SEDITION: COLONIAL LEGACY IN MODERN DEMOCRACY

Reading time : 6 minutes

Introduction

[1]The IPC Section 124 A 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 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.”

If someone says something if someone writes something If someone Draw Something, maybe a cartoon and because of it that person is promoting disaffection against the government established by Law and promoting hatred he is guilty of sedition (nonbailable offense). For which punishment is Life imprisonment or three years imprisonment, to which a fine may also be added. If someone is not promoting disaffection but is attempting it, if someone attempts to promote disaffection or to promote hatred or contempt against the government established by law, this also comes under sedition, for which he will be punished. Now the question is what is the origin of this law?

Thomas Macaulay was an Englishman, a law graduate from Cambridge, but he never really practiced it. Then he comes into politics and writing. He was elected twice to the House of Commons. 34-year-old Thomas McCauley was sent to India. he was part of the governor-general council and part of the First Law Commission and he drafted the Penal Code for India and added sedition law to 113 sections of the penal code in 1837. And we still use the same penal court designed by Lord Macaulay. When he started working on this draft. He talked about one section that if someone excites disaffection against the government of East India Company because at that time it was East India Company. If you are exciting disaffection against the government of the East India Company. They will punish them with life imprisonment. Two decades later, in 1857, a massive revolt broke out in the northern and central part of India, which nearly swept away the Company’s rule. Revolt of 1857. It acted as a catalyst. Catalyst in the sense that now let’s quickly implement this Indian Penal Code. And this Indian Penal Code was enacted in the year 1860 year after the death of Thomas McAuley. The sentence ‘disaffection against the government Established by law’ which was part of the draft drafted by McCauley was not part of the Indian Penal Code. This was not part of the Indian Penal Code In 1860. 10 years later in 1870 When sedation was included in the Indian Penal Code Disaffection was defined, and added to the Penal Code in 1870. Indians were ruled by an alien government And to overthrow this foreign government so that they can govern themselves and can make laws for the betterment of the people of this country. So to overthrow this foreign government, they needed to carry on the propaganda that the British would not allow this propaganda. So if they are carrying on this propaganda, then they are promoting disaffection against the government established by law, this would be sufficient and they will be booked for sedition. That is how in 1870 sedition was incorporated In the Indian Penal Court, and from there onwards, this addition continued to be used in India. It means Sedition was primarily used to curb the nationalist feelings from getting developed to curb the nationalist movement for freedom in India. And it was used, overused, misused, and abused in the colonial period. There was two high profile case of sedition One of Lokmanya Tilak and the other of the Mahatma Gandhi.

Trial of Lokmanya Tilak 1897 and 1908

[2]Lokmanya Tilak was booked under sedition twice. The first trial for sedition has its origin in the famine of 1896. During the Bubonic Plague, millions of people lost their lives due to the poor health facilities and mismanagement of the British government. Bal Gangadhar Tilak started a weekly newspaper named ‘Kesari’.And criticized the British government Because despite the fact that people were under crisis The British government insisted on collecting land revenue. And then 1897, bubonic plague struck Poona epidemic Diseases Act was enacted in the year 1897 It was passed because of the bubonic plague in Puna. The British Government decided to appoint Walter Charles Rand As a plague Commissioner, then they barged into houses and strip people naked they even bared people from religious places. in one of the articles, bal Gangadhar Tilak is justifying the killing of Afzal Khan by Shivaji. after publishing this article Shah Picker brothers killed Rat because of his repressive measures. The British press quickly draws the equivalence. The British press criticized the British government for not taking action against the articles which promote this type of work. He was booked for sedition. And his lawyer was Dinshaw Davar he pleads not guilty. He says no, my Lord, I’m not guilty. I’m not promoting disaffection against the government established by law. The judge said you may be right. You are not promoting disaffection against the government established by law. But you’re in your eyes. There is an absence of Affection. Since there is the absence of affection, which means you are promoting disaffection against the government established by law, Mr. Bal Gangadhar Tilak was convicted for sedation and was sent to 18 months of jail.

Bengal was partitioned the year was 1905. The British government said it is primarily because of administrative convenience. Bengal is a huge area. we are not in a position to govern this, so for effectively governing such a vast area such as Bengal, we need to divide it, and that’s how the partition of Bengal took place. That was the official reason, although the real reason was to create differences between the Hindus and Muslims and this was the time when the capital of India was also shifted from Calcutta to Delhi. He also started writing articles again. The bomb was held by khudiram bose to kill Kingsford but it kills two English women. Because Tilak was writing articles in his newspaper and justifying the violence as well. According to the British dialect he was arrested and booked under sedition. He was asked are you guilty? he said no, I’m not guilty. I’m pleading innocence. I am not guilty of sedition because I’m not promoting Disaffection against the government established by law. His house was searched. and they found a card on which the name of two books related to explosives is written so they connected the link that he is inciting people to violence. He was held guilty Booked for sedition.

