LAW OF SEDITION: AN ATTEMPT TO CURB FREE SPEECH

Reading time : 12 minutes

INTRODUCTION

Sedition is defined as the illegal acts done of inciting people against the Government in power. Sedition is any act or speech which incites anybody to form of anti-national views against a Government or is probable to disrupt the public peace or harmony of the state. The punishment for seditious offences is harsh with minimum seven years of imprisonment which may extend to life imprisonment. It is a cognizable, non- bailable and non-compoundable offence triable by the Court of Sessions. Section 124A[1]of the Indian Penal Code tells that the prosecution must prove to the hilt that the intention of the accused is to bring into hatred or contempt or excite any form of anti-national views towards the Government of India or Government of the State in India. Sedition is a permissible restriction under Article 19 (2) of the Indian Constitution which states that a reasonable restriction may be imposed by the government.

The recent incident of invoking sedition charges against the environment activist Disha Ravi in the light of ongoing farm bill protest has once again given fuel to the ongoing debate on the validity of the laws relating to sedition. In the era of 21stcenturyIndia is standing at the door of becoming a developed country having undergone drastic changes as a country from the time of colonialism. Indian legislature has made immense progress covering various fields of legislation. For the development of nation, law is not the tool for development indeed a good law is the tool for development. Almost all the laws that India has today either belong to the colonial time or have their roots from that period. Out of these laws many were implemented just for the oppression of the Indian ‘subjects’ but unfortunately they have found their place in the post-independence period also and have become a matter of great controversy just like the laws relating to sedition.

This paper focuses on how the laws related to sedition become an attempt to curb the free speech of citizens of India. Between 2016 and 2019, the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) increased by 160% while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016, according to the National Crime Records Bureau (NCRB).[2] The law relating to sedition is grossly being misused in our country as there are obstacles in its implication uniformly to all the cases since the Indian scenario has changed in the 146 years from the time it was enacted.

HAPHAZARD APPLICATION OF SEDITION LAW IN INDIA

The position of the sedition law is essentially that of suppressing free speech and free expression of thought, both of which are unpopular in recent years. The most famous victim of Sec 124A, tried in 1897, was Lokmanya Tilak for his writings in his newspaper Kesari. He was sentenced to prison, as was Mahatma Gandhi for his writings in Young India. Such cases reinforced the perception that this law was for muzzling freedom of speech and expression, and browbeating government’s critics and activists. The government’s character changed in 1947, but its propensity for recourse to this law remains unchanged.[3]Sedition became a major controversy in the case where a cartoon artist Asim Trivedi of Bengal was charged with sedition for publishing some comic cartoons in the newspaper which had reference to the then chief minister of the state.[4]Which shows that how the sedition law is arbitrarily applied in India.

  • Sedition is an offence which existed in our Indian Penal Code (IPC) before we got Independence because the colonial master wished to penalize anybody who was trying to overthrow the state. But the irony is that in independent India, of late, this provision is being used to bully and terrorize citizens. Sedition is a very specific and a very serious offence, and when it is used to silence and terrorize the ordinary citizen who is raising a grievance; it is terrorism by the state.[5]
  • International view over misuse of sedition law in India

Recently, United Nations High Commissioner for Human Rights, Michelle Bachelet made remarks during 46th session of the Human Rights Council while referring to the farmers protest in India. She said, “Charges of sedition against journalists and activists for reporting or commenting on the protests & attempt to curb freedom of expression on social media are disturbing departures from essential human rights principles”.[6]

Another recent report by US based democracy watchdog Freedom House which downgraded status of India from “free” to “partly free” with the score 67 out of 100 with the bifurcation of scores on Political Rights and Civil Liberties with 34 out 40 and 33 out of 60 respectively.

Numerous sedition cases were brought during 2020 against people who protested in opposition to the CAA, including an apparent mass criminal complaint filed by police in Jharkhand State in January against some 3,000 people who participated in such a demonstration. The same month, police brought a sedition case against a student in Karnataka for holding up a “Free Kashmir” poster. Also, during the year, authorities invoked a section of the IT Act to penalize online speech, including critical discussion of the COVID-19 pandemic. In March, Kolkata police arrested a woman under the IT Act for allegedly spreading false information about a doctor contracting the virus. Similar arrests under the act in response to discussion of the pandemic were reported in Uttar Pradesh, Karnataka, Mizoram, and Rajasthan.[7]

JUDICIAL INTERPRETATION ON SEDITON LAW

The first case was registered for the offence was Queen Empress v. Jogendra Chunder Bose (also known as Bangobasi case) in 1891, when the editor of a newspaper called Bangobasi was charged for sedition. However, he was released on bail and the charges were dropped as the jury could not reach a unanimous decision.[8] Another case which led to the criticism of the law on sedition was Annie Besant v. Advocate General of Madras which was dealt with Section 4(1) of the Indian Press Act, 19109. The court adhered to the earlier interpretations given by the courts and confiscated the alleged seditious material of Annie Besant’s printing press.[9]

