SEDITION LAW: A THREAT TO INDIA’S DEMOCRACY

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ABSTRACT

One of most significant feature of a democracy is the power of the people to express their satisfaction or dissatisfaction for the laws or decisions made by the government. In a country like India, where there is a population with multiple cultural, religious, lingual and communal backgrounds, difference in opinions is bound to occur. What may be highly beneficial for a section of the society, may be completely detrimental to the other. Despite having so much variety in culture, language, beliefs and customs, one of the most celebrated and remarkable feature of India is “unity in diversity”.

Few laws and rules which were solely made for the purpose to serve the British administration were still adopted by the sovereign government of India and till today even after more than seventy years of free India such colonial laws are being followed. One of the highly talked about law in today’s day and time is the relevance of the Sedition Law in independent India. The judiciary of India has played an active role in discussing the validity of the law and questioned if even the law is actually required or not.

OBJECTIVE

The recent use of sedition statutes in a number of cases has prompted new concerns about the undemocratic nature and applicability of these provisions in today’s constitutional democracy. It’s unfortunate that these rules have survived colonial rule. The implementation of sedition laws by several Indian courts demonstrates how they have grown outmoded for today’s culture and society, and numerous recommendations for their application are made. All citizens in a democratic country like India have the Fundamental Right to Freedom of Expression and Speech. Although the law of sedition is permissible under acceptable constraints to such rights, the scope of such a rule is a major concern. In our country, where the rule of law reigns supreme, charging someone indiscriminately with sedition is an act that runs against to constitutionalism. This paper attempts to bring together various debates and opinions regarding the repealing and amending of these laws. In our democratic society, the existence of this law in our statute books, as well as its criminalization, appears to be unjustified.

INTRODUCTION

The sedition law is mentioned under section 124A of the Indian Penal Code. In England, during the 17th century, sedition laws were enacted in order to safeguard the Crown and the state from any potential insurrection. The concept was that people could only have a positive impression of the government, and that a negative attitude was harmful to the governments and monarchy’s functioning. Sedition laws are regarded as remnants of a bygone era in most democratic countries, and are either rarely utilised (as in the United States) or repealed entirely (Britain, Australia, and New Zealand). In 1870, it was incorporated into the Indian Penal Code.

Since then a number of cases have been filed against persons who were believed to have committed an offence under the said law but the reports suggest that the number of sedition cases arose overwhelmingly high after the year 2014. As per the official reports a total of 96 cases were filed between the years 2014 to 2020.

In spite of the rise in the number of cases of sedition, there is a catch that is the cases filed never reach the court which indirectly suggests that the executive has been using the unambiguity and vagueness of the law to their advantage. This is an example the governments today is not ready to accept criticism or opposition which is believed to be one of the most essential characteristic about a democracy.

Such instances suggests that due to mere power and self-benefit the governments resort to the colonial system where the common voices and opinions are suppressed due the presence of such laws which creates apprehension and a sense of fear in the minds of the citizens.

The constitution of India is the living example of how every individual irrespective of his status and background is considered equal and how the varied opinions and beliefs are respected. The constitution makers paid utmost importance to the freedoms, liberty and dignity of the citizens of the nation. Certain freedoms such as freedom of speech and expression mentioned under article 19 of the constitution of India and right to life and liberty under article 21 are few of the vital attributes of the constitution.

WHAT IS SEDITION?

In order to understand the true meaning of the term sedition could be described as use of any word or phrase which is seditious in nature, publication of false statement which could be damaging to a person’s reputation or any act done with an intention to satisfy a seditious goal, whether committed through  words spoken or written, or through conduct. It is an offence punishable under the common law with fine and imprisonment.

Section 124A of Indian Penal Code, 1860 deals with sedition. The act states, “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.”[1]

HISTORY OF SEDITION LAW

During the 13th century the widespread use of printing press possessed a great threat to the sovereignty and security of England. Under this fear the rulers in England took multiple measures in order to control the press and circulation of information. The measures that were taken by the British could be broadly classified into Scandalum Magnatum( collection of acts concerning) and the offence of Treason(direct offence against the person or government of king).

A series of statutes passed in 1275 and thereafter were designated as acts concerning Scandalum Magnatum, the first category of misdeeds. These established a statutory defamation offence, making it illegal to fabricate or transmit ‘false news’ (whether written or spoken) about the king or the realm’s magnates. Its application, however, was limited to the extent that the information had to be a literal portrayal of reality. As a result, honesty was a viable defence to the crime.