Trial of Mahatma Gandhi

 [3]1940 Noncorporation movement was at its peak but there is some violence also. Particularly at chorichoraor kand, 22 policemen were killed. In response to this violence, mahatma Gandhi called off the non-cooperation movement. He started writing articles in ‘young India’ and in these articles, the government said he is promoting disaffection against the government established by law and because of his writing, people resorted to violence. Gandhi said I am guilty of sedition. I’m calling people for nonviolence, but it is The measures of the government, which is responsible for people resorting to violence. People have no option But to resort to violence because it is the doing of the British government. Mahatma Gandhi said ‘non-cooperation with evil Is as much important as cooperation with the good’. He said that it is his duty to promote disaffection against the government, which is cruel and arrogant. He wanted to be held with extreme punishment. He was booked under sedition, But while handing this judgment, Judge Broomfield said, ‘if tomorrow, the government would want to release you before the period nobody would be happier than me’. 

So sedition was primarily used by the British Government to control their grip over the people of this country.

Sedition in Constitution

The constituent assembly met for the first time on 9th of December 1946. There was a committee on Fundamental Rights. The head of this committee was Sardar vallabh bhai Patel.

He said that one fundamental right is freedom of speech and expression. But this freedom of speech and expression cannot be absolute. There have to be reasonable restrictions on freedom of speech and expression. One such reasonable restriction should be Sedition. Other members of the Constituent Assembly criticize Sardar Patel for this. Sedition was misused by the colonial government. They ensured that section 124 (a) would not be part of the constitution.

Article 19(2) of the Constitution said this fundamental right(Freedom of speech and expression) is not absolute. There are reasonable restrictions on your freedom of speech and expression. there are eight restrictions- Public order, Sovereignty, and integrity of India, friendly relations with foreign states, The security of the state incitement to an offense, Defamation, contempt of court, decency. Sedition 124(a) is not a ground on the basis of which freedom of speech or expression can be restricted.  [4]Article 13 (2) provides for an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III.  Under Article 13(2) if pre-constitutional law is violating part three of the constitution, then it cannot be a part of Indian Law.

But how sedition is still the part of IPC. this was answered in the case named “Ramesh Thapar vs the State of Madras – (1950)”.

Ramesh Thapar was a communist but now he was residing in Madras, there was a Communist weekly which was published from Bombay which talked about revolution. The mudras government decided to stop the circulation and distribution of this Communist weekly in Madrasah. Ramesh Thapar approached the Supreme Court. The Supreme Court asked the government for the reason for banning it. government said, this weekly from Bombay talks about revolution and if they start distributing this weekly in Madrasah There may be a threat to our public order. Under Article 19(2) of the Constitution. Public order is not a ground for restricting freedom of expression and speech till 1950. The Supreme Court held that the ban imposed by the Madras government is unconstitutional.

Parliament amended the constitution in 1950 and added public order as reasonable restriction for freedom of expression and speech under first amendment 1951. Pandit Nehru said that this 124(a) was misused by colonial rulers and is not acceptable it is good for us to get rid of it as soon as possible. Punjab high court and Allahabad high court said that this is unconstitutional. It is our right to criticize the government.

In the case ‘The superintendent, Central Prison, ‘Fatehgarh vs Dr. Ram Manohar Lohia (1960)supreme courts give a landmark judgment. Ram Manohar Lohia was giving speeches in which he wants people to not give taxes therefore violating the law and was booked under sedition. 

The argument was that he was giving speeches and there may be a threat to public order if public doesn’t pay taxes. The Supreme court quashed the argument and said that if speech does not immediately lead to a threat to public order than we cant book him for sedition. People have right to advocate the cause but they cannot incite the public and this incitement should be immediate and not to be hypothetical. Two years later in case of [5]Kedar Nath Singh vs State of Bihar (1962)” Sedition law was said to be constitutional by the Supreme Court. If the speech has the tendency to incite the people it comes under sedition. they upheld the citizen but narrowed down the concept of sedition. Now only if speech results in violence or has a tendency to incite violence then only a person can be booked under sedition. Kedarnath said that the congress politicians are same as British Rulers and now we have to through them out like we do with Britishers. The Supreme court said that this incites the people for violence and therefor he was booked under sedition. For the first time court upheld that 

 In the case ‘Balwan singh vs State of Punjab (1995)’after the assassination of Indira Gandhi slogans were raised by Balwant Singh and others like (Raj karega Khalsa). They were booked under sedition. The Supreme court said that casually raising slogans which do no incites people for violence can’t be an offence under 124(A) of IPC.

