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In India, the legal regime surrounding the right to freedom of speech and expression is enshrined under Article 19(1)(a) of the Constitution. Free speech enables one to convey his individual’s opinions and ideas.
Such expression is vital to permit individuals for their aspiration of a sense of self-fulfilment. A democracy is characterised by self-based governance and enabling it’s individuals to modulate their opinions across all hues.
In such a society, a conflict between the individual’s opinion and the State is inevitable. Punishment or curtailment for depreciating State authority or judicial system is contradictory to the theory of right to free speech and expression.
The case of Queen-Empress v. Bal Gangadhar Tilak is the first case which interpreted Section 124-A of the Indian Penal Code, 1860 which deals with Sedition. The Court described sedition as being the lack of affection. It denotes “enmity, hate, antagonism, disdain, hate, and all types of ill-will against the Government.” The court stated that no one should incite or strive to make people feel animosity toward the state.
A number of scholars and judges have observed that sedition is an extremely subjective offense. Thereby, judges evaluate the situation on a case-by-case premise to ascertain if any harm is caused to the stability of the State or democratic system. If such a choice is left to executive or legislative action it could enable an oppressive government to weaken the foundations of free speech.
At Present, the freedom of the press is not included expressly Part III of the Indian Constitution. The protection freedom of the press is found explicitly. Such inconsistency brought into the forefront during the debates of the Constituent Assembly.
In Romesh Thapar v State of Madras the court stated that the “freedom of speech and of the press lay at the cornerstone of all democratic institution, for without free political discussion, no public education, so necessary for the proper working of the procedure of popular government, is possible.”
ANATOMY OF IPC-124A- SEDITION
Section 124-A of the Indian Penal Code (IPC) forms part of Chapter VI and deals with offenses against the state and specifically the punishment for sedition.
This sedition law is 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, 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.”
Initially, the section utilised the word “disaffection” which when interpreted referred to acts which civil disobedience. Consequently, the words “contempt” and “hatred” were added to the section in 1898. This gave way for governments to persecute politicians and journalists who committed what is known as “thought crimes.”
The British era in India wielded the provision of IPC-124A to suppress and quash the Indian independence movement. A notable instance would be in 1922 when Mahatma Gandhi was found to be seditious and imprisoned under IPC-124A.
During trial, Gandhi himself argued that“Section 124-A under which I am happily charged is perhaps the prince among the political sections of the IPC 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. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime.”
While the Indian Constitution was being drafted, the Constituent Assembly realized that Section124A was not in consonance with Article 19, which guarantees rights to freedom of speech and expression. Moreover, Article 19(2), which refers to reasonable restrictions to free speech, doesn’t include “sedition.”
However, due to the legislative inaction and the lack of political the section wasn’t repealed and rather, the task of annulling it was left to the judiciary. In 1950, the Punjab-Haryana High Court in the case of Tara Singh Gopi Chand v. The State ruled Section 124-A to be unconstitutional. In 1958, the Allahabad High Court in Ram Nandan v. State held that Section 124A is ultra vires the Constitution.
However, in 1962, the Supreme Court of India in the case of Kedar Nath Singh v. State of Bihar upheld the validity of IPC-124A. The Court stated that speeches against political parties government were not illegal, however they shouldn’t “incite people to violence” or create “public disorder.” Despite the specific applicability of Section 124A, many successive governments have used this section to suppress political dissent.
Some recent examples include—
In the year 2012-2013 there were protests which took place against Kudankulam Nuclear Power Plant in Tamil Nadu. Due to this, an approximate of 8,856 people were charged with sedition.
In 2012, Aseem Trivedi was indicted with sedition charges over political cartoons showcased corruption high ranking India’s politicians.
Furthermore, in 2016, Amnesty International India was charged by Bangalore police for sedition as there were “pro-Pakistan” slogans cited at their event.
In 2019, in Jharkhand, more than 11,200 Adivasis, indigenous or tribal people, were charged with sedition for protests to amendments made to land tenancy laws. And the list goes on.
