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Recent remarks / judgments of Hon’ble courts on issues pertaining to law related to sedition versus freedom of speech and expression, while discussing provisions related to IT Act, has drawn considerable interest in the subject. It is well established that in order to have a safe and meaningful life a person not only need freedom of speech and expression but also law and order in the nation to safeguard his interests. Balancing this freedom of expression with collective national interest is one of the key challenges that any government has to overcome. A sacred line exists between this freedom and national & territorial integrity of the nation.
Treason has been defined as the crime of betraying a nation by acts considered dangerous to its security. Sedition though it might have the same ultimate objective as treason refers generally to offence of organising or encouraging opposition to government in a manner that falls short of more dangerous acts constituting treason. It has been said that “if any person or a group of person find that the government of the time is imbedding itself with mal-administration, it is the fundamental right of every citizen of the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on. In such cases it cannot be said that sedition has occurred”.
In this article, the author has attempted to analyse how these law have evolved and attained the present form starting from the origin of the freedom of speech and expression and sedition laws in India to its current form and course ahead.
Prosecution and severe punishment has traditionally been used for Treason or sedition by incumbents in power to protect their individual interests. In ancient India, Kings and even rulers of a small community called riyasats have used this tool as per their whims and fancies. General population was helpless. One finds an early codified version during the Mauryan era, in a book authored by Chanakya called Arthasastra, which advocated for the duty of the king to curb seditious activities by awarding severest of the punishment to the leader of the seditious activity. However, King Ashoka from same dynasty carved the principle of controlling one’s speech, to hear another man’s speech and to not disparage another on unsuitable (social) occasions.
During Mughal rule there were many instances of ecumenical debates on the Akbar policy of ‘Universal Peace’ where freedom of speech was championed on one end to the Aurangzeb’s policies that nullified Akbar’s universal peace formula, or banning of some forms of artistic expressions, when this freedom was curtailed.
It is to be noted that the level and intensity of freedom of speech given to the subjects depended upon the whims of the kings and not any prescribed regulations. The crime of sedition was equated to “bagawat”, to refer to any activity that could challenge the reign of the king and treated as the gravest of all crimes. The punishment could range from pardon to death, all depending upon who the accused was and whether he was successful or not.
Codification started with origin of democracies. The original Indian Penal Code enacted in 1860 did not have any section corresponding to Sedition. The section was added in 1870 through a special Act XVII of 1870 primarily counter the Wahabi radicalism in India. This new section was made on the lines of Treason Felony Act 1848 that penalised seditious expressions.
In 1891 case of Queen-Empress v. Jogendra Chandra Bose, the Court differentiated “disaffection” which referred to a challenge to the lawful authority of the government from “disapprobation” referred to disapproval of the Government’s measures without calling for disobedience to the authority of the government. Only former that was an offence.
However in Queen Empress v. Bal GangadharTilak, Justice Arthur Strachey interpreted disaffection as disloyalty, hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government and held that the ‘amount or intensity of the disaffection aroused is absolutely immaterial’ while trying any person for the offence of sedition. He stated ‘that mere presence of attempt to excite feeling were enough for conviction.’ The court rejected the contention that only acts that suggested rebellion or forced resistance to the Government would amount to sedition. (Emphasis added)
One infers from various decisions that for invocation of sedition laws the real test of guilt was not presence of any actual rebellion or any sort of actual disturbance but mere exciting or attempting to excite such feelings was sufficient.
In any civilised country, this test of guilt would mean the end of free speech and expression and the British who claimed to be on a mission to civilise the Indian society could not be seen as someone who oppress free speech. Hence, Explanation III was later added to the section.
This section was again amended in 1898 to widen its scope by adding to the definition that any act that bring or attempt to bring in hatred or contempt towards the Government established by law would be punishable and punishment of transportation for life or any shorter term was also added. The punishment provision was further amended in 1955 and was given its current form.
Prevention of Seditious Meetings Act, passed in 1907 was repealed and replaced by The Prevention of Seditious Meetings Act, 1911 that provided the necessary statutory backing to the authorities for prohibiting any public meeting that were likely to provoke sedition or disaffection or to cause disturbance of public tranquillity. The Prevention of Seditious Meetings Act 1911 stood repealed vide Repealing and Amending (Second) Act 2018.
Post-Independence, the Indian constitution didn’t have any mention of the word sedition or seditious libel or seditious activities. The reason the term ‘sedition’ is absent is because the constituent assembly through its deliberations has included terms with wider connotation which are detrimental to the security of the State.
The law that govern sedition or seditious libel or seditious activities is Section 124A of Indian Penal Code 1860, is reproduced below:
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, the Government established by law inIndia, 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.
