Sedition

This article is authored by Aaron Thomas. This article deals extensively with the Kedar Nath case and does a comprehensive case analysis. The effects of the judgement in the Kedar Nath case on the current socio-economic situation have been extensively analysed. The international perspective along with the history and genesis of sedition law has been explored at length in this article. The most recent developments regarding the law of sedition including the stance of the Law Commission have also been discussed in this article. The primary aim of this article is to simplify complex legal concepts, making them acceptable to a diverse audience.

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction

The offence of sedition has its origins in the archaic principles of the colonial era. Our forefathers inherited a plethora of draconian statutes from the British but few were as controversial as offences related to sedition. In British India, it was an effective tool to constrict the freedom of speech of those under the regime. Sedition finds its genesis in British law; it was enacted to prevent any individual from speaking out against the crown or persecuting those who incite hatred or discontent towards the crown.

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Sedition today is laid down in Section 124A of the Indian Penal Code (IPC)1860. The almost ubiquitous provision derives its ominous nature from the ambiguity and vagueness surrounding the wording of the section itself and also from the judicial precedents that surround it. Through judicial interpretation, sedition has evolved into a law that befits the paradigm of existing laws today. The landmark case that changed and defined the character, enforceability and constitutionality of the law of sedition was the Kedar Nath Singh case. Although the Kedar Nath Singh case dealt extensively with multiple nuanced legal facets, it is most well known as the case in which the Supreme Court upheld the constitutional validity of Section 124-A of the Constitution. This article shall first dissect the Kedar Nath case by doing a thorough case analysis and shall then expand upon the freedom of speech in accordance with fundamental rights and shall finally deal with the applicability and situation of sedition law in the 21st Century. 

History and origin of Kedar Nath Singh vs. State of Bihar (1962)

The roots of the offence of sedition can be traced back to 13th-century England. The rulers at the time viewed the printing press as an ardent threat to the sovereignty of the nation. Using the threat of sovereignty as a guise to hide the actual threat to the monarchy, a collection of Acts was brought into effect from the year 1275 and these were commonly referred to as Scandalum Magnatum in which the offence of treason was also encompassed. The offence of treason was said to be committed when any individual committed an act detrimental to the interest of the ruler. The scope of prosecution under the offence was initially restricted but through legislation and judicial interpretations, the ambit of prosecution was expanded. To overcome the safeguards granted to treason, the offence of seditious libel was brought forth in the case of de Libellis Famosis. The new offence of libel was used to condemn and persecute any criticism directed against public officials and the government. Libel turned out to be an extremely efficacious tool for the persecution of anyone who expressed discontent against the existing government. Thus, in the 18th century when a penal code was being drafted for India it was only logical for the British to import this draconian law from the British legal books to the Indian legal books.

The law relating to the offence of sedition was brought to India through Clause 113 of the Draft Indian Penal Code in 1937. However, when the Indian Penal Code was enacted in 1860, the provision related to sedition was omitted, the explanation provided for this rather strange omission was that it was an ‘unaccountable mistake’. Many historians believe that the section was omitted as an individual can be punished for sedition under other sections that were present in the Act. After witnessing the increasing Wahabi activities in the period leading up to 1870, an immediate impetus was placed upon the British to enact specific provisions for the offence of sedition. The offence of sedition was finally incorporated under Section 124 A of the IPC on November 25, 1870. This Act drew heavily from the Treason Felony Act, which was the prevailing law in England for treason. The importance of the sedition law is definite, as it was the sedition law that influenced the inception and subsequent enactment of the Dramatic Performances Act of 1876 and the Vernacular Press Act of 1878. 

Post-independence the law of sedition continued under section 124A of the IPC. The constitutionality of the Section in some way or another was challenged in the courts on three separate occasions. Section 124A was held to be unconstitutional in the case of Ram Nandan vs. State (1958), and Tara Singh vs. State (1951). These decisions by the Supreme Court and High Court had their reasoning in the severe restriction on freedom of speech imposed on both permissible and non-permissible speech. The government, after being heavily criticised for this impugned section, decided to bring changes to Article 19 and words such as ‘public order’, ‘relations with friendly states’ and ‘reasonable restrictions’ were added to curb the use of sedition.

The history of the Sedition Act is veiled in mystery, and the Act itself is as gloomy as it seems, having been the most targeted section of the IPC and notorious for its severe penalties.

Section 124 A IPC : a brief overview

The impugned Section, i.e., Section 124A is rather brief and concise. Although the Section has been discussed in length in this Article it is of paramount importance that we look into the nuances of the Section by dissecting it.

The IPC provides three explanations along with the statute. The statute itself mandates that no individual shall bring or attempt to bring any sense of hatred or contempt towards the government through speech, writing, actions, etc. If an individual violates this provision, he shall be imprisoned for life on top of which he may be imposed with a fine, the prison duration can also be three years with a fine. 

The three explanations provided in the statute are as follows:

  • The first term explained is ‘disaffection’; it includes disloyalty and all feelings of enmity.
  • The second term explained constricts the ambit of the section. It is explained that expressing contempt against the government in an attempt to get reforms for some laws does not constitute the offence of sedition.
  • The third explanation follows the rationale of the second explanation. It is explained that comments or actions expressing disapprobation towards the government without inciting any violence or attempting to incite any violence do not constitute the offence of sedition.