THE LEGAL STAND OF SEDITION AFTER THE KEDAR NATH DECISION
Following the landmark case of Kedar Nath, the Supreme Court’s test of sedition as assertion on incitement of “imminent violence” has been reaffirmed in many subsequent rulings such as Indra Das v State of Assam, S. Rangarajan v. P. Jagjivan Ram and Arup Bhuyan v State of Assam.
In the case of Indra Das v State of Assam, the a part of the ULFA which was an outlawed organization. He was also accused of murdering an individual, however there was no evidence for the sane. Using the court’s decision in the Kedar Nath case, the Court observed that the accused could not be held guilty as he could not be connected to any seditious activity.
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The Court observed in S. Rangarajan v P. Jagjivan Ram “the impact of the remarks must be measured from the standards of sensible, strong-minded, resolute, and brave persons, and not those of feeble and indecisive minds, nor of those who smell peril in every opposing point of view.”
In a subsequent judgment, in the Balwant Singh v State of Punjab the Supreme Court struck a sedition charge with reference to anti-Indian slogans— “Khalistan Zindabad…Hindustan Murdabad.” According to the judgement even informal statements are not seditious as long as it does not affect public order by incitement of violence.
The Supreme Court has given a limited interpretation to the definition of Sedition. According to the Supreme Court in the Kedar Nath Singh v State of Bihar Verdict (1962) the court stated “that the allegation of sedition may only be supported in the occasion of incitement to violence in a speech, not for advocacy.”
Justice A P Shah in 2017 expanded the Kedar Nath decision and stated that the Apex Court upheld the constitutionality of the provision of sedition, however it restricted its implementation to acts which encompassed the tendency or intention to create disorder, or incitement to violence. It contrasted these activities from the use of “vigorous language” or “extremely forceful speech” which is critical of the government
SEDITION VIS-À-VIS FREEDOM OF PRESS: A ‘CHILLING EFFECT’ IN THE INDIAN LEGAL REGIME
The right to free speech and expression is one of the most important of fundamental rights. However, the sedition laws in this country has essentially limited this privilege. The increasing surge in the enforcement of the charge of sedition is used to target journalists, human rights activists and public intellectuals. Such an increase has generated serious concerns with reference to the undemocratic nature of these archaic laws enacted during the British colonial administration.
Arrests made under the provision of Section 124A have sparked public outrage and has led to questioning of the applicability of the provision in a constitutional democracy.
In the case of Sanskar Marathe v State of Maharashtra cartoonist Aseem Trivedi was imprisoned on the ground of sedition because his caricatures and posters criticized the parliament, constitution, and India’s national flag. Thereby, the Bombay High Court issued certain rules and guidelines which were required by the police to follow when invoking sedition charges against an individual.
The court in the case of Shreya Singhal v Union of India provided and highlighted the distinction between incitement and advocacy. The Court was determined that comprehension of free speech is dependent on 3 notions. The first notion is conversation, the second notion is advocacy, and the third notion is incitement.
Article 19(1) allows for a simple debate or promotion of a certain cause, notwithstanding how unpopular it actually is (a). On the other hand, Article 19(2) is applicable only where such advocacy or debate reaches a the level of being provocative.
In modern age, the law related to sedition can be viewed as being antiquated as it mandates citizens not to harbour disdain, hatred or hostility for the government. Many have viewed that levying sedition charges solely based on written or spoken words ought to be discouraged.
Thereby, in the present form of sedition there exists a grey area among the actual legislation and application of the law. The sedition charges have been viewed to be employed randomly in several cases as there exists no set formula. Therefore there is a requirement to change the law so as to reduce the gaps and the grey areas.
On the other hand, there exist arguments in favour of such regulations as it is necessary evil in India, where there are many destabilizing forces at play. The purpose of such legislation is to prevent evil actions that promote “public disruption” and “violence”.
A very recent case occurred on June 3, 2021. The Apex Court in the case of Vinod Dua v Union of India quashed the FIR against Vinod Dua who was a senior journalist charged for sedition through his YouTube channel that involved critical statements about the Government and the Prime Minister. The FIR was lodged by a BJP leader.
