Whenever our individual liberty is restricted, we always bounce back to the notion of constitutional morality. One such restriction is the offence of Sedition, from arresting students of JNU, Hardik Patel for demanding reservations for Patidar community or for offensive cartoons by Assem Trivedi to arresting Anti Citizenship Amendment Bill protesters or for criticising a government policy. All of these cases bring us back to the concept of free speech. Athenian principle of “isegoria” calls for equality of freedom that is equal right of citizens to participate in public debate and an enlarged concept of “parrhesia” that is liberty of freedom, to have courage to say the truth or the unpopular or an offensive opinion. So, does the rise of Sedition cases confirm to the such Athenian principles or is a pyrrhic victory for a nation?
Sedition, a non bailable and a non-cognizable offence as defined in Section 124A of Indian Penal Code points towards “spoken or written words, signs, visible representation as means of bringing hatred or contempt, or exciting or attempting to excite disaffection towards the Government established by law in India as sedition which is punished with fine or with imprisonment which may extend from three years to life imprisonment.”[1] Explanation of this offence under statue also makes a distinction between the words disaffection and disapprobation which was also clarified in Queen Empress v. Jogendra Chunder Bose (‘Jogendra Bose’)[2] during colonial regime , former as use of spoken or written words to create disposition in the public minds with feelings of enmity or disloyalty and latter as disapproval of government’s measures with the view to obtain their alteration by lawful means without the feelings of hatred , disaffection and contempt. Disapprobation under the statue does not constitute sedition. The sedition law was a self-inflicted weapon inherited from the colonial law even though it has been partially deduced from the Treason Felony Act. Seditious libel in England was born as a tool to supress any speech detrimental to the image of crown or clergymen of high status. In India the provision was first added by Thomas Babington Macaulay as section 113 in the draft law. The law was formally instated in India after amendment by Sir James Stephan in 1870 to control Wahabi rebels’ activities around first war of Indian Independence.[3] However, it said that Sir James Stephan only codified the existing common law according to the judicial principles at that time than reforming it.[4] One example of such judicial precedent he referred is the case of Le Libellis Famosis Which stated that seditious libel against a “public person” should be punished more severely than against a private individual since it concerns not only the breach of the peace, but also the scandal of Government. Also, intention in such cases was also recognized by the court.[5]
Therefore the origin of the law and the interpretation was very parochial with an intent to protect the image of state at any cost. Law Secretary of India at that time attributes it as an “unaccountable mistake”.[6] Such a law helped the colonial powers to have a tighter control and regulation in India. Characteristics of such laws were seen with licensing of the newspaper press and restriction of the public discussion under authorities like Lord Canning and Lord Lytton. And legislations like the Dramatic Performances Act XIX of 1876 (‘DPA’) and the Vernacular Press Act (IX) of 1878[7] were measures to keep a check on seditious activity and suppress any criticism towards the government. Impact of this was evident via Mr. Buckingham, renowned Editor of the Calcutta Journal and an advocate of free Press in India was arrested and deported out of the country.[8] Approach of courts during sedition trials of many great personalities as Bal Gangadhar Tilak in Queen-Empress v. Bal Gangadhar Tilak [9]was a narrow one by plainly understanding the offence by a merely attempting to incite certain feeling or display of resistance than any rebellion or an armed resistance. Similar approach was applied by court in Ahmedabad trials of Mahatma Gandhi for publishing in Young India and even thereafter. Section 124A IPC was again amended in 1898 by the Indian Penal Code (Amendment) Act 1898 (Act V of 1898) and the amended section made bringing or attempting to bring in hatred or contempt towards the Government established by law, punishable. While the former section defined sedition as exciting or attempting to excite feelings of disaffection to the Government established by law.[10]
We therefore understand that Sedition as an offence from the origin only has been an instrument to curb speech that might be offensive to the power structure placed and the only raison d etre it promotes is that “might is right” in total opposition to Athenian principle of Parrhesia. John Stuart Mill, an advocate of free speech believes that individual development is possible through truth seeking as even an erroneous opinion contains a portion of truth from the prevailing opinion and even if prevailing opinion is complete truth, it is completely understood through its core once it is discussed, debated and frequently challenged.[11] It is important to know that this principle of free speech was recognised by our Constituent Assembly as they were reluctant to add sedition as an restriction to the freedom of speech and expression to then article 13 of the draft constitution.[12]