Sedition law : an infringement of Article 19(1)a or not

Importance of Article 19(1)a of the Indian Constitution

Article 19(1)(a) is a crucial article upholding the fundamental right of freedom of speech and expression. It states that all citizens should have the right to freedom of speech and expression. It provides the citizens the right to freely express their thoughts, opinions and ideas. These rights include the right to express oneself through any means necessary, this may include speech, visual representation, writing or any other means. These freedoms are, however, open to reasonable restrictions keeping in mind the sovereignty and integrity, among various other tenets of the nation. These restrictions are subject to amendment from time to time and it is the constitutional duty of the judiciary to make sure that the restrictions imposed do not transgress the permissible limit. This right which has been guaranteed by the Constitution is a basic and indivisible right for a democratic polity. The main elements of freedom of speech and expression are:

  • The right is not absolute as the government can impose reasonable restrictions upon it.
  • The state has the responsibility to safeguard this right and any failure to do so would be regarded as a violation of the citizen’s rights.
  • This right cannot be extended to a non-citizen of India.
  • The right guarantees an individual to share his/her opinion through any medium.

Infringement of Article 19(1)a of the Indian Constitution by Section 124A IPC

Although the constitutionality of the impugned section has been upheld in the constitution in the Kedar Nath judgement, the ratio laid down in some High Courts pertaining to the constitutionality of the section has differed. Judicial interpretation plays a paramount role in the decisions of various High Courts. The Supreme Court has given a wide range of interpretations in the matter and this has been adopted by different High Courts from time to time. In some cases, while dispensing allegations of sedition, oftentimes the the High Courts address the varying interpretations and how in the current situation it doesn’t fit into any interpretation. The views of various case laws have been elucidated below with the help of relevant case laws.

In the Punjab High Court, when Tara Singh was charged with the offence of Sedition (Tara Singh Gopi Chand vs The State, 1950) under Section 124A of the IPC, the petitioner contended that Section 124A does not fall under the reservations granted by clause (2) of Art. 19. The case held that even if one part of the Section was unconstitutional, the Section wholly becomes unconstitutional as the Section cannot be severed. The Patna High Court in the case of Debi Soren (1953), held that mere speeches castigating the Government do not fall under the purview of sedition. The High Court explicitly held that criticism of the administrative and legislative measures of the government in the interest of bettering the living conditions of the citizens was not punishable. The court held that the efforts to build a new state could not necessarily come under the purview of Section 124A whether interpreted through the wider interpretation of the Tilak case or the narrow interpretation in the Niharendu Dutt Majumdar case. The application of law in the Debi Soren case has been lauded by the public as it held that disaffection towards the government was held to be not sedition, this avoids constricting the freedom of speech of an individual to extreme extents. The Court made an extremely intriguing observation in this case when it observed that any activity that creates hatred or contempt towards the government may not necessarily incite violence among the masses and in such a case the restrictions imposed by Section 124-A are reasonable restrictions on the freedom of speech.

The cases cited above predate the Kedar Nath Singh judgement but the principles that can be inferred remain the same. The applicability of the law of sedition depends on its interpretation by each judge. This leaves a lot of room for judicial errors and potential infringements of the freedom of speech. There have been scores of outcries for the repeal of the law as it does not befit independent India. 

Analysis of Kedar Nath Singh vs. State of Bihar (1962)

Background

Kedar Nath Singh was an eminent critic and essayist and had won a myriad of prestigious awards for his poems. Kedar Nath was arrested for giving a speech in which he criticized the Congress government and instead advocated for the Forward Communist Party. He was found guilty by a 1st Class Magistrate at Begusarai in the district of Monghyr, where he filed an appeal to the High Court of Judicature at Patna. Having his appeal struck down by the High Court, Kedar Nath appealed to the Supreme Court wherein a constitutional bench was constituted to hear his matter. This appeal was combined with other matters such as:

  • An appeal regarding arrests for similar speeches made in Uttar Pradesh at the All India Muslim Conference;
  • An appeal regarding multiple arrests made at a Bolshevik Party Convention;
  • An appeal concerning the arrest of Mr Parasnath Tripathi for delivering a speech in a village in Uttar Pradesh instigating the formation of an army to overthrow the Government. 

The matter was heard by a bench consisting of Chief Justice B.P Sinha, Justice A.K. Sarkar, Justice J.R. Mudholkar, Justice N. Rajagopala Ayyangar and Justice S.K. Das.

Arguments of the Appellant

  • Janardan Sharma, counsel for the Appellant, argued that Section 124A of the Indian Penal Code was ultra vires of the Constitution as it infringes Article 19(1)(a). He contended that sedition acted as an efficacious tool to prosecute those making permissible or impermissible speeches. He argued for the absolute right of any citizen in a democratic nation to criticise the Government in a bid for change.
  • C.B. Agarwala interpreted crucial jurisprudence laid down by courts in earlier cases. He contended that the view of the Federal Court in Niharendu Dutt’s case was what was prevailing in India at the time and not the view of the Privy Council in Bhalerao’s case. He raised the need to draw parallels between English Law and Indian law as the wording of the English law of sedition is similar. In England, however, the offence of sedition must have the necessary mens rea to disturb public peace, the same goes for the Canadian Criminal Law. He argued that the case of Niharendu Dutt Majumdar adopted the correct position of law, and the jurisprudence set down in the case should also be used in the case at hand. 

