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Critical Analysis of Sedition Law

BY – Shreya Garg

Introduction 

Section 124A of the Indian Penal Code deals with the law of sedition in India. This law has been used to silence political opponents and repress dissent and free speech. The Supreme Court has expressed its concern over the misuse of the colonial-era sedition law in various cases by the state authorities. Chief Justice N.V. Ramana too expressed his concern saying that “The use of sedition is like giving a saw to the carpenter to cut a piece of wood, and he uses it to cut the entire forest itself”. [1] Many such incidents have occurred in recent years as a horrifying example of government repressing dissent under the guise of sedition. For example, in Bidar, Karnataka, sedition charges were filed against a teacher and a woman whose 6-year-old child participated in a school play against CAA-NRC. [2] This misuse has resulted in demand for abolition or amendment to the sedition law as it exists today. 

Origin and historical background

Section 124A was originally Sec 113 of Thomas Macaulay’s draft Penal Code of 1837, but was omitted for unaccountable reasons when IPC was enacted in 1860. Sec 124A was inserted in 1870 when the need for such provision was felt to deal with the offence. [3] This provision proved to be useful for British in muzzling nationalist voices for freedom. Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh are among India’s national heroes who have been charged with sedition. Bal Gangadhar Tilak was the first person to be convicted of sedition in colonial India for giving speeches on the killing of Afzal Khan by Shivaji which prompted the murder of two British officials, as claimed by the British Government. After independence, the term “sedition” was dropped from the Draft Constitution as a ground to impose restrictions on freedom of speech and expression. In 1951, the validity of sedition law was challenged for the first time in Tara Singh Gopi Chand v. The State, [4] before Punjab & Haryana High Court. The Court invalidated the provision on the ground that it was in contravention of the fundamental right to freedom of speech and expression under Article 19 of the Constitution. The Nehru Govt. then responded by adding new grounds like “public order” through the Constitution (First Amendment) Act, 1951, on which the freedom of speech and expression could be restricted.

What is Sedition Law?

Sec 124A of the IPC defines Sedition as an offence committed when any person by words, either spoken or written, or by signs, or by visible representation, or otherwise:

  • brings or attempt to bring into hatred or contempt, or
  • excites or attempt to excite disaffection towards the Government established by law in India

Disaffection includes disloyalty and all feelings of enmity. The comments without exciting or attempting to excite hatred, disaffection or contempt does not constitute an offence under this Section. The offence is cognisable and non-bailable under which the accused cannot get bail as a matter of right, but is subject to the discretion of the Court. The punishment ranges from imprisonment up to three years to life term, to which fine may be added. [5]

Meaning of sedition

The term “sedition” is not defined in the IPC. The meaning of sedition was explained by Lord Fitzgerald in Reg v. Alexander Martin Sullivan, [6] as a crime against society, nearly allied to that of treason. It is a comprehensive term which embraces all those practices, whether by word, deed, or writing which are calculated to disturb the tranquillity of the State and lead ignorant people to endeavour to overthrow the government and subvert laws of the empire. [7] Generally, sedition refers to inciting people to rebel against the government. It encompasses any acts and practices that aim to incite dissatisfaction or disloyalty towards the Constitution, the Government or the Parliament in order to create a public disturbance or civil war and includes all efforts to promote public disorder. 

