and activities affecting armed
In the History of Criminal Law in England, Stephen discussed politi- zations, affecting armed forces gener y,. · st US activities.
. . f. r serv1ce agam
cal offences in detail. He wrote, 'it often happens, however, that the
.
d
forces during war an recrutting
f ff,
° that
Ch
apter
liS of the US Code
public peace is disturbed by offences which without tending to the Within this fam1ly o 0 ences . b th commission of physi-
that mvo1ve o
subversion of the existing political constitution practically subvert the marks out, there are o ftiences th ts that are not physically
. · n of ose ac
authority of the Government over a greater or less local area for a lon- cally violent acts an d commtssto c the category of misprision
. . 1 ce Except tOr
ger or shorter time' (Stephen 1883, p. 294). He termed these offences violent but may resu1t m vto en · t seditious conspiracy
h of govemmen ,
as against the internal public tranquillity of the state and mentioned of treason, advocating overt row . . ( hich aim to overthrow
. mzaoons w
treason and sedition as two such offences. While treason was a crime and registration of certam orga . ) ll ther offences mentioned
c · st tt a o
that consisted in acts accompanied by or leading to violence, sedition the government or use rorce agam ·ili·n its ambit criminalizes giv-
was different. It was a crime germinating in dissatisfaction from the both kinds of acts. ;; Rebellion and insurrection
existing government that manifested itself in different forms mainly, mg aid and comfort to enemtes t direct participation. Offences
words, libel, or conspiracy (Stephen 1883, pp. 241-98). penalize activities of incitement n: rts at incitement to mutiny
· · ahze eno
Another standard work on English criminal law by P.J. Fitzgerald related to armed forces a1so cnmm ·es against armed forces
d f.0 rt to enemt
defines three kinds of political offences. The first kind is that of treason, through advocacy, aid, an com 't can be concluded that in
1
under which he also discusses sedition as an offence. The second kind is Without actual resort to violence. Hence, rticular family of offences
offences against administration of justice in which he briefly discusses case of the US, sedition finds place in tha?a ees of treason, misprision
some forms of conspiracies. The third kind of offence is related to dis- Which along with sedition includes lower egr nd conspiracies against
. citement a
orderly conduct in which a form of non-violent offence is unlawful of treason, advocacy of ove rth row, 1n. . h 1·n line with the crimi-
t h e government and arm ed torces. c Thts IS muc
assembly (Fitzgerald 1962, pp. 83-92). Michael Supperstone in his
work also takes a similar route of categorization where the category of nal system of England as discussed earlier. of the recent amend-
. 1' h 1 d'ff< 1 rent because . .
political offences includes treason, sedition, incitement to mutiny, and The Australian case IS s tg t Y e f sedition and other s1milar
disaffection along with unlawful oaths.3 lllents in its Criminal Code. The offence.o. Code through various
. th cnmtna1
Political offences found space m e 1i eason was incorporated
·t . . . 1995 . r
---
2 arnendments after its compt atton m
. Most standard literature on English Criminal Law used this terminology,
mduding the Oxford publication on English Criminal Law and the Blackstone's
publication on English Criminal Law. · . ed terms. See Supperstone
3
he categorizes political onences
£C • b ve mentton
m a 0
Supperstone discusses offences within English Criminal Law from the 19 81, pp. 230-45.
perspective of the law of public order and national security. From this lens
Political Offences and Speech Crimes 39
with the other three legal regimes does not differ muc.h in
through an amendment in 2002 and sedition in 2005. The amend-
basic categories. It also criminalizes treasonable practices a othng Wtth
ment of 2010 replaced the offence of sedition with the category of the fferent name. What comes roug
offence of'urging violence' (ALRC 2006). Prior to the amendment of misprision of treason but un der a di . fti
2010, these offences contained in Chapter Five of the Criminal Code as
a reading of the IPC is that sedition belongs to that famd
0
'!Y
. . disaffection an mcttemen m
amended in 2005, came under the heading of'security of the common- which penalizes treason, consptractes, '
wealth'. So the Australian Criminal Code clearly defined the offence common with other legal regimes. l . d 1· eates the over-
£ d.o: t lega regtmes e m
of treason and sedition as offences against the state security. Sedition An analysis of the rour meren . . Th fil' 1
f h' h sedition tS a part. ese Ia
was further bifurcated into five kinds of offences, namely, 'urging the lapping category of o. w ·n the larger category of politi-
overthrow of the Government or Constitution by force or violence', offences qualify for a classtficatiOn wtthi l'ti'es and defi-
. rrences commona 1
'urging interference in parliamentary elections', 'urging violence within cal offences on the basis of certatn recu th ' o: that get marked
't ria e ouences
the community', 'urging a person to assist the enemy', and 'urging a nitional attributes. Based on th ese en e ' 'th articular emphasis
. d' . h . (a) treason wt P
person to assist those engaged in armed hostilities' (Head 2011, out along wtth se ttton are t ree. (b) . 't ment to disaffection/
tices met e
l60-2).The amendment of 2010 simply omitted the word sedition on certain kinds of treason able prac ' . . It would be wrong
1' . a1 conspiracieS.
in the title and replaced it with the offence of 'urging violence'. The violence/overthrow, and (c) P 0 Ittc h rtments as they have
. . tig t compa
categories of offences remained the same as in 2005. to treat these offences wtthm water
4
Technically, the Australian Federal Criminal Code does not contain overlaps as well as specificities.
the offence of sedition after 2010. The activities that were penalized
as seditious are now penalized under 'urging violence'. Sedition, then d M king Out the
Defining Filial Offences an · ar
occupied a place in the family of offences that penalize forms of trea-
Particularity of Sedition
son, advocacy and incitement to violence against the government or f litical offences that share
the state and its apparatus, and advocacy of violence against different This section analyses those categories po t legal regimes has been
groups of the population. In the case of Australia as well, some common tt 'b . d' .
a n utes With se Itton. e on S diti in diuerend 1 course of time, these
threads seemingly run, like that of treason, incitement, and advocacy. defi ned through various 1egts· 1ati 0 ns and co es. n
·fi d This chapter works with
The Indian Penal Code enacted in 1860 mentions the political definitions have been amended and modi each rea1me that had
offences as 'offences against the state' in Chapter Six. The offence of
h f dif n WI In
t e early conceptualization o se IO h lf f twentieth century, to
0
sedition was enacted in 1870. The IPC avoids mentioning the offence of been well into practice until the latter a ry of the offence of
d h . d ating a catego
treason but criminalizes activities that would otherwise be considered l b
un erstand the rationa e e m ere discusses each of the sedi-
treason. For instance, Chapter Six mentions the offence of waging war sedition within modernity. The next chapter .
1
against the government (Section 121) which would be considered high tion related legislation and their uses, in detai · acts words or writ-
fi sedition as •
treason under other legal regimes. The IPC also penalizes what would . The English Common law de . of the state, by creating ill-
be termed as lower degrees of treasonable practices or lower treason. tngs, intended to disturb the tranquillity t towards the King,
These activities include conspiracy to wage war, aiding efforts to wage w·u 1 h
, discontent, disaffection, atre '
d 0 r contemp '
ent or the established
war, efforts to wage war against any state which is at peace with India the constitution or parliament, or the '
(Section 12IA to 130, Chapter 6, IPC). These activities also constitute
'tion. A study of other kinds
some idea of the offence of misprision of treason.
' ne concern ofthis work ts
4 .,..._ . th e offence of sedI 'th a view to make certain
Besides these 'treason-like' activities, the IPC clearly mentions the of off, k . h· chapter WI
ences has been underta en m t ts d 0 f other kinds of offences
offence of sedition defined in terms of incitement to disaffection against corn
b ParatlVe .
inferences. A detat.1ed conce ptual stu Y
the government. Hence, the Indian legal regime put in comparison esides sedition is beyond the scope of this work.
I
mon the four which continues
institutions of the country, by exciting ill-will between different classes India is the only liberal democracy a d d' in JPC in 1870
.. f edition as mtro uce
of the King's subjects, or encouraging any class of them to endeav- to have the same definttlOn
.
° s.
S d"t"on 1S an onenc
a e of inciting 'disaffection'
our to disobey, defy, or subvert the laws or resist their execution, or by the colonial rcg1me. e 1 1 « . ·ncludes all feelings of
h disanection 1
to create tumults or riots, or to do any act of violence or or against the government w al , (Section 124A, IPC). In India,
