Updated: Jul 7, 2020
Author: Surbhi Sharma
Law Researcher , High Court of MP
The law of sedition in India has invited a huge controversy recently. It is because the application of this law against social activists, cartoonists and public intellectuals etc. has raised significant concern on the arbitrary nature of its application. It was inserted in Indian jurisprudence to extend the British power and gain influence over our freedom fighters. By imposing such influence, Britishers got a valid license to punish citizens who raised their voices against the colonial masters. But now that we are a free nation, such a law has become draconian and has no place in our modern constitutional democracy. The law laid down by Section 124A of Indian penal code has been challenged on the ground of violating Article 19(1)(a) of the Constitution. Moreover, the Indian judiciary has come up with various Judicial findings on this question of law.
This paper deals with the overall utility of Section 124A in present India. It begins with a brief introduction of sedition law and its legal definition in the code. It further discusses how Indian courts have interpreted the keywords of this section in their landmark decisions. It then talks about the free speech argument used by opponents of the law. As there has been a never-ending debate based on the widespread public criticism of this provision, the article finally concludes by weighing the pros and cons of amending the present law and upcoming with the new legislation.
The law relating to Sedition is a survivor from the era of Britishers when they had absolute control of Indian administration. It was a brainchild of Lord Macaulay which was incorporated in Indian Penal Code (IPC) in 1870. It was introduced at that time as a mechanism to suppress the actions of freedom fighters and as an answer to their strong disagreements with the British policies.
Before discussing the adverse impact of this provision on India and its people, it is important to talk about the current position of law in other countries. Talking about the United Kingdom, it is surprising to know that the country that instituted this provision in our Penal Code had struck it down a decade ago. The UK repealed this provision for being in direct conflict with the freedom of speech and expression. It recognised that sedition was a by-product of a forgotten era and has fallen out of place in today’s society where the right to speech is considered as an essential part of a liberal society. It also mentioned that this provision was now being misused in countries which used to be its colony to suppress disaffection towards policies of the government and curb free speech of its people.
Talking about the US, its First Amendment guarantees freedom of expression by prohibiting Congress from restricting the press or rights of individuals to speak freely. It also guarantees the right of citizens to assemble peacefully and lawfully petition against their government. In compliance with a long history of judicial findings on the validity of sedition law, the US Supreme Court in the case of Brandenburg v Ohio held that a mere voice against the government was not seditious unless such voice was directed towards inciting public disorder.
From the above discussion, it is clear that sedition was not incorporated in our Penal Code during its enactment in 1860. Instead, it was added later as an afterthought by Britishers to safeguard their interests.
In recent times the law of sedition has invited widespread public criticism in India. Earlier it was challenged on the ground of constitutionality by proposing that it is in contravention of the right to free speech guaranteed under Article 19(1)(a). But the case of Kedar Nath Singh vs. the State of Bihar made it clear that section is not ultra vires under the Constitution. However, it established certain safeguards to be followed by all the authorities while applying this section against any offender. The Court ruled in favour of Constitutional validity of the section but an important provision was added along with it.
The proviso made it clear in words that “no offence of sedition under Section 124A is made out unless the words – spoken or written – would tend to create disorder or disturbance of public peace by resorting to violence.” This means that if we cautiously interpret the Court’s finding then it is clear that if the creation of public disorder or violence has not featured in an incident then the Court may very likely drop the charge of section 124A in a particular case.
Hence, the constitutionality of the law of sedition had been saved by the Kedar Nath judgement. This was done by reading it in the backdrop of proviso talking about resorting to violence or disturbing public order.
Even after the question of constitutionality has been answered, the provision has invited widespread public criticism due to its misuse against citizens with extreme political insights who have tried to raise their voice against the authority. There is a need to critically analyze this law and take precautions against the misuse of the section by any influential wing or officials of the government and prevent the oppression of its people.
SEDITION- AS LAID DOWN BY STATUTORY PROVISIONS
The word ‘Sedition’ has not been used anywhere in the Constitution or any statute. However, it has been used as a marginal note of Section 124 A of the Indian Penal Code. It states that:
1) Whoever by words either ‘spoken’ or ‘written’ or by signs or by visible representation or otherwise brings or attempts to bring into hatred or contempt against the government established by law; or
2) Whoever by the above means excites or attempts to excite disaffection towards the government established by law, has committed the offence of sedition.
It means that section penalises bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the Government established by law in India. “Sedition” is a non-bailable offence. Punishment under the Section 124A ranges from imprisonment from three years to a life term, to which fine may be added. A person charged under this law is barred from a government job. They have to live without their passport and must produce themselves in the Court at all times as and when required.
Section 95 of the Criminal Procedure Code, 1973 (“Cr.P.C.”) empowers the government to Forfeit objectionable material under Section 124A of I.P.C. on stating grounds. This section has a twofold requirement. Firstly, the material should be punishable under Section 124-A and secondly, the government must give reasons for its opinion to forfeit the material so punishable.