Arguments of the Respondent

  • Gopal Behari, the counsel for Respondent, argued that the interpretation adopted in English law does not necessarily include an intention to disturb public order. According to him, the interpretation of the Privy Council had been accepted by many High Courts and as such that interpretation should be adopted in this case. He agreed that any prosecution done under Section 124A for any speech that does not induce public disorder is violative of Article 19(1)(a) and these cases do not come under the purview of 19(2) as placing restrictions on these speeches is not in the interest of public order. He contended that the court could not rewrite the section by removing from its purview those speeches that have no intent to disturb public order; either the Section passes or fails wholly. 

Judgement

On January 20 1962, the judgement was pronounced by the then Chief Justice of India B.P. Sinha. Before delving into the arguments of the appellant and respondent, the court explained the history of sedition law. The judicial history of the law will be discussed below.

  • The S.C. noted the explanation of the law of sedition by the Chief Justice to the jury in the case of Queen-Empress vs. Jagendra Chunder Bose (1891).
  • The S.C. also noted the explanation of the law of sedition by the judge to the jury in the celebrated case of Queen-Empress vs. Bal Gangandhar Tilak (1916).
  • Bal Gangandhar after being convicted by the High Court, appealed to the Privy Council and the case was heard by a full bench. The views of the Privy Council have also been mentioned in the judgement. 
  • The case of Queen Empress vs. Amba Prasad (1897) was also mentioned as the case laid down clarifications on the word disaffection. In the referred case, sedition was used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority. It was also held in this case that the word disaffection, does not mean mere absence or negation of love or goodwill but a feeling of hatred and discontent against the Government to weaken the bond of allegiance. 

The Supreme Court stated that no cases with direct correlation to the subject matter to the case at hand had been decided previously. There were only two cases that involved consideration of the fundamental right of freedom of speech and expression, and the restrictions imposed upon these rights, these were Romesh Thappar vs. the State of Madras and the case of Brij Bhushan vs. The State of Delhi (1950). In the Romesh Thappar case, the court declared that the Madras Maintenance and Public Order Act, which authorised the imposition of restrictions on the fundamental freedom of speech and expression was in violation of Article 19(2) of the Constitution and subsequently, it was struck down. In the Brij Bhushan case, Section 7(1)(c) of the East Punjab Public Safety Act was struck down as unconstitutional as the restrictions of freedom of speech were in excess of Article 19(2) of the Constitution. The tacit difference between the ‘security of the state’ and ‘public order’, which was laid down in the Romesh Thapar case was also mentioned. 

Another case that sheds light on the ambit of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression is the case of Ramji Lal Modi vs. The State of U.P. (1957). This case dealt with the constitutional validity of Section 295A of the IPC and the limits of the restrictions on the fundamental right to freedom of speech and expression. The impugned section contains the words ‘in the interests of’ and not ‘for the maintenance of’. This wording makes the scope of this Section extremely wide. This case showcased the authority of the legislature to impose reasonable restrictions on exercising the fundamental right of freedom of speech and expression. 

The case at hand deals with the constitutionality of Section 124 by analysing its abidance with Clause 2 of Article 19, with due regard to reference to the security of the state and public order. The court drew a fine line between disloyalty to the government and strongly worded criticism of governmental actions. The court observed that the only contention brought before it was whether strongly worded criticism would come under the ambit of this section, and it was held that this would be outside the scope of this section. 

The court proclaimed that it, as the custodian and guarantor of fundamental rights, has the duty to strike down any law that would jeopardise the freedom of speech and expression. However, the freedom of speech has the ability to become a tool for the vilification and condemnation of the government which in turn has the possibility of creating public disorder. The court recognized its duty to demarcate the fine line between a citizen’s fundamental rights and the power of legislation to impose restrictions on that right in the interest of public order. The case of R.M.D. Chamarbaugwala vs. The Union of India (1957) was cited as this was a case in which many prior decisions of the Supreme Court regarding the interpretation of statutes were analysed. It is pertinent in this case as it was held that, if any provision of an impugned provision is unconstitutional through one interpretation and it is constitutional through another, the courts will take the latter interpretation and constrict the application accordingly. The same ratio decidendi of that case was to be applied to the case at hand. The court recognised the tacit restrictions on freedom of speech that the impugned section imposes and goes on to explain that this restriction is in line with Article 19(2). The court further declared that this restriction was in place explicitly to safeguard the public interest. The appeal was ultimately dismissed by the court. 

Analysis of judgement in Kedar Nath Singh vs. State of Bihar (1962)

The decision of the Kedar Nath case unequivocally brought into light one of the cardinal flaws in the enforcement of fundamental rights in India. The restriction imposed by the Section finds its roots in an alien government, and it is commonly accepted that laws have to be applied only to scenarios where the socio-economic paradigm befits that law. The constitutionality of the colonial era laws had to be decided by the judiciary in a psychologically different and entirely changed society. 

The decision in this case holding the impugned provision constitutional originates from the U.S Supreme Court. It was held in the case of U.S. vs. Carolina Products Co (1938)., that this principle cannot be applied for statutory interpretation, in cases where the provision prima facie appears to be violative of the first ten amendments. This applies in the Indian scenario as the constitutional authority of the first ten amendments and the fundamental rights are interchangeable. The rule of construction, cannot, ultimately cannot be pressed so as to accept the strained interpretation of a statute, whose language is otherwise plain and unequivocal.