The second category of offences was treason, which was later added to the list. This could be understood as constructive treason. Treason was essentially a crime against the state. It was widely accepted that all of the monarch’s subjects owed the king a duty of loyalty. As a result, anyone who did something that was harmful to the ruler’s interests would be charged with treason. By the 14th century, however, laws and court rulings had broadened the scope of the offence to include speech as well. Constructive treason was the name given to this new infraction.

Despite the presence of the aforementioned types of offences, rulers had numerous challenges in controlling the expression of negative views about them. Therefore, the offence of seditious libel was literally devised in the Star Chamber’s court to overcome these procedural and substantive issues. Truth was not regarded a defence in this new offence, which was designed to foster respect for the administration in power. It also got through the many safeguards of the Treason and Scandalum Magnatum offences on which it was based. There was no precedent referenced in this decision because there was none. Previously, ‘libels’ were solely private actions seeking monetary compensation. Seditious libel became a brutal instrument for suppressing any expression that was unfavourable to the government from then on.

By the 18th century when British started to observe growing criticism and rebel in the Indian revolutionaries against the British rule, few laws such as the sedition laws was introduced in British India. Thomas Macaulay in the year 1837 through clause 113 of the Draft Indian Penal code introduced sedition as an offence punishable with life imprisonment. The provision was later added under Indian Penal Code, section 124A by the British in 1870. It was viewed as a convenient tool in the hands of rulers to curb dissent. The British used the sedition law to supress many great nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and further many more freedom fighters. After India’s struggle for independence, the constitution makers gave considerable attention to this prevailing colonial law. It was due to the strong criticism by Sikh leader Bhupinder Singh and K.M Munshi, who argued that this draconian law possessed a threat to democracy in India and that the essence of democracy lies in the criticism of the Government, the term sedition was omitted from the constitution. However, the sedition law was reintroduced after the First amendment to the constitution of India 1951 passed by the then government headed by Jawaharlal Nehru, as the first prime minister of India. Though he had identified offence of sedition being fundamentally unconstitutional and further said that this law is extremely objectionable and that the sooner this law is removed the better it would be but his government went on to not only reintroducing the sedition law but also adding two expressions “friendly relations with foreign state” and “public order” as grounds for imposing reasonable restriction of free speech and expression.

CONSTITUTIONAL HISTORY OF SEDITION LAW

After independence, the section 124A IPC, for the first time came up for consideration in the case of Romesh Thappar v. Sate of Madras,[2] where the apex court declared that unless the freedom of speech and expression possess a threat to ‘security of or tend to overthrow the State‘, any law imposing restrictions on the same would be outside the scope of Article 19(2) of the constitution.

In the case of Tara Singh Gopi Chand v. State of Punjab,[3] Section 124A was declared unconstitutional as it violated the freedom of speech and expression under Article 19(1)(a).

The Allahabad High court in the case of Ram Nandan v. State[4] declared section 124A unconstitutional overturning Ram Nandan’s conviction stating If criticism that does not have the intent to cause public disorder can be classified as a misdemeanour under section 124A of the Indian Penal Code, then the section must be repealed because it restricts freedom of speech and has the potential to strike at the very heart of the Constitution, which guarantees the right to free speech and expression subject to certain limitations under Article 19(2) of the Constitution.

In the landmark case of Kedar Nath v. State of Bihar,[5] the honourable Supreme Court observed that the sedition law should only be imposed in exceptional instances where there is imminent threat to the security and sovereignty of the country. In this instance, the court decided that conduct having the intent or inclination to cause disruption, disturbance of law and order, or incitement to violence should be prohibited under this section. This part, however, is in violation of Article 19 if it is utilised arbitrarily. The Court held that the phrase “in the interest of public order” has a broader meaning and can be read to cover not just conduct that are likely to affect public order, but also Section 124A.

The Supreme Court overturned the 1958 decision, ruling that the Sedition Act was constitutional, but also stating that the legislation must be understood narrowly, and that if given a broader interpretation, it would fail the constitutionality test. The apex court held the constitutional validity of the section 124A, while also limiting its connotation and application to activities including the desire or proclivity to cause disorder, disruption of law and order, or solicitation of violence. The Supreme Court made a clear distinction between betraying the government and commenting on government acts without inciting public disruption through violence. But it has been evident over the years through various instances that this law has been used as a handy tool to suppress dissent or criticism, against political counterparts etc.

