JUDICIAL CONTROVERSY OVER SECTION 124A- SEDITION OF THE INDIAN PENAL CODE

Reading time : 14 minutes

INTRODUCTION

In the recent times, there has been a rise in the matters related to sedition charges pressed against human rights activists, students, teachers, journalists and intellectuals. This raised questions on the undemocratic nature and constitutional validity of such laws in present democracy. Many courts have analyzed its application in the present society. The Constitution of India[1] guarantees freedom of speech and expression, as one of its six freedoms, to all its citizens.

Data from National Crime Records Bureau (NCRB), on its website, showed that between2016 and 2019, number of cases filed under this section of IPC[2], increased by 160% while the rate of conviction fell from 33.3% in 2016 to 3.3% in 2019. In February, the Ministry of Home Affairs (MHA) informed Rajya Sabha, about the same, that from 96 people arrested for sedition in 2019, only 2 of them were convicted for the crime, while other 29 were acquitted[3]. Sedition, considered as a colonial legacy, used by the Britishers against the criticizers, but is it now a tool to suppress and jeopardize our freedom to speech and expression?

HISTORY

Chapter VI of the Indian Penal Code,1860 deals with the Offences Against the State (from Section 121 to Section 130). The purpose of these codes is to safeguard and protect the State as a whole in case of offences against the State. This Chapter deals with the punishments as life imprisonment or death penalty. One such section from Chapter VI is Section 124A.

Section 124A of the Indian Penal Code,1860 dictates the offence of Sedition. Even though this section was a part of original draft, under Clause 113, created in the year 1837 by Thomas Babington Macaulay, but when IPC came into existence in 1860 this section was omitted. He was historian-politician and is considered as the father of the Indian Penal Code and as the leading member of the Law Commission, his final years in India were spent on creating the Penal Code.

It was on 25 November 1870 when this law as Section 124A, a revised version of Clause 113 of the draft penal code, was inserted in the code, under the head ‘Exciting Disaffection’, by an amendment introduced by Legislative Council of the Governor-General led by Sir James Fitzjames Stephen. There were reports that sedition was finally made an offence in British India because the colonial government feared increased Wahabi and mutiny activities against them. Wahabi Activity is religious movement by the Muslims, led by Syed Ahmed Barelvi, who condemned any change in the original Islam. After the revolt of 1857, it transformed into armed rebellion, Jihad against the Britishers. The Britishers were intolerant to any form of dissent and termed Wahabis as traitors.

The introduction of Sedition law in India suppressed this movement and made speech, which attempted to ‘excite disaffection towards government’, as an offence. Unaltered for 27 years, later in 1898, Stephen’s version of 1870 was amended to a large extent and the current section is very much similar to this 1898 section.

INTERPRETATION OF LAW

Part III of the Constitution of India, deal with Fundamental Rights (Article 12 to 35), guarantees us some basic human rights and liberties which all the citizens are entitled with and cannot be taken away. Article 19(1)(a) is ‘Right to Freedom of Speech and Expression’.

s.124A. Sedition. – Whoever, by words, either spoken or written, or by signs, or by visible representations, 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 may be added, or with fine.[4]

Sedition is an offence which criminalizes speech which is considered as disloyal or which threatens the State. It is an act of defamation of the Government established by law. The punishment for seditious offences It is cognizable, non-bailable and non-compoundable offence which are tried by the court of sessions[5]. It is difficult for accused of sedition to get bail. The court has to determine on the bases of facts and circumstances whether any threat is caused to stability of the State.

Sedition selects those activities of a person who by words, deeds or writings, attempt to disturb the tranquility of the State and try to misdirect people or incite people to rebellion. This section prescribes punishment which may extend up to imprisonment for life, and fine, or imprisonment up to 3 years and fine, or with fine. The first thing that must be proved in a trial for sedition is that the person actually participated in the act. There must a presence of concrete gestures or words or else, a case for sedition won’t exist against him.

