Freedom of speech and sedition law in India

Reading time : 8 minutes

Introduction:
[1]Section 124A of IPC-sedition,

Section 124 A of IPC says 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 fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. It is a non-bailable offense and person charged under this section will be barred from Indian government jobs.

Sedition literally means creating violence or disturbance against any lawful authority with intention of causing destruction. The word disaffection includes feeling of enmity. But comments expressing disapproval of a government administrative or other action without inciting or seeking to incite hatred, contempt, or disaffection does not constitute an offence under this section. Mere criticism of the government is not an offense under this act.

History of sedition law:-

Sedition laws were enacted in 17th-century England, when parliamentarians believed that only positive views of the government should be allowed to remain, as negative views of the government could harm the administration of the government. The law was drafted in 1837 by Thomas Macaulay, and later it was enacted in Indian Penal Code (IPC) in the year 1860.

Many freedom fighters were charged under this act in India during British period. Great freedom fighters like Bala Gangadhar Tilak and Mahatma Gandhi were also booked under sedition.

  • Mahatma Gandhi was imprisoned for the period of six years for his articles ‘Young India’ which was published in his newspaper.
  • Mahatma Gandhi described the act of sedition as “Prince among the political elements of the Indian Penal Code designed to suppress the citizen’s liberty.”

Relevance of sedition law:-

  • The Indian constitution stipulates that reasonable restrictions [under Article 19(2)] can be put on this right at any time in order to guarantee that it is exercised responsibly and that it is equally available to every citizen of India.
  • [2]Article 19(2) of the Indian Constitution mentions reasonable restrictions, such as the interests of India’s sovereignty and integrity, the state’s security, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.
  • Maintaining national Integrity: The Sedition Act assists the government in battling anti-national, separatist, and terrorist elements. Also this legislation prohibits anti-national, separatist, and terrorist elements from disrupting public order, inciting violence and enmity.
  • Maintaining State Stability: It aids in the protection of the elected government from violent and illegal attempts to overthrow it. The existence of a legally created government is a necessary condition for the stability of the state.

Freedom of speech and expression:-

“All citizens shall enjoy the right to freedom of speech and expression,” according to Article [3]19(1) (a) of the Indian Constitution. The rationale underlying this article may be found in the Constitution’s Preamble, where a solemn resolution is made to guarantee liberty of thought and expression to all of the country’s citizens.

Freedom of speech and expression includes freedom of press, right to Broadcast, freedom of commercial speech, right to information and right to criticize.

Right to criticize:-

Everyone has a fundamental right to form an opinion on any issue of public concern, according to [4]S. Rangarajan v. P. Jagjivan Ram. Open criticism of government policies and activities is not a justification for limiting freedom of expression. Intolerance is as deadly to democracy as it is to the individual. It is not required in a democracy for everyone to sing the same song.

The Supreme Court in [5]R.P. Limited v Indian Express Newspapers read the right to know into Article 21. The Supreme Court ruled that the right to know is an essential right. Participatory democracy is a key component. This is significant because democracy only functions properly when citizens have the freedom to voice their views on the government and, if necessary, to criticize it. People’s voices must be heard, and their problems must be addressed.

Even tendencies to peacefully overthrow an inept government are not illegal because it is a fundamental right of every citizen in the country to overthrow a government that is inept, corrupt, and acts against the common good of the people without resorting to violence, by persuading the people, exposing its flaws in administration, method of operation, and so on.

Law of Sedition vs Freedom of Speech:-

Every case of sedition has the same defense: the deed was carried out in violation of Article 19(1). i.e. It was his right to free speech that allowed him to make those statements. However, many individuals are unaware of Article 19(2), which specifies that a word or conduct shall not evoke or inspire others to rebel against the state. Article 19(1) cannot be used to defend something that is capable of generating national turmoil. Sedition, not free expression, shall be defined as an act that incites others to harm the nation’s unity and integrity.

  • [6]Ram Nandan vs State, 1958, the Allahabad HC held Section 124A unconstitutional citing that it restricts the fundamental freedom of speech. But this was reversed in 1962 [7]Kedarnath Singh vs the State of Bihar, When it upheld the section, it inserted a caution that it should be interpreted to limit its application to conduct having the intent or tendency to cause commotion, disturbance of law and order, or incitement to violence. The sedition legislation, if applied arbitrarily, would contravene Article 19 of the Constitution, which guarantees freedom of speech and expression.
  • The right to free speech and expression is a hallmark of democracy, but it is under threat because to the sedition statute. Citizens must actively participate in debates and offer constructive criticism of government policies in a democracy. The executive branch of the government, on the other hand, has been authorized by the sedition laws to use the ambiguously worded clause as a tool to regulate public opinion and indiscriminately wield authority. The sedition legislation has become a tool for instilling in citizens a sense of cooperation with government policies. Many times, the government has utilized the sedition statute to silence protesting voices in order to defend its own interests. The arrests of NDTV journalist Vinod Dua for criticizing the government’s response to COVID-19 and 22-year-old Disha Ravi in the Greta Thunberg toolkit case for tweeting in support of the Indian farmer’s movement have sparked a lot of issues regarding liberated people. When journalists are subjected to censorship under the sedition statute, it has a negative influence on democracy. Because the government can disregard its critics and prosecute them with sedition, the sedition laws diminish government accountability.

