Should the Sedition Law be Scrapped?

Reading time : 6 minutes 

Abstract:

“Freedom of speech is a preferred right which must always be guarded zealously by this (Supreme Court) court.”

                                                                                                               – Venkataramaiah J.[1]

The right to freedom of speech and expression is an important part of the fundamental rights guaranteed by the Constitution. Because this article inherits the true meaning of independence. But there are several provisions of the law in India that function as a hindrance to this right. The government misuses these provisions in the name of reasonable restrictions. One such provision is S.124A of I.P.C, i.e., Sedition[2]. Since its inception, this law has been a tool in the hands of the Government to curb dissent and criticism. Britishers introduced the law and then it was used by successive governments against political dissenters to further their political agendas. In this paper, the author has examined the law of sedition, its explanation by the Supreme Court, recent cases, and instances of the misuse of sedition. Because it will allow to weigh the arguments, why should this past-era law be abolished? However, it should be made clear that this paper tries to analyze the arguments only against the sedition law and focuses on why it needs to be scrapped.

Keywords: Freedom of speech and expression, Sedition, Sec.124A, Indian Penal Code,   dissent, Colonial-era laws.

I. Introduction:

Recently, two journalists- Patricia Mukhim and Anuradha Bhasin challenged the constitutionality of the sedition law in the Supreme Court.[3] This is not the first time, sedition law has been challenged. Its constitutionality has been questioned numerous times in past years and various incidents of its misuse have been reported.

In the light of state security, public order, etc., the Government of India used this provision many times to strike down criticisms aimed against it. It was introduced in the British era to curb the voices for independence. During imperial rule, the Government tried and punished many people, including the Father of the Nation and other freedom fighters, under the aforesaid provision. But, the sedition law has been used as a convenient medium to stifle any form or expression of dissent or criticism, until today.

In this paper, the author firstly analyzed the law of sedition, a brief history of the law, and then described the application of the law in different circumstances, such as in cases of disapprobation, slogans, etc. Then some cases related to the abuse of the law are listed. Finally, the paper is concluded by making a case for the scrapping of the Sedition law.

What is Sedition?

Sedition is defined as the illegal act of inciting people against the ruling government.[4] Section 124A of IPC is concerned with ‘Sedition’. It is a non-bailable, cognizable, and non-compoundable offense triable by the Court of Sessions. According to Section 124A[5]:

“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.”

Sedition is a societal crime. It is in itself a comprehensive term that encompasses all those practices, whether verbal, physical, or written which are calculated to disturb the tranquillity of the state and persuade ignorant people to endeavor to subvert the government and the laws of the state.[6]

Sedition has been defined as disloyalty in action, and the law considers sedition to encompass all practices that intends to incite discontent or dissatisfaction, cause public disturbance, or lead to a civil war; to bring the sovereign or government, the laws of the realm’s constitution, and generally all efforts to promote public disorder and peace into hatred or contempt.[7]

In the case of Rex v. Aldred[8], it was observed:

“In its natural sense, the term ‘sedition’ refers to a riot, an insurrection, a public commotion, or an uproar; it indicates violence or lawlessness in these forms.”

At the same time, the clause makes clear that strong statements used to voice disapproval of government programs with the intent of improving or altering them through authorized ways would not constitute sedition.[9] This is given in explanations two and three of S. 124A.

III. Brief History of Sedition Laws:

Sedition, as defined in Section 124A of the Indian Penal Code, has an indisputably remarkable history. This section was not included in the 1860 version of IPC, when it was first enacted, though the Law Commissioners proposed its insertion in the draft. This provision was initially been under S. 113 of the 1837-39 Macaulay’s Draft but omitted from the final enacted version. Sir James Stephens was quoted as saying that the omission was the result of a mistake.[10] Another explanation for this move might be because the British government sought to enact more comprehensive, broad anti-press measures, such as a deposit-forfeiture system and extensive preventive powers.

It was in 1870 that the British government inserted the provision into the code. This insertion was like a natural response to stifle the voices of dissent at that time. When Mahatma Gandhi termed it the “prince among the political parts of the Indian Penal Code meant to crush citizen liberty,” he was foresighted in understanding the basic threat it posed to democracy.[11] In 1898, it was amended to include terms like ‘hatred’ and ‘contempt’ along with disaffection. These were based on the recommendations of Sir James Strachey as he was presiding over Bal Gandadhar’s trial.[12]

Post-independence, and before the amendment of Cl. (2) of Article 19 by the Constitution (First Amendment), the Supreme Court held that criticism of the government, exciting disaffection or bad feelings are not a justification for restricting the freedom of expression and of the press unless it jeopardizes the State’s security or threatens to overthrow it.[13]

Later, in Kedar Nath Singh v. State of Bihar[14], Supreme Court ruled that S. 124A is clearly made in the interests of public order and is valid. However, its scope was a bit narrowed down, and it was held that Sedition includes as one of its essential ingredients an intention or tendency to create disorder or, disturbance of law and order or incitement to violence.

