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In the renowned case of A.K Gopalan vs. the State of Madras, it was observed, “Man, as a rational being, desires to do many things, but in civil – society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals…Liberty has, therefore to be limited to effectively possessed.
Black’s law dictionary defines Sedition as an insurrectionary movement tending towards treason but wanting an overt act; attempts made by meetings or speeches or by publication to disturb the tranquillity of the State. The difference between ‘sedition’ and ‘treason’ is that though the ultimate repercussions of sedition is a violation of the public peace or at least such course of measures adopted eminently dangers the public interest, but yet it does not aim at direct and open violence against the laws or the subversion of the Constitution.
Sedition, in simple words, is a crime in attempting by way of speech, action or publication targeting the Sovereign, ministers, officers or judges by inciting hatreds or contempt in mass, to encourage discontent and disaffection among the State subjects, to even attempting to excite mass to disrupt or subvert the Constitution or even disturbing the peace and order of the Nation which is considered to be a high misdemeanour of where such information or an indictment will lie. No act shall be seditious unless its evil intentions are exposed over a considerable area or offer a bad example to a considerable number of persons. Seditious words in writing are known as Seditious libel. A person who does the act of sedition is known as a seditionist.
Law regarding sedition in India
Section 124A of the India Penal Code defines sedition, “Whoever, words, either spoken or written or by signs or by visible representation or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by Law in India shall be punished with imprisonment for life, to which fine may be added or with imprisonment which may extend up to three years, to which fine may be added or with fine.”
The Act of sedition is a cognisable, non-bailable and non-compoundable offence and punishment for such an act ranges from the imprisonment of three years to a lifetime, to which fine may be added is observed to be harsh compared to other offences in the IPC. Such a person who indulges the seditious act is barred from government law and live without their passport and present themselves in court at the necessary time as and when required.
The Criminal Procedure Code’s Section 95 deals with the right of the government to forfeit material punishable under Section 124 A on stated grounds. Chapter X of CrPC deals with maintenance of public order and tranquility and permits Police, Magistrate, Armed Forces to cause an unlawful public assembly to disperse, if necessary, by using force and to restore public order.
Unlawful Activities (Prevention) Act, 1967– As indicated by Section 2(o) of the said Act, supporting cases of withdrawal, questioning territorial integrity, and causing or intending to cause disaffection against India fall inside the ambit of unlawful activity. Section 13 punishes unlawful action with imprisonment reaching out to seven years and a fine.
These three are the source of sedition law in India. IPC’s section gives a proper definition of sedition and what can constitute sedition, whereas CrPC’s section 95 gives the power to the institution so that a proper procedure can be followed. Unlawful Activities (Prevention) Act, 1987 strengthens the law of sedition.
Sedition law is a draconian colonial relic and reminds us of the inglorious period of our past. The offence of sedition was primarily contained in Section 113 of Thomas Macauley’s Draft Penal Code; however, the same was dropped from the final version adopted in 1860 because of some unaccountable reason. But in the 1870s the section of sedition was redrafted and was inserted by the British after the Wahhabi Movement triggered them to do so. Wahabi movement of the 19th century was an Islamic revivalist movement; whose focus was to condemn and also protest against the British as they were bringing changes in original Islam. This movement was active since the 1830s but after the 1857 revolt it got hyped up and became an armed protest. Subsequently, the British termed Wahabis as traitors and rebels and carried out military operations against them. During this time, the British enacted the law of sedition and completely suppressed the movement in the 1870s.
The need for this law was felt shortly after the IPC, 1860 became enforced, and after this Indian Penal Code (Amendment) Act, 1870 was made. In this amendment act, Section 124 A was added. The amendment was done on the suggestion of Sir James Stephen, the then law member of the Government of India. According to some legal scholars the omission was the result of a mistake, another explanation for not having the law of sedition in the Indian Penal Code was that the British Government wanted to adopt more wide-ranging strategies against the press . Since it came into operation in 1870, the law of sedition has continued to be used to restrain voices of protest, dissent or criticism of the government. Although, the Government of India in Adaptation of Indian Laws Order, 1937 made few changes in the section. The word ‘British India’ was replaced by India; ‘the provinces’ was replaced by ‘the State’, and the words ‘Her Majesty’ was repealed from the section. The explanation of the word ‘disaffection’ was also provided in section 124 A, which is used after independence.
