This article is written by Ankita Jangid, pursuing BBA LLB from Banasthali Vidyapeeth, Rajasthan. This article analyzes free speech and sedition in the context of the stained relationship in light of Disha Ravi’s case.
In India, the right to freedom of speech and expression is universally recognized as a foundation of a free society. It must be safeguarded at all times. The right to freely exchange ideas in public is one of the basic notions in a democratic society. Freedom of speech and expression includes the right to express one’s convictions and opinions freely in society through words, writings, pictures, or any other means of communication. The right to express one’s ideas and opinions without any threat and particularly without any fear of result is important to the growth of a nation as well as for the state.
Free speech and the Constitution of India
The right to freedom of speech is very crucial in a democracy. The preamble of the constitution establishes the importance of freedom of speech as mentioned under Article 19(1)(a) of the Indian constitution. Article 19(1)(a) of the constitution states that all citizens shall have the right to freedom of speech and expression. Freedom of expression serves the following purposes:
(1) To attain self-fulfillment by the individuals;
(2) To discover the truth;
(3) To strengthen decision-making participation;
(4) To establish a reasonable balance between social progress and stability;
The main features of the right to freedom of speech and expression are:
- The rights under Article 19(1)(a) are available only to the citizens of India and not to a foreigner. Therefore, a foreigner cannot claim this right.
- The right to freedom of speech and expression includes the right to express one’s ideas and opinions at any issue through any communication medium and visible signs such as words, writing, gestures, etc.
- The right to free speech and expression is not absolute. It allows the government to impose reasonable restrictions in the interest of sovereignty and integrity of India, friendly relations with foreign states, public order, security of the state, decency, and morality, contempt of court, defamation, and instigation of an offense.
- These restrictions on the freedom of speech and expression of an individual citizen may be imposed by the state actions as well as for inactions. As a result of this, if the government failed to provide all its citizens with the right of freedom and expression, it would constitute a violation of Article 19(1)(a) of the Indian constitution.
Sedition and the Constitution of India
In India, Section 124-A of the Indian penal code deals with the offense of sedition. This section puts reasonable restrictions on the freedom of expression. Section 124-A of the IPC defines the offense of sedition as follows-
“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 shall be punishable with imprisonment of life or fine or imprisonment which may extend to three years”
The offense Sedition holds all those practices whether done by words or writing which are premeditated to disturb the peace of the state. Thus, the essence of this offense is to incite the violation.
Overview of Disha Ravi’s case
The farmers’ protests in India have not only influenced the nation but also caught international interest. Several tweets have come from great personalities such as Greta Thunberg and Rihanna. Disha Ravi, a 22-year-old environmental activist was arrested for her involvement in the toolkit case during the farmer’s movement against the new farmer’s bills in 2020. She was accused of the offenses of sedition and criminal conspiracy. The Patiala House Court passed an interim order and granted bail to the applicant. Due to the lack of any strong evidence on the part of Disha Ravi, the court set her free and made certain observations regarding the applicability of the law of sedition in India. The court upheld that dissent and divergence of thoughts was a sign of healthy democracy as the fundamental right to free speech is protected under the Indian Constitution. The court also stated that the right to seek a global audience was a part of freedom of speech and expression.
The toolkit case
What is a toolkit
A toolkit is a kind of document which provides online resources to give knowledge about the cause of a particular protest and its achievement. This digital toolkit is equivalent to the offline street protests where we hold pamphlets and hoardings. In the current scenario, social media has become a significant platform to express opinions and views. Various activists get together through a toolkit to explain what the protests are about and how the people can support them.
The toolkit case controversy
The famous teenage climate activist Greta Thunberg shared a toolkit on her Twitter account to support farmer’s protests in India. The toolkit document shared by her consists of the action plan to ‘carry out protests outside Indian embassies’ to support the cause. It also highlighted the various actions planned to boost up their voices online to support the farmer protests. As soon as the toolkit was shared by Thunberg, it was met with a lot of criticism. After this, she eventually removed the tweet in a few minutes, posted a modified version of the toolkit, and linked to it. According to Delhi Police, this toolkit document played a major role in the January 26 protests so violent that they injured police personnel.
Thunberg’s tweet attracted a great amount of media attention. The young climate activist Disha Ravi was suspected of conspiring with the pro-Khalistan party to defame India. As per the Delhi police investigation, Disha Ravi and two other activists created a toolkit and shared it with others intending to defame India globally. The police also asked Google for the email accounts of those who were involved in the publication of the documents. The Delhi police in their investigation mentioned the Poetic Justice foundation, a pro-Khalistan group involved in the toolkit document to provoke the enmity against India.
As a result, the Delhi police took a step and arrested Disha Ravi for working with the pro-Khalistan to spread anti-Khalistan sentiments with the use of a toolkit. She was the primary writer of the paper named ‘toolkit google docs’ which facilitated the transmission of the toolkit and made her the key conspirator.
Observation by the Court of Law
An additional session judge, Mr. Dharmedra Rana granted bail to climate activist Disha Ravi, made certain observations while delivering the judgment:
- The Court issued bail due to lack of evidence on her part cited as scarce and sketchy
- There is no direct evidence establishing the link between Ravi and the violence committed on January 26, 2021.
- The state also failed to produce any evidence in support of the applicant’s connection with the Poetic Justice Foundation.
- The toolkit document cannot be called for or incite any violence.
- He also opined that they cannot be imprisoned only because they disagree with the governmental policies.
- The court rejected the Delhi Police contentions and said that it could not be presumed on conjectures that Ravi supported the violence, solely on the basis that she shared a platform with the people who collaborated to oppose the farmer laws.