The interpretation of the Chief Justice of India in this matter is somewhat cryptic. If the Chief Justice factored in the antecedents of the history of the legislation and what this law aimed to achieve, his decision might have favoured the abolition of this draconian law. As has been explicated earlier in the article, the law of sedition was brought into existence during a very turbulent era where even harbouring negative feelings against the government amounted to sedition, and the section is grammatically constructed to suppress the freedom of speech under the guise of national and public interest. The need for the impugned section in a proud democracy such as India is questionable. If not for the quixotic interpretation adopted by the court, the Section would indubitably damage the very fundamentals of our democratic system. The Supreme Court themselves have admitted they restricted the applicability of the  Section to uphold its constitutionality. It would have made sense to apply the rule of severability to the section if the constitutional section was not inextricably linked with the unconstitutional part. This view was explained in the case of Romesh Thapper v. The State of Madras by Mr Justice Patanjali Sastri while delivering the judgement. This practice was also criticised in the case of Chintaman Rao vs. The State of Madhya Pradesh (1950). However, in the case of R.M.D. Chamarbaugawla vs. The Union of India, the rule of interpretation was applied to sustain the validity of an impugned provision that violates fundamental rights; but this case cannot be relied upon as a precedent, as the jurisprudence laid down in the case was obiter dicta. It is abundantly clear that the application of interpretation in such a way for an impugned provision that violates fundamental rights will not do civil liberty any justice. The only reason given by Mr. Sinha for this brazen encroachment of civil liberty was the wording used in clause (2). His interpretation of the wording of the clause is irrefutable, however, the wide ambit of clause (2) enabled by its wording should never involve any and all restrictions imposed upon Article 19.

In clause (2), it stipulates that any restriction imposed on the freedom of speech should be reasonable. This judgement leaves a lot to be desired with regard to the justification for the reasonableness of the restrictions imposed. If the jurisprudence that has been set down earlier as a test for the standard of reasonableness is applied in this case, the provision would indubitably be determined to be outside the ambit of standard reasonableness. The doctrine of ‘clear and present’ danger was applied by the Supreme Court in the case of Baulal Parvate vs. The State of Maharashtra (1961). If this principle had been applied, it would undoubtedly have furthered the cause of building a harmonious nexus between liberty and security. There was definitely some progress in this regard in the case of Dr Ram Manohar Lohia vs The State Of Bihar And Others. However, all of the progress was undone in the Kedar Nath case.

Keeping apart the purely legal arguments against the decision of the Supreme Court, this decision should be considered an anachronism in view of the democratic system that our forefathers strived for. This section, if not for the most quixotic interpretation that the Supreme Court has followed, reeks of authoritarianism, this can be attributed to the history of the impugned section as in the past it was enacted with a definite intent to create an authority hegemony. The Indian diaspora as a whole concurs that this Section should either be repealed or amended. It is the need of the hour for the judicial system in our nation to uphold the interests of the citizens of India, especially if it is a law that affects one of the very fundamentals that our nation is built on. 

Principle of reasonable restrictions

As of late the Supreme Court has made a valiant effort to promote public safety while also protecting individual rights. In the case at hand, the Supreme Court gave precedence to the sovereignty and integrity of the nation rather than individual freedom. This decision has its merits and its drawbacks and it is most important to analyse them from an unbiased standpoint. 

Test of sedition

In the Kedar Nath judgement, the court explicitly held that ‘actual violence or incitement to violence’ and ‘intent or tendency to cause disorder’ were necessary to construe the offence of sedition. The test of ‘clear and present danger’ and ‘bad intentions were laid down in this case. These tests have been used even in the latest cases of sedition and it has been crucial in proving the innocence of many individuals.

The Law of Sedition in India

To comprehensively understand the position of sedition laws in India we have to comprehensively analyse a plethora of old cases that laid down crucial jurisprudence on the matter. This Section is placed right in the middle of Chapter VI of the Indian Penal Code (further referred to as IPC) which deals with ‘Offences against the State’. The punishment for Section 124A extends up to life imprisonment and the charge is both non-bailable and cognisable. The harsh punishment coupled with the positioning of the Section in the IPC, emphasises the seriousness of the Section. Some of the most famous sedition trials were in the 19th and 20th centuries, some of them have been expanded below.

Emperor vs. Bal Gangadhar Tilak (1908)

One of the most infamous trials of sedition is that of Bal Gangadhar Tilak. There are ominous similarities between the issues that were dealt with in Tilak’s case to the issues raised by contemporary critiques of sedition law like Arundhati Roy. 

Tilak’s trial was initiated in 1897. The British claimed that his speech in which there was a reference to Shivaji killing Afzal Khan, had promoted the murder of the popular Plague Commissioner and another British officer Lieutenant Ayherst. These two officers were killed while they were coming back from the dinner and reception held for the Diamond Jubilee of Queen Victoria’s rule. The government charged Tilak with the offence of sedition but was released in 1898 after the intervention of international personalities like Max Weber who vehemently testified in the defence of Tilak.