endangering the public peace. s The understanding of sedition remamed 'enmity, hatred, contempt or th «ence of rajdroh which
I d . Htn 1 as e 0 n•
unchanged in England until 2009 when the offence was abolished by sedition is literally trans ate m w· h" common parlance, how-
ti state 1t 1n
the parliament. means anti-government or an - h.d h' h ·ch has a connotation of
d 'des ro w 1
In the US, the Sedition Act of 1918 was the first Act in the twentieth ever, sedition is often terme as . . d shdroh in common under-
b eing anti-nation. Th 1s 1"dea 0 f sed1t10n asc e the concept itseIf, wh"tc h
o
century that conceptualized the offence of sedition. Before that in 1798, . conse quencesh 10r
standing has far-reac h mg
the Alien and the Sedition Act had been passed briefly as a wartime . ding c apters.
measure in context of the war with France. This Act, however, expired would be discussed m the succee .. f edition within the four
. 1 1defintttons o s th
in 1801. The Sedition Act of 1918 punished the use of' disloyar, profane, A summation of vanous ega kind of speech act at
. . f sedition as a
scurrilous, or abusive language' about the US government, its flag, or its regimes gives an 1rnpress10n o t/hatredlmalice, and so on,
expresses vemment institutions/flag,
armed forces or that caused others to view the American government or
against the governmen t/statelco nstitutio go
its institutions with contempt (Sedition Act 1918). This law expired in
1921. The Alien Registration Act, commonly known as The Smith Act, among others. . . n the first conceptual framework
With this understanding of sed1ti ' f , ·olence as a physical act of
0
enacted in 1940, redefined sedition as a crime 'to advocate, abet, advise, d"gm
1 o .vt with other offences. T h e
or teach the duty, necessity, desirability, or propriety of overthrowing or regarding the conventional para
. . companson d d
destroying the government of the US or the government of any state, by force' is employed to studY 1t 10 . d re-(a) treason consi ere
« b .
range of political onences emg cons1dere a d" « .
"ncitement to 1sauection
force or violence' (The Smith Act 1940). This reading of the law made . « f advocacy or 1
the offence of sedition closer to the offence of advocacy to overthrow 10 various degrees, (b) ouence 0 . t the state.
or violence, and (c) consp1racte agatns
. · s
the government by virtually abolishing the erstwhile idea of sedition as
use of contemptuous language against the government.
Australia defined sedition as the intention to bring the sovereign Treason as a crime that
into hatred or contempt, to excite disaffection against the sovereign, . defines treason .
The Encyclopedia of Crime and Justtce d deals with the most sen-
the government, constitution, House of Parliament or to promote feel- 1order an
strikes at the foundation of th e 1ega (H st 1983 p. 1559). Treason
ings of ill-will and hostility between different classes of His Majesty's
ous threats to the existence o fth e state ur. in the ' English Common
subjects so as to endanger the peace, order or good government of the
is the oldest political crime and finds high treason to kill the
Commonwealth (ALRC 2006, p. 28). This definition of sedition was Iaw. In early Common law 1·t was ons1 ere
d (Schmalleger 2002, P· 454) ·
retained until 2005. In 2005, through an amendment, the Australian
king or to promote a revolt in the King .om . England and has been a
government replaced the words 'exciting disaffection' with 'urging 11reason is one of the oldest de fi ned cnmes m Act was enacte d.6 Th"1S
violence' to define the offence of sedition. In 2010, through a further
statutory offence since 1351 w h en the Treason
amendment, the word sedition from the Australian Code was altogether
dropped and replaced with the offence of'urging violence' (Chapter 5,
6 d III England enacted the Treason Act,
division 80, Australian Criminal Code Act 1995, amended in 20 10). In 1351, during the reign of Edwar '
d f
rea ' d th of our Lord the King, or o
5
English Common law understanding of sedition based on the works of
''A" ·
•v nen a man doth compass or tmag
ine the
n and °
ea heir; or if a man d 1evy war
James Stephen in late nineteenth century, See Donogh 1911, pp. l 0-3. our Lady his Queen or of their eldest so
43
Political Offeuces aud Speech Crimes
th t meant to address the offence
seditious practices under an Act a was f b th th a:
Act criminalized imagining the death of the Monarch or members of . lanation 0 0 e orrences-
of treason primarily. Moreover, t h e exp
royalty, levying war against it or aiding people who do so. During these . are one and the same.
treasonable and seditious practices- c .
times, most cases of treason dealt with the charge of accroaching7 the l A t (1848) was as 1011ows.
Section 3 of the Treason-Fe ony c
royal power. As per the definition of treason given in 1351, accroaching . . erson whatsoever after the passing of
the royal power did not exactly amount to treason. Researches centred And be 1t enacted that 1f P . dom or without compass, imag-
on this period, however, show that the attempt of trying to prosecute this Act shall, within the Umted Kin.g d ose our most Gracious
. . d to depnve or ep
the act of accroaching under the ambit of offence of treason was actu- ine, invent, dev1se or mten fr the style or royal
· ccessors, om ' '
ally an attempt to stabilize this act as 'accepted treason' against the Lady the Queen, Her helrs or su U . ed u'-gdom or of any other
. 1C f the nit ['.lll
King.
name of the lmpena rown
.
°
' d . . s and countnes, o
. ,
r to levy war against Her
of Her MaJesty s ommlon rt of the United Kingdom,
This Act of 1351 has also undergone several amendments and its "thin any pa
Majesty, her heirs or successors, WI h or them to change her or
scope has been grossly enlarged. There have been several statutes on · t to compe1 er
in order by force or constram d put any force or constraint
treason that followed the 1351 enactment adding ambiguity to the 1 ·n or er to
their measures or counse s, or 1 both houses or either House
definition and potential to its unlimited use. The Treason Felony Act . . .d te or overawe
upon or in ord er to mt1m1 a c . er or stranger with force to
of 1848 is identified with the existing understanding of the offence of f r any 1oretgn
of Parliament, or to move or s 1 th r Her Majesty's dominions or
treason in England. It was enacted in England in the name of an 'Act invade the United Kingdom or ety her heirs or successors, and
for the better Security of the Crown and Government of the United countries under obeisance of Her ' devices or intentions, or any
. . . ti ns inventions, , .
Kingdom, an Act for the Safety and Preservation of His Majesty's such compassmgs, 1magma 0 ' l b publishing any printmg or
or dec are, y
Person and Government against treasonable and seditious practices of them, shall express, utt er,. kin , or by any overt actor deed ,
and attempts' .8 Seemingly, the tone of the Act suggests that treason writing, or by open and advtsed felony, and being convicted
and sedition are both offences directed against the Person and the every person so offending shall be f the Court to be transported
di et10n 0 '
Government of the Monarch. For the present purpose, however, while thereof shall be liable, at th e scr. h natural life, or for any term
0 f bts or er d
beyond the seas for t h e term . ed for any term not excee -
trying to mark out the conceptual distinction between sedition and b impnson 9
not less than seven years, or to e b as the Court shall direct.
treason, the Act offers a critical inroad. It defines what constituted as . two years, wt·th or wt·thout hard 1a our,
mg .
th bove intentions was a cnme
The mere possession of any of e y was said to be commit-
·£ d the 1e1on
against our Lord the King in his realm, or be adherent to the King's enemies
and the moment it was manueste ' F lony under this Act shall
in his realm, giving to them aid and comfort in the realm, or elsewhere, and ted. Section VII of this Act !.tates that any e}S48 formalized the law
thereof be probably attainted of open deed by the people of their condi- arnount to Treason. The Treason Felony Act, law the Treason
din a tern
tion: ... And it is to be understood, that in the cases above rehearsed, that of treason that was earlier expresse UI923, p. 28).
ought to be adjudged treason which extends to our Lord the King, and his Act, 1795, and extended it to Ireland (Ha . criteria that distinguish
royal majesty: and of such treason the forfeiture of the escheats pertaineth to two spect6c
According to Hurst t h ere are gful intention and com-
our Sovereign Lord, as well of the lands and tenements holden of other, as th . of a wron
of himself... .' e offence of treason-possesston Th" ·neteenth-century defini-
tnission of an overt act (Hurst 1983)· the democratic culture
See Eichenseh 2009, p. 144 7. t' d ·then wtt 1n
7 ton of treason, in its lower egree . ' f ny hurt to the sovereign.
• Accroaching is a word mostly used in medieval English which means try-
tng to usurp or get hold of. In this context it meant the attempt to get hold of
of England, penalized mere imagination ° a
royal power. http ·//www.legislation.gov. ukl
8
Treason Felony Act. 1848, available at http://www.legislation.gov.ukl Treason Felony Act. 1848, avaJ·1able at
9 ·
ukpga/1848/12/pdfs/ukpga_l84800 l2_en.pdf. Ukpga/ l848/l2/pdfs/ukpga_I84800 IZ_en.pd£
of the US Constitution says, 'Treason against the United _States,