The word “sedition” was deleted and presently the restrictions under Freedom of speech and expressions are interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.[13] The whole rational of the assembly was that any attack on the government itself should not be an offence under the law but the gist of an offence should be in instances where due to public disorder, Government and the law ceases to be obeyed because no respect is felt any longer for them and anarchy can follow.[14] This view was held by great luminaries like K.M Munshi and Shri M. Ananthasayanam Ayyangar. Even presently we are cognizant of the fact that between 2016 and 2019, the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) increased by 160% while the rate of conviction has dropped to 3.3% in 2019 from 33.3% in 2016.[15]
Even though the law is not removed from the statue books but judiciary has seen its own journey in the interpretation of sedition law in line with the constitutional guarantees. First, we have seen Tara Singh Gopi Chand v The State [16] that held that a restriction on a fundamental right shall fail in toto if the language restricting such a right is wide enough to cover instances falling both within and outside the limits of constitutionally[17] . Romesh Thappar v. State of Madras[18] and Sabir Raza v. The State [19] struck down this law and stated that section 124-A is void as it contravenes the right of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution and even Allahabad High Court upheld the constitutional validity of freedom of speech and expression in light of in Ram Nandan v. State.[20] These decisions were followed by a more widened and new interpretation of Sedition law devised by Supreme Court in Kedar Nath v. State of Bihar (Hereinafter Kedar Nath Judgement)[21]. Kedar Nath Judgement upheld the validity of section 124-A of IPC in the light of interpreting the provision in more than one way and using “security of state” as the ground to uphold the constitutional validity of the provision because security of state is the goal behind preventing public disorder.[22]
Court herein recognised the tendency to incite violence or intention, the act was sought to read as a whole than just limiting to the literal interpretation. Only those activities have a tendency to create disorder or disturbance of public peace if resorted by violence, so mere criticism of governmental action, however strongly worded would be protected by Article 19 (1) (a) of the constitution of India and would amount as disapprobation of the measures of government to their improvement or alteration by lawful means which is not prohibited under Sedition.[23]Therefore court in Kedar Nath applied a balanced approach between public disorder and right to free speech and did not struck down the law , in other words court stated that to excite feelings of enmity is not synonymous to disloyalty to government if there is no intention to create public disorder by the use of violence.[24] Another development to interpretation of Sedition Law was the case of Brij Bhushan v. State of Delhi[25] where court made a distinction between public disorder and security of state as public disorder provided wide amplitude for government to suppress free speech.
“The difference is one of degree. public order is synonymous with public safety and tranquillity and has only local significance. Security of the state, on the other hand, would involve a national upheaval such as revolution, civil strife or war.”[26] Thus, the reasoning that it is justified ‘in the interest of public order’ would also consequently be justified in the interests of the ‘security of the state’ would not stand. This distinction was not made in Kedar Nath Judgement. Hereafter many cases have seen this modern implementation in conformity with constitutional guarantees which also justifies that why there is low conviction rate in sedition cases at a time when the number of arrests under this law is only increasing. Cases like Ram Monhar Lohia [27]and Balwant Singh v. State of Punjab[28] have added to more interpretations like disturbance of public order a requirement for the offence to be proved. Kedar Nath judgement has been a landmark judgement and a transition from the previous phase of parochial interpretation and many cases have been interpreted in that light in future like Nazir Khan & Ors. v. State of Delhi[29] , Bilal Ahmed Kaloo v. State of Andhra Pradesh[30] and many more.
However, in spite of a broader interpretation, the governments keep using this law as a means prevent criticism or to prevent freedom of speech and expression. It has become a regressive tool in the hands of the government to make citizen’s life incommodious and create an atmosphere of fear. Reports show how the arrests under this section has only been increasing[31] , even though the conviction rates are low. This adds to the burden of court and is torturous for innocent victims to bear the hassle of courts and lawyers along with the threats that with it. This has made critics question the law again and there are 2 kinds of demands at hand. First, to make amendment in the law itself and make it line with the constitution by possibly changing the terms like disaffection, inciting violence or hatred or following the example of Australia by replacing the word “sedition” with “urging violence offences” to limit the offence to acts that incite violence for the purpose of disturbing or overthrowing constitutional authority.
