DECRIMINALIZING SEDITION- REQUIRED LEGISLATIVE CHANGES

Sedition is being rampantly used and carelessly thrown around in today’s society. With disagreement on the rise among the youth and the citizens of our country regarding the governmental policies, any refusal to accept or speaking against it is considered as sedition. Due to this power laying in the hands of the government, anything and everything is being labelled as sedition. Political dissent, the power of freedom and expression is being snatched away from the people. But this term has been often misunderstood, by both the people and the government. One needs to understand the section 124A and interpret it in order to take defense if falsely accused and also to understands what constitutes sedition. Dissent or criticism of the Government are essential ingredients of a robust public debate in a vibrant democracy, dissent valve is the safety valve in democracy.

In this article, we shall look into the various aspects of sedition, what constitutes sedition, famous landmark cases which have led to the evolution and establishment of sedition, current misuse of this section which comes under the Indian Penal Code. We shall also analyze the constitutional validity of this section and discuss possible reforms that can be brought into this in order to reduce its misuse by the government.

MEANING OF SEDITION

Article 124A of the Indian Penal Code defines sedition. This section has had a series of discreditable incidents and a historical genesis would reveal the various changes it has undergone through legislative amendments and judicial interpretation. The citizens of India are given various fundamental rights and one among them is the Right to Freedom of Speech and Expression which comes under Article 19 of the Indian Constitution. This right is not absolute and comes with certain restrictions which are reasonable. These restrictions can be put in circumstances when there is a threat to the security of the State, the friendly relations with the foreign country, disturbs public order, decency, morality, contempt of court, defamation, incitement to an offence.

Generally speaking, sedition refers to overt words, actions, speech or gestures made by a person in oral or written form which expresses their discontent with the government and its policies. However, this discontent must be such that it would incite violence or hatred against the establishment.

DEFINITION

It has been clearly defined under Chapter VI Section 124A of Indian Penal Code, 1860 as follows, “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.” [1]

There are many case laws that have attempted to define and give broader spectrum to the interpretation of the section and below are some main, landmark cases which have been discussed.

  • REG. V/S ALEXANDER MARTIN SULLIVAN

This case took place in United Kingdom and Fitzgerald. J, laid down the following, “Sedition is a crime against society, nearly allied to that of treason, and frequently precedes treason by short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavor to subvert the government and laws of the Empire.” He further implied that the aim of sedition was to incite violence, rebellion and stir up opposition in the state. It is an indication of disloyalty towards the state. This case plays an important role in laying the founding stone for the concept of sedition on a whole.[2]

  • QUEEN EMPRESS V. JOGINDER BOSE AND ORS. (1891)

In this case, Jogender Chunder Bose was accused of inciting rebellion by writing and publishing an article criticizing an “Age of Consent” bill, 1891 which raised the legal age for consent to sexual intercourse from10 to 12 years. He called it the “forced Europeanisation” and criticized the interference of British in Hindu customs. The Jury said that the article aroused feelings of disaffection against the colonial state. The two words ‘disaffection and ‘disapprobation’ form the core part of this section and plays an important rule at the crux of controversy over interpretation and application of their laws. While this Act itself was considered to be a boon to the Indian society and had the support of reformers and women’s rights activists, the topic of controversy here was that of sedition and inciting feelings of ‘disaffection against the Government. The court further added that one should not make or attempt to make anyone feel any enmity towards the government. The court convicted him on this basis but he was later released on bail in 1898.[3]

SECTION 124A

Sedition has been defined under section 124A, Chapter VI of Indian Penal Code, 1860. It says “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.[4]

PUNISHMENT

Any person who is found to be guilty of sedition can be punished with imprisonment for life along with fine or Imprisonment which may extend to three years to which fine may be added. Sedition is a cognizable offence, which means a person can be arrested by the police without a warrant. It is a non-bailable offence, meaning a person who is arrested for sedition cannot be released on bail by police as a matter of his right. He has to apply for it before magistrate or a court. Sedition is also non-compoundable offence, meaning it cannot be settled between the accused and the victim.[5]

