Viability of Democracy: A blow against freedom of speech and expression?

Reading time : 10 minutes

INTRODUCTION:

The last few years have been marked by series of protests, where Indian citizens have spoken and been slapped with charges of sedition or the draconian anti-terror law or UAPA. Our preamble starts with “We the people of India” promised to its citizens to secure all – liberty of thought, expression, belief, faith, and worship. Yet a country that has a rich tradition of protests dilutes the dissent with criminal charges and silences the voices. Perhaps the question is if one expresses self through dissent against the government will the result be rotting in a prison? The slightest of apprehension on public tranquillity does not license to hold restrictions against freedom of speech and expression. These restrictions observed through the perspectives of democracy and justice are used and moreover abused as an effective tool against the dissenters.

Unfortunately, the concept of having a dialogue is dying and young dissenters who are merely exercising their democratic rights by engaging in protests are arrested. How far in a democratic set-up publishing or preaching of protest, even questioning the foundation of Government can be imputed as causing the disaffection towards the Government of India and thus inciting violence against the state is a crime, but expressing a non-violent opinion is a democratic right. This research article will examine the use and abuse of the sedition law.

INDIAN PENAL CODE:

Section 124(A) captioned the offence of sedition. In itself is a comprehensive term, and embraces all practices whether by word, deed, or writing, are calculated to disturb the public order or peace of the State and lead ignorant persons to endeavour to subvert the Government and laws of the country. By the codified words, it runs as:

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, 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 to three years, to which fine maybe added, or with fine.[1]

It is difficult to imagine how a mere expression can amount to an offence against the State only on basis of disturbance of public order, given the context of a wide interpretation of the term ‘in the interests of public order is unjustifiable. Sedition is a remnant of that part of the criminal law which inhibits freedom of speech.[2]

Sedition has been disturbed as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create a public disturbance, or to lead to have to civil war, to bring into hatred or contempt the sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorders.[3]

The rationale behind this seditious law traces back to the British regime and let’s dive into history for the legal framework. 

HISTORY:

Sedition is covered under the offences against the state because they are calculated to undermine or affect the security of the state and while it was introduced into penal legislation, India was under the British Raj and monarch. The disloyalty towards the Crown and its harboured actions were drawn in Treason Felony Act, thus connoting treachery overt acts with criminal apprehensions were sentenced to punishment because sedition is closely allied to treason under the aforesaid legislation. Section 124(A) was inserted by Sir James Stephen when the hatred and contempt against the Queen were brought into the light. The object stood clear as sky that sedition is invoked when the tendency is incited amongst people to insurrection and rebellion, in other words, said, to stifle the voices of dissent. Adverting to the section, many personalities have been tried and punished during the imperial rule, most notably as Jogendra Chandra Bose, Lokmanya Tilak, and Mahatma Gandhi.

During the time frame of the late 19th century – early 20th century many seditious trials began involving many Indian nationalist leaders. The initial cases were against the editors of newspapers and the first seditious trial commenced against Jogendra Chandra Bose who addressed in a critique article that the Age of Consent Bill being a threat to the religion and for its coercive relationship with Indians. In Queen Empress v. Jogendra Chandra Bose[4], Calcutta High Court explained the ambit of the section:

It is sufficient for the purpose of the section that the words used are calculated to excite feelings of ill-will against the Government and hold it up to the hatred and contempt of the people and that they were used with the intention to create such feeling.[5]

In Tilak’s trial, A single bench presided by Justice Strachey in Bombay High Court, pronounced the verdict along the similar lines of Calcutta High Court on the alleged actions of publication of an article entitled ‘The country’s Misfortune’ which outlined the murder of two European women at Muzaffarpur.[6] The court, in this case, ruled that the offence does not consist in exciting or attempting to excite mutiny feelings of rebellion or disturbance, great or small, and rejected the plea contending no offence can be invoked unless any disturbance or outbreak was caused. And subsequently held that, if the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within this section, and if tried to excite the hatred or contempt towards the Government, it would suffice to make him guilty under this section.[7]

The disaffectionate expression on several occasions is either spoken or written or by visual representation. Well, the disaffection or disapprobation are explicated in the explanatory comment of the section which construed that disloyalty or enmity feeling towards the Government in the interests of alteration by unlawful means. This has been further constructively explained in Queen Empress v. Amba Prasad[8] to what means and measures would amount to seditious act.