Explanation 1—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2—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.
It is interesting to note that this section prior to introduction of Code of Criminal Procedure, 1973, that repealed the colonial-era Code of Criminal Procedure, 1898, was a non-cognizable offence only. However now it is a non-bailable, non-cognizable offence.
The Unlawful Activities Prevention Act, 1967, enacted to prevent terror activities and to freeze the assets and other economic resources belonging to people indulged in such activities, so that activities directed against the integrity and sovereignty of India, including economic security and sovereignty, could be stopped is another statute that helps in restricting activities that could lead to public disorder and rebellion against the government.
Activities such as non-conformity with judiciary, improper respect to nation symbols, or publishing wrong map of India, which potentially seem to be seditious but are not, are covered under various other Acts such as The Contempt of Courts Act, 1971, Prevention of Insults to National Honour Act, 1971, The Criminal Law Amendment Act of 1961.
Although these Acts appear stringent and again directed to safeguard interests of the regime in power courts have taken a lenient and narrow view while interpreting stringent and vast provisions. Some of the cases are Kamal Krishna Sircar v. Emperor; Arun Ghosh v. State of West Bengal; Javed Habib v. State of Delhi and Arun Jaitley v. State of U.P. just to name a few.
In global perspective, it can be seen and established that no civilisation can progress alone. As global law develops and web of globalisation proliferates, the domestic law would need to be evolved on the lines of such laws.
Freedom of speech has been recognised as a basic fundamental human right by the Universal Declaration of Human Rights; European Convention for the Protection of Human Rights and Fundamental Freedoms; International Covenant on Civil and Political Rights; American Convention on Human Rights; African Charter on Human and Peoples’ Rights.
In UK the origins of the offence could be traced back to 1275 when the Statute of Westminster, considered the King as the holder of Divine right. It regarded both the truth of the speech and intention behind the speech as the ingredients of the offence. In the De LibellisFamosis case, it was held that criticism could lead to vilification of the respect commanded by the government and cause disorder. Hence, seditious libel was made punishable act which led to establishment of seditious libel in United Kingdom.
However The United Kingdom Law Commission in 1977 opined that there is no need for an offence of seditious libel in the criminal code in any modern democracy. The enactment of the Human Rights Act, and the tenets of the European Convention on Human Rights provided compelling reasons to abolish seditious libel. In the year 2009 it was abolished by section 73 of the Coroners and Justice Act, 2009. It is interesting to note that the government accepted that this offence was used as a tool to suppress political dissent and restrict press freedom.
In Unites States of America sedition was made a punishable offence through the Sedition Act of 1798 which was repealed in 1820. In 1918, via a set of amendments to enlarge Espionage Act, 1917, a new Sedition Act was enacted by the U.S. Congress to protect American interests in the First World War. Constitutional validity of this act was challenged in Schenck v. United States, where the court laid down the “clear and present danger test” for restricting freedom of expression. Same was reiterated by Justice Holmes in his dissenting opinion in Abrams v. United States
Another Act that relates to the offence of Sedition is the Alien Registration Act 1940 (also known as Smith Act) that penalised advocacy of violent overthrow of the government. Its constitutional validity was challenged in Dennis v. United States, where while applying the “clear and present danger” test, the court upheld its validity and opined that if a government is aware that a group is aiming towards its overthrow and will strike when their leaders feel the circumstances are apt, the action by the Government is required and justified. In Yates v. United States, the Supreme Court distinguished between the ‘advocacies to overthrow’ as from an ‘advocacy to action’ and held that that the Smith Act penalised the ‘advocacy to action’. The narrow opinion of court in Brandenburg v. Ohio, led to the jurisprudential development of intense scrutiny of any restrictions placed on the freedom of expression.
The offence of seditious libel in USA though very widely worded has been construed narrowly by the Courts. The courts have evolved various tests, such as “reasonable listeners test”, “imminent and present danger test”, “fighting words”, or the “chilling effect test”, to determine what is to be considered seditious and what not. This has led to it being practically abandoned.
In Australia, The Crime Act 1920 was the first legislation that contained sedition as an offence. For conviction under this Act subjective intention and incitement to violence or public disturbance were not considered the sine qua non. The Hope Commission (1984) and the Gibbs Committee (1991) while advocating for the retaining sedition as offence suggested that the definition should be aligned with the commonwealth definition and the convictions should be limited to acts that incited violence for the purpose of disturbing or overthrowing constitutional authority. Subsequently sedition was added in the Anti-Terrorism Act, 2005, and in sections 80.2 and 80.3 of the Criminal Code Act 1995.