The honourable Supreme Court recapitulated that all the laws including the section 124A, have to be read and applied in a way that these laws fall well within the ambit and conformity with the fundamental rights provided under the constitution of India.  Further, in the case of Arup Bhuyan v. State of Assam,[6] the apex court stated that those speeches which leads to “incitement to imminent action” can only be criminalised.

In Kanhaiya Kumar v. State (NCT of Delhi[7]), the petitioner, approached the High Court of Delhi for grant of bail in the case where he was charged under section 124A IPC. The court while looking into the matter observed that while exercising the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the constitution, one should also be considerate towards the Part IV Article 51A which are the fundamental duties for every citizen that the constitution provides since they both are the two sides of a same coin.

In the recent case, Shreya Singhal v. Union of India,[8] the Supreme Court established clear demarcation between “advocacy” and “incitement” and stated that only incitement is punishable.

The judicial pronouncements mentioned above have been included in order to gain a better understanding of what constitutes seditious behaviour. In light of this, it might be claimed that the act would not fall within the ambit of section 124-A of the IPC unless the words or actions in issue do not endanger the state’s or the people’s security; or cause any type of serious public disorder.

LEGAL FLAWS IN SEDITION LAW

In the recent past, a total of 25 sedition cases have been registered after the protests against the anti-Citizenship Amendment act, 22 and 27 after Hathras gang rape case and Pulwama incident respectively. The data suggests that the number of sedition cases are on rise and approximately 96 percent of total cases that were registered are after the year 2014.

The data that was provided by the National Crime Records Bureau suggests that sedition cases have been on incline from a total number of 47 in 2014 to 93 in 2019[9], which is a massive 160 percent jump. However, despite the increase in the number of sedition cases registered the conversion rate from case to conviction is just 3.3 percent. This implies that the concerned authorities such as the police and state authorities have been using the sedition law inappropriately which ultimately serves as a medium to create a feeling of fear or apprehension amongst the citizens of the nation and simultaneously also silencing any criticism or condemnation against the governments regime.

The above instances are enough to claim that one of major drawbacks of the sedition law is that it is poorly defined and vague. Due to its poor definition and understanding there are a lot of different interpretations and many authorities have used it to their own benefits. Recently, this issue was highlighted when Justice D. Y Chandrachud remarked “Everything cannot be seditious. It is time we define what is sedition and what is not”, while preventing the Andhra Pradesh government from taking any further action against the two Telgu news channels which were booked under section 124A IPC.

The recent important case in which a  PIL was filed against the former Chief Minister of Jammu and Kashmir Farooq Abdullah, Justice D.Y Chandrachud remarked “Expression of views which is dissent and different from the opinion of the Government cannot be treated as seditious.”

On the similar lines, in the case of Disha Ravi, the High Court of Delhi specifically ruled that the government is not empowered to put citizens behind bars just because they refuse to agree with the ideologies or policies of the government. The court also went on to the extent of saying that the incompetency of the government cannot be shadowed by invoking the sedition law. These rulings and standing of the courts in recent times have shown a complete contrast to the meaning or interpretation of the sedition law by the executive and suggest a picture of how the law has been indiscriminately put to use.

The three judge bench headed by Chief Justice of India N.V Ramana, in response to the petition filed by S.G Vombatkere, a retired Army General , issued a notice to the central government to pay utmost attention to section 124A IPC. The chief Justice of India also highlighted the difference between massive increase in the number of cases registered and actual conviction. He expressed his concern towards the unfortunate people who suffered due to the utter misuse of the law by the authorities. CJI also remarked, “The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself.”

