This article is written by Akshita Gupta, pursuing BBA LLB from Symbiosis Law School, Noida. This article discusses how the sedition law in India is different from the English law of sedition.
Roots of sedition in India
Sedition is defined as clear actions, gestures, or statements by an individual in oral or written form that indicate dissatisfaction with the state’s established government with the intent of inciting violence or hatred against it.
When the Indian Penal Code, 1860 was framed by Thomas Macaulay in the year 1837, the sedition law was mentioned under Section 113. In the year 1860, when the draft was enacted Section 113 was omitted. Then, in the year 1870, to deal with the increasing activities of Wahabi, the British colonial government introduced Section 124A in Chapter VI of the Indian Penal Code (“of offences against the State”).
In the year 1898, with the amending Act, this provision replaced Section 124A in the IPC. According to the British Era, sedition meant exciting or initiating to excite feelings of disaffection against the government. Even after the independence sedition law is still there in India while it has been abolished in England in the year 2010.
Colonial importance of sedition and pre-independence jurisprudence
During colonial times, the Sedition Law was enacted in the year 1870 to curb the voice of freedom fighters and Indian nationalists during that time post the increasing activities of Wahabi which was an Islamic revivalist movement led by Syed Ahmed Barelvi. It was an active movement from 1830 but in the wake of the 1857 revolt, it turned into armed resistance, a Jihad against the British. It was then that Britishers termed Wahabis as rebels.
The first case filed under the offence of sedition was against Jogendra Chunder Bose in the year 1891. In the case of Queens-Empress v. Jogendra Chunder Bose (1891), Jogendra Chunder Bose was charged with encouraging rebellion after publishing an essay in his Bengali journal, ‘Banghosi’. In this paper, he criticised the article Age of Consent Act, which raised the legal age for women to engage in sexual activity from ten to twelve years. He referred to it as “forced Europeanization,” and he chastised the British authorities for interfering with Hindu rituals.
It was held by the Calcutta High Court that the publishers could not be exonerated of legal duty just because they did not write the seditious content since the magazine’s circulation was meant to be read by the target population. The contrast between disapprobation (a valid criticism) and disaffection (any sentiment that is opposite to affection) was further underlined by the High Court. The Court held that because only disaffection is punishable, sedition does not abridge people’s rights.
In the case of Queens-Empress v. Bal Gangadhar Tilak (1897), Section 124A was defined and applied. Bal Gangadhar Tilak, a notable freedom fighter and advocate, was accused of sedition in this case. He spoke out against Rand, an Indian civil servant who served as the Plague Commissioner in Pune. Many people, including Tilak, thought Rand’s disease control measures were oppressive. His revolutionary remarks had incited others to commit acts of violence against the British, resulting in the deaths of two British officers.
The absence of affection was described by the Court as disaffection. As a result, it encompasses “hate, enmity, dislike, hostility, contempt, and all other forms of ill-will toward the government”. The Court went on to say that no one should incite or seek to incite such discontent and that no one should make or attempt to make anyone feel animosity toward the government. This being said, the Court found Bal Gangadhar Tilak guilty of sedition and sentenced him to 18 months in prison. In 1898, however, he was granted bail.
Sedition law – post-independence
After deliberations in the Constituent Assembly, the term “sedition” was removed from the Constitution in 1948. KM Munshi proposed an amendment to the draft Constitution that would remove the word “sedition” as a basis for restricting Constitutional freedom of speech and expression. When the Constitution was established on November 26, 1949, the word “sedition” was removed from the Constitution, and Article 19(1)(a) guaranteed unrestricted freedom of speech and expression. Section 124A, on the other hand, remained in the IPC.
Jawaharlal Nehru introduced the First Amendment to the Constitution in 1951, which limited freedom under Article 19(1)(a) and enacted Article 19(2) thus empowering the state to impose “reasonable restrictions” on the right to free speech.
For the first time in India’s history, the Indira Gandhi government declared Section 124A a cognisable offence in the Code of Criminal Procedure, 1973, which came into effect in 1974 and replaced the colonial-era 1898 Code of Criminal Procedure, allowing the police to conduct arrests without a warrant.
In the year 1951, the first case of sedition, Tara Singh Gopi Chand v. the State, in independent India was filed before the then Punjab High Court, where the validity of Sedition Law was tested.
The High Court ruled that Section 124A was unmistakably a restriction on freedom of speech and expression and that it was invalidated because it violated Article 19(1)(a) of the Indian Constitution’s fundamental right to freedom of speech and expression.
The Jawaharlal Nehru government was prompted by this decision to propose additional grounds on which the right to freedom of speech and expression may be reasonably limited.