Subsequently, in 1898 the law was amended by the British Parliament and while the deliberation for the amendment was taking place, Tilak’s case and two other cases were studied by the Parliament in order to make sure that there would be no loopholes in the law. The amendment added the all-encompassing words of ‘hatred or contempt’ to the word ‘disaffection’. These amendments were first implemented by the Bombay Government which used them to prosecute local newspapers for printing any information that would incite disaffection towards the government in any way. Due to the sensational media coverage that the case received, there were also adverse effects on other paraphernalia used in the freedom fight. For instance, the British enacted the Newspapers (Incitement to Offences) Act, a law that enabled district magistrates to confiscate printing presses that were used to publish presses that printed any material that could incite disaffection towards the British.

The blatant transgression of the fundamental right to assemble was evident after the enactment of the Seditious Meetings Act. This Act prevented meetings of more than twenty people. 

Following the Muzaffarpur bomb blast, the Kesari (a newspaper headed by Tilak), contained an article criticising the effects of government repression. Tilak was tried for this and was sentenced by the Bombay High Court to six years of rigorous imprisonment. This decision was vehemently resented by his followers and also had the effect of inciting disaffection towards the British in the minds of the people for their oppressive tactics. After his release, Tilak was tried once more for sedition, this time the complaint was lodged by the DIG of Police, J A Guider. He raised the allegation that Tilak orally propagated seditious information on three occasions; one was a speech at Belgaum, and the other two were speeches at Ahmednagar. Jinnah, who was the defence counsel in this case, skillfully put forth the argument that Tilak had criticised the bureaucracy and not the government and hence it does not come under the ambit of sedition. 

Sedition Trial of Gandhi

Perhaps the most infamous sedition trial in the history of the nation was the trial of Mohandas Karamchand Gandhi in 1922. Gandhi was charged along with the proprietor of Young India for three articles published in the magazine. This trial garnered the attention of all, irrespective of caste or class, even some of the most prominent political figures attended the trials. 

Gandhi had an unusual approach to his trial. He demanded that the judge try him and grant him the full sentence that is permissible under the Section. Gandhi explained that he was a “staunch royalist” and this entailed disobedience of the law enacted by the British. Gandhi fervently stated that affection cannot be manufactured or imposed nor can it be imposed by law. Gandhi stated that if one has no affection for a person, he should be given the right to express the disaffection to its fullest extent as long as it does not contemplate, promote or incite violence. Gandhiji considered it an honour to be tried and punished under the same law that was used to punish many Indian patriots. He considered it to be a precious privilege to have written the articles that he did. Gandhiji also criticised the court by stating that in almost nine out of ten cases that were of a political nature, the convicted men were innocent. Gandhi was found guilty of the crime of sedition and was sentenced to six years in prison. The irony was not lost on those who included the offence of sedition in the Constitution of free India.

Recent case laws

Vinod Dua vs. Union of India (2021)

This was a landmark case that upheld the value of freedom of speech and expression. The paramount importance of granting the necessary freedom to journalism to be a platform to voice concerns and serve as the fourth pillar of democracy was recognized in this case. The reasoning behind the court’s decision in this case is most peculiar and deserves to be analysed at length. 

Facts of the case

  • Vinod Dua, a Padmashri laureate and a journalist by trade posted a video on his YouTube channel called HW News Network criticising the government over their mishandling of the Covid-19 pandemic and putting the onus of health problems that affected thousands onto the Government.
  • His particular criticisms were related to the lack of adequate testing facilities and the lack of knowledge on the part of the government on the procedures related to the pandemic. 
  • The petitioner was accused of spreading misinformation and thus creating unrest. However, the petitioner claimed that these were just straightforward critiques of the government. 
  • The petitioner was also charged for making claims that Prime Minister Narendra Modi utilised fatalities and terrorists to get votes. 

Judgement

  • A bench of Justice U.U Lalit and Vineet Saran JJ quashed the FIR lodged.
  • The Supreme Court held that any statement that stated Prime Minister Modi used deaths and terrorist attacks to garner votes was not made in the talk show on his YouTube channel. The Court stated that no inference could be made through the interpretation of any dialogue made by the petitioner. Although the petitioner stated that air strikes by India on Balakot were just a tool to garner votes, there were no allegations against the Prime Minister directly as mentioned in the F.I.R.
  • The Court agreed to the fact that there were inadequate testing facilities and personnel to adequately keep in check the spread of the pandemic. If in this regard the petitioner made any negative comments about the testing facilities or the medical equipment, then that would be considered just as a criticism of the lamentable state of affairs.

The Court relied on the ratio in the Kedar Nath judgement and held that only such activities that had the explicit intent or tendency to create disorder or disturbance of public peace could be rendered penal. 

Disha Ravi Toolkit Case (2021)

Disha Ravi was a twenty-two-year-old climate activist and she was prosecuted for her alleged involvement in the farmers’ protest in 2021. She has been prosecuted in this case for the circulation of Toolkit, a digital kit that had been created and shared during the farmers’ protest. She was booked under three selections which included Section 124A. 

She filed an application for bail under Section 439 of the Code of Criminal Procedure, which has resulted in the current judgement. 

