Dissent is not the only word with a single meaning of “differ in opinion.” This word in itself contains a vast area that is important for every people in the country. Last year in May 2022, the supreme court of India, in its order in the case of S.G. Vombatkere vs. Union of India, put the penal law on sedition law on abeyance till further orders. This order of the supreme court was very significant for the better future of dissent in the country. Many petitions were filled in the supreme court, challenging the constitutionality of the penal provision- sedition law. The court ordered to keep in abeyance all pending trials, appeals, and proceedings of sedition law. Furthermore, the Court recommended that governments refrain from filing any FIRs or taking any coercive measures in sedition cases until the matter is under their consideration. The union of India filled its affidavit and stated that government would re-examine and reconsider the provision of sedition law under the Indian penal code and also the Union of India also requested that the Supreme Court review the constitutional validity of the law on sedition once the government has completed its reconsideration process.
To get a fair idea of sedition law in India and understand its roots, we must understand its history.
HISTORY OF SEDITION LAW IN INDIA
Every Indian is well-versed in the history of the colonial era in our country. Since childhood, we started with knowing the colonial history and learned about Indian`s suffering and oppression by the British. Still, we are under British legacy in some way but only partially. From their draconian laws to their lifestyles, we are under their legacy. This sedition law is the result of the British legacy used in the British era to suppress opposition to colonial rule. Still, our Indian government is using that law to serve its purpose; in reality, it is a result of the British legacy. The back story of sedition law in India is divided into two phases – pre-independence and post-independence. The origin of penal law- sedition laid down in the 1830s when the codification of laws for India started, and before codified law, different types of laws governed the country in an unorganized way.[1] Thomas Babington Macaulay presented the draft Indian penal code, 1837, and that draft included a section that was similar to the current section of penal law sec. 124A and that draft penal code described the punishment of life imprisonment. But this was not enacted in 1860 and enacted in 1870 by an amendment act by the then Law Member of the Governor-General’s Council, James Fitzjames Stephen.[2]
1. SEDITION LAW IN PRE-INDEPENDENCE TIME
Sedition law was enacted in 1870 by the British government to curb the free speech and liberty of Indian, especially Indian freedom fighters. Britishers used this draconian law to suppress the speeches and writings of prominent freedom fighters. They wanted to create fear in Indians. This harsh law resulted in the imprisonment of prominent members of the freedom movement like Bal Gangadhar Tilak, J.C. Bose, and M.K. Gandhi. Twenty years after the law’s promulgation, in the case of Queen-Empress v. Jogendra Chunder Bose[3],the first case to be tried under the country’s sedition laws. This case was registered in 1891 in Calcutta high court. Here, Jogendra Bose published his article in his own Bengali magazine- Bangobasi in 1891 and criticized the Age of Consent Act,1891. The Act was referred to as “forced Europeanization” and a gag on Hindus, who were characterized as being unable to use their legal rights and barred from protesting the Act. The authorities claimed that Bose had incited revolt; in his instructons to the jury, Chief Judge William Comer Petheram defined “disaffection” as “a emotion opposed to attachment, in other words, dislike or hatred,” and connected it with disobedience towards the government.[4] In pre independence India, one of the most famous cases are sedition trials of Bal Gangadhar Tilak that were admired and became the most famous topic of discussion at the national as well as international levels. Many more incidents of sedition occurred in pre independence India that reflect a shadow of this draconian law.
2. SEDITION LAW IN POST-INDEPENDENCE TIME
A major shift in the Indian era came in 1947 when India got independence from the Britishers. A ray of hope spread all over India. New controversies started regarding it in independent India. The debate started in constituent assemble and a large time was spent and by lots of hardship and large debates the term sedition omit. Article 19(1) (a) gave absolute freedom of speech and expression but section 124A retain in Indian constitution. Two Supreme Court judgements from 1950 led to the government passing India’s controversial first constitution amendment in 1951. The first case concerned offensive content in the RSS journal Organiser, and the second was brought against the magazine Crossroads for criticising the government. The top court dismissed the government’s arguments in both of these cases, concluding that public order is not a listed exception to the right to free speech. The court ruled that the freedom of speech and expression can only be restricted if it is primarily intended to threaten the security of the state. Jawaharlal Nehru sponsored the first amendment in response to these rulings, denouncing the law of sedition and allowing the government to impose “reasonable restrictions” on free expression.[5]
However in 1973, late prime minister Indira Gandhi made history by making section 124A a cognisable offence under new code of criminal procedure. It authorised police to arrest a person without warrant. This attempt was grave on freedom of Indian citizen that curtailed freedom at large level .
ATTACK ON FREEDOM OF SPEECH AND EXPRESSION
124A. Sedition.—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.[6]
There are four essential elements of sedition. These elements are given below-
- Intention in sedition is paramount important. There must be an intention to incite violence and public disorder. It is also important that the person knows that such an act or attempt will result in the said reaction.
- Act is also important element of sedition. Speaking, writing, creating signs or other visual representations, as well as any other similar act, constitute the act under the Section.