RECENT INCIDENTS OF IMPOSITION OF SEDITION CHARGES IN INDIA
Despite several demands by the centre for dissolving this law, the law of sedition is still reflected in our penal statute. It is because, for a country like India, it’s a question of appreciating the fine line between liberty and security. In Kedar Nath Singh Vs State of Bihar, the Apex Court made it clear that seditious speech & expression may be punished only if it leads to certain instigation or public disorder. Further Indra Das vs. the State of Assam the Court explained the sense of expressions ‘incitement’: The Apex Court stated that only speech that amounts to incitement and further to anarchic action can be punished. Hence, favoring revolution or a violent overthrow of State does not come under sedition, until & unless there is the inducement of violence.
However, the recent cases in India have shown a varied attitude of Courts regarding the imposition of sedition charges. Whereas no proper guidelines have been laid down in any judgement giving a clear interpretation of words like 'incitement' & 'exciting disaffection towards government'. As a result of these recent cases in which people have been charged with sedition and often imprisoned include liking a Facebook page, criticizing a popular yoga expert of the country, supporting the Pakistani cricket team in a match and questioning the militants in Jammu in an examination etc.
It is ironic to know that in independent India, lately, this provision is being used to trouble and terrorise citizens. In the Bidar case, a parent and the head of a school were charged with sedition for staging a play critical of the Citizenship Amendment Act. It invited severe criticism from the media and the masses. The charges have rarely been proved in the majority of cases, but the process of going through investigation and inquiry itself becomes more detrimental than actual punishment.
ARGUMENT OF FREE SPEECH AGAINST SEDITION
The most frequently used arguments against sedition is based upon the principle of free speech. The Constitution of India guarantees the freedom of speech and expression under Article 19(1)(a). The constitutionality of section 124A has often been challenged in court on the ground that the said provision is violative of the fundamental right to freedom of expression and is therefore ultra vires the Constitution. However, as mentioned earlier, the matter has been entirely settled by the Apex Court in 1962 where it held that section 124A was not unconstitutional, provided it is read with subject to certain limitations. However, the opponents of this law continue to use the free speech argument as the foundation of their disagreement on the sedition law.
The free speech argument is firmly linked with India’s functional democracy. It is argued that India being a democracy, the right to express one’s views and opinions about the ruler is not just desirable, but is necessary for its efficient functioning. Participation of citizens in policy-making lays down the roots of a democratic setup and to curb this right of participation is uncalled for. Lastly, provision for sedition which places the government at a higher footing than the people has no place in a democracy where the citizens themselves are the true power, or at least have the power to choose their rulers.
● The question of altogether abolition of law relating to sedition must be carefully scrutinised. It is because we cannot overlook the bigger issues of minimising communal violence and insurgent activities like Naxalism.
● It is time to reconsider the categorisation of offence of sedition into cognizable and non-bailable.
● That this section must be called upon only in cases of words or speech that incites violence and have an express potential to create public disorder. In this regard, The Supreme Court has declared to all authorities to carefully follow the Kedarnath verdict. This guideline must be adhered by the courts.
● The right step is to increase consciousness in our law enforcement agencies and make them learn that anything less than ‘incitement to violence’ cannot fall under the ambit of section 124 A.
● Ours is a solid democracy and national integrity is embedded in its roots. Therefore, strong slogans and ill temperament should not become the reason behind the internal disturbance in the state.
● As a last resort, misuse of 124A by the investigating authorities should be penalised. Also, there must be express provision for an award of compensation to the injured party.
● JATIN VERMA “A Critical Analysis Of Sedition Law In India”. Accessible at https://www.jatinverma.org/a-critical-analysis-of-sedition-law-in-india
● JATIN VERMA “Sedition Charges Imposed On Some Celebrities”. Accessible at https://www.jatinverma.org/sedition-charges-imposed-on-some-celebrities.
● SOUGATA TALUKDAR & RAKESH MONDAL; “Law of Sedition: An Agent of Colonialism: A Critique”.International Journal of Law ISSN: 2455-2194, RJIF 5.12 Volume 3; Issue 3; May 2017; Page No. 21-26. Accessible at www.law journals.org.
● JHALAK SHAH AND SHANTANU PACHAURI; “An analysis of sedition law in India” Volume 1; September 2017. Accessible at https://www.researchgate.net/publication/342503880_An_analysis_of_sedition_law_in_India
● AISHWARYA NARAYANAN; “A Theoretical Analysis of the Law on Sedition in India”; Christ University Law Journal, 4, 1 (2015), Pg 87-101. ISSN 2278-4322|doi.org/10.12728/culj.6.5http://journals.christuniversity.in/index.php/culj/article/view/490.
● Brandenburg v. Ohio; 89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320
● Kedar Nath Singh vs State Of Bihar; 1962 AIR 955, 1962 SCR Supl. (2) 769
● Indra Das vs. the State of Assam (2011) 3 SCC 380.
● In Bidar case sedition charge was imposed against Parents and headmaster of school in Shaheen Institute, Bidar court , Karnataka .The high court finally held that mere staging of a play against citizenship amendment act does not amount to sedition.