Proceedings

  • The applicant argued that the investigating agency added the offence of sedition with the sole intent of putting her behind bars for a long time. It was argued that this was a clear case of misuse of Section 124A. Section 124A was added to paint an inflated picture and prosecute Disha for the same. The attempt at inflating the issue was also very evident as words like ‘global conspiracy’ were used to sensationalise the case and to attack the applicant personally.
  • The prosecution argued that the toolkit documents produced and circulated were seditious as there were clear signs of disaffection and contempt towards the government. The statements made in these toolkits were not merely statements but they were statements that incited violations of public order and certain acts of public disorder. These toolkits were made by an organisation called the ‘Poetic Justice Foundation’ of which the applicant was also a part. 
  • The prosecution alleged that the applicant was part of a group of people that created a WhatsApp group which was allegedly deleted by the applicant. This WhatsApp group had members of international prominence like Greta Thunberg.

Issues

  • Whether the applicant had the intent of threatening the sovereignty and security of the state or was just in protest against the Farm Acts that had been introduced by the Government. 

Judgement

  • The Delhi High Court relied on the case of Arun G. Gowli vs. the State of Maharashtra (1998), in which it was observed that allegations of conspiracy have to be backed by solid evidence. In tune with this decision, the Court analysed the evidence that had been collected by the investigating agency to substantiate the allegations of the ‘larger conspiracy’ were inadequate.
  • The Court stated that mere engagement with people of dubious credentials without knowing the intent for involvement with those people cannot be grounds for prosecution. 
  • The Court opined on the intent of the use of the toolkit as merely a tool to express discontent for the government activities and any instigation of violence was absent in the same. The right to disagree with state politics was a sign of a healthy democracy. 
  • The argument of creating contempt against India was wholly unfounded by the Supreme Court as nothing objectionable was found in the paraphernalia used to disseminate this information abroad.
  • The Court expressed that the creation of a WhatsApp group and sharing within the group information that is not seditious is not an offence in itself. Since no information was found to be seditious, the mere deletion of a WhatsApp chat cannot be construed as a deliberate attempt at destroying evidence. 

This case is of paramount importance as an analysis of the judgement unequivocally points out the humanitarian approach the Supreme Court has taken on cases related to sedition. The solidification of this standpoint can be further seen in the case of S.G. Vombatkere vs. Union Of India.

S.G. Vombatkere vs. Union Of India (2022) 

This case was heard along with eight other writ petitions that challenged the constitutionality of Section 124 A. This is one of the latest cases that have been decided on the matter. 

The Union of India (further referred to as UOI) analysed the views of multiple stakeholders and expressed their collective views. What is peculiar in this case is the meeting of minds of the Union of India and the Supreme Court with regard to the rigours of Section 124 A. This case is the latest case to be decided on the matter and it lays down crucial jurisprudence on the same.

Proceedings

  • The UOI stated that the majority of the Indian diaspora wanted a law that would efficiently deal with any offence that would affect the very sovereignty and integrity of the country, these included acts leading to destabilising the elected government. The need for a penal provision is unanimously agreed, however, uncertainties arise regarding the applicability of the current law and how it is being misused.
  • The UOI also contended that the Hon’ble PM believes that when the nation is celebrating ‘Azadi Ka Amrit Mahotsav’, we need to collectively shed ourselves of any and all baggage that had been endowed unto us by the British. Following this vision of the PM, the Government has scrapped over 1500 outdated laws and has also done away with 25,000 compliance burdens that were causing unnecessary hurdles to our nation. The careful deletion of these colonial-era laws is a long and arduous process and thus the law of sedition is also under consideration by the Government. 
  • They further stated they were fully cognizant of the various views being expressed on the subject of sedition and are putting the maximum effort into incorporating civil liberties and human rights along with safeguarding the sovereignty and integrity of the nation. 
  • The UOI pleaded to the Supreme Court for non-intervention from their end as this was a matter that had to be dealt with in the appropriate forum by the legislators of the nation. 

Judgement and Guidelines

It is clear from the views of the Union of India that they concur with the Supreme Court on the authoritarian nature of sedition law and also acknowledge that it is outdated. The Court stated that the rights of the citizens and the security of the state have to be maintained and balanced and this is an arduous task. The Court pointed out the implicit acceptance of misuse of the Section by the Attorney General as he had stated some instances of Hanuman Chalisa.

The Court ultimately came to the conclusion that, till this provision of the law is amended and the UOI takes a clear stand on the topic, it would be better to stop the usage of the aforesaid provision of the law by the Government. In furtherance of this verdict, the Supreme Court laid down certain guidelines to be followed:

  • No FIR should be registered using the Section.
  • If any party has been booked under this Section they have the right to approach the concerned court for relief.
  • All pending trials, appeals and proceedings that come under Section 124A, should be kept in abeyance.
  • The UOI shall create and issue directives to the State Government and Union Territories to prevent any misuse of Section 124A of IPC.
  • All these guidelines are to be strictly adhered to until any further notice or order on the same.

JNU sedition case

This is a landmark case for sedition that laid down crucial jurisprudence on freedom of speech in universities. This case made ripples through society as it brought into limelight the veracity of the media. The lamentable behaviour of the police and concerned authorities was put on full display to the whole of the nation. 