The medieval nature of the offence has been a point of debate for years . t them or in adhermg to etr
and has often been acknowledged by the state officials themselves. In consist only in levying War agatns ' h d d
, (H rst 1971 p 3). T e un erstan -
1977, the Law Commission Report suggested that the law of treason Enemies giving Aid and Comfort u · ' · . b d fi
' . Am ·can history ts orrowe rom
should be reformed to restrict it to the offences of levying war, killing ing of the offence of treason m en I f 'I ·
th same nomenc ature o evymg
the sovereign, and intentionally harming the sovereign in situations English Common law and fo Uows e . . f n1 the
. n to be constttutlve o o Y
except for wartime (Law Commission 1977, pp. 31-40). war against'. It, however, restncts treaso fl . . t of departure
th
o b d re ectmg a pom
Adjunct to the crime of treason is the political offence of mispri- act of levying war and mg eyon 'broad and an all-encompassing
sion of treason. This is the offence of failing to inform about treason from the English law whtch has a very f has been adopted
h . d fi 01"tion o treason
knowing that the offence of treason has been committed (Hall 1923, understanding of treason. T ts e d S ti" 2381 Section
115 un er ec on ·
pp. 36-41 ). The Law Commission had recommended abolishing the in the US Code, Title 18, C hapter . . f exactly on the
f . nston o treason
offence of misprision of treason except for wartime crisis when a per- 2382 mentions the offence 0 mtsp th b"t of criminality
because e am 1
son knowingly suppresses information about treason during war (Law lines of the Common law. However, a f ·sprision of treason
. l" . d th onence o mt
Commission 1977, p. 40). Both these offences of treason and its mispri- of treason in the US ts tmtte ' e . y information about
1 th
« 0 f concea1mg an
sion continue to exist in their archaic forms with the only concession a so gets restricted to e onence (US Code, Title 18, Chapter
that the penalty of death in this relation has been abolished. IO levying war or aiding the enemy of the has been clear intent of
The Australian legal regime penalizes similar acts as treasonable 115, Sections 2381 and 2382). Unless t ere "tted no act has been
. th act commt ,
practices as in England, however, the major difference is the event at overthrowing the government tn e
which the offence is said to be committed. The Australian Code does charged for treason. 11 th of the Common law
. "th0 ut e use
not penalize the intention to cause harm to the sovereign as treason The Indian legal regtme, wt f ·ng war against the gov-
. the act o wagt
but causing harm itself as treason. This includes killing, levying war Par1ance of treason, pena1tzes A f the IPC penalize waging
121
and instigating for armed invasion (Australian Criminal Code Section ernment of India. Sections 121 and to do so. The offence is
. attempting
80.1 ). In addition to this, treason is also said to be committed in materi- War against the state or ab etting or . with the intention to
1 0
f llectmg arms
ally assisting enemies at war with the country. In this clause what is a so committed at the instance co kin to misprision of treason
made punishable is the conduct (Section 80.l.M). This means that Wage war under Section 122. The offence a . g with intent to facili-
. t 0 fconcea1m
there has to be certain action committed in assistance for treason to IS mentioned in Section 123 as an ac • ns 121-3) Though the
h 6 Sectio ·
be proved. The Australian Code enacted in the twentieth century with tate design to wage war (IPC, C apter ' C the official documents on
word treason is not ment10ne· d 1·n the IP h, ably with waging war.
revisions made in 2002 calls for a more restricted definition of treason . terc ange
however, it still contains the offences of misprision of treason though state security use the word treason 10 L Commission Reports.
.,..,h.
• 1s has been particularly evt en tn
·d t · the aw
C wrote that the 'acts of
does not use the same legal parlance. Misprision of treason does not
appear as a separate category but is mentioned as a clause (Section The 42nd Law Commission Report on IdP. conspiring to wage war,
\V . h G
agmg war against t e overnme
nt of In 1a,
h tivities or overawing e
th
80.1, Clauses 2 A and B) within treason defined exactly on the lines of . . . ofsuc ac
the English law. P reparation to wage war, mtspnstOn , re the offences of high
The American history of political crime begins with the definition of Government or the Head of the state by Commission Report
treason in the constitution itself and with the enactment of treason leg- treason (Law Commission 1971, P· 140). T
islation by the first Congress (Allen 1974, p. 49). Article III, Section 3
·n· n of treason within American
II fra ·
For a history of the mtng 0
f the. de fi nt En0 lish Common law, see Hurst
10
Interview with Lord Anthony Lester, member, House of Lords on 8 May constitutionalism and its engagement With the g
197}
2014 at House of Lords, London, England. , I pp. 3-Il.
Political O!fe11ces a11d Speech Crimes 47
on 'Offences against National Security' mentioned these acts as treason The attack in modem times needs to qualify itself in form of some overt
·
action. · to day •s J"b
Hence, treason m 1 eral democracy is the act of either
the 'gravest crime betraying the nation or sovereign by acts considered
making efforts or actually waging war against the state represented by
dangerous to its security' (Law Commission 1971, p. 1). They were
mentioned to be crimes directed against the very existence of the state. the ruling government.
A reading of the offence of treason under these four legal regimes
shows that treason can be an all-encompassing category of political and Advocacy
offences. In strict legal parlance, nevertheless, treason is a crime against . f ffi nces are preemptive acts to
the sovereign authority. It is defined against the monarch in England, In some sense, both these categones 0 0 e . H" .tc . . l
Stephen m rstory o1 nmma
actual commission of any offence. amesJ . d .
while in the USA and Australia it is defined in terms of an offence , . fi t occur to the· mm , 1t must
against the country. This could also mean that the offence is made out Law in England wrote a cnme must rs . b d d
. d preparations e rna e an
against the nation itself This understanding is not very different from then be considered and detemune upon, ) The crimes
· d
It must be carrie into execution
· • (Stephen I 883 , P· 221 ·
that of England as monarch in the political culture of England iden- rt of these anticipatory ac ts of
. .
tified with the nation. The offence of treason, therefore, in common of incitements and conspiracies form pa Th · 1 po•'nt here
. . . d ation. e cruc1a
parlance is often described as the offence against the nation. India with- consideration, determmatton an th . Almost all Jeaal
m1t e cnme. o
holds the use of the category of nation, country or state and mentions remains that of an intention to com th I f•"ntention to com-
. 1 g e cause o
government as the target of treason. In practice, however, this is true of regimes have defined these cnmes a on