Explanation 1 to this section says that ‘disaffection’ includes disloyalty and all feelings of enmity. The intention of the accused should also be judged, whether it is to spread hatred or disaffection of one’s nation. Only a speech with the signs of ill-will, rebellion or to overthrow the government established by law, with the threat or use of violence, should be included in seditious act. Explanation 2 and 3 to this section states that what all is not a seditious act. If the criticism relates to Government measures and administrative or other actions of Government, done without exciting or attempting to excite hatred, contempt or disaffection, is not sedition. It clarified that the criticism should be within reasonable limits. These explanations are crucial for application of Section 124A[6].

In Balwant Singh v. State of Punjab[7], the court held that raising slogans once or twice by individuals cannot excite or attempt to excite hatred or disaffection towards the government.

So, for conviction under the Section 124A of IPC, these essentials must be proved-

  1. The accused actually spoke, wrote the words or used signs or any visible representation.
  2. The accused excited or attempted to excite hatred or disloyalty against the Government.
  3. It must create public disorder or violence.

PRE-INDEPENDENCE

Leaders of the freedom movement propagated patriotism among their people through articles, poems, songs, etc., which led to introduction of this law, in order to curb such propagation. This made any criticism against the government a punishable offence. Government in the past and present have used this law to charge men and women.

The first notable registered case under this section was of Queen Empress v. Jogendra Chunder Bose[8]. The Editor published the article in his Bengali magazine ‘Bangobasi’, objecting the English rulers for raising the age of consent of sexual intercourse[9], from 10 to 12 years. The authorities claimed that Bose incited feeling of rebellion. The then Chief Justice Sir Comer Patheram, explained the term ‘disaffection’ to Jury as ‘a feeling contrary to affection, in simple words, dislike or hatred’. Nevertheless, case was dropped and Bose was released on bail.  

Freedom movement is spotted with cases of sedition. Bal Gangadhar Tilak, known for his criticism of the British, was tried for sedition charges three times by the British government, in 1897, 1909 and 1916, for his remarks in his Marathi-language newspaper, Kesari. In first two trials, he was convicted twice for inciting disaffection against the Raj, for 18 months and 6 years (in Burma), respectively.  In the last trial, he was represented in court by Bombay lawyer, Muhammad Ali Jinnah, led him to his acquittal.

In 1922, Mahatma Gandhi[10]’s three articles in Young India resulted into his and Shankarlal Ghelabhai Sanker’s (editor, printer and publisher of Young India) imprisonment for six years under sedition law, for causing “disaffection against the colonial government”. He served two years in jail and was released for medical reasons. Instead of pleading ‘not guilty’, pleaded guilty and made a statement, “Section 124-A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code, ‘designed to suppress the liberty of the citizen’. Affection cannot be manufactured or regulated by law”[11].

In Kamal Krishna Sircar v. Emperor[12], the Court refused to conclude that the speech given by him against the Government as sedition. The Court held that to suggest any other form of government does not bring any hatred or contempt.

In Niharendu Majumdar v. Emperor[13], The appellant delivered his speech, due to which he was convicted of sedition and sentenced to rigorous imprisonment of 6 Months and fine of Rs. 500. This ruling was challenged contending that the speech did not amount to sedition. The Court held that sedition means person’s intention to promote public disorder. Incitement of violence is an essential element of sedition. Considering the facts, the court held that speech by the appellant could not be considered sedition under the Defence of India Act, 1939 (later repealed in1947), because speech didn’t exceed limits of criticism of Government.

POST-INDEPENDENCE (CONSTITUTIONAL VALIDITY)

In post-independence India, this section retained in the IPC and questioned many times. Whether it stands in violation of the Part III of the Constitution of India? In 1951, Jawaharlal Nehru, India’s first Prime Minister, during a speech he called this section ‘highly objectionable and obnoxious’ and considered ‘the sooner we get rid of it the better’[14].  He believed that sedition should have no place in newly independent India’s law books.

In Tara Singh v. State of Punjab[15], the Punjab and Haryana High Court, addressed the constitutional validity of Section of 124A. Two pleas were pending against Tara Singh, regarding two speeches which he gave in Karnal and Ludhiana. He was charged with Section 124A, which he challenged that this law is inappropriate in India after it attained its independence. He declared this law as void contravening the ‘Freedom of Speech and Expression’.  The High Court struck down this provision as unconstitutional contrary to freedom of speech and expression. Tara Singh was set free.