Consequently, there have been numerous cases involving sedition in which Courts have questioned its legality, but the Supreme Court decided in favour of the statute in Kedar Nath Singh v. State of Bihar (1962).
Difference between the judicial interpretation of sedition in India and England
Sedition law in England
In the 13th century Britain, sedition was invented as a tactic to limit the independence of the printing press and its ability to criticise the King. Anyone who wrote, printed, or preached any words against the King was subject to the Sedition Act of 1661. It came to denote slander and libel against government officials and judges’ reputations or acts. The purpose was to safeguard the public’s faith in the government and prevent a “breach of peace” in society.
The law had been heavily criticised in the United Kingdom by the 18th century. The Law Commission produced a working paper in 1977 proposing the repeal of the Act. This implied that multiple laws were covering the topics under sedition, and therefore law based on “politics” rather than “policy” was unneeded. The offence of sedition was eliminated 32 years later by Section 73 of the Coroners and Justice Act, 2009.
Sedition law in India
The offence of sedition is committed under Section 124A of the Indian Penal Code. When someone incites or seeks to incite hatred or contempt for the government established by law through words or other means. It is a cognisable, non-compoundable, non-bailable offence. It is an offence imposing life imprisonment as the maximum punishment, with or without a fine.
The following elements must be there to establish that such an act constitutes a seditious act:
- Any comments, whether written or spoken, as well as signs such as placards/posters (visual representation).
- It must incite hatred, contempt, or dissatisfaction with the Indian government.
- It must result in “imminent violence” or public disorder.
According to the Court’s interpretation of Section 124A of the Indian Penal Code, 1860, the following acts are considered “seditious”, that is, groups raising slogans against the government: Individuals who raised slogans like “Hindustan Murdabad” once or twice will not be considered seditious, promoting violence or causing public disruption. Following this, many cases have gone on to expand the definition to include incitement to impending violence as any written work that incites public disturbance and violence.
What are the other laws under which sedition is covered?
The other laws under which sedition is still covered:
- The Code of Criminal Procedure, 1973 – (Section 95);
- Indian Penal Code, 1860 (Section 124A);
- The Unlawful Activities (Prevention) Act – (Section 2(o)(iii));
- The Seditious Meetings Act, 1911.
Unaccountable action of the police
In an attempt to impose some institutional discipline, a petition was filed in the Supreme Court seeking the declaration of a guideline requiring high-ranking police officers to provide reasoned directives stating that the seditious conduct had resulted in violence before registering an FIR. The Supreme Court, on the other hand, concluded the case by declaring that authorities should be guided by the Supreme Court’s 1962 Kedarnath decision when dealing with sedition offences. There appears to be no shortage of manpower when it comes to sedition, Section 153A of the IPC, or enforcing the provisions of Section 66A of the Information Technology Act, 2000 (which has been declared unConstitutional), and the police act quickly.
The authorities have not followed the aforementioned standards since 1962. It follows the guidelines put out in the Supreme Court’s Lalita Kumari decision of 2014, which made it mandatory for police to file an FIR as soon as they receive knowledge that a cognizable offence has been committed. Despite the Supreme Court’s harsh rulings, the police system finds a method to get around to not file an FIR. One such instance of non-registration of an FIR was recently brought before the Supreme Court in contempt proceedings, but it was unable to be shown to the judges due to technological issues.
The other example is what happened after Section 66A of the IT Act was repealed. In several parts of the country, police have been filing FIRs under that provision. The Supreme Court issued directives in 2019 to educate police officers about the consequences of failing to record FIRs under the struck-down clause. However, there have been cases when applicants have sought the quashing of FIRs under Section 66A, but the District and the various High Courts have refused to do so, at least not to the degree that the struck-down Section was concerned, much alone taking any action against the enforcement authorities.
Returning to FIRs filed under “sedition” statutes, the National Crimes Record Bureau reports that the rate of conviction in sedition cases has decreased to 3.3 percent. This, in turn, reflects how easily it can be triggered based on the impulsiveness and urge of police officers. Without a doubt, the Courts have the authority to take necessary action if a person is unfairly accused and his or her personal liberty is violated. To begin with, the Courts should have taken action against law enforcement officials, at the very least in cases where the accused were arrested.
Instances of misuse of power
- In 2011, the Mumbai police detained a cartoonist named Asim Trivedi for allegedly spreading a drawing mocking the Constitution and the National Emblem during an anti-corruption event organised by Anna Hazare. As a result, the Bombay High Court issued instructions to the police that top officials should be consulted before detaining someone on allegations of sedition.
- A 53-year-old man was detained in Chhattisgarh on accusations of sedition for allegedly spreading rumours about power outages in the state on social media. It was said that this was done to smear the image of the government in power at the time. The charge was absurd, and it exemplifies the abuse of power once more.