other regimes as well. The charge of treason is made and sustained only mit the crime, with few exceptions. . 1 associated with the
. d ocacy ts c1ose Y
when the ruling authorities are attacked. The offence of incttement or a v d the crime of incitement
The charges of treason during medieval and early modern times offence of sedition which is mostly define Cas ....,;.,sion working paper
· Th E lish Law om ......
were frequently levelled when any act unpleasant to the authorities agamst the government. e ng d the heading •offences of
72 « t ether un er
was committed. The modem use of the offence, however, has shown even clubbed these onences og. . n 1977). Certain legal regimes,
restraint. The offence of treason in modern times has survived through subverting the forces' (Law Commtsstoce of advocating violence, advo-
the prosecution of acts endangering the security of state in terms of however, distinguish between the offen d incitement to disaffection
actual threats of war and cases have seen a rise mostly during crisis eating the overthrow of government an
situations. The last reported case of treason in England was in 1883 and against the state. 'th the offence of incitement
in Australia in 1916 in a case of prosecution of the communists (Head In England, the two laws that deal ffectionAct 1934 and the
1
2011, pp. 96-101). The US experienced a fair amount of paranoia in against the state were the Incitement to . sa A t was passed following
relation to the 'communist threat' with its tension with USSR during Incitement to Mutiny Act 1797 ·The Mu.tindy c ct performed know-
th I nahze any a
war. Treason was frequently associated with any act associated e mutiny of Navy at the Nore. t pe b f armed force from his
. I ed mem er o
With communist forces during cold war. Though the US has also seen •ng Y and maliciously to s uce any 't mutiny (Supperstone,
drastic decline over centuries, in context of the new 'war on terror', the duty to His Majesty or incited him to comffil e considered to be part
1981 , p. 240). Members of t h e armed forces art incitement against the
law seems to have been revived. In 2006, a case of successful prosecu-
of th e state apparatus and mcttmg
· · · them mean. . ns were made perma-
tion occurred of a US citizen Adam Gadahn for he spoke in support of I<ing. The Act was repealed and 1ater 1'ts provtsto
the Al-Qaeda (Head 20 II, p. 103). A t I817
n d L d Forces c ·
democracy witnesses a consistent use of the provision ent by the Allegiance of Sea an an d in 1934 which
'N_ • • Act was passe ,
121 (waging war) along with anti-terror laws especially . . ne Incitement to Disaffection tly on the lines of the
awful Activities Prevention Act 1967 (UAPA). What is largely extended the Mutiny Act. Under this Act, exac her against the King
settled' nevertheless, IS
· th at treason 1s
. an act of attacking
. the sovereign. Previous Act, it was criminal to incite any mem
Another random document with
no related content on Scribd:
nueuos enamorados no entendian
en otra cosa, sino en mirarse uno
a otro, con tanta afecçion y
blandura como si uuiera mil años
que vuieran dado prinçipio a sus
amores. Y aquel dia estuuieron
alli todos, con grandissimo
contentamiento, hasta que otro
dia de mañana, despidiendose los
dos pastores, y pastora, de la
sábia Feliçia, y de Felismena, y
de Belisa, y assi mismo de todas
aquellas Nimphas, se boluieron
con grandissima alegria a su
aldea, donde aquel mismo dia
llegaron. Y la hermosa Felismena
que ya aquel dia se auia uestido
en trage de pastora,
despidiendose de la sábia Feliçia,
y siendo muy particularmente
auisada de lo que auia de hazer,
con muchas lagrimas la abraçó, y
acompañada de todas aquellas
Nimphas, se salieron al gran
patio, que delante de la puerta
estaua, y abraçando a cada vna
por si, se partio por el camino
donde la guiaron. No yua sola
Felismena este camino, ni aun
sus imaginaciones la dauan lugar
a que lo fuesse, pensando yua en
lo que la sábia Feliçia le auia
dicho, y por otra parte
considerando la poca ventura que
hasta alli auia tenido en sus
amores, le hazia dudar de su
descanso. Con esta contrariedad
de pensamientos yua lidiando, los
quales aun que por vna parte la
cansauan, por otra la entretenian,
de manera que no sentia la
soledad del camino. No vuo
andado mucho por en medio de
vn hermoso valle, quando a la
cayda del Sol, vio de lexos vna
choça de pastores, que entre
vnas enzinas estaua a la entrada
de vn bosque, y persuadida de la
hambre, se fue hazia ella, y
tambien porque la fiesta
començaua de manera que le
seria forçado passalla debaxo de
aquellos arboles. Llegado a la
choça, oyó que vn pastor dezia a
vna pastora que cerca dél estaua
assentada: No me mandes,
Amarilida, que cante, pues
entiendes la rayon que tengo de
llorar todos los dias que el alma
no desampare estos cansados
miembros; que puesto caso que
la musica es tanta parte para
hacer acresçentar la tristeza del
triste, como la alegria del que más
contento biue, no es mi mal de
suerte, que pueda ser
disminuydo, ni accresçentado,
con ninguna industria humana.
Aqui tienes tu çampoña, tañe,
canta, pastora, que muy bien lo
puedes hazer: pues que[1261]
tienes el coraçon libre y la
voluntad essenta de las
subiecçiones de amor. La pastora
le respondio: no seas, Arsileo,
auariento de lo que la naturaleza
con tan larga mano te ha
conçedido: pues quien te lo pide
sabra complazerte en lo que tú
quisieres pedille. Canta si es
possible aquella cançion que a
petiçion de Argasto heziste, en
nombre de tu padre Arsenio,
quando ambos seruiades a la
hermosa pastora Belisa. El pastor
le respondio: Estraña condiçion
es la tuya (o Amarilida) que
siempre me pides que haga lo
que menos contento me da. ¿Qué
haré que por fuerça he de
complazerte, y no por fuerça, que
assaz de mal aconsejado seria
quien de su voluntad no te
siruiesse? Mas ya sabes cómo mi
fortuna me va a la mano, todas
las vezes que algun aliuio quiero
tomar: o Amarilida, viendo la
razon que tengo de estar contino
llorando me mandas cantar? Por
qué quieres ofender a las
ocasiones de mi tristeza? Plega a
Dios que nunca mi mal vengas a
sentillo en causa tuya propia,
porque tan a tu costa no te
informe la fortuna de mi pena. Ya
sabes que perdi a Belisa, ya
sabes que biuo sin esperanza de
cobralla: por qué me mandas
cantar? Mas no quiero que me
tengas por descomedido, que no
es de mi condiçion serlo con las
pastoras á quien todos estamos
obligados a complazer. Y
tomando un rabel, que çerca de sí
tenía, le començo a templar, para
hazer lo que la pastora le
mandaua. Felismena que
açechando estaua oyó muy bien
lo que el pastor y pastora
passauan: quando vio que
hablauan en Arsenio y Arsileo,
seruidores de la pastora Belisa, a
los cuales tenía por muertos,
segun lo que Belisa auia contado
a ella, y a las Nimphas y pastores,
quando en la cabaña de la isleta
la hallaron, uerdaderamente
penso lo que veya ser alguna
vision, o cosa de sueño. Y
estando atenta, uio como el
pastor començo a tocar el rabel
tan diuinamente, que paresçia
cosa del cielo: y auiendo tañido
vn poco, con vna boz más
angelica, que de hombre humano,
dio prinçipio a esta cançion:
¡Ay vanas esperanças,