Constitutional First (Amendment) Act, 1951, added two words in Article 19(2), ‘in the interest of’ and ‘public order’, so as to overcome the difficulty and thus adding restriction on speech and expression.

In Kedar Nath v. State of Bihar[16], the Supreme Court observed that the provisions of this section make it clear that section make it penal only those activities which are intended or have tendency to create disorder or disobedience of public peace. Therefore, any comment which disturb public order and will be crime against society. The court further stated that Article 19(1)(a) is subjected to restrictions under Clause 2 comprising of (a)security of the state, (b)friendly relations with foreign states, (c)public order and (d)decency or morality.

During During 21st century, notable activists, journalists, politicians, authors, have been charged with sedition, including Praveen Togadia (2003), Simranjit Singh Mann (2005), Binayak Sen (2007), Arundhati Roy (2010), Syed Ali Shah Geelani (2010), Aseem Trivedi (2012), Kanhaiya Kumar (2016), Varavara Rao (2018, Rinshad Reera (2019), Sharjeel Imam (Anti-CAA protest) and many more. The database showed that 6 sedition cases were filed during ongoing farmers’ protest, 22 after Hathras Gangrape, 25 during protest against Citizenship Amendment Act (CAA) and 27 after Pulwama terror attack[17].

ARGUMENTS IN SUPPORT OF THE SECTION

No fundamental right is absolute and have restrictions attached with it. These restrictions are needed for public interest and to stabilize society. After the independence, everyone thought India will get rid of this law. But nobody did it. Everyone thought dissent is okay, until it gets beyond a certain point. It gets difficult and dangerous and there should always be means to control it. It has its utility to overcome the terrorist elements, rebellion, riots, war, etc., which advocate to overthrow the government for their personal interests. It protects the elected government and safeguards integrity and maintains peace in the nation. Public order includes not only maintenance of law and order but also peace and stability of the society. Any criticism of the government or its functionaries will not be considered as sedition, the important element for which the state files charge for sedition is Incitement to Violence.

In the case of State of Rajasthan v. Union of India[18], said that ‘mere possibility of misusing the power is no ground of denying the existence of power’. The court further said that, arguments for removing sedition are precise in its own way but if removed it can create more chaos. So, this law is necessary for its own way. 

For stability of the state, the continued existence of the Government established by law is required. As long as a person does not intend to cause public disorder or violence, he/she is allowed to criticize the government.

ARGUMENTS AGAINST THE SECTION

Section 124A is legacy of the rulers of India, the British, who ruled India pitilessly for more than a century, abolished sedition and seditious libel (as common law offences) in their own country in 2010[19], as it was considered ‘arcane offences- from the bygone era when freedom of expression was not seen as right it is now’ said Claire Ward, the then Secretary of State at the Ministry of Justice. However, sedition by an alien, person who is a resident but not a national of the country, is still an offence[20].

It is a restriction on our exercise of constitutionally guaranteed freedom of speech and expression. This freedom is needed so that people can realize the actual situation of the society and thus, helps them to improve their decision-making power. Expressing views, exchanging ideas, discussion re all a feature of free society.

The problem begins when this law is misused against the citizens and make them to quietly abide by all the rules which the government make. In a democracy, dissent of government should not be deduced to sedition. The term ‘disaffection’ is vague as there are many interpretations as what can and what cannot be classified as disaffection. ‘Misuse of the law of law of sedition is against the spirit of freedom’, said Justice Deepak Gupta. One should understand the fact that there can be another point of view. If the sedition case is filed, and if found baseless, it should be quashed. It is only used to terrorize the citizens for expressing his/her views. This law should not be used as a tool to suppress the voices and should not impose or control what the citizens must think.

But the question is, whether this law is now being politicized? Is it used to produce fear in the minds of people for standing up against the government?

LAW COMMISION OF INDIA

In 2018[21], the Law Commission of India, Centre’s advisory body on laws, published a consultation paper recommending that it would be appropriate to re-think or maybe repeal Section 124A from IPC. Expressing frustration or disagreeing with government over the state of affairs could be labelled as sedition. This report suggested that Section 124A, IPC and Article 19(2), Constitution of India, go hand in hand and there must be careful inspection of facts and circumstances of sedition cases.