IV. Intention under S. 124A:

The intention with which the language is employed is at the heart of the act of sedition. However, the language itself must be used to determine this purpose. For this reason, intention is nothing more than meaning. When a man is charged with something he has written or said, the interpretation of what he said or wrote must be taken to his meaning, which is what the people to whom it was directed would understand his language to imply.[15]

If a person is charged with sedition, the prosecution must show that the accused had knowledge of the seditious matter, since the accused’s intention, which is the essence of the crime, cannot be imputed to him if he was unaware of the contents of the seditious matter.

V. Disapprobation:

Disapprobation simply means disapproval. It is quite possible to disapprove of a man’s sentiments or actions and yet to like him.[16]  A man may criticise or comment upon any measure or act of the government, whether legislative or executive, and freely express his opinion upon it. He may express the strongest condemnation or harshest denunciation of such measures, and he may do so severely, and even unreasonably, perversely, and unjustly.[17] S. 124A of the Penal Code does not apply to criticisms or even condemnations of any government agency that do not include any encouragement of the use of violence. Explanation 3 of S. 124A clarifies that the section aims to render penal only such acts as would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence.[18]

However, if a person goes beyond that and, whether in the course of remarks, on measures, or otherwise, puts up the government itself to the readers’ hate or contempt, he is guilty under the provision, and the Explanation will not rescue him.[19]

Also, there is difference between ‘Anti-national’ and ‘Sedition’. The key difference between both these terms is- ‘incitement to violence’. While delievering the M.N. Roy Memorial Lecture (2017), observed that:

“The line between severe criticism of the government and incitement to violence is made explicit in the sedition statute. Only the latter being considered sedition. Thus, although the JNU students’ shouts were anti-national, vitriolic, or a show of disgust and disdain for the government, they were not considered sedition as long as they did not incite or advocate violence.”[20]

He also observed that:

 “The strength of a nation is not measured by the citizens’ unanimity of view or a public declaration of patriotism. When citizens voice revolutionary views without fear of retaliation, when there is a free and open press that can criticize the government, and when citizens do not resort to violence against their fellow citizens just for expressing a different viewpoint, a nation’s true power is shown. That will be the point at which we will have secured the freedom of speech. And only then will we be truly free.”[21]

“Affection is not something that can be manufactured or regulated by the government. Unless it incites violence, people should be free to voice their dissatisfaction fully.”[22]

Romila Thapar also made somewhat similar remarks. She observed that even though sedition charges are quite severe, they are imposed on anyone who has a critical opinion about the country. The dictionary definition of sedition is an incitement to violence and the overthrow of the government. There is a significant distinction between advocating for aggressive techniques and inciting violence. Most politicians, though, appear to be unaware of such disparities.[23]

Another case is of Sloganeering. So, mere sloganeering without any attempt to incite violence is not an offence. In Balwant Singh v. State of Punjab[24]Thus, where two accused persons raised slogans a couple of times, and there was no evidence that the accused persons were leading a procession or otherwise raising the slogans with the intent to incite people to create disorder, and the raising of the slogans caused no disturbance, and the people, in general, were unaffected and went about their business. As a result, the facts and circumstances of the case would not attract Section 124A, IPC.

VI.Why should the law be scrapped?

Though some would see a particular speech as “seditious” and “anti-national,” others might consider it democratic and good. There is no dispute that the law of sedition has been used and misused by successive administrations to achieve their political purposes, notwithstanding judicial safeguards.[25] These rules’ chilling impact threatens to erode and eventually eliminate the lawful and constitutionally protected freedom to protest, dissent, or criticize the government.[26]

The sedition law can be questioned on the basis of few heads. The sedition law was first enacted in the colonial era, by the authority that not only governed us, but ruled us[27]. Colonial administrators used sedition with the bad motive to lock up people who criticised the British policies[28]. This section was also used against a number of nationalist figures, including Bal Gangadhar Tilak and Mahatma Gandhi. But even after independence this law, which had bad motives as underpinnings for its enactment, continued to remain in the statute. The law of sedition was drafted as a constitutional instrument to protect the state by forbidding a person from inciting “disaffection.” It is a system for preventing the spread of anti-government agitation. It also embodies “freedom of speech” as granted by Article 19 of the Indian Constitution. In fact, it is every citizen’s legal right to expose the faults of the government they disapprove of, show discontent and disloyalty among the populace, and attempt to remove it from power. Disloyalty to the state differs from disloyalty to the government. But recently the state has used this provision to stifle peaceful people’s movements and Human Rights campaigners. It is clear from the fact that the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) grew by 160 percent between 2016 and 2019, while the percentage of conviction declined to 3.3 percent in 2019 from 33.3 percent in 2016. (NCRB).[29]

Secondly, Uk, the trailblazer of sedition laws in India, has itself scrapped the law. While the United Kingdom abolished sedition laws in 2010, sedition became a big issue in India the same year when acclaimed writer Arundhati Roy, among others, was charged with sedition for advocating independence for the disputed Kashmir region.[30] This is far from the only time that sedition laws have been utilized in modern India. Sedition charges have been leveled against many human rights campaigners.

