During the sedition trial of Mohandas Karamchand Gandhi, when he pleaded guilty to the charges against him, he had strongly criticized section 124-A of the Indian Penal code,1860. He called Section 124-A(Sedition) as Prince among the political sections aimed at suppressing the liberty of the citizens of this country. He went on to say that affection is something which can neither be manufactured nor can be regulated by law.He also said that one should be allowed to express disaffection to the fullest. He said that Section 124-A under which he is charged is one which penalizes mere promotion of disaffection and many of India’s loved patriots have been convicted under this section.
Some top profile sediton cases in India include those against Arundhati Roy(Indian author), Aseem Trivedi(Indian Cartoonist), Umar Khalid(Activist), Andrew Sam Raja Pandian, Dhaval Patel, Amulya Leona Norhona .
As the number of sedition cases in India have increased in the recent years , as suggested by the NCRB(National Crime Records Bureau) data. It has become necessary to understand and discuss about the sedition law in India.
WHAT IS SEDITION?
Around hundred and fifty years ago even holding meetings or carrying out a procession as per the English law amounted to sedition. Over the years the interpretation of the word by the English changed.
English law states that, Sedition embraces all those practices, whether by words or in writing which are aimed at disturbing the tranquility of the state and incite ignorant persons to subvert or overthrow the government.
Sedition is defined in Section 124-A of Chapter VI(of offences against the state) of the Indian Penal Code,1860.
Section 124-A of the Indian Penal Code speaks about the offence of sedition. It states that:
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 the fine may be added, or with imprisonment which may extend to three years, to which the fine may be added, or with fine .
Explanation1 to the section states that the expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 to the section states that the 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 to the section states that the 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.
This Section is widely interpreted by the courts of India. The gist of the offence of sedition as stated in section 124-A is that, if words, either written or spoken have the tendency or intention of creating public disorder or disturbance of law and order of the country, it amounts to sedition.
HISTORY OF SEDITION LAW
The sedition law is an adoption of the English law of sedition into the Indian scenario.The sedition law was present since 1590 in England.The introduction of Sedition law in India dates back to the British period which was used against several freedom fighters to crush the freedom movement in India. Among the the many freedom fighters who were imprisoned under this law were Bal Gangadhar Tilak and Mohandas Karamchand Gandhi. It was added to the Indian Penal Code in the year 1870 during the Wahabi movement, and was not how it is in the current form. The law was amended in 1891 and explanations were added to it. The first trial under section 124-A was the Bangabasi case wherein the editor of the Bangabasi(a weekly newspaper) was charged with sedition.
WHY THE WORD ‘SEDITION’ IS NOT INCLUDED IN THE CONSTITUTION
Referring to the Constituent Assembly Debates on sedition it can be said that there had been serious opposition to including the word ‘sedition’ in the Indian Constitution on the ground that it restricted freedom of speech and expression laid down in the then Article 13 of the draft Indian Constitution. It was termed as a ‘shadow of the colonial era’ which should not see light of day in free India.
Shri. M. Ananthasayanam Ayyangar said that if the government which is bad in administration and yet it is entrenching itself then, every citizen has the fundamental right to overthrow the government by non violent means.He also said that the word ‘sedition is ‘obnoxious’, and that it ought to be removed .
Shri K M Munshi, while speaking in favour of deleting the word ‘sedition‘ from Article 13, quoted the words of the then Chief Justice of India, in Niharendu Dutt Majumdar v. King, in which a distinction was drawn between the meaning of ‘sedition’ during its initial enactment in the Indian Penal Code and the meaning of ‘Sedition’ as it was understood in 1942. The then Chief Justice during the above mentioned case said that sedition is not enacted as an offence in the Indian Penal Code only for ministering the wounded vanity of the government but it was enacted as an offence in order to ensure that government and law does not cease to be obeyed solely due to disrespect for them. As disrespect will only lead to anarchy. He also said that in order to constitute the offence of sedition the words or acts which are complained of must lead to public disorder or reasonable anticipation of Public disorder. Otherwise it does not amount to sedition.
Thus, due to heavy opposition in the Constituent Assembly, the word ‘sedition’ was not included in the Indian Constitution.
CONSTITUTIONAL VALIDITY OF SECTION 124-A
Constitutional validity of the sedition law was challenged many number of times before the courts in India.
One of the landmark cases in this regard is the Kedarnath case(Kedarnath v. state of Bihar). Kedarnath was arrested for a speech delivered by him in which he criticized the Government.The constitutional validity of Section 124-A was questioned on the grounds that it violated the Fundamental Right of ‘Freedom of speech and expression’ as conferred by Article 19(1)(a) of the Indian Constitution. The Supreme Court upheld Section 124-A to be constitutionally valid as the words “in the interest of public order” as stated in article 19(2) of the Indian constitution can be interpreted in a wide manner so as to include even section 124-A. The Supreme court further explained what amounts to sedition - The court said that, comments, however strongly worded…if it does not excite those feelings which generate the inclination to cause public disorder by acts of violence would not constitute the offence of sedition. It was also laid down by the Supreme court that the intention with which the language is used is the essence of the crime of sedition. In other words , to constitute an offence under Section 124-A , any words spoken or written should have in itself the implicit idea of creating hatred/ contempt/ disaffection towards the government by violent means.