Facts of the case

  • The Jawaharlal Nehru University’s (further referred to as JNU) authorities had granted permission to host a programme titled ‘Poetry Reading – The Country Without A Post Office’. When the authorities came to know about the true intent of the programme they swiftly shut it down.
  • The event was held without the permission of JNU’s administration and shortly before it commenced the members of the student union, ABVP, clashed with the event organisers. 
  • Videos were being circulated on social media showing some individuals wearing masks and shouting “anti-India” slogans. 
  • The petitioner was a public figure and a member of the AISF Students Political Party and is also the president of the Jawaharlal Nehru University Students Union. He was arrested four days after the event and was charged with sedition. 

Procedure

  • The petitioner claimed that there were no incidents of violence after the alleged incident of raising anti-national slogans. The petitioner asserted that his fundamental right under Article 19(1)(a) had been violated.
  • Mr Kapil Sibal, on behalf of the petitioner, submitted that the petitioner was not present at the place of violence nor is he present in any of the videos that had surfaced. The petitioner had simply talked out against those that were trying to destabilise the nation and JNU. The petitioner encompassed in the speech only those ideas that would strengthen the voice of democracy, the voice of independence, and freedom of expression and the petitioner had the utmost faith in the Constitution. 
  • Mr.Sabil presented that the petitioner had been remanded to police custody thrice and hence is no longer needed in the investigation process.
  • Mr.Tushar Mehta, on behalf of the respondent, stated that the event which was scheduled to take place had been cancelled because the judicial killing of Afzal Guru and Maqbool Bhatt would be in question and this has the potential to disrupt peace and harmony within the college and the hostel. 
  • Anticipating some ruckus the respondents had asked for the JNU security to be on high alert and had also asked some of the local law enforcement units to be present and to assist the security in their tasks and it was not their intent to instigate any trouble. 
  • The respondent put forth before the court certain photographs in which some individuals were covering their faces and one of these individuals could be the petitioner.

Judgement

  • The Court held that the petitioner’s claim that his fundamental right under Article 19(1)(a) had been violated, but the petitioner also has to understand the duties entrusted unto him under Article 51A of the Constitution. The Court reiterated that rights and duties are two sides of the same coin. 
  • The Court lauded the efforts of the JNU administration in handling the issue and the Court was especially pleased at the precautionary measures that had been taken by the administration to prevent any activity of similar nature in the future.
  • The Court held that students nowadays are making statements whose seditious nature is ambiguous and expect these statements to be protected by the fundamental right of speech and expression. This sense of entitlement has to be pinched off in the bud itself as this is an infectious disease.
  • The Court released the petitioner on bail stating certain conditions that he should adhere to while under bail.

Analyses and aftereffects

This judgement solidified the negative stigma surrounding sedition and also put the veracity of the media into question. Zee News had transmitted altered videos of the violence; the effects of this reverberated throughout society and it brought forth viewer awareness on what to believe and what not to believe. The citizens were shocked at the campaign launched by the ruling party against the students solely based on the allegations of propagating anti-national speech and subsequently charging them with sedition. Regardless of whether these charges stand up in court, the course of action by the authorities was deplorable and it constricted the freedom of speech of the young budding minds in society greatly.

The Law Commission

The law commission in its latest report had expanded extensively on the topic and delved into the nuances of sedition law and its applicability to the current socio-economic situations. This had been done by absorbing the suggestions of various stakeholders, including the Supreme Court.

The 22nd Law Commission in its 279th Report recommended retaining the provision of sedition. This report was necessary as prosecution under the Section had been halted following the decision in S.G. Vombatkere v Union of India as discussed earlier in the article. In the Supreme Court’s decision, the bench had granted ample time to reconsider the provision and make amendments if necessary. The commission stated sedition should not be abolished solely based on the fact that it was a colonial law, the commission cited the examples of the police force and the All India Civil Service both of which were established by the British and they still are of paramount importance in India today. The law has a nuanced application in present-day India and to overlook this application in the face of paroxysms of criticisms would be injudicious. The commission added that the existence of anti-terror legislation like the Unlawful Activities Prevention Act and the National Security Act does not obviate the need for Article 124A. They stated the retention of the law should be subject to certain conditions, these conditions have been enunciated below.

Redefining the grammar of the Section

As had been done many times before, the change in wording of the Section brings a paramount change in the application of the Section. The report as a whole followed the jurisprudence set down in the Kedar Nath case and recommended that the words ‘tendency to violence or cause public disorder’ should be inserted in the Section. This would indubitably do away with the prosecution for allegations of seditious activity. This specific decision of the Law Commission finds its underpinnings in the ratio of Kedar Nath which highlighted the tendency of words or actions to incite violence or disturb public order.

The introduction of a new safeguard

The Commission took cognizance of the misuse of the statute and suggested an efficacious method to curb this misuse. The Commission suggested a procedural amendment to the Code of Criminal Procedure (CrPC). The Commission recommended that prior to a First Information Report being filed, there should be a preliminary enquiry by a police officer holding the rank of Inspector or higher. This suggestion finds its underpinnings in the decision in the S.G. Vombatkere wherein the Supreme Court criticised the misuse of the law. The amendment would be made to Section 154 of the CrPC. This safeguard was analogous to Section 196(3) of the CrPC.

Increase in the term of punishment

The increase in the term of punishment is to keep the Section in tune with the more stringent laws that exist in special laws and counter-terrorism legislation which share many parallels to the law of sedition. The Commission recommended increasing the punishment to seven years along with a fine. This would bring it in harmony with the other ‘Offences of the State’.