Further, Mahatma Gandhi in 1922 was charged along with others for three articles in a weekly called Young India. This trial was presided over by Justice Strongman. The Judge expressed his inability to not hold him guilty of sedition and sentences him 6 years’ imprisonment. Mahatma Gandhi made a very famous remark with regard to law of sedition. “Section 124A under which I am happily charged is perhaps the prince among the political sections of the I.P.C. designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”[10]

Immediately after the Constitution came into force, the Supreme Court was called upon to decide cases related to restrictions on freedom of speech. Initially, in Brij Bhushan v. The State of Delhi (1950)[11] and Romesh Thappar v. State of Madras,[12] the court decisively favored free speech and other civil liberties, pre-censorship and bans were rejected for restricting fundamental rights Article 19(1)(a). The court said freedom of speech could not be restricted except on grounds enumerated in Article 19 (2).

In Kedar Nath Singh v. State of Bihar,[13] the Supreme Court was called to examine whether an intemperate speech delivered by a member of the Forward Bloc was seditious. The court held that speech or writing in which ‘subverting the government by violent means’ is implicit including talk of ‘revolution’ is seditious. So, not just incitement, even a failed attempt to incite is an offence. In Balwant Singh v. State of Punjab,[14] the prosecutrix relied on the earlier ruling, but the court held that unless there is public disorder merely raising a pro-Khalistan slogan cannot attract section 124A. In Bilal Ahmed Kaloo v. State of Andhra Pradesh,[15] the Supreme Court dropped sedition charges and lamented that the law was being casually invoked to infringe on citizens’ liberty.

Recently, a sessions court in Delhi has made strong observation against the use of sedition law to curb dissent by putting dissenting citizens behind the bars. In the order granting bail to 22-year-old climate activist Disha Ravi, by Additional Session Judge Dharmender Rana observed that, “Citizens are conscience keepers of government in any democratic nation.  They cannot be put behind the bars simply because they choose to disagree with the state policies”. Further, the court also added that, “Difference of opinion, disagreement, divergence, dissent or for that matter, even disapprobation, is recognized legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry is indisputably a sign of a healthy and vibrant democracy”.[16]

In an outspoken interview a recently retired judge of the Supreme Court has said regarding Section 124A of the Indian Penal Code, Justice Deepak Gupta says that it is used by governments to create fear in the citizenry to prevent or throttle dissent. He said the law is widely misused and, worse, cases of its misuse are increasing “exponentially”.[17]

Another recent incident in the light of sedition law, in which the plea was filed in Supreme Court against the former J&K CM Farooq Abdullah alleged that he made the live statement for restoring Article 370 with the help of China and also alleged that he is trying to hand over Kashmir to China so that he should be prosecuted for sedition under section 124A of IPC. The plea was heard by bench comprising of justices Sanjay Kishan Kaul and Hemant Gupta dismissed the case on 3rdMarch 2021 and also imposed the fine of 50,000 on petitioners by stating that The expression of a view which is a dissent from a decision taken by the Central Government itself cannot be said to be seditious. There is nothing in the statement which we find so offensive as to give a cause of action for a Court to initiate proceedings. Not only that, but the petitioners also have nothing to do with the subject matter and this is clearly a case of publicity interest litigation for the petitioners only to get their names in press. We must discourage such endeavors”[18]

EQUILIBRIUM BETWEEN FREEDOM OF SPEECH AND SEDITION LAW

Freedom of speech and expression being a Fundamental Right mentioned under Article 19(1) (a)[19]of the Constitution of India which gives priority over the sedition law. In case of Kedarnath Singh v. the State of Bihar,[20]The court said that section 124A of IPC can be enforced against anyone only when his act has provoked widespread violence. India’s sedition law has its root from colonial era (British raj) through these laws Britishers used to suppress the Wahabi movement and mutiny against British government.

Recently, addressing webinar organized by Livelaw on Right to Dissent retired justice Deepak Gupta said that, “Right to dissent is a hallmark of the democracy. Even if one party comes into power, it is not immune to criticism and right to dissent allows such criticism and right to dissent allows such criticism. There can be no progress if we stifle dissent allows such criticism. There can be no progress if we stifle dissent”.[21] The Freedom of speech and expression enshrined in our Constitution is an essential ingredient of Democracy, but this right is not absolute in itself, it must be subjected to reasonable restrictions enshrined in Article 19 (2). The Hon’ble Supreme Court while explaining the relationship between a democratic society and Freedom of speech opined that in a democratic set- up, it is the right of the people to be kept informed about current political, social, economic and cultural life as well as the burning topic and important issues of the day in order to enable them to consider and form a broad opinion about the same and the way in which they are being managed, tackled and administered by the Government.[22] Thus, merely a constructive criticism does not amount to sedition, In case of Arun Jaitley v. State of U.P.,[23]Allahabad High Court opined that a critique by a writer of a judgment of the Supreme Court on National Judicial Appointment Commission does not amount to sedition; it is merely a constructive criticism.