The above-mentioned case law forms the basis for three explanations which are given under this section. Explanation 1 is simple and states that the expression “disaffection” includes disloyalty and all feelings of enmity.[6]

Explanations 2 and 3 – Both these explanations have strict a strictly defined and limited scope. They have no application unless the article in question criticizes “the measures of government” or “administrative or other action of the Government” without exciting or attempting to excite hatred, contempt or disaffection. Meanwhile ‘Disapprobation’ simply means disapproval. It is quite possible to disapprove of a man’s sentiments or actions and yet to like him.[7]

ESSENTIAL INGREDIENTS OF SECTION 124A

  1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards the Government of India.

The necessary ingredient required to attract this punishment under this section appears to be the effort of bringing or attempting to bring into hatred or contempt to excite or attempt to excite disaffection toward Government established by law in India. Any disturbance caused due to publishing articles, exciting or attempting to excite mutiny, rebellion or any sort of actual disturbance, great or small are considered to be absolutely immaterial in order to constitute sedition under this section. The accused intention by the articles to excite rebellion or disturbance would doubtlessly fall under this section and would also fall under many other sections of the IPC.  The accused person’s intention plays the major role in determining whether he can be held guilty under this section. The intention of the person to spread hatred or disaffection can be inferred directly from the action or the speech. The mere attempt to excite hatred should be considered under this section, so it is not necessary to check whether this has been achieved or not. In case of a speech, words should not be taken out of context and should be studied freely and fairly as a whole. If the speech advocated for overthrowing or starting rebellion, through dishonest or illegal means, with the use of violence or threat of use of violence, should the speech be included under sedition.[8]

The following case of, Niharendu Dutt Majumdar v. King-Emperor (1942), was amongst the first cases where the court established this element to the crime of sedition.

  • Act, attempt etc., may be done by words, either spoken or written or by signs or by visible representation.

In order to establish the charge of sedition, it is not necessary that the accused must be the author of the seditious material/article. Mere circulation or distribution of the said seditious material is sufficient on the facts and circumstances of the case. Even the act of courier is sometimes is enough in the case of conspiracy and further it is not required for the person to be involved in the conspiracy from the beginning to the end. Sedition can be many different forms like poems, stories, allegory, articles, speeches, philosophical and historical discussions all these can be used as means to excite disaffection. If the seditious writing remains unpublished or at the hands of the writer then it is not considered to be sedition and thus will not be liable. Publication of the material is important. Sending of the seditious material through post addressed to the person as if he is the representative of a large body of people formed for the purposes of inciting disaffection, hatred, contempt against the state can be also held liable.[9]

Visible representation- Visible representation does not always mean seditious material in writing, it can also be in the form of wood carving, wood-cut or engraving of any kind as long as it is visible to the eyes of the people.[10]

ORIGIN OF SEDITION IN INDIA

The anti-sedition law was first formulated by British historian politician, Thomas Macaulay in Marcaulay’s Draft Penal Code, 1837. Initially, it could not find a place in the IPC and was later added through Amendment Act, 1870. This was done in order to control the rising, radical movement of the Wahabi, led by Syed Ahmed Barelvi. Other than this, people were demanding more autonomy and independence for India. This was against the intentions of the British. Therefore, it sorts to curb people’s voices, speech and expression in the name of sedition. The modern, current shape of the section 124A is obtained through IPC Amendment Act, 1898. Certain minor changes were made in 1937,1948,1950, and by the Part B of the States (Law) Act, 1951. Section124A forms part of the Chapter VI of the Code which deals with the Offences against the State. Chapter VI comprises of Sections 121 to 130 where 121A-124A were introduced in 1870.[11]

The most celebrated cases of sedition laws arose under the British colonial rule. Some of the most famous sedition trials involved famous nationalist leaders of our country, during the late 19th and 20th centuries. The initial cases involving sedition laws contained numerous prosecutions against the editors of nationalist newspapers. The first among them was Jogendra Chunder Bose, in 1891 who was the editor of the Bengali newspaper, Bangobasi, the case law of which has been covered above.[12]