The Legal position is that invoking of Section 124-A requires certain guidelines as laid down in the Kedarnath case to be followed.
SOME IMPORTANT CASES
Balwant Singh v. State of Punjab in which the Supreme Court ordered the release of Various persons who raised the Slogan of “Khalistan Zindabad” , on the ground that raising of the slogan by these persons did not incite any kind of feeling of disaffection or hatred nor did it provoke the general public and raising of these slogans does not amount to sedition.
Shreya Singhal v. Union of India(2015) in which the police had arrested two women for allegedly having posted offensive comments on social media platform on the matter of Mumbai being shutdwon after the death of a political leader.In this case the court discussed 3 important concepts with respect to freedom of expression, that is, discussion, advocacy and incitement and the court said that mere discussion or advocacy does not amount to sedition.
Kanhaiya Kumar Case(2016), Kanhaiya kumar was a former JNU students’ union leader. Charges of sedition and conspiracy were leveled against him and 9 others for raising seditious slogans in an event of JNU .
One of the most recent cases being Disha A. Ravi v. State (NCT of Delhi) and others(2021). A 22 year old climate Activist was arrested on the charges of sedition among various other charges under the Indian Penal Code, 1860 for allegedly having edited a toolkit on social relating to the then ongoing farmer protests in the country. A Delhi High Court granted bail on the grounds of evidence being “scanty and sketchy”. The Honorable Judge also said that citizens being the conscience keepers of the government in any democratic nation, they cannot be put behind bars merely on the ground that they choose not to agree with state policies and also that the offence of sedition cannot be invoked for ministering the wounded vanity of the governments.
SEDITION LAW IN OTHER COUNTRIES
The United States of America:
In the United States of America, law relating to sedition is laid down in section 2385 of the US code, it is however rarely used, keeping in mind the freedom of speech and expression.
United Kingdom :
In the year 2009, the United Kingdom abolished the Sedition law. While abolishing the Sedition law in 2009, the then parliamentary under - secretary of the State at the Ministry of Justice of the United Kingdom stated the following for abolishing the law: Sedition and Seditious libel are offences of a bygone era where freedom of expression wasn’t seen as the right it is today. It was also stated that these obsolete offences which have existed in United Kingdom had been used by other countries as justification for retention of similar laws in their countries, which have been actively been used to suppress political dissent and restrict press freedom….Abolishing these offences will allow the United Kingdom to take a lead in challenging similar laws in other countries, where they are being used to suppress the freedom speech.
In New Zealand after the introduction of The Crimes(Repeal of seditious offences) Amendment Bill, 2007 which was enforced with effect from 1st January, 2008 , Sedition was no more an offence.
In Canada the law relating to sedition is contained in section 59 of the criminal code. But it is very rarely enforced on its citizens and they have liberal enjoyment of the freedom of speech and expression.
Some other countries like Indonesia and South Korea have done away with the law of sedition.
LAW COMMISION OF INDIA ON SEDITION LAW
In 2018, the Law Commission of India put out a consultation paper on revision of section 124-A . It laid down the following issues with respect to the law of sedition:
(i) When the United Kingdom itself abolished sedition laws in 2009 citing that the country did not want to be quoted as an example of using such laws which are an era bygone and given the very fact that the section itself was introduced by the British to use as a tool to oppress the Indians, how far is it justified to retain section 124-A in the Indian Penal Code?
(ii) The second issue raised was whether the law of sedition should be redefined in India keeping in mind that India is the largest democracy in the world.
(iii) The third issue was: whether it is feasible to rename section 124-A of the Indian Penal Code and also reset the punishment accordingly?
(iv) The fourth issue posed a question as to what extent the citizens of our country can possibly enjoy the ‘right to offend‘ and When would ‘right to offend‘ qualify as ‘hate speech’? When would ‘right to offend‘ qualify as hate speech?
(v)The next issue raised was one which has always been questioned, that is,how to strike a balance between section124-A of the Indian Penal Code and right to freedom of speech and expression laid down in the Constitution?
Then, there were other issues like, will repealing Section 124-A of the Indian Penal Code be a boon or a bane to the nation,whether any safeguards can be made available in order to ensure that section 124-A of the Indian Penal Code is not misused and so on.
Although the number of cases filed under Section 124-A of Indian Penal Code has increased , the conviction rate for the offence is very low.There has always been a debate whether the sedition law should be scrapped owing to its misuse over the past years. On one hand, it can be argued that it is necessary for the maintaining integrity and security of the nation and on the other hand it can be argued that it should be scrapped because it puts a bar against any kind of criticism against the government which is very much necessary in a democracy .
The Indian Penal Code,1860
The Indian Penal Code, Prof S.N. MISRA, Central Law Publications,Twenty First Edition,2018
The Constitutional Law Of India, Dr. J.N. Pandey, Central law Agency,Fifty Sixth Edition,2019
NARRAIN, SIDDHARTH. “'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India.” Economic and Political Weekly, vol. 46, no. 8, 2011, pp. 33–37. JSTOR, www.jstor.org/stable/41151791. Accessed 14 May 2021.
Mukherjee, A. K. “THE FEDERAL COUET AND THE LAW OF SEDITION IN INDIA.” The Indian Journal of Political Science, vol. 5, no. 1, 1943, pp. 94–104. JSTOR, www.jstor.org/stable/42743056. Accessed 14 May 2021
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