Constitutionality of Sec 124A of the IPC

In its decisions in Brij Bhushan v. State of Delhi [8] and Romesh Thappar v. State of Madras, [9] in 1950, the Supreme Court addressed debates regarding Sedition and held that a law restricting speech on the grounds that it might disrupt public order was unconstitutional.it also stated that disturbing public order will mean nothing less than threatening the foundations of the state or its overthrow. In Ram Nandan v. State of U.P., [10] where the constitutionality of Sec 124A was challenged, the Allahabad High Court held that the provision is ultra vires of Article 19(1) of the Constitution and void as it was not in the interest of public order and the restriction imposed thereby was not reasonable restriction. However, the decision was overruled by the Supreme Court in 1962 in Kedarnath v. State of Bihar, [11] ruling Sec 124A to be intra vires. The Court observed that disloyalty to govt. established by law is not the same thing as criticizing or commenting the measures or policies of the Government or its agencies in order to improve the people’s situation or secure cancellation or modification of those acts or policies through legal means. “A citizen has the right to say or write whatever he wants about the Government, or its measures as long as he does not incite people to violence against the government established by law or with the intent of creating public disorder,” the Court ruled. In Balwant Singh v. State of Punjab, [12] the SC ruled that mere sloganeering that elicited no public response did not constitute sedition. In Kanhaiya Kumar v. State of NCT Delhi, [13] the petitioner, who was prosecuted under Sec 124A of the IPC applied to Delhi High Court for bail. The Court, while deciding the case observed “While exercising the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, one must keep in mind that Part-IV Article 51A of the Constitution provides Fundamental Duties of every citizen which are the other side of the same coin”.

Is it necessary to repeal or amend the law?

Over the years, the sedition law has become synonymous with being anti-national. There is a fine line between criticising the government and fabricating false propaganda against it, attempting to destabilise it. Destabilizing a democratically elected government is unquestionably a violation of sedition laws. Since the colonial British rulers enacted the Sedition law in the 1860s, it has been the subject of heated debate. Despite the fact that the standards for applying the charge of sedition are well-defined, subordinate courts have frequently failed to follow them while deciding the sedition cases. Because of the vast scope of Section 124A, the state can use it to pursue people who oppose its authority. The mere threat of sedition charges works as a deterrent against any voice of criticism or dissent. The word sedition is not mentioned in the Constitution as the essence of democracy is criticism of Government.

The Constituent Assembly of India believed that it was critical for minorities, in particular, to have an association and free speech in order to have their concerns heard by the government. The country [ i.e. the U.K.] which enacted this law in India has itself abolished the same years back. Despite having specific laws dealing with the external and internal threats to sabotage the nation, this colonial-era law has not been abolished and is still in use. According to the data from the Union Ministry of Home Affairs [MHA], 326 cases were registered across the country from 2014 to 2019, of which only 6 people were convicted. [14] Even though the rest of 300 were acquitted, for persons accused of sedition the process itself is punishment. People who are arrested for this crime almost always end up in prison for a long time. Judges are hesitant to grant bail to anyone charged of sedition. Although the SC declared in the Kedarnath case that sedition is not proven until the accused incites people to violence against the government established by law or intends to create public disorder. The government and the state authorities, however, arbitrarily impose sedition laws to instil fear among those who raise their voice against the regime. One of the most serious issues with the sedition law is that it is vague and inadequately defined. The expressions “bring into hatred or contempt” and “attempt to excite disaffection” can be construed in a variety of ways. Justice D.Y. Chandrachud recently raised this issue while restraining the Andhra Pradesh Government from taking action against two Telugu news channels charged with sedition under Sec 124A of the IPC. “Everything cannot be seditious,” observed Justice Chandrachud. Its past time for us to define what constitutes sedition. Expression of views which are dissent and different from those held by the government cannot be termed seditious. Despite all this, Section 124A of the IPC is useful in countering anti-national, separatist, terrorist and Naxalite groups in India. It defends the elected government against violent and illegal attempts to overthrow it. The legal government’s continuing existence is a necessary requirement for the stability of the State. A Maoist insurgency is wreaking havoc in a number of districts throughout several states, and rebel organisations effectively run a parallel administration. The overthrow of the state government via revolution is publicly advocated by them. We also need the law to deal with cases like 2016 JNU wherein a group of students chanted slogans like “Bharat tere tukde honge, Inshallah Inshallah.” In the light of this, repealing Section 124A would be ill-advised simply because it has been incorrectly invoked in some well-publicised cases. Rather than repealing it, the law of sedition i.e. Sec 124A should be updated and defined more carefully to reflect today’s India and to prevent the government from unduly misusing it. Guidelines should be issued to limit its indiscriminate use so that no citizen’s fundamental right to freedom of speech and expression be violated under Article 19(1)(a) of the Constitution.    

References 

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