"Laws are not made to frighten and silence the people but to instill a feeling of safety in
The public.” Of all the laws that were inherited from the colonial regime in India, few have been as controversial as those related to seditious offences. Since in-dependence, the law has been modified and interpreted to incorporate safe-guards so it may withstand constitutional scrutiny. However, it still acts as an effective means to restrict free speech, and has been used by contem-porary governments for reasons that are arguably similar to those of our former oppressive rulers. In this paper, we make a case in favour of repeal-ing the law of sedition. Through an examination of how the law has been interpreted and applied by the courts even after it was read down in kedar Nath v. Union of India, it is argued that it is indeterminate and vague by its very nature and cannot be applied uniformly. Further, the law was enacted by a colonial autocratic regime for a specific purpose, which cannot extend to a post-independence democratically elected government. An analysis of the cases of sedition before the High Courts and Supreme Court show that the offence of sedition is increasingly becoming obsolete. Problems of pub-lic order, which the law purportedly addresses, may instead be addressed through other laws that have been enacted for that specific purpose.
What is Sedition law?
Section 124A of the Indian Penal Code lays down the punishment for sedition. The Indian Penal Code was enacted in 1860, under the British Raj. Section 124A forms part of Chapter VI of the Code which deals with offences against the state. Chapter VI comprises sections from 121 to 130, wherein section 121A and 124A were introduced in 1870. The then British government in India feared that Muslim preachers on the Indian subcontinent would wage a war against the government. Particularly after the successful suppression of Wahabi /Waliullah Movement by the British, the need was felt for such law. Throughout the Raj, this section was used to suppress activists in favour of national independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.Sedition was made a cognizable offence for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible. In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, "incitement to violence" or "overthrowing a democratically elected government through violent means".
SECTION 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 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.
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.
HISTORY OF DEVELOPMENT –
The section related to sedition initially had its place in the code, as Section 113, when Thomas Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was omitted from the actual Code. It was finally added in 1870 on the suggestion of James Fitzjames Stephen, at the time handling legal issues in the colonial Government of Indian. Due to
increasing Wahabi activities, and fearing that Muslim preachers would incite religious war in the Indian subcontinent, the Raj introduced this section under the title "Exciting disaffection".
Stephen's version of 1870 was amended to a large extent through IPC Amendment Act of 1898. The current section stands very much similar to this 1898's section; however minor alterations were made at various points in India's colonial and post-colonial history—in 1937, 1948, 1950, and by Part B States (Law) Act, 1951.
A case in 1958, Ram Nandan v State, heard by the Allahabad High Court declared the sedition law void. The Punjab high court had also struck down the law. A Supreme Court judgement in 1962 brought back sedition into the Constitution, interpreting the section to say that it only applies if there is "incitement to violence".
Sedition was made cognizable for the first time during the tenure of Indira Gandhi via the 1973 Code of Criminal Procedure (CrPC) which replaced the 1898 CrPC.
Sedition law is back in controversy again with the Supreme Court reiterating that taking a stand against the government's policies is not sedition. So, is sedition an anti-national act or an anti-government agitation?
In these days , courts have given two significant rulings cautioning that criticism of the government cannot not grounds for invoking the sedition law. On February 23, a Delhi court granted bail to activist Disha ravi in a case of sedition . On March 3, the Supreme Court dismissed a Public Interest Litigation (PIL) against former Jammu and Kashmir Chief Minister Farooq Abdullah demanding he be charged with sedition.
In Disha Ravi’s case, the Delhi court said, “The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.” It also said the government could not put citizens “behind bars simply because they chose to disagree with the state policies”.
In Farooq Abdullah’s case, the Supreme Court said, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.” The Supreme Court also imposed a fine of Rs 50,000 on the petitioners for making an unsubstantiated charge of sedition.
The sedition law has been in controversy for far too long. Often the governments are criticized for using the law — Section 124-A of the Indian Penal Code (IPC) — against vocal critics of their policies.
In the popular narrative, sedition is taken as “deshdroh” or an anti-national act as against “rajdroh” or an anti-government act.
DOES SEDITION LAW CURB FREE SPEECH?