quantos dias
anduue hecho sieruo de vn
engaño,
y quán en vano mis cansados
ojos
con lagrimas regaron este
valle!
pagado me an amor y la
fortuna,
pagado me an, no sé de qué
me quexo.
Gran mal deuo passar, pues
yo me quexo,
que hechos á sufrir estan mis
ojos
los trances del amor, y la
fortuna:
¿sabeys de quien me agrauio?
de un engaño
de una cruel pastora deste
valle,
do puse por mi mal mis tristes
ojos.
Con todo mucho deuo yo a
mis ojos,
aunque con el dolor dellos me
quexo,
pues ui por causa suya en
este valle,
la cosa más hermosa que en
mis dias,
jamas pense mirar, y no me
engaño:
preguntenlo al amor y la
fortuna.
Aunque por otra parte la
fortuna,
el tiempo, la ocasion, los
tristes ojos,
el no estar reçeloso del
engaño,
causaron todo el mal de que
me quexo:
y ansi pienso acabar mis
tristes dias,
contando mis passiones a este
valle.
Si el rio, el soto, el monte, el
prado, el valle,
la tierra, el cielo, el hado, la
fortuna,
las horas, los momentos,
años, dias,
el alma, el coraçon, tambien
los ojos,
agrauian mi dolor, quando me
quexo,
¿por qué dizes pastora que
me engaño?
Bien sé que me engañé,
más no es engaño,
porque de auer yo uisto en
este ualle
tu estraña perfecçion, jamas
me quexo,
sino de ver que quiso la
fortuna
dar a entender a mis cansados
ojos,
que allá uernia el remedio tras
los dias.
Y son pasados años,
meses, dias,
sobre esta confiança y claro
engaño:
cansados de llorar mis tristes
ojos,
cansado de escucharme el
soto, el valle,
y al cabo me responde la
fortuna,
burlandose del mal de que me
quexo.
¿Mas o triste pastor, de qué
me quexo,
si no es de no acabarse ya
mis dias?
¿por dicha era mi esclaua la
fortuna?
¿halo ella do pagar, si yo me
engaño?
¿no anduuo libre, essento en
este ualle?
¿quién me mandaua a mi
alçar los ojos?
¿Mas quién podra tambien
domar sus ojos
o cómo biuire si no me quexo,
del mal que amor me hizo en
este ualle?
mal aya un mal que dura
tantos dias,
mas no podra tardar, si no me
engaño,
que muerte no dé fin a mi
fortuna.
Venir suele bonanças tras