In another case [6]Shreya Singhal vs UOI (2015)’ Shreya Singhal was a law graduate. she challenged the constitutional validity of Section 66 a of IT Act 2008. The acts says that if someone using electronic device and share something which annoys someone than it is a crime under this act. Bala Sahab Thakre died and Shivsena supporters called for a ban in maharashtra. A lady named Shaheen Darda wrote on Facebook that what is the need to call for ban when Bala Thackeray has died. One of her friends like the post. They were booked under 66 A of IT Act 2008, because this message caused annoyance to Shivsena Supporters. Shreya Singhal approach the court and requesting that this act is violating to article 19 1(A). Justice Ali Nariman wrote that section 66 A is unconstitutional.  For the first time The supreme court defines the speech and make difference between advocacy and incitement. 

Advocating means if someone is fascinated after a period of time and put some steps then this speech is advocating but incitement is something that is immediate. If someone asking people to kill their neighbour and people immediately act on this than this is incitement and that person can be booked under particular law. The Supreme Court said that advocate the people but dont incite them.

Conclusion 

Sedition law was made for stopping the nationalism feeling in Indian, this law was widely misused from the colonial era to post independent India. The law was interpreted by many judges. In most of the case this law was held unconstitutional or was being in a bad light.

On May 21, 2021, two news channels in Andhra Pradesh aired the interview of an MP belonging to the Congress party, though Congress is the ruling party in Andhra Pradesh. But this mp is a rebel. He criticized his own government’s handling of the COVID situation which result in sedition. The case was filed against the two news channels for airing this interview.MP was booked under sedition. But to be factually correct here, this MP was booked under sedition, not only for criticizing his own government’s handling of the COVID but also because of his alleged inflammatory speeches towards a particular caste group community in contradiction. When the matter reached the Supreme Court, Supreme Court said something spectacular. Supreme Court said it is time that we defined the limits of sedition. In another case in June 2021, Veteran journalist Vinod Dua. He uploaded a video on his YouTube channel last year. The lockdown had just been imposed. Millions of workers started migrating from cities back to their villages. As a responsible journalist, He expressed concern. And he criticized the government’s handling of the situation. He particularly expressed concern regarding the food shelter for these migrants. He expressed concern that if the government is unable to deal with the situation, there may be riots for food. An individual in Himachal Pradesh filed a case of sedition against journalist Vinod Dua. He complained that Vinod Dua is talking about riots for food. This basically means he’s inciting people to violence which comes under sedition. And that is why a sedition case was filed against him. The Supreme court quashed the case and said no, this is not the fit case for sedition. Supreme Court said citizens have the right to criticize the government. Citizens have the right to comment upon the measures undertaken by the government by the government functionaries and this criticism cannot be sedition. They added that every journalist is entitled to protection under Kedarnath’s A 9 years child’s lines in a school play have sent her parents and teacher to jail for sedition, she played a role in which she slapped a child looked alike as prime minister. No doubt that this scene is horrible but this not amounts to sedition. Mere criticism of PM cannot amount to sedition. In recent case a fir was filed against a 19-year-old child Amulya Leona who was just chanting “Pakistan jindabad”, this incites no violence and it’s her freedom of expression to support any nation.

According to writer Lawyer Abhinav Chandrachud – “Sedition is a self-inflicted wound to us” 

During the British sedition was non cognizable offence but in 1973 it is being held as cognizable and non bailable offence.

Many countries like America, Australia, Newziland even England had scrapped sedition in their respective countries, then why are we still following this rule. Even though UAPA 2019 works on the same problems so we don’t need two laws for same offence.

According to national crime record bureau the conviction rate in sedition cases was 3.3 percent in 2019. Mere criticism of a political party does not result in sedition majority of the case the person who was booked for sedition they are later set free but since they were arrested since they spent time in jail the process itself becomes punishment and when this happened that is why this law should be scrapped and declared unconstitutional.


[1] SC to examine constitutional validity of IPC Sec 124-A that penalises sedition (aninews.in)

[2] Open courts and freedom of media to report Court Proceedings: Unmissable Supreme Court quotes and the iconic Lokmanya Balgangadhar Tilak’s sedition trial | SCC Blog (scconline.com)

[3]The Great Trial of Mahatma Gandhi-1922 (qrius.com)

[4] Article 13 – Constitution of India – Notes – Notes For Free

[5] Kedar Nath, who in 1953 had accused Congress of sucking the blood of Kisan and Mazdoor, was convicted of sedition. Nath’s s appeal was rejected by the SC (thequint.com)

[6] Global Freedom of Expression | Shreya Singhal v. Union of India – Global Freedom of Expression (columbia.edu)

Author: NISHEETH THAKUR

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 )

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