One of the earliest cases of sedition was Ram Nandan v. State of U.P. (AIR 1959 Alld. 101). In this case, the Hon’ble High Court stated that section 124 A restricts the freedom of speech, which is against the rights and interests of citizens and hence declared Section 124 A of IPC as ultra vires. But this ruling of High court was overruled by the Supreme Court in the case of Kedar Nath v. State of Bihar (AIR 1962 SC 955). The law of sedition was interpreted in the decision of the Supreme Court in Kedar Nath Singh Case as it is understood today. The rising concern of the constitutionality of Section 124A of the IPC about Article 19(1)(a) of the Constitution vis-à-vis the core fundamental right to freedom of speech and expression were heard by the Court. It was clear to the court that the crime of sedition must apply to crimes that rise against the public tranquillity as opposed to political crimes.
Looking back to the pre-legislative history and the constituent assembly debates on Article 19 of the Constitution, the law of sedition had been particularly excluded as a valid ground to limit the freedom of speech and expression, though it was included in the draft Constitution. This indicates the legislative intent to not consider sedition as a valid exception to this freedom. The constitutionality of section 124A of the IPC was protected under the pretext of ‘security of the State’ listed as one of the six reasonable restrictions of Article 19(1) of the Constitution.
The divergence for the number of interpretations for the term ‘sedition’ in light of the Constitution is due to reason such term was omitted by the drafters and to avoid any ambiguity in interpretation, they implied on the term ‘security of the State’ to differentiate the crimes like sedition. The reasoning of the Court while interpreting the concept of sedition, was that this would prove to be a handy tool to maintain public order which will be in the interest of the security of the State and hence would be justified.
In the case of Brij Bushan v. State of Delhi, the ground of ‘public order’ was joined with ‘security of the State’ where the insertion of the words ‘in the interest of’ before the public order in Article 19(2) was observed to have provided a wide magnitude of powers extended to the State to curb the freedom of free speech.
Supreme Court in Bilal Ahmed Kaloo V. State of Andhra Pradesh (AIR 1997 SC 3483) and subsequent cases clarified that criticizing a public measure or passing comment on government action is justified until it come under the reasonable restriction of Article 19(2). It doesn’t matter whether the usage of words was strong or not; it will only matter if the words have the pernicious tendency or intention of creating public disorder or disturbance of law and order. Furthermore, in S. Rangarajan v. P. Jagjivan Ram (AIR 1989 SCC 574), the court held that the effect of words must be decided from the standard of reasonable, strong minded, firm and courageous person, and not by those who are weak and has a vacillating mind, nor of those who scent danger in every hostile point of view. All this helps the court to decide whether a particular action will be considered unconstitutional or not.
Sedition comes under the offence against the state, but the provision of sedition talks about the government established by law not about the state. The two arguments for this are that, firstly, the existence of state will be hampered if the government which is the symbol of the state, is subverted. Secondly, Article 12 of the Constitution defines State and under that Article, the government is included under the State. That is why ‘sedition’, as the offence in Section 124A, has been characterized, comes under Chapter VI relating to offences against the State.
Often, the laws of Sedition are taken as an unconstitutional move or in other words, in opposition to the fundamental right to freedom of speech and expression as enshrined in Article 19(1). But in fact, sedition is incongruous to the right to freedom of speech as it involves a discontent act that is directed at the Sovereign State and not the Government. Both the concept differs and applies to different scenarios and not interpreted.
In the case of S. Khusboo v. Kanniamal & Anr (AIR 1997 SC 73), noticing morality does not co-exist with criminality, the Supreme Court reasoned that free flow of the ideas and perceptions in society ensures its citizens are well-informed, resulting in good governance. In support of the above case, Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. & Ors (AIR 1995 SC 2438) emphasised the importance of the free speech held by the Supreme Court:
“Freedom of Speech goes to the Heart of the natural right of an organised freedom-loving society to ‘impart and acquire information about that common interest’.”