- In Manipur, a journalist delivered a scathing attack on the state’s chief minister and used unparliamentary language against the country’s Prime Minister. Although the language was coarse and uncalled for, it was not a case of sedition. It was a case of criminal slander at best. Under the National Security Act, 1980, the individual was detained for months.
- A party leader in West Bengal was detained for morphing the image of the Chief Minister, while a man in Uttar Pradesh was arrested for morphing the image of the country’s Prime Minister, which was astonishingly modified five years ago.
- Sedition charges have been filed against a rapper who does not even belong to India. Her language may have been completely inappropriate, and other offences may have been committed, but sedition does not appear to be one of them.
- In a more extreme case, a Tamil Nadu film director was charged for promoting caste hostility under Sections 153 and 153A of the Indian Penal Code after reportedly making remarks about the Chola dynasty king being caste oppressive. This king of the Chola dynasty reigned for over a thousand years.
Sedition and political regime – how political dominance lets governments keep the law of sedition
Recently, the cases that are filed under the law of sedition expresses that the cases are filed for the following three reasons:
- Suppressing criticism and protests against specific government policies and projects.
- Criminalising dissenting opinions from human rights defenders, lawyers, activists, and journalists.
- Settling political scores, sometimes with communal overtones.
As per the data collected by National Crime Records Bureau, the number of cases filed under Section 124A of the IPC increased by 160 percent between 2016 and 2019, while the conviction rate for such offences fell from 33.3 percent to 3.3 percent during the same period. This simply shows that the State has been abusing this provision by filing frivolous or unjustified lawsuits. Citizens’ freedom of speech will undoubtedly be harmed as a result of such misuse, as they will be forced to self-censor.
Moreover, to the sedition law, the Constitution contains preventive detention provisions, as well as a regulatory law known as the National Security Act of 1980. With some elaboration, the Supreme Court upheld its Constitutional legality in 1982. According to reports, 76 of the 139 individuals arrested in Uttar Pradesh under the ordinance in 2020 were tied to cow slaughter and 13 to anti-CAA protests. We have the Uniform Administrative Procedure Act (UAPA), 1967, and the Public Safety Act, 1978. Section 66A of the IT Act hasn’t been seen in a long time. All of these laws put citizens at risk in the face of a powerful government that is rarely held accountable for its criminal actions.
In 2009, a new political administration enacted Section 66A of the Information and Technology Act, creating a new type of crime and removing the fundamental right to free speech and expression. This law was struck down in the year 2015 by the Supreme Court.
Repealing sedition – should India follow England
There have been several cases where people are booked under the law of sedition for mere criticism. Article 19(1)(a) provides the right to freedom of speech and expression which is being snatched away from under the law of sedition. There is no doubt that the state has the power to impose reasonable restrictions on the exercise of such rights in the interest of integrity and the sovereignty of the state, the security of the country, public order, etc. The right of freedom of opinion and the right of freedom of conscience indirectly includes the extremely important right to disagree as well. People are being jailed in various sections of the country for producing cartoons, making unflattering remarks to the heads of state, and so on.
In the year 2010, the UK abolished the law of sedition as a criminal offence. Under Gordon Brown’s Labour government, the Coroners and Justice Act of 2009 banned sedition. The offences of sedition and seditious libel, as well as the offences of defamatory libel and obscene libel, were all abolished. The reason was it was used against people who spoke against the King at that time. There was no right to express at that time which is now not the case in India.
The same has been put up in front of the Supreme Court where it recently asked the centre for its opinion on whether the British-era sedation provision under Section 124A of the Indian Penal Code, which was used to punish freedom fighters like Mahatma Gandhi and Bal Gangadhar to quell dissent and protest. Also, it was asked whether it should be retained even though there has been continuous evidence of its misuse by police without any accountability right up until recent times.
According to the complaint, a law criminalising speech based on unConstitutionally vague definitions of “disaffection toward the government” and other terms “is an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a) and causes a Constitutionally impermissible “Chilling Effect” on speech.”
According to the bench of CJI NV Ramana, Justice Bopanna, and Justice Roy, sedition law should be utilised solely to safeguard the nation’s security and important democratic institutions. Nonetheless, the Sedition Act, enacted by the British to oppress the Indian people, had been widely misapplied in the 75 years following independence, in a variety of ways to suppress dissent.
The nation’s problem is no longer about intervening to prevent the abuse of the legal system in this or that case. It is either deleting or making significant modifications to the way Section 124A of the IPC is implemented. Both citizen freedom and state security are crucial, but the public disorder cannot be confused with an attempt to topple the government or compromise state security, resulting in charges of sedition. As a result, the judiciary’s approach to dealing with this legislation needs to evolve.
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