This was the first but the most famous trial among them was the three-sedition trial of Bal Gangadhar Tilak. His speeches have been deemed to have provoked violent behaviour of others. This was popularly known as Bal Gangadhar Tilak case (1897). This was the first case in which sedition was defined and applied. Tilak spoke against Indian civil services officer Rand who was the plague Commissioner in Pune. His plague control methods were considered to be tyrannical by many. Tilak’s revolutionary speeches inspired many to spread violence against British, which resulted in the death of two British officers. The court defined disaffection as the absence of affection. Therefore, it means “hatred, enmity, dislike, hostility, contempt and every kind of ill-will to the Government”. The court further added that no man should excite or attempts excite this kind of affection; he should not make or attempt to make any one feel any kind of enmity towards the Government. The court then convicted Tilak for sedition and convicted him 18 months to imprisonment. However, he later received bail in 1898.[13]

In Emperor v Mohandas Karamchand Gandhi being the Editor and Shankarlal Ghelabhai Sankar being the publisher and the printer were charged under Section 123A for bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards His Majesty’s government established by law in British India. This seditious act was done through writing an article called “Tampering with Loyalty” (29th September, 1921), “The Puzzle and its Solution” (15th December, 1921 and “Shaking the Manes” (23rd February 1922) published at Ahmedabad. Gandhi’s powerful speech in court where he pleaded guilty to the charges against him led to a ruling in his favour. He was sentenced to six years of simple imprisonment.[14]

After Independence, the Constitution (First Amendment) Act, 1951 added the term “public order” to Article 19(2), which meant that a citizen’s freedom of speech and expression could be put under legislative restrictions to maintain public order and stability too. Thus, sedition was recognised as a crime. The main objects of this Bill are, accordingly to amend article 19 and insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. The opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise. Jawaharlal Nehru was of the opinion that anti-sedition law has no place anywhere in free India. Since then, there have been numerous attempts made in cases where the constitutionality of this section has been questioned by numerous courts of law. Thus, the case of Kedar Nath comes into picture.[15]

KEDAR NATH SINGH V. STATE OF BIHAR (1962)

The appellant was charged with sedition for certain speeches that he had delivered. In his speeches, he called officials of the CID “dogs”, and members of the Government “Congress goondas”, whose election was a mistake by the people. He encouraged the audience to strike against the then Government and drive them out like the British. For this, he was convicted under Section 124A by a Magistrate’s court in the state of Bihar. He appealed to the Patna High Court but his conviction was sustained. He then obtained special leave to appeal to the Supreme Court, where his main argument was that the restrictions imposed by Section 124A on the ‘Freedom of Speech and Expression’ of a person were beyond the ambit of the legislative power as given by Article 19(2). The Supreme Court noted that Article 19(2) of the Constitution, which imposes certain restrictions on the ‘Freedom of Speech and Expression’, was amended in 1951 to include public order. This means that any comment by a person which threatens to disturb public order or the security of the state is a crime against society and cannot be allowed. This is what sedition does. The court said that sedition has been ruled as a crime to prevent the subversion of the Government by inciting contempt or hatred towards it, which can rock the very stability of the society. It, however, clarified that a citizen is allowed to criticise the Government so long as he does not intend to cause public disorder or violence. Hence, essentially, it sided with the ruling given in the previously mentioned case of Niharendu Dutt Majumdar v. King-Emperor (1942). Thus, Explanations 2 and 3 were added to Section 124A.[16]

IS ANTI SEDITION LAW GOOD?

Fundamental Rights cannot be absolute, they have to be confined within reasonable restrictions or boundaries to ensure that is there is no misuse and no harm is brought to others in the process of exercising one’s Fundamental Right. The Supreme Court gave its judgement in the Kedar Nath case on the conclusion that some sort of restriction is very much necessary on the Article 19- Right to Freedom of Speech and Expression in order to maintain pubic order and it is necessary to maintain stability and integrity of the nation. However, political dissent, criticism of the working of the Government is important and it forms the core essence of democracy which has been emphasized by the courts themselves.  But the problem arises when this particular law is misused or used in arbitrariness of the citizens and is used as a tool to suppress free speech in order to shut the public and make citizens quietly abide by whatever the Government says.