Second option is to repeal the law itself as there are many other alternatives to control activities that cause violence or attempts overthrow the government by violent or unlawful means present under offences to security of state like treason, Unlawful Activities (Prevention) Act, waging war against the government and many more which helps in maintain the security of the state. But we need to question ourselves again, is repealing or amending a law enough? An effective implementation requires participation of all stakeholders and awareness of the common public about their rights. Awareness about the intent of laws at the recruitment level of all stakeholders like the police, bureaucrats, politicians and common citizens. Passing laws is never enough, for us to keep the constitution values alive and enforced, we need participation at all levels and not only by judiciary.
[1]The Indian Penal Code ,1860, §124(a)
[2] Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35.
[3]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, http://www.jstor.org/stable/41151791. Accessed 10 June 2021. See also R. Sammadar, Emergence of The Political Subject 45 (2010) (The Wahabis have been described as an extensive network of rebels who principally participated in the First War of Indian Independence in 1857. They followed a well-organised model of mass preaching, mostly concentrating on political and religious issues to win the support of the people.)
[4] William E. Conklin, The Origins of the Law of Sedition, 15 CRIM. L.Q. 277 (1973).
[5] De Libellis Farosis (1606), 3 Coke 254 (1826 ed.) 77 Eng. Rep. 250.
[6] Nivedita Saxena & Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7 NUJS L. Rev. 121 (2014). See also Walter Russel Donogh, A treatise on the law of sedition and cognate offences in British India, available at http://archive.org/stream/onlawofsedition00dono#page/n23/mode/2up.
[7] Id. at 6.
[8] J. Chandhuri, Law of Sedition in India I, 10 JURID. REV. 385 (1898).
[9] Queen-Empress v. Bal Gangadhar Tilak, (1897) I.L.R. 22 B.
[10] K.I. Vibhute, P.S.A. Pillai’s Criminal Law 335 (Lexis Nexis Butterworths, Nagpur, 2012).
[11] GRAY, JOHN. “JOHN STUART MILL ON LIBERTY, UTILITY, AND RIGHTS.” Nomos, vol. 23, 1981, pp. 80–116. JSTOR, http://www.jstor.org/stable/24219089. Accessed 11 June 2021.
[12] https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
[13] Indian Const. art. 19, cl. 2.
[14] Constituent Assembly of India, 2nd December 1948; Constituent Assembly Debates Official Report, Vol.VII, Reprinted by Lok Sabha Secretariat, New Delhi, Sixth Reprint 2014.
[15] National Crime Records Bureau,Crime in India-2019, https://ncrb.gov.in/,https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf(Last visited 5 June ,2021.
[16] Tara Singhv. State, AIR 1951 SC 441.
[17] Id.
[18] Romesh Thapparv. State of Madras, AIR 1950 SC 124. See also Nivedita Saksena & Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7 NUJS L. REV. 121 (2014).
[19] Cri App No. 1434 of 1955, D/- 11-2-1958.
[20] Tara Singh v. State, AIR 1951 SC 441.
[21] Kedar Nath v. Union of India, AIR 1962 SC 955.
[22] Id.
[23] Id.
[24] Id.
[25] Brij Bhushanv. State of Delhi, AIR 1950 SC 129 : (1950) 51 CriLJ 1525.
[26] Nivedita Saksena & Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7 NUJS L. REV. 121 (2014). See also V.N. SHUKLA, CONSTITUTION OF INDIA 135 (M.P. Singh, 2008).
[27] Ram Manohar v. State of Bihar, AIR 1966 SC 740: (1966) 1 SCR 709.
[28] Balwant Singhv. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785.
[29] Nazir Khan & Ors. v. State of Delhi, AIR 2003 SC 4427.
[30] Bilal Ahmed Kaloo v. State of Andhra Pradesh, AIR 1997 SC 3438.
[31] Supra Note at 15.
Author: Harshita Jain from NLU, Jodhpur.
Juris Centre 