The police have been taught to act like colonial overlords, as evidenced by several examples of sedition.

                                                                                                                  -SOLOMON, ACTIVIST

Arguments against the Sedition Law:-

1. Because the seeds of sedition law were sown during colonial times, it is sometimes portrayed as a harsh regulation that can be utilized to curtail constitutionally given freedom of speech and expression.

2. It is detrimental to constructive criticism. Views that differ from those of the government are not always seditious, as the Supreme Court has stated. As a result, sedition laws can demotivate people.

3. The Sedition Act was repealed in the United Kingdom in 2009, thus India should be done with it as well.

4. [8]The IPC and the unlawful Activities Prevention Act 2019 both feature provisions that can be used to punish anyone who disrupt public order.

5. India’s 1979 adoption of the International Covenant on Civil and Political Rights (ICCPR) is a positive step toward recognizing freedom of expression. As a result, with the Sedition Legislation in effect, it is possible that the law may be misapplied, resulting in persons being charged with criminal arbitrability for expressing their beliefs.

What’s more worrying is that after you’ve been arrested for sedition, it’s incredibly difficult to gain bail because the trial process can take a long time. As a result, innocent people are harassed, while others are afraid to speak out against the administration.

Arguments for sedition law:-

  1. The Anti-Sedition Provisions Act is used to combat anti-national, separatist, and terrorist elements. Within the favor of this law, it is said that it protects the elected government from attempts to topple it via violence and illegal means. The State’s stability is dependent on the continuous existence of the government established by regulation. Furthermore, it is thought that if contempt of court resulted in a criminal charge, then contempt of government should as well.
  1. Sedition leads to an unofficial form of self-censorship, as it chills free speech.
  2. It prevents citizens from doing what they should in a democracy: asking questions, debating, disagreeing with, and challenging the government’s decisions.
  3. Sedition gradually undermines Gandhi’s philosophy’s soul, namely, the liberty to dissent.
  4. In Parliament, Jawaharlal Nehru stated that Section 124A, the associated penal law, was “very disagreeable and disgusting, and the sooner we do rid of it, the better.”
  5. Even the law’s originator, the United Kingdom, has already repealed it.

Landmark judgements in sedition law:-

[9]Kedar Nath Singh vs. State of Bihar (1962): This was a watershed moment in Indian history; it was the first case of sedition after independence. Where the Supreme Court’s constitutional bench of five judges plainly said that seditious speech and expression can only be punished if it incites “violent” or “public dis-order.”

[10]Aseem Trivedi vs. State of Maharastra (2012): Aseem Trivedi, a controversial political cartoonist and activist, was jailed in 2010 on grounds of sedition for allegedly insulting the National Emblem by replacing the lions with rabid wolves during the Anna Hazare protest.

[11]Sherya Singhal vs. Union of India (2015): The Supreme Court made a clear distinction between “advocacy” and “incitement” in the famous 66A decision, holding that only the latter could be penalized. As a result, advocating revolution, or even violent removal of the government, does not constitute sedition unless there is an incitement to violence, and even more critically, unless the incitement is to “imminent” violence.

CAA and sedition law:-

The use of excessive force by police against anti-CAA demonstrators, notably in BJP-ruled regions, has disturbed civil rights organizations.

Over 20 people have been killed in Uttar Pradesh (UP), India’s most populous state, where some of the first protests became violent. In UP, nearly 600 anti-CAA demonstrators were charged with sedition in December, but the charges were later withdrawn.

Several people have been charged with sedition around India for protesting the law, which critics believe is part of Modi’s Hindu supremacist agenda because it makes faith the basis for citizenship.

On February 23rd 2020, a Delhi court granted bail to environment activist Disha Ravi in a sedition case saying the government could not put citizens “behind bars simply because they chose to disagree with the state policies”.

The Delhi court said, “The offence of sedition cannot be invoked to minister to the wounded vanity of the governments.”

Comments of the chief justice of India:-

Chief Justice of India N.V. Ramana’s words in open court on July 2021 convey a strong message to the government, indicating that the Supreme Court is prima facie satisfied that the authorities are abusing individuals’ fundamental rights to free expression and liberty through the use of sedition.