Thirdly, Sedition has also been used against political activists, human rights advocates, and other individuals who are exercising or demanding their constitutional rights due to the text’s ambiguity. Criminal offenses must be defined by law and must adhere to the idea of legality, which is a universally recognized precondition to a fair trial. This means they must be stated clearly and precisely in order for people to be able to govern their behavior appropriately. Vague rules jeopardize the rule of law because they allow for selective prosecution and interpretation based on government officials’ discriminatory policies and judges’ personal preferences.[31] Though, in Kedar Nath Singh v. State of Bihar[32], Sedition law was held as constitutionally valid, the use of vague terms, leaves a wide gap to be misused by the government.

VII. Conclusion:

It is an embarrassment that the world’s largest democracy has rules that were previously roadblocks in the way of its own freedom struggle and are now clearly in violation of the fundamental essence of democratic rights. Without liberty, democracy is meaningless, and sedition, as defined and administered by the police and governments, is a denial of it. Invoking sedition or threatening to invoke sedition is an insidious kind of illegal self-censorship since it chills the exercise of one’s fundamental right to free speech and expression. India must also take inspiration from other countries such as UK, New Zealand, South Korea where sedition law is scrapped and USA, Germany etc., where the law still prevails but many provisions of it are struck down. The legislation should allow for the broadest possible expression of ideas and opinions.[33] Sedition is an repressive, archaic colonial rule that elevates the government to a sacred status and aims to turn us into submissive, unquestioning vassals. It has no place in a democratic society and should be eliminated. The higher judiciary should use its supervisory powers to sensitize the magistracy and police on the constitutional provisions guaranteeing free speech until the parliament repeals the sedition law.


[1] Odyssey communications v. Lokvidsyan Sanghatana (1988) 3 SCC 410.

[2] The Indian Penal Code, 1860 (Act 45 of 1860), s.124A.

[3] “Journalists Challenge “Colonial” Sedition Law In Supreme Court”, available at: https://www.ndtv.com/india-news/sedition-law-2-journalists-challenge-colonial-sedition-law-in-supreme-court-2490233 (last visited on August 19, 2021).

[4] R.P. Kathuria, Law of Crimes and Criminology (Vinod Publications [P] Ltd., Jodhpur, 3rd Edition, 2013).

[5] Supra note 2.

[6] Reg v. Alexander Martin Sullivan (1967-71) 11 Cox CC 44.

[7] Nazir v. State of Delhi 2003 SCC (Cr.) 2033.

[8] (1911-13) 22 Cox CC I.

[9] Supra note 4.

[10] W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, 1 (Calcutta: Thakker, Spink and Co., 1911).

[11] A. G., Noorani, Indian Political Trials : 1775-1947, (New Delhi : OUP, 2009).

[12] Queen Empress v. Bal Gangadhar Tilak (1897) 22 Bom. LR 112.

[13] Romesh Thappar v. State of Madras AIR 1950 SC 124.

[14] AIR 1962 SC 955.

[15] Supra note 12.

[16] Queen Empress v. Jogendra Chander Bose (1891) 19 Cal. 35.

[17] Supra note 12.

[18] Supra note 4.

[19] ibid.

[20] Justice Ajit Prakash Shah, Free Speech, Nationalism and Sedition, M.N. Roy Memorial Lecture (2017), New Delhi, 19 April, available at: https://www.epw.in/journal/2017/16/web-exclusives/title.html.

[21] ibid.

[22] ibid.

[23] Romila Thapar, “Targeting Institutions of Higher Education: Fear of the Intellectual”, Vol. 51, Issue no. 10, 5 March 2016.

[24] AIR 1995 SC 1785.

[25] M. Pandey, A. Nath, et.al., “Sedition in India : Colonial Legacy , Misuse and Effect on What Is Sedition?”, 17 february, EPW Engage.

[26] S. Narain, “Disaffection and the Law: The Chilling Effect of Sedition Laws in India, 46 EPW 08 (2011).

[27] Using the term ‘Rule’, the author wants to connote the fact that people were not ‘superior’ but ‘subordinates’ of the British Government.

[28] D Raja, “Why the Sedition Law must go?”, 12 June 2021, available at: https://indianexpress.com/article/opinion/columns/why-sedition-law-must-go-7355073/.

[29] National Crime Records Bureau, “Crime in India Report, 2019” (Ministry of Home Affairs), available at:

https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf.

[30] Geelani, Arundhati to be booked under sedition charge- The Times of India, 25 October 2010 <http”//timesofindia.inindiatimes.com/india/Geelani-Arundhati -to-be-booked-under-sedition-charge/articleshow/6810983.cms#ixzz1adshttp: //timesofindia.indiatimes.com/india/Geelani-Arundhati-to-be-booked-under-sedition-charge-articleshow/6810983.cms>.

[31] Reema Omer, “India’s sedition law is just another colonial hangover and has no place in a democracy”, 4 February 2020,  available at: https://scroll.in/article/952017/indias-sedition-law-is-just-another-colonial-hangover-and-has-no-place-in-a-democracy.

[32] Supra note 14.

[33] Supra note 26.

Author: Priyanshu Fauzdar, National Law University and Judicial Academy, Assam

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