fortuna,
mas ya nunca veran jamas
mis ojos:
ni aun pienso caer en este
engaño,
bien basta ya el primero de
quien quexo,
y quexaré, pastora, quantos
dias
durare la memoria deste ualle.
Si el mismo dia, pastora,
que en el ualle
dio causa que te uiesse mi
fortuna,
llegara el fin de mis cansados
dias,
o al menos uiera esquiuos
essos ojos:
çessara la razon con que me
quexo,
y no pudiera yo llamarme a
engaño.
Mas tú determinando
hazerme engaño
quando me uiste luego en este
ualle,
mostrauaste benigna, ved si
quexo
contra razon de amor, y de
fortuna;
despues no sé por qué
buelues tus ojos,
cansarte deuen ya mis tristes
dias.
Cançion de amor, y de
fortuna quexo:
y pues duró vn engaño tantos
dias,
regad ojos, regad el soto, el
ualle.
Esto cantó el pastor con muchas

lagrimas, y la pastora lo oyó con
grande contentamiento de uer la
graçia con que tañia y cantaua:
mas el pastor despues que dio fin
a su cançion, soltando el rabel de
las manos, dixo contra la pastora:
¿Estás contenta, Amarilida, que
por solo tu contentamiento, me
hagas hazer cosa que tan fuera
del mio es? Plega a Dios (o Alteo)
la fortuna te trayga al punto a que
yo por tu causa he uenido: para
que sientas el cargo en que te soy
por el mal que me hiziste. O
Belisa, quién ay en el mundo, que
más te deua que yo? Dios me
trayga a tiempo que mis ojos
gozen de ver tu hermosura, y los
tuyos vean si soy en
conosçimiento de lo que les deuo.
Esto dezia el pastor con tantas
lagrimas que no vuiera coraçon
por duro que fuera, que no se
ablandara. Oyendole la pastora,
le dixo: Pues que ya (Arsileo) me
has contado el prinçipio de tus
amores, y cómo Arsenio tu padre
fue la prinçipal causa de que tu
quisiesses bien á Belisa, porque
siruiendola él, se aprouechaua de
tus cartas y cançiones, y aun de
tu musica (cosa que él pudiera
muy bien escusar) te ruego me
cuentes cómo la perdiste. Cosa
es essa (le respondio el pastor)
que yo querria pocas vezes
contar, mas ya que es tu
condiçion mandar me hazer y
dezir aquello en que más pena
recibo, escucha, que en breues
palabras te lo dire. Auia en mi
lugar vn hombre llamado Alfeo,
que entre nosotros tuuo siempre
fama de grandissimo nigromante,
el qual quería bien a Belisa
primero que mi padre la
començasse a seruir, y ella no tan
solamente no podia velle, mas
aun si le hablauan en él, no auia
cosa que más pena le diesse.
Pues como éste supiesse un
conçierto que entre mí y Belisa
auia, de ylla a hablar desde
ençima de vn moral, que en una
huerta suya estaua, el diabolico
Alfeo hizo a dos espiritus que
tomasse el uno la forma de mi
padre Arsenio, y el otro la mia, y
que fuesse el que tomó mi forma
al conçierto, y el que tomó la de
mi padre uiniesse alli, y le tirasse
con una ballesta, fingiendo que
era otro, y que uiniesse él luego,
como que lo auia conosçido, y se
matase de pena de auer muerto a
su hijo, a fin de que la pastora
Belisa se diesse la muerte, uiendo
muerto a mi padre y a mí, o a lo
menos hiziesse lo que hizo. Esto
hazia el traydor de Alfeo, por lo
mucho que le pesaua de saber lo
que Belisa me queria, y lo poco
que se le daua por él. Pues como
esto ansi fue hecho, y a Belisa le
paresçiese que mi padre y yo
fuessemos muertos, de la forma
que he contado, desesperada se
salio de casa, y se fue donde
hasta agora no se ha sabido
della. Esto me conto la pastora
Armida, y yo uerdaderamente lo
creo, por lo que despues acá ha
suçedido. Felismena que entendio
lo que el pastor auia dicho, quedó
en extremo marauillada,
paresçiendole que lo que dezia
lleuaua camino de ser assí, y por
las señales que en él vio vino en
conosçimiento de ser aquel
Arsileo, seruidor de Belisa, al qual
ella tenía por muerto, y dixo entre
si: No sería razon que la fortuna
diesse contento ninguno a la
persona, que lo negasse a vn
pastor que tambien lo mereçe, y
lo ha menester. A lo menos, no
partiré yo deste lugar, sin darsele
tan grande, como lo reçebira con
las nueuas de su pastora. Y
llegandose a la puerta de la
choça, dixo contra Amarilida:
Hermosa pastora, a vna sin
ventura que ha perdido el camino,
y aun la esperança de cobralle,
no le dierades licencia para que
passasse la fiesta en este vuestro
aposento? La pastora quando la
vio, quedó tan espantada de ver
su hermosura, y gentil
disposiçion, que no supo
respondelle: empero Arsileo le
dixo: por çierto, pastora, no falta
otra cosa para hazer lo que por
vos es pedido, sino la posada no
ser tal como vos la meresceys,
pero si desta manera soys
seruida, entrá que no aura cosa
que por seruiros no se haga.
Felismena le respondió: Esas
palabras (Arsileo) bien paresçen
tuyas, mas el contento que yo en
pago dellas te dexaré, me dé Dios
a mí en lo que tanto ha que
desseo. Y diziendo esto, se entró
en la choça, y el pastor y la
pastora se leuantaron, haziendole
mucha cortesia, y boluiendose a
sentar todos, Arsileo le dixo: por
ventura, pastora, ha os ha dicho
alguno mi nombre, o aueys me
uisto en alguna parte antes de
aora? Felismena le respondió:
Arsileo, más sé de ti de lo que
piensas, aunque estés en trage
de pastor, muy fuera de como yo
te ui, quando en la academia
Salamantina estudiauas. Si
alguna cosa ay que comer,
mandamela dar, porque despues
te dire vna cosa que tú muchos
dias ha que desseas saber. Esso
haré yo de muy buena gana (dixo
Arsileo) porque ningun seruiçio se
os puede hazer, que no quepa en
vuestro meresçimiento. Y
descolgando Amarilida y Arsileo
sendos çurrones, dieron de comer
a Felismena, de aquello que para
sí tenian. Y despues que vuo
acabado, deseando Felismena de
alegrar a aquel que con tanta
tristeza biuia, le empeço a hablar
desta manera: No ay en la vida (o
Arsileo) cosa que en más se deua
tener, que la firmeza, y más en
coraçon de muger adonde las
menos vezes suele hallarse, mas
tambien hallo otra cosa, que las
más vezes son los hombres
causa de la poca constançia que
con ellos se tiene. Digo esto, por
lo mucho que tú deues a vna
pastora que yo conozco, la qual si
agora supiesse que eres biuo, no