Below mentioned are some arguments for whether sedition law is good or bad, whether the law is in violation of freedom of speech and expression of citizens or not. We shall look into both pros and cons of this section 124A.

ARGUMENTS IN FAVOUR OF SECTION 124A

Section 124A is crucial and plays a gigantic role in combating any kind of anti-national, secessionist and terroristic elements in the nation, among the people. It is also crucial in maintaining the integrity and stability of the nation and to prevent speech and expression which goes against the public order. The continued existence and rule of the government is necessary for smooth functioning of the State as illegal and violent means can be incorporated to overthrow the existing government and thus the stability of the government is ruined. There is also the presence of certain anti-social, anti-nationalistic and hostile elements such as terrorists, the Maoists and rebel groups which pose a threat to the smooth running of the government. Those groups have in the past openly threatened to overthrow the government for their personal interests. They cause violence and run parallel administration in certain weak areas. These groups must be strictly punished. Many districts in different states face a Maoist insurgency. The Government of India is an official authority which is formed under the Constitution of India, therefore there must be restrictions on expressing unnecessary contempt and ridiculing government beyond certain limits. If contempt of court invites penal action, then contempt of government should too. Considering all these points complete abolition of Section 124A is ill-advised.[17]

ARGUMENTS AGAINST SECTION 124A

The British when they introduced this law in the country, the main aim was to curb the freedom of the Indians and to oppress us. The anti-sedition law first added to the Indian Penal Code by the British in 1870. It comes as no surprise that this section was particularly aimed at Indian masses to suppress the resistance. Many freedom fighters like Bal Gangadhar Tilak, Mahatma Gandhi etc., were tried and jailed under this section when they made attempts to question the government and its rules and laws. The Mahatma, in fact, described this law as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”. The term ‘disaffection; is very vague as anything can be classified as disaffection by the government in order to silence the citizens. The section does not clearly mention as to what constitutes disaffection. This flaw in the section makes it easy for the government to interpret it as per the whims and fancies of the authorities involved. In some of the recent times, this section has been used to persecute political dissent which included the arrest of a Manipur student activist for a social media post on the Citizenship Amendment Act, 2019, the arrest of 14 students of Aligarh Muslim University for raising “anti-national” slogans, and the charge of sedition on four Kashmiri students in Rajasthan over social media posts about a recent terror attack in Jammu and Kashmir. Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition. Right to question, criticize and change rulers is very fundamental to the idea of democracy. The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. There is no reason, why should not India abolish this section.[18]

IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. There is no need for Section 124A. In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments. India has signed various international treaties and covenants, including the International Covenant on Civil and Political Rights (ICCPR) in 1979. It sets forth international standards for the protection of freedom of expression in the world. However, misuse of sedition and arbitrary charges in India are inconsistent with such types of international commitments.[19]

THE DISUTILITY OF THE SEDITION LAW:

The data released by the National Crime Records Bureau for the year between 2014 and 2016 reflect the disutility of the law for the criminal justice system. Under the title ‘offences against the State’ the report shows a total of 179 arrests for sedition. However, no charge sheets were filed by the police in over 70% of the cases, and only two convictions during this time period. This data belie the claim for retaining the Section 124A of IPC. As we see above, the disadvantages of this law seem to outweigh the advantages. However, considering the approach taken by the Supreme Court as well as the views of the Government on this law, it seems that this section is unlikely to be scrapped soon. But it is possible to make certain reforms in the law after proper review and deliberation. This is discussed in the next part.

PROPOSALS FOR REFORMS OF SECTION 124A

While the entire anti sedition law cannot be slashed, it can however be imposed with certain restrictions in its application only to those cases where the speech or gesture is extremely hateful or degrading of the government. This was one of the matters of concern in the case of  Shreya Singhal v. Union of India, the issue before the court was ‘In exactly which situations the Government could restrict the speech and expression of a person when he or she made comments that appeared offensive?’.