Taking the case of Indian Express Newspaper (Bombay) (P) Ltd. v. UOI (AIR 1986 SC 515) set the four critical purpose of the free speech and expression:
- Assist the individual or citizen to attain self-fulfilment
- Assist in the exposure or discovery of truth
- Strengthens the capacity of the individual in participation in the decision-making process and further
- Furnishes a mechanism to establish a possibility of reasonable balance between stability and social change.
Scepticism has been expressed over the potential misuse of the law of sedition, emphasising the words of Justice A.P Shah warning the very basis of the logic of a sedition law comparing it to a parochial view of nationalism endangering the diversity of opinions than prevention of a possible rebellion.
In the case of Shreya Singhal, stating the observation of Court point out the three concepts of most basic right (Freedom of Speech and Expression) of human rights vis-à-vis discussion, advocacy, and incitement. Trivial discussion or advocacy of a particular issue is protected at the heart of the Article 19(1)(a) whereas it is only such discussion or advocacy that resort to a level of incitement which attracts the provisions of reasonable restrictions as revered in Article 19(2). The reasoning for this curtailment of speech and expression is to protect the sovereignty and integrity of India, the security of the State as well as friendly relation with foreign nations.
It can be observed sedition has been many times and even today still used to evade any sort of political dissent in the country and also any political opinions that go against the ruling party’s objectives. There have several incidents where people have been persecuted with sedition for making statements which have not relation with undermining of the security of the Nation. Section 124A must be carefully interpreted in consonance with Article 19(1)(a) and 19(2) of the constitution and the reasonable restriction to be scrutinised critically on thoroughly verified facts and circumstance of the given case.
Scope of improvement
In democratic India, the citizen must be given liberty to express their affection towards the Nation in own way which may be in the form of debates, exposure of the loopholes in the policy of the government, constructive criticisms etc. Section 124A, the law of sedition must only be carefully be applied in cases where the intention of such actions lies with the purpose to disrupt the public order or overthrow the government by way of illegal or extremist means of violence. This sedition law is misused to bully and terrorise citizen wherein the Bidar case, the Principal of the school was charged with sedition for staging a play describing the events of CAA. A clear distinction between free speech and expression concerning Sedition could be reviewed in the Courts of law as the concept of sedition is a very specific and serious offence and when used upon to silence and terrorise an ordinary citizen, raising a concern/ grievance, it is terrorism imposed by the State. Moreover, in the events of the protest, the law enforcement can be easily bullied by a local leader into a registering a case under sedition giving rise to many numbers of case lagging in the Court to be cleared of.
The duty lies upon the Courts of Law to safeguard constitutional Article 19, 21 and to ensure the distinction of such right enshrined in the constitution with seditious charge accused of an ordinary citizen. A harsh law of Sedition which is very specific of its applicability is subject to misuse. Sedition law either must be redefined specifically with restriction to be imposed when the issues arise of Freedom of Speech and Expression or struck down to ensure a democratic mechanism of a country.
The time has come to take a stand to review the Kedar Nath Singh Case which supported the law on sedition and wide amplitude of powers given to the Government to curb the freedom of speech and expression under the said ground ‘Security of the State’ and Public Interest. The freedom of speech and expression must be seen as remarks and criticism as against the functions of the State or Government and awareness of the corruption indulged by few political partisans. It is instrumental in the democratic sovereign to ensure weightage to public opinions and safeguards the freedom of speech and expression as opposed to sedition for introduction effective implementation of necessary legislative laws to serve the purpose of the Nation in the interest of Public.
Moreover, Sedition must be interpreted once again to ensure its applicability concerning words, act and publications ensued against the Nation, not the government as the very principle of a democratic country is to stir up debates from both sides. In a democratic political system, transparency, accountability, public participation, equality as well as representation can all be promised by safeguarding Article 19(2) of the Constitution of India and striking down any law that is in contravention of the said Article. Hence, John Stuart Mill articulately started giving voice to the importance of the freedom of Speech ensures for the free flow of the ideas and expression in society and to encourage stability of a society, one must not curb the voice of the citizens however contrary that may be.
Authors: Tanishka Jangid from Lloyd Law College, Greater Noida and Minnah Elizabeth Abraham from Symbiosis Law School, Pune.
Editor: Dhawal Srivastava from Rajiv Gandhi National University of Law, Patiala.