By making a ground check constitutional validity of the aforesaid section, Kedar Nath Singh v. State of Bihar[9] in post-independence reign, extensively condensed the distinguishing thin line between fundamental right and public order. Supreme Court held that this section is unconstitutional and opined that only when it is construed that the words, written or spoken which have pernicious tendency or intention of creating public disorder or disturbance of law and order the law steps in to prevent such activities in the interest of public order, then the only section strikes the correct balance between individual fundamental rights and the interest of public order. The court also held that a citizen has the right to say or write whatever he likes about the Government, even in the form of criticism or comment as long as he does not incite people to resort to violence against the Government established by the law or with the intentions to create public disorder.[10]

The public order is a wider impression of a state of tranquillity that prevails among the members of a political society as a result of the internal regulations enforced by the Government which they have established. Drawing a line between violence and exercising the freedom of expression and speech, the higher degree or in aggravated forms of public disorder that might render overthrow of the state could justify the curtailment of the rights in relatively minor breaches of peace of purely local significance.[11]

However, this dates back to the colonial relic that was designed to protect the Crown and the government from any potential threat that might overthrow the state. The reason it prevailed in many countries dominated by the English, itself abolished after reckoning the democratic values in dissent and free speech. UK Government in 2009 abolished seditious libel and criminal defamation and yet after 74 years of independence, India continues to render sedition as a punishable offence and running on similar lines the reason Crown designed it for.

WHAT HAVE COURTS SAID SO FAR:

Mere expression of dissent but without resorting to violence or without exciting any disaffection towards the government shall be considered outside of sedition. In Balwant Singh v. State of Punjab,[12] it held that the casual raising of slogans, for once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by the law of India. Where two individuals were accused of raising Khalistani slogans and likewise the court stated that they do not pose any threat to overthrow the government.

Albeit many verdicts, one of the niche judgments passed by the Federal Court of India however overruled by Privy Council, though it stands true to its holding in contemporary relevance is the case of  Niharendu Dutt Mujumdar v. Emperor,[13] the words of the court stated:

“The time is long past when mere criticism of Government was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing government is not excluded, not even expression of a desired system altogether. The right of every organised society to protect itself against attempts to overthrow it cannot be denied; but the attempt which has seemed grave to one age may be the subject of ridicule in another.”

Privy Council overruled the aforesaid judgment on account of views expressed in several cases.[14] However, the concentric circles of public disorder and the threat to security of state are the contributing standards to the sedition. Even though the legislative contexts were different from one another. Public order is viewed in the contest that if disturbed must lead to public disorder, but every breach of peace does not amount to public disorder. It thus appears that disorder of less gravity will be comprehended as public order than those affecting the security of the state.[15] The essentiality of an act that intends to incite the public disorder was regarded in the landmark judgment of Kedar Nath’s case, CJ Sinha observed in the view of the decision of the Supreme Court that laid down, strongly-worded expressing, disapprobation without causing or exciting those feelings which generate public disorder by acts of violence, shall not be penalized. It was further viewed in the antecedent history of the legislation, its purpose, and the mischief it seeks to suppress the provisions of section 124A and section 505 of IPC should be limited in application to acts involving intention or tendency to resort for violence.

Leaping into recent judgments, courts on numerous accounts have asserted that dissent is a fundamental right enshrined in our constitution under Article 19(1)(a). As recent as in the current year, the cases of sedition have upsurged and one of the cases that caught the eyes, also commonly known as the toolkit case. Where Delhi High Court in its bail order firmly delivered that citizens cannot be put behind bars simply because they disagreed with the state policies.[16] It further stated that seditious acts cannot be perceived in anticipation, strengthening the evidence by making the arrest would not be promoted any further, the particular reason for the circumstance is that it restricts the liberty of a citizen on the propitious anticipation and no record of violence was observed by her actions. Thus, the court concluded for the release of a 22-year-old who was kept under custody with scanty and sketchy material evidence.

In another case of Delhi High Court, granted bail to another young labourer who was accused of posting a fake video in wake of farmer protest and consequently was charged with sedition and forgery. In this case, the state argued that though he wasn’t the creator of the video, he intended to spread dissatisfaction against the government. The court rejected the contention and opined if just bare reading on tagline attributed to invoke sedition offence, in that case, it is a seriously debatable issue and to that end accused was released.[17]

CONTEMPORARY RELEVANCE:

Betrayal of government towards democratic tendencies would naturally surrender discontent or disaffection among the citizens. Living without criticism under the veil of façade is an incorrect concept. Justice Deepak Gupta in a workshop spoke at length on the topic of sedition and freedom of speech and expression, as well stated that “You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.”[18] From this statement and judicial pronouncements, there has been a bell ringing that says without any violence no criminal charge of sedition can be imposed. This boils down to the question that whether the right to protests is covered under the scope of a fundamental right? Protests are carried with an explicit way of expressing disapproval and if said in constitutional words then it is a right to assemble peacefully without arms.[19] The extended version is to carry an express dissent without violence. Mahatma Gandhi served for seditious trial yet resort to non-violent ways and quoted “Non-violence is the greatest force at the disposal of mankind. It is mightier than the mightiest weapon of destruction devised by the ingenuity of man.”[20]

