Analysis of the Constitutionality of Section 124A: Sedition law

The purpose of this article is to explain the historical context and importance of the sedition statute found in Section 124A of the Indian Penal Code. In both the legal and social spheres, this section has long been a contentious subject of debate. The notion that it is a threat to the nation’s democratic character is only one of the difficulties it encountered. This article will shed light on the importance and challenges of this law while also drawing an opinionated conclusion after a careful examination.

Need for the analysis:

The harm sedition law poses to a country’s democratic spirit is one of the most significant issues this portion of the IPC has faced, as was previously indicated. Given that India is the world’s largest democracy and that it is responsible for a sizable number of its inhabitants, the aforementioned rationale makes it essential for Section 124A to be examined holistically. Technically, every subject that has a “threat to democracy” component needs to be extensively debated among well informed citizens on a social, political, and legal level.

Background of Sedition law:

Let’s start by answering some simple yet significant questions regarding the law in discussion.

What is sedition?

A criminal act against the state or a monarch is sedition. In the most simple words, it includes rebelling against the state, monarch or any type of authority governing the country. Legally, “the illegal act of revolting against established authority, often in the form of treason or defamation of a government” is referred to as sedition.[1]

Where can we find sedition law in the Indian constitution?

The sedition law can be found in the Section 124 A of the Indian penal Code which states a person will be prosecuted with sedition under this section if they use words, signs, or any visual representation to “bring into hate or contempt, or incite or seek to inspire disaffection against the Government constituted by law in India.”[2] According to this section this is a non-bailable offense and can lead the offender imprisoned for three years and up to life imprisonment too in severe cases.

Apart from this, the law can also be found in the following:

  • Section 95 of the Code of Criminal Procedure, 1973: It lays the procedural steps against any document that, in the opinion of the State/ government, appears to include information that violates section 124A, section 153A, section 153B, section 292 or section 293 or section 295A of the Indian Penal Code.[3]
  • Section 2 (0) (ii) and (iii) of the Unlawful Activities (Prevention) Act, 1967: It titles acts of threatening Indian sovereignty and showing disaffection to the nation as unlawful acts.[4]
  • The Prevention of Seditious Meetings Act, 1911: It involves defining seditious meetings, defining the government’s power, stating penalties et cetera.[5]

How did sedition law make its way into the Indian constitution?

Sedition law is a deeply rooted provision in the system of the colonizers. This law is used as a tool by the colonizers to suppress the voices of dissent and criticism. It does not allow any form of disagreement, rebel revolt or protest against the people in power. Through this law, it is easier to criminalize such acts so that the power remains in the hands of the colonizers. In India, this law was introduced by Sir Thomas Macaulay in the year 1837 through his draft proposal. When the Indian Penal Code was formed in the year 1860, this particular law was not a part of the statute. Eventually, around the 1870s, there was an amendment which was a result of the sudden need to suppress the rising amount of criticism, dissent and protests against tyranny. Dissent and criticism challenges the rule and can overthrow the rulers, it is that powerful. This poses a threat to the autocratic regime which is why the regime feels the need to suppress it. In India, the primary aim behind the introduction of this law was to suppress the protests motivated by the people’s desire for independence. Prominent freedom fighters of India like Bal Gangadhar Tilak and Mahatma Gandhi were also booked under the provisions of this law for going against the colonial authorities. The first ever case of sedition was in 1891 when Jogendra Chandra Bose was arrested for criticizing a colonial bill that talked about age of consent, in the newspaper. The article by him in the newspaper had a wide reach and could incite a rise in actions of speaking up against the colonial decisions, questioning, criticizing or giving opinions about it and this threatened the power of the colonizers which is why they used their tool to suppress him and maintain their authority.

Now the question which arises is, Why such a provision was accepted in the Indian constitution if it is so authoritarian in nature?

At the time of Indian independence, the country faced a partition of territory and was divided into new India and Pakistan (a Muslim State). There were immensely intense debates about including sedition as a provision under the legally binding constitution of India, keeping in mind the nature of the law could violate the fundamental right of freedom of speech, freedom to protest and other civil and basic rights. After the rounds of debates the constitution makers identified that time as “extraordinary times” and also stated that reasonable restrictions should be added to the fundamental right of freedom of speech or protest et cetera, in order to protect the sovereignty of the nation owing to the amount of violence and communal conflict that period saw. At this time, Jawaharlal Nehru opposed the argument of using sedition as a reasonable restriction to the fundamental rights so the constituent assembly decided to  narrow the scope down to just being against the “overthrowing of the authority”. This is precisely why the constitution makers decided to retain the sedition law from the colonial rule to the independent India’s constitution.