The Court observed that “Every journalist is entitled to protection under the Kedar Nath Singh decision. Mere dissent does not amount to Sedition unless the said dissent results in inciting violence against the State.”
The said judgement attracted applause from various media houses as well as the Editors Guild of India [EGI]. They stated that the judgement was a step towards the end of the chilling effect caused by sedition legalities on the freedom of the press.
It is critical that governments should carefully adhere to safeguards laid down by the Supreme Court before the registration of an FIR under Section 124A.
Dissenting political speech is important to hold government officials accountable for their actions and to and voice grievances for their redressal. A Government only be “by the people and for the people” when dissenting speech is protected.
With an increase in nationalist rhetoric, voicing of dissenting opinion is considered an act of courage and sedition law merely exists to stifle diverse opinions and intimidate citizens.
In a democracy, protection of dissenting political speech should be championed as done by advanced Western democracies. For instance, US political speech enjoys a “preferred position” in the hierarchy of the Constitution. In the case of Brandenburg v. Ohio, the Supreme Court of US introduced “imminent lawless action” test to adjudge what falls under the purview of a “seditious action.”
The majority was: “Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of lawviolation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
On the other hand, Australia doesn’t have express protection of free speech in Constitution. Yet it has the legal regime for the protection of political speech. In the case of Australian Capital Television Pty Ltd v. Commonwealth High Court held that political speech is protected from criminal prosecution.
In India, a repeated use of Section 124-A 1by law enforcement has garnered large media attention. This has a cascading impact which deters dissenting opinion.
The Preamble for the Constitution of India propounds the “liberty of thought and expression which is upheld by Article 19(1)(a). However, while IPC-124A exists it is conflicting and therefore free speech and expression is impossible.
It is concerning archaic British colonial laws are still utilised in modern day judicial system of India. The notion of sedition in India is influenced and finds it’s roots in colonial ideals. It has been well documented that sedition has been used as a tool to suppress any and all forms of criticism against the State administration rather than those actions which are used to only incite violence against the State.
Moreover, there does not exist any explicit rights available to the freedom of press and thereby allows for authorities to exploit this gap or loophole to prevent criticism. Statistics show that such attacks on press citing sedition as a ground increased manifold in the year of 2019 and 2020. Greater than 40% of the press attacks of 154 reporters between 2010 and 2020 jailed for their professional job were in 2020 individually.
Nevertheless, the press has since time immemorial played a crucial role in aiding the society over the years. For instance, the press revealed flaws in Aarushi Talwar’s murder and forced notable measures to be taken.
Moreover, the freedom of press is recognized in the Universal Declaration of Human Rights. Reporters without Borders [RSF] is an organization which evaluates nations based on their level of freedom of press.
Therefore, the existence of an archaic provision of Section 124-A is obsolete in a State which ensures achievement of progression. The punishment associated with the provision makes it draconian in nature. If continued, such provision gives free reign to a chilling effect on the freedom of speech and expression, which is against Article 19(1)(a) of the Constitution. Therefore there is a need alteration in India’s sedition laws in consonance with the transitions in society for the country to truly progress in letter and spirit.
 22 ILR Bom 112 (1898).
 The Indian Penal Code, 1860 (Act 45 of 1860), s.124-A.
 E Barendt, ‘Interests in Freedom of Speech: Theory and Practice’ in Kam Fan Sin (ed), Legal Explorations: Essays in Honour of Professor Michael Chesterman (2003) 175.
 AIR 1950 SC 124.
 The Indian Penal Code, 1860 (Act 45 of 1860), s.124-A.
 1951 CriLJ 449.
 AIR 1959 All 101.
 1962 AIR 955.
 3 SCC 380 (2011).
 2 SCC 574 (1989).
 3 SCC 377 (2011).
 “Sedition in India: Colonial Legacy, Misuse and Effect on Free Speech” EPW Engage, Feb. 17, 2021.
 Cri PIL 3 Bom (2015).
 12 SCC 73 (2013).
 WP (Criminal) No 154/2020.
Author: Linda Francesca Macedo Borges, Symbiosis Law School, Pune
Editor: Kanishka Vaish, Senior Editor, LexLife India.