The Australian Law Reform Commission upon review of laws related to the offence of sedition suggested that the term ‘sedition’ should be removed from the federal criminal law. These recommendations were implemented in the National Security Legislation Amendment Act 2010 wherein the term sedition was removed.
From the above discussion we observe that the sedition law has been either diluted to a form that it has become practically infructuous or has ceased to exist in the major democracies around the world. It is also interesting to note that across the globe freedom of speech and expression is recognised as a basic human right.
- Incorporation of mens rea in the section,
- The scope of the section should be widened and should include Constitution of India, Legislatures and the administration of justice (Judiciary), along with the executive Government, against whom disaffection would not be tolerated,
- Bridging the “odd gap” in the punishment by fixing the maximum punishment for sedition at seven years rigorous imprisonment and fine.
In its 43rd Report, the Law Commission again dealt with the law relating to sedition as part of the National Security Bill, 1971 highlighted that sedition is a step lesser than espionage. In the 267th Report, a distinction was drawn between ‘sedition’ and ‘hate speech’ by the commission. It said that the offence of hate speech affects the State indirectly by disturbing public tranquillity, while that of sedition is directly an offence against the State. As such for any speech to qualify as a seditious speech, the impugned expression must threaten the sovereignty and integrity of India and the security of the State.
In the year 2018, the commission floated a consultation paper on sedition with the aim of soliciting suggestion from the civil society about this law. The final report of this task is still awaited.
Operational aspects on these laws are apparent in statistics maintained by the National Crime Records Bureau (NCRB) which compiles and publishes information on crimes in its publication “Crime in India”. It has started collecting data on cases registered under the offence of Sedition (Section 124 (A) of the Indian Penal Code, 1860) from 2014 onwards. The latest report is available for the year 2019. On a comparative study of these reports it can be seen that between the years 2014 to 2019 a total of 326 cases related to the offence were registered. In only 43.5% was the chargesheet filed. Out of which in 42.5% cases the trial was completed with the conviction rate of 10%.It is also interesting to note that of all the cases registered, an astounding 63%, come from 7 states of Assam (54), Jharkhand (40), Haryana (31), Karnataka (30) and Madhya Pradesh (25), Bihar (25). The graph below shows the year-on-year trend for the number of cases registered and the number of cases in which chargesheet was filed.
In 2021, a batch of petitions challenging the validity of the sedition law has been taken up by the Apex court. During preliminary hearings, Chief Justice of India Ramana, while questioning the need for such a law after 75 years of independence remarked that the conviction rate under this law remains very low even though the number of cases has gone up drastically. He also compared the enormous power of this section to a carpenter being given a saw to make an item but who uses it to cut the entire forest instead of a tree.
When Charles Bradlaugh said that it is better to have a thousand fold abuse of free speech than denial of free speech as the abuse dies in a day but the denial slays the life of the people and entombs the hopes of the race. He wasn’t aware that society would develop so much that a person sitting in one part of the world would be able to influence another sitting in a different part. Nor was he aware that there will exist an interconnected digital world where nothing dies easily and there is always a record of that thing.
When India became an independent democratic nation, it ensured that every citizen gets freedom of expression so that personal liberty which was attained by so many years of struggle can be enjoyed. This was given with the belief that every person would work towards nation building and not towards destroying it. After a careful review of history of Independent India, one can clearly perceive that on one hand we had people such as Jarnail Singh Bhindranwale or Burhan Wani that have been stated to have misused freedom of speech and expression to carry out seditious activities against India and on the other hand we have people such as Anna Hazare that have used the same freedom to strengthen the integration of India.
As US Chief Justice Mr. John G. Robert, had noted that speech is a very powerful tool that stir people to action by moving them with the tears of both joy and sorrow, or by inflicting great pain. Combine this powerful tool with the proliferating internet age in a globalised interconnected world, it is easy to realise that any speech if not judged from the standards of a reasonable, strong minded, firm and courageous person would result in governments getting offended and upset over small trivial matters which would ultimately lead to stifling of freedom of speech and expression by use of sedition laws.
So now the question that appears is whether one should deny the populace free speech and protect the national integrity or support free speech and put the national integrity at risk or there exits some mid-way that could be adopted? Can this ‘sword of Damocles’ be reconciled with its scabbard? Should India also follow other major democracies of the world and abolish its sedition law? Another possible situation could be that civil society groups make a representation to the government for removal of sedition law and for that they may garner enough support as well but then won’t that amount to a seditious activity in itself?
These are the questions that need to be discussed and debated in a wide manner because it affects a commons man’s ability to lead a peaceful quality life in a democratic nation while enjoying his civil liberties.
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Author: Sanchit Seth
Editor: Kanishka Vaish, Senior Editor, LexLife India.