creo que auria cosa en la uida
que mayor contento le diesse. Y
entonçes, le començo a contar
por orden todo lo que auia
passado, desde que mató los tres
saluages, hasta que uino en casa
de la sábia Felicia. En la qual
cuenta, Arsileo oyo nueuas de la
cosa que más queria, con todo lo
que con ella auian passado las
Nimphas, al tiempo que la
hallaron durmiendo en la isleta del
estanque, como atras aueys
oydo, y lo que sintio de saber que
la fe que su pastora le tenía
jamas su coraçon auia
desamparado, y el lugar cierto
donde la auia de hallar, fue su
contentamiento tan fuera de
medida, que estuuo en poco de
ponelle a peligro la vida. Y dixo
contra Felismena: ¿qué palabras
bastarian (hermosa pastora) para
encaresçer la gran merçed que de
vos he reçebido, o qué obras para
poderos la seruir? Plega a Dios
que el contentamiento, que vos
me aueys dado, os dé él en todas
las cosas que vuestro coraçon
dessea. O mi señora Belisa, que
es posible, que tan presto he yo
de ver aquellos ojos, que tan gran
poder en mí tuuieron? Y que
despues de tantos trabajos me
auia de sucçeder tan soberano
descanso? Y diziendo esto con
muchas lagrimas tomaua las
manos de Felismena, y se las
besana. Y la pastora Amarilida
hazia lo mesmo, diziendo:
verdaderamente (hermosa
pastora) vos aueys alegrado vn
coraçon el más triste que yo he
pensado ver, y el que menos
meresçia estarlo. Seys meses ha,
que Arsileo biue en esta cabaña
la más triste vida que nadie puede
pensar. Y vnas pastoras que por
estos prados repastan sus
ganados (de cuya compañía yo
soy) algunas uezes le entrauamos
a ver y a consolar, si su mal
sufriera consuelo. Felismena le
respondio: no es el mal de que
está doliente, de manera que
pueda reçebir consuelo de otro,
sino es de la causa dél o de quien
le dé las nueuas que yo aora le
he dado. Tan buenas son para mí,
hermosa pastora (le dixo Arsileo)
que me han renouado un coraçon
enuegeçido en pesares. A
Felismena se le entrenesçio el
coraçon tanto de uer las palabras
que el pastor dezia, y de las
lagrimas, que de contento lloraua,
quanto con las suyas dió
testimonio, y desta manera
estuuieron alli toda la tarde, hasta
que la fiesta fue toda passada,
que despidiendose Arsileo de las
dos pastoras, se partio con
mucho contento, para el templo
de Diana, por donde Felismena le
auia guiado.
Syluano y Seluagia con aquel
contento que suelen tener los que
gozan despues de larga ausençia
de la vista de sus amores,
caminauan hazia el deleytoso
prado, donde sus ganados
andauan pasçiendo, en compañia
del pastor Sireno; el qual aunque
yua ageno del contentamiento
que en ellos ueya, tambien lo yua
de la pena que la falta dél suele
causar. Porque ni él pensaua en
querer bien ni se le daua nada en
no ser querido. Syluano le dezia:
Todas las uezes que te miro
(amigo Sireno) me paresçe que
ya no eres el que solias: mas
antes creo que te has mudado,
juntamente con los pensamientos.
Por una parte casi tengo piedad
de ti, y por otra, no me pesa de
verte tan descuydado de las
desuenturas de amor. ¿Por qué
parte (dixo Sireno) tienes de mí
manzilla? Syluano le respondio.
Porque me paresçe, que estar vn
hombre sin querer, ni ser querido,
es el más enfadoso estado, que
puede ser en la vida. No ha
muchos dias (dixo Sireno) que tú
entendias esto muy al reues,
plega a Dios que en este mal
estado me sustente a mí la
fortuna, y a ti en el contento que
reçibes con la vista de Seluagia.
Que puesto caso, que se puede
auer embidia de amar, y ser
amado de tan hermosa pastora:
yo te aseguro que la fortuna no se
descuyde de templaros el
contento que reçebis con vuestros
amores. Seluagia dixo entonces:
no será tanto el mal que ella con
sus desuariados sucçesos nos
puede hazer, quanto es el bien de
verme tan bien empleada. Sireno
le respondió: Ah Seluagia, que yo
me he visto tambien querido
quanto nadie puede verse, y tan
sin pensamiento de ver fin a mis
amores, como vosotros lo estays
aora: Mas nadie haga cuenta sin
la fortuna, ni fundamento sin
considerar las mudanças de los
tiempos. Mucho deuo a la sábia
Feliçia, Dios se lo pague, que
nunca yo pense poder contar mi
mal en tiempo que tan poco lo
sintiesse. En mayor deuda le soy
yo (dixo Seluagia) pues fue causa
que quisiesse bien a quien yo
jamas dexe de uer delante mis
ojos. Syluano dixo boluiendo los
suyos hazia ella: essa deuda,
esperança mia, yo soy el que con
más razon la deuia pagar, a ser
cosa que con la vida pagar se
pudiera. Essa os dé Dios, mi bien
(dixo Seluagia) porque sin ella la
mia sería muy escusada. Sireno
viendo las amorosas palabras que
se dezian, medio riendo les dixo:
No me paresçe mal que cada uno
se sepa pagar tan bien que ni
quiera quedar en deuda, ni que le
deuan, y aun lo que me paresçe,
es que segun las palabras que
unos a otros dezis, sin yo ser el
terçero, sabriades tratar nuestros
amores. En estas y otras razones
passauan los nueuos
enamorados y el descuydado
Sireno el trabajo de su camino, al
qual dieron fin al tiempo que el sol
se queria poner, y antes que
llegassen a la fuente de los
Alisos, oyeron vna boz de una
pastora, que dulçemente cantaua:
la qual fue luego conosçida,
porque Syluano en oyendola, les
dixo: Sin duda es Diana, la que
junto a la fuente de los Alisos
canta. Seluagia respondio:
Verdaderamente aquella es,
metamonos entre los myrthos,
junto a ella, porque mejor
podamos oylla. Sireno les dixo:
Sea como nosotros ordenaredes,
aunque tiempo fue que me diera
mayor contento su musica, y aun
su vista que no agora. Y
entrandose todos tres por entre
los espesos myrthos, ya que el
sol se queria poner, vieron junto a
la fuente a la hermosa Diana, con
tan grande hermosura, que como
si nunca la vuieran visto, ansi
quedaron admirados: tenía
sueltos sus hermosos cabellos, y
tomadas atras con una çinta
encarnada, que por medio de la
cabeça los repartia. Los ojos
puestos en el suelo y otras vezes
en la clara fuente, y limpiando
algunas lagrimas, que de quando
en quando le corrian, cantaua
este romançe.
Quando yo triste nasçi,