SEDITION LAW A THREAT TO FREEDOM AND DEMOCRACY

Individual autonomy is the bedrock of liberty. In democratic states, the right to freedom of speech and expression is the most important liberty. As a social being, you receive the natural right to freedom of speech and expression. Free speech and expression are essential for a healthy democracy and civic society to thrive. However, in reality these rights are not absolute rather have reasonable restrictions attached with them. For instance in India, Article 19(1)(a) provides freedom of speech and expression but is always accompanied by Article 19(2) which provides the grounds for reasonable restrictions. The law of sedition, which is used to penalise criticism of the government, has a “chilling effect” on free speech, rendering it obsolete in modern democracies where freedom of speech and expression is seen as an inherent right. The sedition law must be used in the rarest of the occasions but unfortunately, the government has exploited it to manipulate public opinion. The restriction imposed by the section is unreasonable since it denies citizens the right to healthy criticism of the government. The restriction imposed by the section is unreasonable since it denies citizens the right to healthy criticism of the government. The government has utilised the sedition statute to silence protesting voices in order to defend its own interests which are evident from the various incidents such as the arrest of NDTV journalist Vinod Dua on the grounds of sharing criticism and dissatisfaction towards the response of government to COVID-19 and Disha Ravi for tweeting in solidarity with the then ongoing protests against the farm bills. In a democratic system of government, there are three pillars of government: legislative, executive, and judiciary, with the press serving as the fourth pillar. In a healthy democracy, it is equally crucial in the operation of the government. Such instances where journalists are censored, social activists are threatened to put across their opinions freely etc, suggest a dangerous future of public opinion and free speech and expression in a country like India and also results in reduction of the accountability of the government.

WAY FORWARD

The increase in the number of incidents of misuse of power by the authorities and the government is a matter of great concern since in a democratic country like India, where personal liberty, freedom of speech and expression and absence of exercise of arbitrary powers by the authorities are few of the most essential features. For a democratic nation to work smoothly and efficiently , it requires the full participation of its citizen in voicing their opinions, putting forward their demands and showing dissatisfaction towards the policies of the government which they believe is not suitable or needs reconsideration.

One of biggest disadvantage of the sedition law is that once a person is booked under sedition, it is extremely stressful and difficult to get quick justice since the courts take a long time in deciding the matters and people who might be innocent are at disadvantage which in turn creates apprehension among the citizens in voicing their opinions. The need of the hour is the active intervention of the judiciary and take immediate and constructive actions in order to reconsider this draconian law. People who have suffered despite being innocent should be given speedy justice and compensation.

CONCLUSION

To conclude, colonial laws which are prevalent till date such as the sedition law must be given due attention and reconsidered in a manner which is in conformity with the modern world democratic society. The apex court of the nation has in recent times questioned the relevance of such draconian law. Chief Justice of India N.V Ramana, asked the government why a law which was made by the British to satisfy their own objectives and laws which were used against Mahatama Gandhi and Bal Gangadhar Tilak still continue to survive even after 75years of independence. Such constructive criticism and intervention by the judiciary brings forth a hopeful prospect in safeguarding the democratic nature of the nation. The sedition laws reduce government accountability as the government is able to ignore its critics and in turn charge them with sedition.

Further the petitions filed by eminent personalities which are pending before the courts of law must be looked into and appropriate actions to quash this colonial law must be taken. However, it must be understood that completely declaring the law unconstitutional might not be possible and therefore, measures to tone it down and prescribing strict guidelines under which section 124A could be put to use must be established in order to safeguard the most celebrated features of our nation.

BIBLIOGRAPHY

  1. Law Commission of India, consultation paper on ‘sedition’, available at : https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
  2. Suvir Raghuvansh, “Sedition Law in India”, volume 4 of International Journal of law and Legal Jurisprudence Studies, ISSN 2348-8212. Available at: http://ijlljs.in/wp-content/uploads/2017/12/Essay.pdf
  3. The Indian Penal Code (45 of 1860), s. 124A
  4. Nivedita Saksena & Siddhartha Srivastava, “An Analysis of the Modern
  5. Offence of Sedition, NUJS Law Review, 7 NUJS L.Rev. 121 (2014). Available at: http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-2F6909F3CF11.pdf
  6. Krishnadas Rajagopal,” Why do you need the ‘colonial law’ of sedition after 75 years of Independence, CJI asks government.”, The Hindu, July 15, 2021. Available at: https://www.thehindu.com/news/national/is-this-law-necessary-sc-seeks-centres-response-on-pleas-challening-sedition-law/article35336402.ece
  7. Utkarsh Anand, “Sedition Law a Serious Threat to Individual Liberty, says SC.”, Livemint, July 15,2021. Available at : https://www.livemint.com/politics/news/sedition-law-a-serious-threat-to-individual-liberty-says-sc-11626372815658.html

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

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

[3] Tara Singh v State of Punjab, AIR 1950 SC 124.

[4] Ram Nandan v State, AIR 1959 All 101.