- The court further stated that a citizen has a fundamental right to use the best means to communicate as permissible by law.
Reasons behind the stained relationship between free speech and sedition
The abusive nature of Sedition Law in India
Several people have already died due to the abusive use of the Sedition law. In 2019, only 3.3% of sedition cases resulted in a sentence. The mere fact is that 96% of sedition cases brought against 405 people for challenging the government were recorded. The rate of sedition cases has increased by 28% since 2014. As per the recent study by the National Crime Records Bureau, 93% of cases of sedition were filed in 2019.
Despite the increasing agreement globally on the oppressive presence of the sedition laws, they are still used aggressively in India to reduce the right to free speech. Various young activists like Unar Kalid, Kanahiya Kumar, and Anirban Bhattacharya were detained by the Delhi police for calling out anti-national slogans at a rally in 2016. They were all convicted under Section 124-A of the Indian Penal Code, 1860.
An act of sedition results in arousing a feeling of hatred towards the government. The Apex court has upheld in various judgments that the law of sedition is applicable only when there is a person causing violence or encouraging other people to cause violence. So sedition is crucial to make a difference between the disapproval of the government and the statements that seek to topple the government.
Most distressingly, the difference between the ‘nation’ and the government has been blurred that any criticism on the part of government functioning is viewed as anti-national, disloyal, and unfaithful to the motherland. Positive and useful scrutiny of the government policies and the questioning of the success of various state initiatives should be considered an affirmation of love for the nation.
Kedar Nath v. the State of Bihar
In this case, the Supreme Court had to recognize the constitutional validity of Sedition. The offense of sedition is mentioned under Section 124 of the Indian Penal Code which states that doing certain acts towards the government in India brings hatred or contempt or creates disaffection against it.
The validity of Section 124-A has been challenged in various cases like in the case of Ram Madan v. State of Uttar Pradesh, the High court held that Section 124-A imposes reasonable restrictions on the freedom of speech against the interest of the general public and hence declared Ultra Vires. The decision of the Hon’ble High court was overruled in the landmark case of Kedarnath Singh v. the State of Bihar.
Facts of the case
The appellant Kedarnath Singh was a member of the Communist Party of Bihar, used the wrong word ‘dogs’ for C.I.D officers or ‘goondas’ for the Indian National Congress party. He also claimed that in the coming revolution they would consume the capitalists, the zamindar, and the Congress party leaders in flames and establish a government on the ashes of the poor or downtrodden people of India.
As a result, the case was filed against him on the grounds of Section 124-A (sedition) and Section 505 ( public mischief) and was sentenced to rigorous imprisonment for one year.
On appeal before the single bench of Patna High Court, the conviction was upheld and the said appeal was dismissed on the ground that the subject matter of the charge against the appellant was nothing but vilification of the government and that the speech is taken as completely seditious. It is not a speech criticizing any particular policy of the Government or criticizing any of its measures.
On further appeal, the case went before the constitutional bench of the Supreme Court as the issue was based on the constitutional validity of Section 124-A and Section 505 of the Indian Penal Code.
- Whether Section 124-A and Section 505 of IPC are ultra vires concerning Article 19(1)(a) read with Section 19(2) of the constitution of India.
- Whether the motive or intention is required to create disorder, disturbance of law, or incitement to violence to constitute the offense of sedition.
While dealing with the first issue, the Hon’ble Supreme Court held that the security of the state, maintenance of law and order are requirements to be taken care of and involve punishment for the person committing the crime against the State.
Accordingly, the Supreme Court held that Section 124-A and section 505 of the Indian Penal Code are the intra vires considering Article 19(1)(a) read with Article 19(1) of the constitution of India.
On dealing with the second issue, the Supreme court clearly stated that the Section 124-A can only be interpreted by the Judges, hence the two essential elements to constitute the offense of sedition is:
- The act must intentionally have the effect of bringing down the government by using violence;
- The act must be intended or has a motive to create disorder, disturbance of public peace and order by incitement to violence.
Shreya Singhal v. Union of India
This case is very significant as it struck down Section 66A of the Information Technology Act 2000 was found in contravention of Article 19(1) of the Indian Constitution which grants all citizens the right to freedom of speech and expression. In this case, the police arrested the two women for posting offensive comments on Facebook after the death of Shiv Seena leader Bal Thackeray: one of them posted the comment and the other one simply ‘liked’ it.
The police were arrested under Section 66A of the Information Technology Act,2000. The section states that any person who sends any information through computer resources or any communication and that information that is offensive and causes inconvenience, annoyance, anger, hatred, injury, insult, or ill-will shall be punished.
The incident attracted media attention and criticism. Shreya Singhal, a law student filed a petition in 2012 challenging the constitutional validity of Section 66 A on the ground that it breached the right to freedom of expression.
The court upheld that an individual could not be prosecuted under section 124-A unless their speech, whether “unpopular”, offensive, or unacceptable, had a proven link to any violence or disturbance of public peace. The Apex court made a distinction between the two words i.e., advocacy and incitement concluding the latter is a punishable offense. The court also invalidated section 66 A of the information technology act, 2000 totally as it violated the right of freedom of speech and expression under Article 19(1)(a).
Overall we can conclude that the government and people have their own contentions regarding the sedition law and freedom of speech, but both of them stand on two ends. The judiciary regarded as the third pillar of our constitution greatly understands the citizen’s rights and duties. Disha Ravi’s arrest has been viewed as an illegitimate action. The judges also believe in the right to liberty and the provision for granting bail only in extreme cases.
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