While the immediate concern was the restrictions given under Section 66A of the Information Technology Act of 2000, it also had great implications for Section 124A, which was addressed in this case. The court declared that a line needed to be drawn between advocacy and incitement by the speech. The Constitution, through its guarantee of ‘Freedom of Speech and Expression’, permitted the state to restrict this right not when a person advocated the use of force or violation of law, but only when he incited or attempted to incite the same.[20]

REDUCTION IN QUANTUM OF PUNISHMENT

The amount of punishment inflicted for sedition on an accused should also change with the changing times. The society is dynamic and considering that during present times there is greater freedom of speech and expression, the crime of sedition does not warrant punishment extending to life imprisonment or other such harsh punishments. Most of the times, it is possible that the words uttered or written by the accused are taken out of context or spoken at the heat of the moment. Unless the seditious material, utterances have brought considerable damage to the reputation of the government, they should be dealt more rationally. In a consultation paper by The Law Commission of India in 2018 it recommended that it was time to think about repealing section 124A and said that expressing discontent over the affairs of the State must not be considered as sedition. At the same time though, the report suggested that if contempt of court invites punishment, then contempt of government should invite punishment too. There has been an increase in sedition charges pressed against authors, journalists, human rights activists, students, etc. The most recent cases of sedition have included personalities such as Arundhati Roy, Hardik Patel, Kanhaiya Kumar, and others. Some of these cases were dealt with unreasonably and did not require the application of Section 124A. The Government, throughout the years, has been criticised multiple times for using this law to suppress the voices of individuals. Only time will tell what the future holds for this law and its usage in India.[21]

CONCLUSION

Indian is the largest democracy in the world, it is formed by the people, for the people and of the people and Right to Freedom of Speech and Expression is an important element of a democracy. If the people express dissent, disagree with the policies, express their thoughts and give opinions on the government then it should not be considered to be sedition. If the country is not open to constructive criticism, then there would be no difference between pre and post-independence eras.

Of course, it is vital to protect and maintain national integrity and stability and reputation. But the section should not be misused as a weapon to silence and curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.

In these times, where citizens are increasingly aware of their rights, duties and responsibilities in a democratic country like India it is perhaps time reform the Section 124A.


[1]K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 223, Lexis Nexis, Haryana, India, 36th edition, 2019.

[2] https://blog.ipleaders.in/sedition-in-india/#Reg_v_Alexander_Martin_Sullivan_1868 (last modified 16th Jan 2020)

[3] Queen-Empress vs Jogendra Chunder Bose And Ors. on 25 August, (1891) ILR 19 Cal 35

[4] K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 223, Lexis Nexis, Haryana, India, 36th edition, 2019.

[5] ibid

[6] ibid

[7] K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 227, Lexis Nexis, Haryana, India, 36th edition, 2019.

[8] K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 224, Lexis Nexis, Haryana, India, 36th edition, 2019.

[9]K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 226, Lexis Nexis, Haryana, India, 36th edition, 2019.

[10] K Kannan and Anjana Prakash (eds.), The Indian Penal Code, pg 226, Lexis Nexis, Haryana, India, 36th edition, 2019.

[11] https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09

[12]https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09

[13] https://blog.ipleaders.in/sedition-in-india/#Origin_of_Sedition_in_India

[14] https://lawtimesjournal.in/sedition-section-124a-ipc/

[15] https://blog.ipleaders.in/sedition-in-india/#Origin_of_Sedition_in_India

[16] Kedar Nath Singh vs State Of Bihar on 20 January, 1962 AIR 955, 1962 SCR Supl. (2) 769

[17] https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09

[18] https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09

[19] https://blog.ipleaders.in/sedition-in-india/#Origin_of_Sedition_in_India

[20] https://blog.ipleaders.in/sedition-in-india/#Origin_of_Sedition_in_India

[21] https://blog.ipleaders.in/sedition-in-india/#Origin_of_Sedition_in_India

Author: ISIRI MADHUKESHWAR KUGORE from K.L.E. SOCIETY’S LAW COLLEGE, BENGALURU.

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