[5] Kedarnath Singh v State of Bihar, AIR 1962SC 955

[6]  Arup Bhuyan v State of Assam, (2011) 3 SCC 377

[7] Kanhayia Kumar v. state (NCT of Delhi),(2016) 227 DLT 612.

[8] Shreya Singhal v Union of India, AIR 2015 SC 1523.

[9] Crime in India – Statistics, National Crime Records Bureau, Ministry of Home Affairs

Author: MALLIKA RANJAN, VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES, DELHI

Editor: Kanishka VaishSenior Editor, LexLife India.

Sedition law in India

Reading time: 8-10 minutes.

In the renowned case of A.K Gopalan vs. the State of Madras, it was observed, “Man, as a rational being, desires to do many things, but in civil – society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals…Liberty has, therefore to be limited to effectively possessed.

Black’s law dictionary defines Sedition as an insurrectionary movement tending towards treason but wanting an overt act; attempts made by meetings or speeches or by publication to disturb the tranquillity of the State. The difference between ‘sedition’ and ‘treason’ is that though the ultimate repercussions of sedition is a violation of the public peace or at least such course of measures adopted eminently dangers the public interest, but yet it does not aim at direct and open violence against the laws or the subversion of the Constitution.

Sedition, in simple words, is a crime in attempting by way of speech, action or publication targeting the Sovereign, ministers, officers or judges by inciting hatreds or contempt in mass, to encourage discontent and disaffection among the State subjects, to even attempting to excite mass to disrupt or subvert the Constitution or even disturbing the peace and order of the Nation which is considered to be a high misdemeanour of where such information or an indictment will lie. No act shall be seditious unless its evil intentions are exposed over a considerable area or offer a bad example to a considerable number of persons. Seditious words in writing are known as Seditious libel. A person who does the act of sedition is known as a seditionist.

Law regarding sedition in India

Section 124A of the India Penal Code defines sedition, “Whoever, 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 up to three years, to which fine may be added or with fine.”

The Act of sedition is a cognisable, non-bailable and non-compoundable offence and punishment for such an act ranges from the imprisonment of three years to a lifetime, to which fine may be added is observed to be harsh compared to other offences in the IPC. Such a person who indulges the seditious act is barred from government law and live without their passport and present themselves in court at the necessary time as and when required. 

The Criminal Procedure Code’s Section 95 deals with the right of the government to forfeit material punishable under Section 124 A on stated grounds. Chapter X of CrPC deals with maintenance of public order and tranquility and permits Police, Magistrate, Armed Forces to cause an unlawful public assembly to disperse, if necessary, by using force and to restore public order.

Unlawful Activities (Prevention) Act, 1967– As indicated by Section 2(o) of the said Act, supporting cases of withdrawal, questioning territorial integrity, and causing or intending to cause disaffection against India fall inside the ambit of unlawful activity. Section 13 punishes unlawful action with imprisonment reaching out to seven years and a fine.

These three are the source of sedition law in India. IPC’s section gives a proper definition of sedition and what can constitute sedition, whereas CrPC’s section 95 gives the power to the institution so that a proper procedure can be followed. Unlawful Activities (Prevention) Act, 1987 strengthens the law of sedition.

Historical background 

Sedition law is a draconian colonial relic and reminds us of the inglorious period of our past. The offence of sedition was primarily contained in Section 113 of Thomas Macauley’s Draft Penal Code; however, the same was dropped from the final version adopted in 1860 because of some unaccountable reason. But in the 1870s the section of sedition was redrafted and was inserted by the British after the Wahhabi Movement triggered them to do so. Wahabi movement of the 19th century was an Islamic revivalist movement; whose focus was to condemn and also protest against the British as they were bringing changes in original Islam. This movement was active since the 1830s but after the 1857 revolt it got hyped up and became an armed protest. Subsequently, the British termed Wahabis as traitors and rebels and carried out military operations against them. During this time, the British enacted the law of sedition and completely suppressed the movement in the 1870s.

The need for this law was felt shortly after the IPC, 1860 became enforced, and after this Indian Penal Code (Amendment) Act, 1870 was made. In this amendment act, Section 124 A was added. The amendment was done on the suggestion of Sir James Stephen, the then law member of the Government of India. According to some legal scholars the omission was the result of a mistake, another explanation for not having the law of sedition in the Indian Penal Code was that the British Government wanted to adopt more wide-ranging strategies against the press . Since it came into operation in 1870, the law of sedition has continued to be used to restrain voices of protest, dissent or criticism of the government. Although, the Government of India in Adaptation of Indian Laws Order, 1937 made few changes in the section. The word ‘British India’ was replaced by India; ‘the provinces’ was replaced by ‘the State’, and the words ‘Her Majesty’ was repealed from the section. The explanation of the word ‘disaffection’ was also provided in section 124 A, which is used after independence.  