Supreme Court in the case of Shaheen Bagh protests, stated very well for upholding democratic values, the words were “Right to protest must be encouraged by the State and respected in terms for the strength of democracy such as our lies the same…[21] As long as protests does not turn into riots or create a nuisance, it can proceed with the conditions and permissions. Protests are the only way to show their dissent and if it is taken by the criminal liability then it is a violation of fundamental right. In Shreya Singhal v. Union of India,[22] sorted the difference between advocacy and incitement of violence. Advocacy of violence is not justifiable for the suppression of free speech and assembly because it falls short of incitement. And mere discussion or advocacy will only be subjected to violence when the cause reaches incitement because the former is at the heart of Article 19(1)(a) and the latter could be punished. One of the debacle cases was the arrest of activists and student leaders of JNU, who were alleged to be part of the premeditated conspiracy for riots in North Delhi. Communal violence broke out between the citizenship law supporters and protestors. The police action against the accused persons was ruthless and inappropriate. However, the political propagandas invade simply because the reason being that they do not seek the rebellion causes or support the healthy exchange of dialogues.[23] The fair parameters of criticism are subjected to the limitations of the statutes. Disturbance of public order either by riots or affray that undermines the nation’s peace and sovereignty will amount to sedition and unlawful assembly.

The precedents set by the courts reiterate that democracy is for people and the right to participate in any democratic discussions or issues is absolutely essential in the interests of the public.[24] There shouldn’t be any fear of government and must be able to express in a civilized manner with their own free will as it should not be tangent with political motives.

CONCLUSION:

To wrap up everything I have written in this article is that sedition in today’s times is the most abused law and yet legislative amendments are proved to be abortive. One of the analogies made is that sedition is much like a gun but that shouldn’t be used to kill a mouse, however, the weapon requires gun ownership, often used as a threat and shooting.[25] By protecting the freedoms, the dissent cannot be diluted. Rather than submerging or stifle the criticism as a result of prison, the government should entrust the citizens and show greater confidence by the constructive feedback in the forms of protests or any other expression of dissent and should place fundamental right in the primacy over the sedition law and upheld the democratic rights.


[1] Indian Penal Code, 1860, s. 124

[2] Laurence W. Maher, “The use and abuse of sedition,” ALWD 6th ed, 14(3) Sydney L. Rev. 287 (1992).

[3] Nazir Khan v. State of Delhi, AIR 2003 SC 4427 : (2003) 8 SCC 421.

[4]  ILR 19 Cal 35.

[5] Id at pp.44. 

[6] Bal Gangadhar Tilak, (1897) 22 Bom 112, 528 (PC); BG Tilak, (1908) LR 848.

[7] Id.

[8] ILR (1898) 20 All 55.

[9] AIR 1962 SC 955 : (1962) Supp 2 SCR 76.

[10] Ibid

[11] Romesh Thapper v. State of Madras, 1950 SCR 594 : AIR 1950 SC 124 : (1950) 51 Cri LJ 1514.

[12] AIR 1995 SC 1785 : (1995) 3 SCC 214.

[13] (1942) FCR 38.

[14] Sadashi Narayan v. State, (1947) 49 Bom LR 526, (1947) Bom 110, 74 IA 89.

[15] Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709 : AIR 1966 SC 740.

[16] State v. Disha A. Ravi, Bail Application No. 420/2021, Decided on 23.2.2021.

[17] State v. Swaroop Ram, Bail Application No.364/2021, Decided on 15.2.2021.

[18]. Valedictory address at the workshop of lawyers by Justice Deepak Gupta, (2020) 4 SCC J-14 Law of Sedition in India and Freedom of Expression.

[19] Constitution of India, art. 19(1)(b).

[20]https://www.birthdaywishes.expert/mahatma-gandhi quotes/#:~:text=Non%2Dviolence%20is%20the%20greatest,the%20servant%20nor%20the%20served.

[21] Amit Sahni v. Commissioner of Police, Civil Appeal No. 3282 of 2020.

[22] (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449.

[23] Ankit Singh, “Revisiting the law of sedition in India : A Critical Study in the Light of JNU Fiasco”, 7 RMNLUJ (2015) 112. 

[24] Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621. 

[25] Anshit Aggarwal, “ Sedition and Section 144”, http://probono-india.in/blog-detail.php?id=120#:~:text=Section%20124%20A%20of%20The,by%20law%20in%20%5BIndia%5D%20shall on 6-5-2020.

Author: Aditi Borkar, 2nd Year, BBA LLB, Symbiosis Law School, Pune.

Editor: Kanishka VaishSenior Editor, LexLife India.

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