In its 39th Report[22](1968), suggested offences like sedition should be punishable either with imprisonment for life or with rigorous or simple imprisonment which may extend to three years, but not more.

In its 42nd Report[23] (1971), suggested to incorporate three things, mens rea; widen the scope by incorporating the Constitution, the Legislatures and the administration of justice; and quantum of imprisonment by making maximum 7 years of rigorous imprisonment and fine appropriate, bridging the gap between ‘imprisonment for life’ and ‘imprisonment for three years’.

CONCLUSION

Sedition law is a controversial law in our country. Freedom of Speech and Expression is a concept of being able to express oneself freely. One of integral characteristics of democracy. The criticism of the government is the soul of the democracy. Those people who placed their trust and elected their leaders, have a right to be heard when they ask questions. This freedom is bestowed upon our citizens so that they can voice their opinion without any fear.

The balance between the two is necessary for healthy democracy. After 74 years of independence of India, there is need to improvise this law. No matter how strong a comment is, it cannot be used to convict them, until it doesn’t incite hatred or violence or among the citizens towards democratically-elected government, in an attempt to overthrow the government.

Now is the time to reform this law, as people are now aware of their rights and duties.

REFERENCES:

https://economictimes.indiatimes.com/news/politics-and-nation/arrests-under-sedition-charges-rise-but-conviction-falls-to-3/articleshow/81028501.cms?from=mdr

https://www.mondaq.com/india/constitutional-administrative-law/833078/tracing-the-history-of-sedition-in-india

http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-2F6909F3CF11.pdf

https://www.nationalgeographic.org/thisday/mar10/gandhi-arrested-sedition/

https://scroll.in/article/984942/when-gandhi-put-the-entire-colonial-system-on-trial-after-being-charged-with-sedition

https://www.scconline.com/Members/SearchResult.aspx#FN0039


[1] The Constitution of India,1950, Art. 19(1)(a)

[2] Indian Penal Code,1860 (Act 45 of 1860)

[3] https://theprint.in/india/2019-saw-40-more-arrests-for-sedition-over-2018-and-only-two-convictions-ncrb-data-shows/602753/#:~:text=New%20Delhi%3A%20The%20Ministry%20of,crime%2C%20while%2029%20were%20acquitted.

[4] Indian Penal Code, 1860, s.124A

[5] The Code of Criminal Procedure, 1973, Schedule I

[6] Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.                               Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.                                                                                                    Explanation 3 – Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

[7] Balwant Singh v. State of Punjab, (1995) 3 SCC 214

[8] Queen Empress v. Jogendra Chunder Bose, (1898) ILR 22 Bom 112

[9] Age of Consent Act,1891

[10] Emperor v. Mohandas Karamchand Gandhi and Shankarlal Ghelabhai Sarker, Session case No. 45/1922 Ahmedabad

[11] https://www.livemint.com/politics/news/republic-of-dissent-gandhi-s-sedition-trial-1548352744498.html

[12] Kamal Krishna Sircar v. Emperor, AIR 1935 Cal 636

[13] Niharendu Majumdar v. Emperor, AIR 1942 FC 22 (26)

[14] https://www.tribuneindia.com/news/archive/nation/to-repeal-or-not-nehruvian-dilemma-on-sedition-law-650444

[15] Tara Singh Gopichand v. State of Punjab, AIR 1951 EP27(129)

[16] Kedar Nath v. State of Bihar, AIR 1962 SC 955

[17] https://scroll.in/latest/985724/96-sedition-cases-filed-against-405-people-after-bjps-2014-victory-shows-new-article-14-database

[18] State of Rajasthan v. Union of India, 1977 AIR 1361

[19] The Coroners and Justice Act, 2009, s.73

[20] The Aliens Restriction (Amendment) Act, 1919, s.3

[21] https://static.pib.gov.in/WriteReadData/userfiles/Consultation%20Paper%20on%20Sedition.pdf

[22] Law Commission of India, 39th Report (1968, The Punishment of Imprisonment for Life under the Indian Penal Code

[23] Law Commission of India, 42nd Report (1971), pp 149-150

Author: POORVI REWALIA

Editor: Kanishka VaishSenior Editor, LexLife India.

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