By striking a balance between both the Sedition and Freedom of speech the apex court of our Country in the above-mentioned cases explicitly explained that every criticism of government does not amount to sedition except if it brings or attempt to bring hatred or contempt or attempt to excite disaffection towards the Government of India.

CONCLUSION

“It is far more ignominious to die by justice than by an unjust sedition”

  • Blaise Pascal

Sedition in itself is a comprehensive term and it embraces all those practices, whether by word, deed, or writing, which tends to disturb the tranquility of the state and it described as disloyalty in action and the law sedition as all those practices which have the object of creating public disorder or disturbance of law and order. India is a democratic country which implies that every individual of our country has the fundamental right to express their opinion, denying them their right to express would abridges the essence of democracy. A democracy can work fullest to their extent only when the people of that democracy must know about their basic Rights and Duties as well towards the nation.

“The sedition law needs reconsideration”- Dr. Justice (Retd.) Balbir Singh Chouhan[24]. If we see the recent trends of application of Sedition Law in India, we must say that it is applied in a very arbitrary manner that is why its proper scrutiny is very much important in order to establish a exact relationship between the sedition and freedom of speech and expression.

BIBLIOGRAPHY

BOOKS REFERRED

  • RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE as amended by the Criminal Law (Amendment) Act, 2013, 34th Edition
  • J.N PANDEY, THE CONSITUTIONAL LAW INDIA, CENTRAL LAW AGENCY, 56th Edition.

ARTICLES REFERRED

STATUTES REFERRED

  • Indian Penal Code, 1860
  • Constitution of India.

INTERNATIONAL REPORT


[1]124A. Sedition.—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, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [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. Explanation1. The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation2. Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or 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.

[2]Tripathi Rahul, Arrests under sedition charges rise but conviction falls to 3%, Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/arrests-under-sedition-charges-rise-but-conviction-falls-to-3/articleshow/81028501.cms?from=mdr

[3] Ramachandaran Shastri, Section 124A: The Case Against the Much-misused Sedition Law, 27th February, 2020, Outlook Magazine, https://www.outlookindia.com/website/story/opinion-section-124a-the-case-against-the-much-misused-sedition-law/347936

[4]Anti-corruption cartoonist Aseem Trivedi arrested on sedition charges, INDIA TODAY, (Sep. 09, 2012), http://indiatoday.intoday.in/story/anti-corruption-cartoonistaseem-trivedi-arrested-on-seditioncharges/1/216643.html

[5]Sriram Jayant, Should the sedition law be scrapped?, The Hindu, march 06, 2020, https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-be-scrapped/article30993146.ece

[6] 46th session of the Human Rights Council, Item 2 – High Commissioner’s Oral Update, Statement by Michelle Bachelet, UN High Commissioner for Human Rights, 26 February 2021, https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=26806&LangID=E

[7] Freedom in the world 2021, Freedom House, https://freedomhouse.org/country/india/freedom-world/2021

[8] Queen-Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35

[9] Annie Besant v. Advocate- General of Madras, AIR 1919 PC 31

[10] He called it the ‘prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.See A.G. NOORANI, INDIAN POLITICAL TRIALS: 1775-1947 235 (2009)

[11]1950 Supp SCR 245

[12]AIR 1950 SC 124

[13]1962 SCR Supl. (2) 769

[14]1994 SCC Supl. (2)  67 JT 1994 (2)

[15]1997 7 SCC 431

[16] State v. Disha A. Ravi, Bail Application No. 420/2021, FIR No. 49/2021 on 23.02.2021

[17]‘Govt. Uses Sedition Law to Create Fear, It Should Be Abolished’: Retired SC Judge, THE WIRE, 2nd March 2021, available at: https://thewire.in/government/watch-karan-thapar-justice-deepak-gupta-supreme-court-sedition-disha-ravi

[18]Rajat Sharma v. Union of India [WP (c) 80/2021]

[19] Art.19.The Constitution Of India Protection of certain rights regarding freedom of speech etc- (1) All citizens shall have the right- (a) to freedom of speech and expression.

[20] 1962 SCR Supl. (2) 769

[21] Mehal Jain, In A Democracy People Should Have Faith in The Govt. Not Fear Of Govt: Justice Deepak Gupta, 20 Feb. 2021, available at: https://www.livelaw.in/top-stories/justice-deepak-gupta-dissent-democracy-sedition-freedom-of-speech-remand-disha-170156?infinitescroll=1

[22] In Re Harijai Singh, AIR 1997 SC 73

[23] Arun Jaitley v. State of U.P.,2016 (1) ADJ 76

[24]Sedition law needs relook: Balbir Singh Chauhan, Law Commission chief, THE ECONOMIC TIMES, (Mar. 22, 2016),available at: http://economictimes.indiatimes.com/news/politics-and-nation/sedition-law-needs-relook-balbir-singh chauhan-lawcommission-chief/articleshow/51511513.cms

Author: NAYLA KHAN

Editor: Kanishka VaishSenior Editor, LexLife India.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s