The law has become synonymous with being anti-national,” said Kumar adding that the courts have to interpret it in terms of Article 19, which guarantees the right to freedom of speech and expression but also provides riders.
“The riders are that you have to give a free passage to the government to function in a proper way. You can protest, you can agitate against the government and criticize its policies but you cannot do it in a way that jeopardizes the functioning of the government. Running a government smoothly is also democracy and a constitutional obligation,” Kumar explained.
The Supreme Court on numerous occasions in the past has ruled that raising slogans against the government or criticizing its policies is not sedition. In a 1962 case, the Supreme Court had ruled “citizen has a right to say or write whatever he likes about the government”.
The five-judge bench had added a rider that while criticizing, a citizen could “incite people to violence against the government”.
In yet another case in which two persons had raised slogans of “Khalistan Zindabad” and “Raj Karega Khalsa” outside a cinema hall in the aftermath of the assassination of former Prime Minister Indira Gandhi, the Supreme Court had dismissed the sedition charge.
“ the raising some slogans only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in the public can not attract the provisions of Section 124A or Section 153A IPC [promoting enmity between two groups],” the Supreme Court had said.
THE MODERN OFFENCE OF SEDITION –
The first category of offences, classified as acts concerning Scandalum Magnatum, were a series of statutes enacted in 1275 and later. These created a statutory offence of defamation, which made it illegal to con-coct or disseminate ‘false news’ (either written or spoken) about the king or the magnates of the realm. However, its application was limited to the extent that the information had to necessarily be a representation of facts as the truth. Thus, truth was a valid defence to the act. The second category of offences was that of treason, subsequently interpreted as constructive treason. Essentially, treason was an offence against the States. It was understood that all the subjects of the rulers owed a duty of loyalty to the king. Thus, if any person committed an act detrimental to the interests of the rulers, they would be guilty of the offence of treason. Initially, the offence required that an overt act be committed to qualify as treason. However, by the 14th century, the scope of the offence was expanded through legislation and judicial pronouncements to include even speech in its ambit. This modified offence was known as constructive creason .Despite the existence of the aforementioned categories of of-fences, the rulers faced many hurdles in curbing the expression of undesirable opinions about them. While the ‘expression of fact’ and truth acted as defences to the offence of Scandalum Magnatum, the offence of treason also had vari-ous safeguards. Only common law courts had jurisdiction over the offence. Further, it necessitated a procedure wherein one would have to secure an indict-ment for the accused before they faced a trial by the jury. Initially, the overt act requirement also acted as a complication while trying to secure convictions. However, with the expansion in the scope of the crime to include speech, this defence became unavailable. To overcome these procedural and substantive difficulties, the offence of seditious libel was literally invented in the court of the Star Chamber.
ANALYSING JUDGMENTS BETWEEN 2000-2015
Since the eponymous decision of the Supreme Court in Kedar Nath, the courts have applied the law of sedition on various occasions. To ex-amine how the courts have dealt with cases of sedition in the recent past, we have examined all cases that came before the high courts and Supreme Court between the years 2000 and 2015. Of these cases, the cases where the question of sedition was not directly in issue or where the court did not address the issue of sedition were eliminated. It was found that there have been only fourteen cases of sedition in the last fifteen years, of which only two were heard before the Supreme Court. Further, there have been only three convictions, of which one conviction was made by the Supreme Court. In this part of the paper, we will briefly analyse these cases. For the purpose of clarity, we have categorised them as ‘Clear Acquittal Cases’, ‘Grey Area Cases’ and ‘Convictions’. While the Clear Acquittal Cases are those where it could easily be determined that the requirements for sedition were not satisfied, the Grey Area Cases are where the courts acquitted the accused, but where these acquittals give us crucial guid-ance on what activities do not qualify as sedition .