The Chief Justice has made it apparent that Section 124A of the Indian Penal Code (sedition) may have outlived its usefulness. The CJI has made it plain that the court is sympathetic to the public’s desire for a judicial review of how law enforcement officials are utilizing the sedition statute to suppress free expression and imprison journalists, activists, and dissenters.

The purpose of law is not to silence people’s voices, but to provide them a sense of security.

                                                                                                                         -HEMANT SOREN

Debatable arrests:-

[12]Ms. Divya Spandana, who is the chief of digital communications in congress party, was booked for sedition in 2018 after she called Prime Minister Narendra Modi a “thief” in a tweet.

Voiko was arrested in 2019 and according to the prosecution, Vaiko’s address on the Sri Lankan crisis on July 15, 2009, when presenting the Tamil version (Kutram Saaturgiren) of his English book “I accuse,” was anti-Indian and amounted to sedition.

The Delhi Police detained Disha Ravi, a 21-year-old climate activist from Bengaluru, in connection with the Greta Thunberg ‘toolkit’ case, in which she allegedly tweeted about a kit in reference to farmer protests.

The case of Padmashri awardee journalist Vinod Dua is one of the most recent Supreme Court decisions on sedition. A BJP politician in Himachal Pradesh filed an F.I.R. against the journalist. In this case, the BJP leader appeared to disagree with the accused’s opinions expressed on his YouTube channel, in which he criticizes the Prime Minister. When the case was brought before the Supreme Court, Dua stated that criticism of the government was not seditious unless it incited violence. “Moreover, if I criticize the Prime Minister, I am not criticizing the government,” he continued. The F.I.R. was overturned by the Supreme Court, which stated, “Every journalist shall be entitled to protection under the Kedar Nath Singh judgement.” (sedition).

Sedition law and BJP:-

[13]Report shows that 96% of sedition cases was filed against 405 people after BJP’s victory in the year 2014. According to the sources, 149 persons have been charged for making “critical” or “derogatory” words about Prime Minister Narendra Modi, while 144 have been charged with making “critical” or “derogatory” statements about Uttar Pradesh Chief Minister Yogi Adityanath. Between January 1, 2010, and December 31, 2020, Article 14 tracked sedition instances.

Six sedition complaints were filed during the ongoing farmers’ protest, 22 after the Hathras gangrape, 25 during 2019 rallies against the Citizenship Amendment Act, and 27 following the Pulwama terror incident, according to the new database. Opposition leaders, students, journalists, intellectuals, and authors were among those charged with sedition.

Twenty-two of the sedition cases stemming from anti-CAA protests were filed in BJP-controlled states. 26 of the 27 sedition cases filed in the Pulwama incident were also filed in the places where the saffron party was in power.

Conclusion:-

Sedition laws and their flagrant misuse challenge the fundamental core of these liberties established in the Indian Constitution. The judiciary must evaluate this terrible statute as soon as possible. Even though repealing the law is unlikely, toning it down and setting rigorous restrictions to limit its indiscriminate use can assist India’s democratic status while still protecting freedom of expression. Criticism of government policies and choices that is kept to a fair level and does not incite people to revolt is compatible with freedom of speech and expression. Currently, any discording entity is smacked with the section without any regard for justice. It is this grey area that must be addressed. Such passages should only be included if they amount to a call to violence. The concept of sedition should be restricted to exclusively cover matters relating to India’s territorial integrity and sovereignty.

“The sedition law needs reconsideration”


[1] Article 124A of IPC available at:

https://indiankanoon.org/doc/1641007/

[2] https://indiankanoon.org/doc/493243/

[3] https://indiankanoon.org/doc/1378441/

[4] 1989 SCR (2) 204, 1989 SCC (2) 574

[5] 1989 AIR 190, 1988 SCR Supl. (3) 212

[6] AIR 1959 All 101, 1959 CriLJ 1

[7] 1962 AIR 955, 1962 SCR Supl. (2) 769

[8] https://www.indiacode.nic.in/handle/123456789/1470

[9] 1962 AIR 955 1962 SCR Supl.

[10] https://www.livemint.com/Opinion/vgn3eRawF1psBceMFEuaLK/Aseem-Trivedi-vs-the-state.html

[11] https://www.casemine.com/judgement/in/5790b244e561097e45a4e264

[12] Hindustan times

[13] Hindustan times

Author: Rethiga Ramesh, Vellore Institute of Technology, Chennai.

Editor: Kanishka VaishSenior Editor, LexLife India.

Article 19: Boon or Bane?

Reading time: 4-5 minutes.

There is an old adage – “Of two evils choose the least”. The makers of the constitution, sagacious people as they were, possibly faced this quandary while framing Article 19. They knew that this could be a double edged sword – on one hand the freedom of the citizens had to be provided for in its deepest interpretation; and on the other hand, there had to be checks and balances to prevent the obvious possibility of misuse that such rights entail.

