In this article, Sudarshna Thapa of Law College Dehradun, Uttaranchal University discusses the enforceability of law of sedition in India.

Introduction

Every citizen has been given freedom to speak and express their views under Article 19(1)(a) of the Indian Constitution. However, this freedom is not absolute and some reasonable restrictions have been imposed on freedom of speech and expression under Article 19(2). But when a person does an act by his words, signs or representation which is held to be contemptuous towards the Government of India, then such act is punishable under section 124-A of Indian Penal Code, 1860. Sedition is an offence that criminalizes speech that is regarded to be disloyal to or threatening to the state.

The provision of Section 124A is very wide and it covers the act of defamation of the Government excluding any criticism in good faith of any particular measures or acts of administration.

Law of Sedition

The term ‘Sedition’ means “conduct or speech which results in mutiny against the authority of the state”. Law of Sedition deals with section 124A of IPC, 1860, is considered as a reasonable restriction on freedom of speech. It was drafted by Thomas Macaulay and introduced in 1870.

The following points describe the origin of sedition law:

• Origin of Sedition law in India is connected to the Wahabis Movement of the 19th century.
• This was an Islamic revivalist movement and was led by Syed Ahmed Barelvi.
• Since 1830, the movement was active but in the wake of 1857 revolt, it turned into armed resistance, a Jihad against the British.
• The British termed Wahabis as rebels and carried out military operations against Wahabis.

History

In British Era, Section 124A was not a part of Indian Penal Code, 1860. But this Section was inserted into IPC by the IPC (Amendment) Act, 1870. By an amending act of 1898, this provision was later replaced by Section 124A. According to the British Era Law, under the old IPC, “Exciting or attempting to excite feelings or disaffection was considered as Sedition”.

Meaning of Sedition under Section 124A of IPC, 1860

“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 Life Imprisonment”.[1]

Explanation I to the Section defines the scope of disaffection and in Explanation II and III indicate what under the English Law is not considered seditious intention.

What are the activities that are Seditious in nature?

In India, what constitutes as ‘Sedition’ is highly debated. As per the Indian Penal Code, for an act to be called “seditious”, it should have the following components:

1. Any words, which can be either written or spoken, or signs which include placards/posters (visible representation)
2. Must bring hatred/contempt/disaffection against the Indian Government
3. Must result in ‘imminent violence’ or public disorder.[2]

As per the interpretation of the Court on Section 124-A of the Indian Penal Code, 1860 the following acts have been considered as “seditious”

• Raising of slogans against the government – example – “Khalistan Zindabad” by groups. Raising of slogans by individuals casually once or twice was held not to be seditious. [3]
• A speech made by a person must incite violence / public disorder for it to be considered as seditious [4]. Subsequent cases have gone to further interpret it to include “incitement of imminent violence”.
• Any written work which incites violence and public disorder.

Sedition found in other Laws

The following are some laws which cover Sedition law:

• Indian Penal Code, 1860 (Section 124A)
• The Code of Criminal Procedure, 1973 (Section 95)
• The Seditious Meetings Act, 1911 &
• The Unlawful Activities (Prevention) Act (Section 2(o) (iii)).

How legal mechanism sets in motion

Sedition is considered as a high-value crime in the Indian Penal Code which is against the sovereignty of the country. It is a cognizable offence which allows arrest without a warrant and police can start the investigation without the permission of the court. There are some legal procedures regarding the charges of Sedition:

1. Go to the Jurisdictional Police Station

It is the person’s legal right to file a case against the person who is committing an offence against the state such as Sedition. A person can file the complaint with the nearest Police Station where such offence when committed.

Lodging an F.I.R

The First Information Report (F.I.R.) is a written document which is prepared by the police organizations when they receive any information about the cognizable offence. In the case of seditious offence, it is filed by the person who has come to know about such offence and also can be filed by the police officer.

How Police take Cognizance

When any credible information is being registered by the complainant regarding the sedition offence, then it is the duty of Police Officer to take action for such complaint. Police have the right to arrest without warrant for such offence. There are some procedures when Police are able to arrest without warrant:

1. 1. When the seditious act is going on before the police inspector, District Magistrate or Executive Magistrate, then they can arrest such person without any warrant.
   2. If any information is received from another police officer for the arrest of the person committed a seditious offence, then the other police officer can arrest such person.
   3. F.I.R. when lodged against the person for the seditious offence.
   4. When a person who is being suspected of Sedition, then the police officer may arrest such person for the further investigation.

Investigation

After giving the information to a police officer in charge of a police station, the investigation is initiated. A magistrate can order a police officer in charge to investigate on cognizable offence such as Sedition. A magistrate is empowered to take cognizance upon receiving any complaint or upon a police report or upon information received from any person other than a police officer who is having knowledge of such offence is committed. A police officer may require to take the.. attendance of witnesses in writing.