This is how the sedition law provision made its way into the Indian constitution.

Importance of Sedition law in a democracy:

This provision holds a lot of significance even in a democracy which makes it a controversial topic to have a debate on. Following are the merits of having sedition law in the constitution:

  • Prevents misuse of freedom: Absolutely independent fundamental rights can lead to the misuse of such rights. So, to prevent that from happening there should be laws or some kind of framework that provides direct or indirect reasonable restrictions to such rights. By this the rights will not be absolute and will be subject to some important restrictions which will prevent the misuse but at the same time provide adequate amount of freedom. The scope of such rights should not be unlimited which is duly ensured by this law.
  • Prevents insurgency: This law prevents acts of insurgency which basically involves overthrowing the government by rebellious mobs. It is reasonable behind the rationale that if the citizens are unsatisfied by the ruling government then the constitution provides a framework to remove the government from power in a democratic way. So, in case of dissatisfaction, the citizens can change the people in power by exercising their democratic rights in a civilized way. By this means, the power can be prevented from going into the wrong hands.
  • Helps to maintain the balance between rigidity and flexibility: Indian constitution is neither a rigid nor a flexible document, it is a blended mixture of both. It isn’t as rigid as the colonial rule and also isn’t too flexible which can cause their own sovereignty. It has kept a balance between rights and duties of the citizens.
  • To protect the national identity of citizens: This law allows to suppress anti-national groups and prevent them from having an undue influence on the population leading to provoking them against the government of their own country. This law helps protect the nation’s sovereignty and hence the citizens’ national identity.
  • To maintain the non-violent atmosphere of the democracy: A lot of times, revolts can turn violent and can cause immense loss to the public property and hence the nation. Violent revolts are mostly considered mala fide, which is why at such times it needs to be suppressed in order to maintain the public safety and order. This makes this law very significant.

Shortcomings and issues:

In the year 1962, in the Kedar Nath Singh case, the Supreme court delivered a judgment that included amending Section 124A and revising its scope from prevention of ‘overthrowing the government’ to maintenance of the ‘public order’. After this change, the misuse of this law started taking place by the hands of powerful political parties to make the opposition unable to provide constructive criticism and thus make it weak. Then started the continuous debates over this topic which included the following demerits:

  • Violation of fundamental rights: This law is a clear violation of fundamental rights like freedom of speech and protest. These rights safeguards the spirit of democracies and doesn’t let citizens be repressed by the formation of autocratic regimes. A democracy in the simplest form is a government “of the people, for the people and by the people”, so citizens and their rights should be protected at all costs for a nation to continue being a democracy.
  • Colonial in nature: The sedition law was initially introduced by the colonial government and the main aim of the law was to suppress the citizens so that it’ll be easy to exercise control over them. A law that was beneficial in the set up and maintenance of the colonial regime should not be a part of a democracy. Criticism, dissent, protests and independent opinions are part of basic rights of the citizens which form the very spirit of a democracy and with such colonial laws that can be threatened.
  • Broad scope: As per the statute, the role of the law is to maintain the “public order”, which is a very broad term and its exact definition is not provided. This makes the manipulation of the definition of “public order” possible according to the needs of the people in power. Since the scope is so broad and there is no limitation provided, it can include basic rights in the category of sedition too which again poses a threat to the democratic spirit of the nation.
  • Prevents the Indian constitution to be a transformative constitution: Since the law is colonial in nature, it somehow leads to rigidity and doesn’t let the constitution transform the society towards its betterment by keeping it away from the scope of colonial laws, hence challenging its transformative nature.
  • Suppress criticism: Constructive criticism is what makes a democracy better. The citizens are expected to provide healthy criticism to the ruling leaders and let them know about their needs so that the leaders can work towards it. Criticism is what makes ruling leaders realize their shortcomings and work to improve upon them and hence improving and developing the nation as a whole. Suppression of criticism will only lead to authoritarianism.
  • Suppress opposition: Oppositions’ job is to criticize and make the ruling party work according to the expectations of the society. Suppression of the opposition will only lead to the rise of totalitarianism.
  • Attach nationalism to the government: This law can easily be manipulated by the people in power and there are instances where they used this law to book people whenever they disagreed with their decisions. This is how they make nationalism associated with loyalty towards the government and never criticizing its actions which again is not democratic in nature.
  • Target minority for speaking against majority’s decisions: The democratic representatives are chosen by the process of elections and it’s obvious that candidates supported by the majority community will get more votes and will get elected into power. Mostly, in such cases the needs of the minorities are overseen and whenever they try to express their opinion on the majority’s needs and decisions, they can be booked under this law for being “anti- national”. This makes it a threat to the minorities and hence democracy as it violates the right to equality to an extent.