- It is very important that intended act be done towards a government established by law in India.
- Any danger to its continuity and stability is a crime against the State. Sedition then enters the picture.
Freedom of speech is one of a democracy’s most essential features. A democratic nation is one in which every individual has a voice and the ability to make decisions. Denying them their freedom of speech would destroy democracy as we know it. All citizens in India have the freedom to talk freely and to express their ideas, but it is important to remember that these rights come with responsibilities as well. A democracy can only function as effectively as feasible when the State and its citizens carry out their respective obligations and prioritize the needs of the nation over those of the individual.
Our Indian constitution provides freedom of speech and expression under Article 19 with certain reasonable restrictions. Sedition was ruled to be unlawful in 1961 by the Punjab High Court, which found that it infringed the freedom of speech provided by Article 19. After the Allahabad High Court followed suit, the case was transferred to the Supreme Court. In Kedar Nath v. State of Bihar[7], the supreme court ultimately upheld the constitutional validity of Section 124A ( sedition law). The booking of students, comedians, young people, and others for openly criticising the government demonstrates how sedition restricts freedom of speech and expression.
In 2021 supreme court quashed the charges of sedition on Vinod Dua a journalist and other charges that were registered against him, also, supreme court said that “Every journalist is entitled to the protection under the Kedar Nath Singh[8] case (which defined the ambit of offence of sedition under Section 124A IPC).”[9] The case on Vinod dua was registered by BJP leader of Himachal Pardesh for making comments critical of Prime Minister Narendra Modi and the Central government. Here the government was trying to oppress the voice of journalists which is protected under Article 19.
In recent years, sedition was not only used against journalists but also against other peaceful dissenters all over the country. We can see the rampat use of sedition in recent years.
The Delhi government authorised the prosecution of 18 people, including Khalid and fellow former JNU students Sharjeel Imam, Natasha Narwal, Devangana Kalita, and local politicians Tahir Hussain and Ishrat Jahan, in the Delhi riots case from earlier that year on a variety of charges, including sedition. Then another case was highlighted a sedition prosecution against writer Dhaval Patel for writing that the Gujarat Chief Minister was likely to be ousted due to poor handling of the pandemic was dismissed by the Gujarat High Court on November 6, 2020. Of course, Patel’s apology for the article was the only reason the matter was eventually dropped. This was reflecting the government`s power to suppress freedom of speech. A tweet that accused police of being responsible for a farmer’s death during the Republic Day protests in Delhi led to cases of sedition being filed in Madhya Pradesh and Uttar Pradesh against MP Shashi Tharoor and journalists Rajdeep Sardesai, Mrinal Pandey, Zafar Agha, Vinod Jose, Anant Nath, and Paresh Nath. The arrests were put on hold by the Supreme Court, and the case is still pending.
CONCLUSION
“King is supreme” this notion is a reflection of past and was used in totality during colonial times. Sedition is a colonial law that reflects this notion in current modern India. To make our country a healthy democracy, we need to abolish this colonial law, only then in a true sense are we free from colonial time. In recent few years, we can see lots of cases of sedition in our country, and this is reflecting a clear indication of misuse of power by the government to oppress the voice of the people that is guaranteed under Article 19 of the Indian constitution. . recently by the supreme court in S.G. Vombatkere vs. Union of India, that put the penal law on sedition law on abeyance till further orders is a wonderful and good for healthy dissent. We are hoping best from the supreme court. To hold the government accountable to the general people in a contemporary democracy, dissent and criticism are crucial. A democratic administration must ensure that people have the freedom to express themselves, especially when doing so is directed toward the government. Sedition is inappropriate for the current political climate.
[1] Saptarshi Bhattacharya, The Law of Sedition and India: An Evolutionary Overview (Feb. 20, 2023, 7:30 PM), https://www.thehinducentre.com/the-arena/current-issues/the-law-of-sedition-and-india-an-evolutionary-overview/article65721149.ece#sixteen16
[2] ID. at 2
[3] Queen-Empress v. Jogendra Chunder Bose (1892) ILR 19 Cal 35
[4] Gautam Bhatia, Offend, Shock or Disturb: Free Speech Under the Indian Constitution 151 (Oxford University Press 2016)
[5] Abhishek hari How the Sedition Law Has Been Used in the Modi Era (Feb. 22, 2023, 12:07 PM ) https://thewire.in/law/explainer-how-the-sedition-law-has-been-used-in-the-modi-era
[6] “Section 124A in The Indian Penal Code”. Indian Kanoon. Retrieved 23 May 2023.
[7] Kedar Nath Singh v. State Of Bihar, A.I.R 1962 S.C 955 (India)
[8] A.I.R 1962 S.C 955 (India)
[9] The Wire staff SC Quashes Sedition Case Against Vinod Dua, Says Every Journalist Entitled to Protection, by The Wire ( Feb.25, 2023, 4:13 PM) https://thewire.in/law/supreme-court-quash-vinod-dua-sedition-case.
Author: Tanu Chahar
Juris Centre 