luego nasçi desdichada:
luego los hados monstraron
mi suerte desuenturada,
el sol escondió sus rayos,
la luna quedó eclipsada,
murio mi madre en pariendo,
moça hermosa, y mal lograda:
el ama que me dio leche,
jamas tuuo dicha en nada,
ni menos la tune yo,
soltera ni desposada.
Quise bien, y fuy querida:
oluidé, y fuy oluydada:
esto causó vn casamiento,
que a mí me tiene cansada.
Casara yo con la tierra,
no me viera sepultada
entre tanta desuentura
que no puede ser contada.
Moça me casó mi padre,
de su obediençia forçada:
puse a Sireno en oluido
que la fe me tenía dada,
pago tan bien mi descuydo
qual no fue cosa pagada.
Celos me hazen la guerra,
sin ser en ellos culpada:
con çelos uoy al ganado,
con çelos a la majada,
y con çelos me leuanto
contino a la madrugada:
con çelos como a su mesa,
y en su cama só acostada,
si le pido de que ha çelos,
no sabe responder nada;
jamas tiene el rostro alegre,
siempre la cara inclinada,
los ojos por los rincones,
la habla triste y turbada,
¡cómo biuira la triste
que se uee tan mal casada!
A tiempo pudiera tomar a Sireno

el triste canto de Diana, con las
lagrimas que derramaua cantando
y la tristeza de que su rostro daua
testimonio, que al pastor pusieran
en riesgo de perder la uida, sin
ser nadie parte para remedialle,
mas como ya su coraçon estaua
libre de tan peligrosa prision,
ningun contento reçibio con la
uista de Diana, ni pena con sus
tristes lamentaçiones. Pues el
pastor Syluano, no tenía a su
paresçer porque pesalle de
ningun mal que a Diana
sucçediesse; visto como ella
jamas se auia dolido de lo que a
su causa auia passado. Sola
Seluagia le ayudó con lagrimas,
temerosa de su fortuna. Y dixo
contra Sireno. Ninguna
perfecçion, ni hermosura puede
dar la naturaleza, que con Diana
largamente no la aya repartido:
porque su hermosura no creo yo
que tiene par, su graçia, su
discreçion, con todas las otras
partes que una pastora deue
tener. Nadie le haze uentaja, sola
una cosa le faltó, de que yo
siempre le vue miedo, y esto es la
ventura: pues no quiso dalle
compañia con que pudiesse
passar la uida, con el descanso
que ella meresçe. Sireno
respondio: quien a tantos le ha
quitado, justa cosa es que no le
tenga. Y no digo esto, porque no
me pese del mal desta pastora,
sino por la grandissima causa que
tengo de dessearsele. No digas
esso (dixo Seluagia) que yo no
puedo creer que Diana te aya
ofendido en cosa alguna. ¿Qué
offensa te hizo ella en casarse,
siendo cosa que estaua en la
uoluntad de su padre, y deudos,
más quen la tuya? Y despues de
casada, qué pudo hazer por lo
que tocaua a su honra, sino
oluidarte? cierto, Sireno, para
quexarte de Diana más legitimas

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Sedition in Liberal Democracies

Oxford University Press is a department of the University of Oxford.

© Oxford University Press 2018

This work evolved from my doctoral research at the Department of

ABVP Akhil Bhartiya Vidyarathi Parishad

On 1 February 2017 at the University of California, Berkeley, USA,

individuals as rational beings capable of self-development, an argument

20 Sedition in Liberal Democracies Liberal Democracy aud Free Speech 21

Organization of the Book

"ud ments and deduce a theory of sedition coming from_ the.judiciary.

. with other political offences and

I may physical violence. Th e category of

What comes through these literatures is a family of political offen.ces

of the US Constitution says, 'Treason against the United _States,

¡Ay vanas esperanças,

Venir suele bonanças tras

Esto cantó el pastor con muchas

Quando yo triste nasçi,

A tiempo pudiera tomar a Sireno

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