Recent instances of Section 124A being in the news:

According to the 2020 National Crime Records Bureau (NCRB) report, although there were 70 sedition charges filed in 2018, no one was ever found guilty.[6] The same Bureau also held that Assam has faced the most sedition cases in the past eight years of time. This is why the controversy around this law has again been in discussion all over the news.

Most of these sedition cases are totally unreasonable and are just hurting the democratic spirit of the country, some of the instances of recent times are:

  • Sedition cases against JNU students for protesting.
  • Sedition cases against a scholar from Assam for criticizing “the citizenship law”.
  • Sedition cases against an activist for sharing “a toolkit” online to support farmers protest accompanied by a lot of protesting farmers also facing the same charges.
  • All members of a village in Tamil Nadu face the same charge for protesting against a nuclear power plant.

These incidents wouldn’t have been considered sedition if the scope of sedition law was just to prevent “overthrowing of the authority”. These cases are booked under the scope of maintenance of “the public order” which ended up including basic protests too. This is not only non-democratic but also goes against the provisions of the International Covenant on Civil and Political rights (ICCPR) which is ratified by India so it makes India obliged to follow its provisions.

The rapid rise of sedition cases according to various reports has made this law a topic of concern. The pendency of sedition cases also increased tremendously which made the authorities reconsider the constitutionality of this law. As a result on May 11th in the year 2022, the Supreme court suspended Section 124A that includes Sedition law until further notice. The police are encouraged to not book people under this law till the time the Supreme court analyzes the reason behind the rise of sedition cases, their reasonability, validity of the law in these cases and misinterpreted sedition cases.

The center government also asked the Supreme Court to reconsider this law so that the “colonial baggage” can finally be laid off. Indian authorities are duly working towards a solution for making this law not challenge the spirit of democracy and correct the wrongs done by the lack of defined scope of this law.

Conclusion:

After this analysis, it is safe to conclude that Sedition law is not a total menace to Indian democracy, it is essential to protect the national identity and sovereignty of the country to some extent. Despite this, the major drawback of this law is the lack of defined scope, which makes the intentional or unintentional misuse or confusion in interpretation of this law. This provision has its roots in colonial rule, which is why if this is to be retained in the democratic constitution, it should be heavily and thoroughly altered according to the needs of a democracy. Currently India is facing a spike in unreasonable use of this law which is being considered by the legal authorities of the country. A balanced approach to amend and regulate this law is what is required because it is essential enough to not scrap it completely and dangerous enough to keep it the way it is.

Way forward:

Following can be done to make this law appropriate to a democracy like india:

  • The scope of this law can be made limited to anti-national groups, terrorist organizations and people intended towards “overthrowing the government”.
  •  The scope of this law, if kept as maintaining the ‘public order”, should be narrowed down and the things included under this title should be defined and layed down properly.
  • The judiciary and higher authorities should be paying a vigilant eye on the usage and exercise of this law by the executive. The organs should exercise proper checks and balances.
  • Society should be made aware of their rights and how this law can be misused and how they can save themselves by approaching the judiciary. Proper education to the citizens to make them well informed citizens should be made available. This is the best way to save the interests of the citizens.

[1] Sedition law in India (IPC Section 124A)- History, Pros, Cons available at https://www.iasexpress.net/sedition-in-india-upsc-ias/ (last visited on 7th December 2022).

[2] The Indian Penal Code, 1860, s.124A.

[3] The Criminal Procedure Code, 1973, s. 95.

[4] The Unlawful Activities (Prevention) Act, 1967, (s. 2 (0) (ii), (iii) of 1967).

[5] The Prevention of Seditious Meetings Act, 1911

[6] India’s sedition law,its usage and the opinions around it, India, available at https://www.thehindu.com/news/national/explained-indias-colonial-sedition-law-origins-govt-abuse-courts-take-on-it/article65375097.ece (last visited on 22nd December 2022).


Author: Harleen Dhillon


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