1. Clear Acquittal Cases
Of the fourteen cases of sedition before the courts, six can be categorised as Clear Acquittal Cases. As per Kedar Nath, it is necessary that the act causes disaffection towards the government established by law and that it incites people to violence and to disrupt public order. It can be seen from the facts of these cases that the acts involved clearly did not satisfy these require-ments. The courts recorded findings to this effect, and acquitted the accused in these cases. In one such case, P.J. Manuel v. State of kerala, the accused affixed posters on a board at the Kozhikode public library and research centre, exhorting people to boycott the general election to the Legislative Assembly of the state. The poster proclaimed, “No vote for the masters who have become swollen exploiting the people, irrespective of difference in parties.” Consequently, criminal proceedings were initiated against him under §124A of the IPC for the offence of sedition. The Kerala High Court observed that it needs to be examined whether the publication or preaching of protest, or even questioning the founda-tion or form of government should be imputed as “causing disaffection towards the government” in a modern democracy. The content of the offence of sedition must be determined with reference to the letter and spirit of the Constitution and not to the standards applied during colonial rule. In support of its view, it cited authority to demonstrate that even the shouting of slogans for the estab-lishment of a classless society in line with the tenets of socialism would not be punishable as sedition.
Further, it noted that §196 of the Code of Criminal Procedure, 1973, (‘CrPC’) mandates that the government must expressly au-thorise any complaint filed for an offence against the State (under Part VI of the IPC) before the Court can take cognisance of such an offence. It thus held that the impugned act did not constitute the act of sedition and quashed the criminal proceedings against the petitioner
2. Grey Area Cases
In five cases of sedition before the courts, the accused also man-aged to obtain acquittals on this charge. However, these cases have been cat-egorised as Grey Area Cases as they involved acts that could be categorised as anti-national, secessionist or terrorist activities. However, the courts found that in the absence of an immediate threat of violence, these ideologies could not be criminalized.
In Gurjatinder Pal Singh v. State of Punjab, for example, the accused petitioned the Punjab & Haryana High Court for an order to quash the First Information Report (‘FIR’) that had been filed against him under §§124A and 153B of the IPC. At a religious ceremony organised in memory of the mar-tyrs during Operation Blue Star, the petitioner gave a speech to the people present advocating the establishment of a buffer state between Pakistan and India known as Khalistan. He stated that the Constitution was a “worthless/useless” books for the Sikhs. The supporters of the petitioner then raised ag-gressive slogans and naked swords were raised in the air. The High Court cited the decision of the Supreme Court in Balwant Singh v. State of Punjab, where it was held that the mere casual raising of slogans a couple of times without the intention to incite people to create disorder would not constitute a threat to the Government of India. Crucially, it held that even explicit demands for secession and the establishment of a separate State would also not constitute a seditious act. Thus, the FIR against the accused was quashed.
Since its origin in the court of Star Chamber in England, the law of sedition has been defined by uncertainty and non-uniformity in its application. By keeping its scope deliberately vague, generations of members of the ruling political class have ensured that they have a tool to censor any speech that goes against their interests .The courts have also been unable to give a clear direction to the law. While the final position on the law in India was laid down as early as 1960, the law of sedition is characterized by its incorrect application and use as a tool for harassment. Thus, some of the reasons for which people have been booked under the provision (and often incarcerated) include liking a Facebook page, criticising a popular yoga experts, cheering for the Pakistani team during a cricket match versus India, asking a question about whether the stone- pelters in Jammu and Kashmir were the real heroes in a university exam, making cartoons that allegedly incite violence and making a speech at a conference highlighting the various atrocities committed by the armed forces. An analysis of the judgment of the Supreme Court in Kedar Nath itself demonstrates certain deficiencies in how the law is currently understood. There has been a shift in how we understand ‘security of the state’ as a ground for limiting the freedom of speech and expression. Further, a change in the nature of the government and the susceptibility of the common people to be incited to violence by an inflammatory speech has also reduced considerably. Even the maintenance of ‘public order’ cannot be used as a ground to justify these laws as it is intended to address local law and order issues rather than actions affecting the very basis of the State itself. Drawing inspiration from the repeal of the law of sedition in England, it may also be argued that the law of sedition is now obsolete. Various other statutes govern the maintenance of public order and may be invoked to ensure public peace and tranquillity. In light of the above observations, it is time that the Indian legislature and judiciary reconsider the existence of provisions related to sedition in the statute books. These provisions remain as vestiges of colonial oppression and may prove to undermine the rights of the citizens to dissent, protest against or criticize the government in a democracy.
By Yash Choubey, Law Student