As it can be reasonably inferred from the suggestions of the Law Commission, the jurisprudence laid down in the Kedar Nath case has been applied by the Law Commission.

The Law Commission vehemently stated that repealing the statute would have devastating consequences on the security and integrity of the nation, with ill-willing individuals getting a free hand to do as they please. 

International perspective

The United Kingdom, from where the law of Sedition finds its genesis has repealed the offences rendering seditious libel and sedition a crime. The United States and India are the only two prominent democracies that have yet to do away with the provision, despite facing harsh criticism. 

Britain

A Law Reforms Committee in 1977 recommended the abolition of sedition statutes. Much later, in 2008, the Criminal Justice and Immigration Act of 2008 was passed and this made blasphemous libel illegal. Ultimately, the Coroners and Justice Act of 2009 removed the provisions against seditious libel and sedition. 

America

The U.S. enacted the Alien and Sedition Laws and this included the Sedition Act. The Sedition Act of 1798 restricted Americans from writing, speaking, or publishing any slanderous or libellous remarks about the federal government. This Act was repealed on March 3, 1801, by the Republican administration. The Government enacted the Sedition Act of 1918 in the midst of World War I. This Act was primarily made to prevent any slanderous libel against the American soldiers and the government. The U.S. Supreme Court after extensive consideration overturned this Act. As of right now, the offence of sedition and treason comes under the Federal Criminal Code. 

Australia

The Crime Act of 1914 was the first piece of law to include a sedition crime. This law had a much more expansive application than common law. Sedition was added to Schedule 7 of the Anti-Terrorism Act of 2005. The National Security Legislation Amendment Act of 2010 adopted the Australian Law Reform Commission, replacing references to sedition with charges involving inciting violence. 

New Zealand

The definition of sedition in New Zealand is similar to the law of sedition in England. It is encompassed in the Crimes Act of 1961. They came to the conclusion that the definition of sedition was ambiguous and ill-defined. They concurred on the uselessness of the law of sedition in the current socio-economic paradigm. They also concurred on the tenets of free speech and democracy that were violated by this and it could be used as a weapon to stifle dissent and to silence criticism.

New criminal laws

Section 124A of the IPC has been proposed to be struck off in the new criminal laws that have been passed by the Parliament. In the Bharatiya Nyaya Sanhita (Bill), 2023, offences that endanger the sovereignty, unity and integrity of India have been under Section 150 of the Bill. 

Key differences

  • The punishment could be said to be made more severe as Section 150 prescribes imprisonment for life or imprisonment that may extend to seven years along with a fine. The Bill also aims to remove an old provision in which a person could get away with the offence of treason by simply paying a fine. 
  • The words of the Section have also been changed and the words ‘disaffection towards the Government established by law in India’ have been removed broader words like ‘contempt’ or ‘hatred’ have also been removed from the old Section. The new wording targets acts like secession, separatism, and a call for armed rebellion.
  • The entire paradigm of sedition law has been changed in the Bill. Earlier, harsh words or explicit actions were required to make a person liable under the law of sedition, however, in the new statute, mere words themselves whose seditious nature might even be ambiguous, would attract the offence of sedition as it would claim the individual have participated in anti-national activities.
  • The new Bill also covers endangering the sovereignty, unity and integrity of India through new-age means like electronic communication and financial means.

The new law also carries on the harsh provisions of the old law, it brings within its purview everything including newspaper articles, books, dramas, speeches, etc. The inculcation of the law of sedition in the new criminal laws would be in tune with the advice of the law commission.

Conclusion 

The decision in the Kedar Nath case made ripples in every aspect of society. Its effects trickled down and affected the very paradigm of our democracy. One of the cardinal tenets of our democracy, i.e., the freedom of speech faced a major blow in the Kedar Nath judgement. The Kedar Nath judgement is being used even today as can be seen in the adaptation of the principles of the case in the latest law commission report. India has been looked down upon by other nations for using this sedition law to stifle dissent and quell protests. It is the need of the hour for the law of sedition to be reconsidered and changes made accordingly because as of right now the application of the law is becoming an Orwellian nation, not a democracy.

Frequently asked question

Has Section 124A been repealed?

Section 124A has not been repealed. Its constitutionality is being debated and deliberated upon by various stakeholders.

How is sedition law being applied today in India?

The application of sedition law in India has been put on halt following the judgement of the Supreme Court in the case of S.G Vombatkere vs. Union of India (2022). New cases cannot be instituted under the impugned section and all prosecution that was happening has to be halted.

What is the stance of the law commission on the constitutionality of sedition law?

The law commission upheld the constitutionality of the law of sedition. They also suggested certain changes to the Section for it to fit the current socio-economic paradigm.

Will the law of sedition be repealed in the near future?

It is difficult to ascertain whether the law of sedition would be repealed or not. The new Criminal Codes that are being introduced do not encompass the law of sedition per se but have different provisions to prosecute individuals for seditious activities.

Has there been any decision so far that has overturned the decision of the Kedar Nath case?

The Supreme Court has not overturned the decision in the Kedar Nath case. The Supreme Court has left it to the Government and law commission to decide upon its validity. 

Do other countries still have sedition laws?

Apart from the U.S. and India, there are no other large democracies that still have an active sedition law. Britain, the place from where we get our sedition law has repealed the law of sedition stating that it is not befitting for a democracy like them to have a sedition law.

References

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