Indeed, the sheer number of amendments made over time, to this article in order to pre-empt the possibility of the latter, is testimony to the overbearing nature of the seamy side of human conduct. Most of these alterations had to be made within the very first decade itself of the Article coming in. The philosophical dilemma is inherent; and this is not specific to India but evident across the world.

One of the leading members of the committee constituted to draft the Indian Constitution, B.N. Rau, had travelled to the United States, where he had met Justice Felix Frankfurter for a comprehensive discussion on the lines in which Fundamental Rights should be drawn up.

There are strong influences on the Indian Constitution from U.S. principles, especially in the Fundamental Rights – even, the American doctrine of “due process” which had been rejected by the framers of our Constitution at the time of its enactment; had later found its way in, through judicial pronouncements.

Some observations of persons of letters from that country relating to the underlying principles reminiscent of our Article 19 are noteworthy. On one hand, we have Madeline L’Engle saying – “Because to take away a man’s freedom of choice, even his freedom to make the wrong choice, is to manipulate him as though he were a puppet and not a person.

And on the other hand we have J. Martin Kohe cautioning – “You possess a potent force that you either use, or misuse, hundreds of times every day.” With Jon Ronson chipping in – “Misuse of privilege is seen as the worst sin.” And Adam Hamilton summarizing – “While some misuse their freedom to perpetrate evil, millions respond by feeling compelled to use their freedom to do good.

From a constitutional angle, the position can be ascertained from the words of Thomas Hardiman – “Those who drafted and ratified the Second Amendment were undoubtedly aware that the right they were establishing carried a risk of misuse, and States have considerable latitude to regulate the exercise of the right in ways that will minimize that risk. But States may not seek to reduce the danger by curtailing the right itself.

Similar view was adopted by the makers of the Indian constitution as well; the need to balance both sides was reflected in the enabling provisions of 19(1) being followed immediately by the limiting provisions of 19 (2 to 6). But over time, the ingenuity of the crooked human mind got the better of it and have found ways to subvert and exploit the chinks in the provisions.

Thus, we have freedom of speech bringing in hate speeches for ulterior political gains; freedom of assembly being given the shape of rallies and road blockades holding daily life to ransom; trade unions being used to stoke labour militancy leading to closures, lockouts and unjust enrichment of union leaders; freedom of movement and residence as a means for crass urbanization steamrolling natural rural life; freedom of trade in dishing out junk food, intoxicants, pesticide-laced vegetables and hormone-injected livestock; and freedom of occupation to promote privatization of crucial medical care leading to affordability issues for many.

These are just to mention a few – only the tip of the iceberg perhaps. The gravest concern is possibly the juggernaut effect that is getting built up day by day – exploitation of loopholes by some is encouraging newer takers for such unwholesome means. Thus, the unfortunate fact remains that Article 19, instead of conferring the presumable salutary effect of society at large; is effectively proving to be a breeding ground for sharks – people in search of a fast buck willing to throw scruples and niceties to the wind.

But surely, such an important fundamental right cannot be given a go by; and at the same time we cannot go on lengthening the restrictions in 19(2) onwards – in the pursuit of plugging ever-new holes that keep cropping up. Perhaps it would not even be prudent to plug up all the holes – it is a proven fact that liquor ban leads to bootlegging and tobacco ban leads to increased sale of contraband narcotics.

Outright proscription would lead to difficulty in enforcement – monetary costs would go up in terms of the need for more personnel, technology and equipment. Even social costs may be too high – people may turn to armed hostilities to get their demands met leading to chaos, encrypted social media to disseminate propaganda which cannot be controlled and consumption of hooch leading to mass poisoning. All these actual and possible afflictions undermine the very bedrock of responsible use of freedom; that had underpinned the conferral of these rights to the people.

The frustrating situation is akin to what U.S. President Harry Truman had summarized in his famous quote in the context of pressing economic problems – “Give me a one-handed Economist. All my economists say ‘on one hand…’, then ‘but on the other hand…”

Perhaps for now, the only way is to hope that sanity would prevail in the larger plane of social goodwill at some inflection point; and a new horizon would evolve for our progeny. Let us not forget the basic belief reposed on the citizens by the framers of our Constitution – that the rights which they conferred with the trust for responsibility would not be misused.

To conclude, the words of M. K. Hobson come to my mind; with the aspiration that realization of the same will gradually sink in to all and sundry; even though it may take time and the route may be tortuous – “I’ve just always been fascinated by what our belief can do, and what happens when we misuse that”. Let us all look forward to that day; when good sense would dawn – let’s await our tryst with destiny.

-This article is brought to you in collaboration with Sourish Roy from Indian Institute of Technology (IIT), Kharagpur.