Constitutional basis

One of the earliest cases of sedition was Ram Nandan v. State of U.P. (AIR 1959 Alld. 101). In this case, the Hon’ble High Court stated that section 124 A restricts the freedom of speech, which is against the rights and interests of citizens and hence declared Section 124 A of IPC as ultra vires. But this ruling of High court was overruled by the Supreme Court in the case of Kedar Nath v. State of Bihar (AIR 1962 SC 955). The law of sedition was interpreted in the decision of the Supreme Court in Kedar Nath Singh Case as it is understood today. The rising concern of the constitutionality of Section 124A of the IPC about Article 19(1)(a) of the Constitution vis-à-vis the core fundamental right to freedom of speech and expression were heard by the Court. It was clear to the court that the crime of sedition must apply to crimes that rise against the public tranquillity as opposed to political crimes.

Looking back to the pre-legislative history and the constituent assembly debates on Article 19 of the Constitution, the law of sedition had been particularly excluded as a valid ground to limit the freedom of speech and expression, though it was included in the draft Constitution. This indicates the legislative intent to not consider sedition as a valid exception to this freedom. The constitutionality of section 124A of the IPC was protected under the pretext of ‘security of the State’ listed as one of the six reasonable restrictions of Article 19(1) of the Constitution. 

The divergence for the number of interpretations for the term ‘sedition’ in light of the Constitution is due to reason such term was omitted by the drafters and to avoid any ambiguity in interpretation, they implied on the term ‘security of the State’ to differentiate the crimes like sedition. The reasoning of the Court while interpreting the concept of sedition, was that this would prove to be a handy tool to maintain public order which will be in the interest of the security of the State and hence would be justified. 

In the case of Brij Bushan v. State of Delhi, the ground of ‘public order’ was joined with ‘security of the State’ where the insertion of the words ‘in the interest of’ before the public order in Article 19(2) was observed to have provided a wide magnitude of powers extended to the State to curb the freedom of free speech. 

Supreme Court in Bilal Ahmed Kaloo V. State of Andhra Pradesh (AIR 1997 SC 3483) and subsequent cases clarified that criticizing a public measure or passing comment on government action is justified until it come under the reasonable restriction of Article 19(2). It doesn’t matter whether the usage of words was strong or not; it will only matter if the words have the pernicious tendency or intention of creating public disorder or disturbance of law and order. Furthermore, in S. Rangarajan v. P. Jagjivan Ram (AIR 1989 SCC 574), the court held that the effect of words must be decided from the standard of reasonable, strong minded, firm and courageous person, and not by those who are weak and has a vacillating mind, nor of those who scent danger in every hostile point of view. All this helps the court to decide whether a particular action will be considered unconstitutional or not.

Sedition comes under the offence against the state, but the provision of sedition talks about the government established by law not about the state. The two arguments for this are that, firstly, the existence of state will be hampered if the government which is the symbol of the state, is subverted. Secondly, Article 12 of the Constitution defines State and under that Article, the government is included under the State. That is why ‘sedition’, as the offence in Section 124A, has been characterized, comes under Chapter VI relating to offences against the State.

Critical analysis

Often, the laws of Sedition are taken as an unconstitutional move or in other words, in opposition to the fundamental right to freedom of speech and expression as enshrined in Article 19(1). But in fact, sedition is incongruous to the right to freedom of speech as it involves a discontent act that is directed at the Sovereign State and not the Government. Both the concept differs and applies to different scenarios and not interpreted. 

In the case of S. Khusboo v. Kanniamal & Anr (AIR 1997 SC 73), noticing morality does not co-exist with criminality, the Supreme Court reasoned that free flow of the ideas and perceptions in society ensures its citizens are well-informed, resulting in good governance. In support of the above case, Tata Press Ltd v. Mahanagar Telephone Nigam Ltd. & Ors (AIR 1995 SC 2438) emphasised the importance of the free speech held by the Supreme Court:

“Freedom of Speech goes to the Heart of the natural right of an organised freedom-loving society to ‘impart and acquire information about that common interest’.”

Taking the case of Indian Express Newspaper (Bombay) (P) Ltd. v. UOI (AIR 1986 SC 515) set the four critical purpose of the free speech and expression: 

  1. Assist the individual or citizen to attain self-fulfilment
  2. Assist in the exposure or discovery of truth
  3. Strengthens the capacity of the individual in participation in the decision-making process and further
  4. Furnishes a mechanism to establish a possibility of reasonable balance between stability and social change. 

Scepticism has been expressed over the potential misuse of the law of sedition, emphasising the words of Justice A.P Shah warning the very basis of the logic of a sedition law comparing it to a parochial view of nationalism endangering the diversity of opinions than prevention of a possible rebellion. 

In the case of Shreya Singhal, stating the observation of Court point out the three concepts of most basic right (Freedom of Speech and Expression) of human rights vis-à-vis discussion, advocacy, and incitement. Trivial discussion or advocacy of a particular issue is protected at the heart of the Article 19(1)(a) whereas it is only such discussion or advocacy that resort to a level of incitement which attracts the provisions of reasonable restrictions as revered in Article 19(2). The reasoning for this curtailment of speech and expression is to protect the sovereignty and integrity of India, the security of the State as well as friendly relation with foreign nations. 

It can be observed sedition has been many times and even today still used to evade any sort of political dissent in the country and also any political opinions that go against the ruling party’s objectives. There have several incidents where people have been persecuted with sedition for making statements which have not relation with undermining of the security of the Nation. Section 124A must be carefully interpreted in consonance with Article 19(1)(a) and 19(2) of the constitution and the reasonable restriction to be scrutinised critically on thoroughly verified facts and circumstance of the given case.

Scope of improvement

In democratic India, the citizen must be given liberty to express their affection towards the Nation in own way which may be in the form of debates, exposure of the loopholes in the policy of the government, constructive criticisms etc. Section 124A, the law of sedition must only be carefully be applied in cases where the intention of such actions lies with the purpose to disrupt the public order or overthrow the government by way of illegal or extremist means of violence. This sedition law is misused to bully and terrorise citizen wherein the Bidar case, the Principal of the school was charged with sedition for staging a play describing the events of CAA. A clear distinction between free speech and expression concerning Sedition could be reviewed in the Courts of law as the concept of sedition is a very specific and serious offence and when used upon to silence and terrorise an ordinary citizen, raising a concern/ grievance, it is terrorism imposed by the State. Moreover, in the events of the protest, the law enforcement can be easily bullied by a local leader into a registering a case under sedition giving rise to many numbers of case lagging in the Court to be cleared of. 

The duty lies upon the Courts of Law to safeguard constitutional Article 19, 21 and to ensure the distinction of such right enshrined in the constitution with seditious charge accused of an ordinary citizen. A harsh law of Sedition which is very specific of its applicability is subject to misuse. Sedition law either must be redefined specifically with restriction to be imposed when the issues arise of Freedom of Speech and Expression or struck down to ensure a democratic mechanism of a country. 

Conclusion

The time has come to take a stand to review the Kedar Nath Singh Case which supported the law on sedition and wide amplitude of powers given to the Government to curb the freedom of speech and expression under the said ground ‘Security of the State’ and Public Interest. The freedom of speech and expression must be seen as remarks and criticism as against the functions of the State or Government and awareness of the corruption indulged by few political partisans. It is instrumental in the democratic sovereign to ensure weightage to public opinions and safeguards the freedom of speech and expression as opposed to sedition for introduction effective implementation of necessary legislative laws to serve the purpose of the Nation in the interest of Public.

Moreover, Sedition must be interpreted once again to ensure its applicability concerning words, act and publications ensued against the Nation, not the government as the very principle of a democratic country is to stir up debates from both sides. In a democratic political system, transparency, accountability, public participation, equality as well as representation can all be promised by safeguarding Article 19(2) of the Constitution of India and striking down any law that is in contravention of the said Article. Hence, John Stuart Mill articulately started giving voice to the importance of the freedom of Speech ensures for the free flow of the ideas and expression in society and to encourage stability of a society, one must not curb the voice of the citizens however contrary that may be. 

Authors: Tanishka Jangid from Lloyd Law College, Greater Noida and Minnah Elizabeth Abraham from Symbiosis Law School, Pune.

Editor: Dhawal Srivastava from Rajiv Gandhi National University of Law, Patiala.