Charge Sheet

After the completion of the investigation, police submits charge sheet which consists of F.I.R. copy, statement of the complainant, statement of witnesses etc.

Sedition: Disloyalty In Action

“Sedition” has been described as disloyalty in action. The object of sedition law is to induce discontent and insurrection, and stir up opposition to the Government and bring the administration of justice into contempt. Sedition is a crime against the society as it involves all those practices that result in conduct disturbance in the state or to lead to civil war which contempt the sovereign and promotes public disorder.[5]

Defences Available to a Person Charged With Sedition

To get the exemption from Criminal Liability, the following are the defences:

1. That he did not make the sign or representation or not speak or write the words, or not do any act in question.
2. He did not attempt into the contempt or attempt disaffection.
3. Such disaffection should not be towards the Government.

Sedition and Article 19(1)(a) of the Indian Constitution

The Concept of Free Speech has attained global importance and all have supported it as a basic fundamental right of a human being. In India, such rights are provided under Part-III and Article 19 of the Indian Constitution. The said right has no geographical indication because it is the right of the citizen to gather information with others and to exchange thoughts and views within or outside India.

Courts have been given the power to act as guarantors and protectors of the rights of the citizen. Article 19(1)(a) secures the ‘freedom of speech and expression’ but it has been bound by the limitation which has been given under Article 19(2) which states the permissible legislative abridgement of the right of free speech and expression.

In Niharendu Dutt’s case [6], for sedition, the Federal Court had taken chance to interpret the Section 124A of the IPC in alignment with British Law. It had ruled that tendency to disturb public order was an essential element under Section 124A. The Privy Council held that the incitement to violence or a tendency to disturb public order was not necessary under section 124A.

In Tara Singh v. State[7], the validity of Section 124A of the IPC was directly in issue. In this case, it curtailed the freedom of speech and expression, so the East Punjab High Court declared this section void.

By the Constitution (First Amendment) Act, 1951, two changes were introduced relating to freedom of speech and expression, are:

1. It considerably widened the latitude for restrictions on free speech by adding further grounds;
2. The restriction imposed on Article 19(1)(a) must be reasonable.

Therefore, the question now arises of whether Section 124A of IPC is in conflict with Article 19(1)(a) or not. It has been reflected by the following points:

1. Section 124A of the IPC is ultra vires the constitution in as much as it infringes the fundamental right of freedom of speech in Article 19(1)(a) and is not saved by the expression “in the interest of public order”.[8]
2. As the expression “in the interests of public order” has a wider connotation and should not be confined to only one aspect of public order, then the Section 124A is not void.
3. Section 124A IPC is partly void and partly valid. In Indramani Singh v. State of Manipur [9], it was held that Section 124A which seeks to impose restrictions on exciting mere disaffection is ultra vires, but the restriction imposed on freedom of speech and expression covered under Article 19(2) can be held intra vires.

In 1959, Allahabad High Court declared that Section 124A was ultra vires to Article 19(1)(a) of the Constitution.

Indian Freedom Fighters who were charged with Sedition during the Freedom Struggle

Mahatma Gandhi was charged with sedition

Gandhiji had written three ‘politically sensitive’ articles in his weekly journal Young India, which was published from 1919 to 1932 so that he was jailed on the charges of sedition. He was sentenced to a six-year jail term.

Three charges were imposed on him:

1. Tampering with loyalty;
2. Shaking the manes and
3. Attempt to excite disaffection towards the British Government.

He wrote the first part of his autobiography during his imprisonment- The Story of my Experiments with Truth- and about the Satyagraha movement in South Africa. He was released after two years as he was suffering from appendicitis.

Bal Gangadhar Tilak was convicted under this [10]

Bal Gangadhar Tilak was charged with sedition on two occasions, are:

1. Firstly, his speeches that allegedly incited violence and resulted in the killings of two British Officers for which he was charged with Sedition in 1897. He was convicted but got bail in 1898.
2. Secondly, he was defending the Indian revolutionaries and called for immediate Swaraj or self-rule in his newspaper ‘Kesari’ for which he was convicted under sedition and sent to Mandalay, Burma from 1908 to 1914.

Take on abolishing the law of sedition – Should the Indian legal system abolish the laws punishing seditious activities?

In today’s scenario, the sedition law expects that citizens should not show enmity, contempt towards the Government established by the law.

• There are some dark areas which lies between actual law and its implementation.
• Thus the laws need to amend those dark areas.
• In India, there are so many divisive powers acting together in which such laws are necessary evils in a country like India.
• It is the need for such law that those activities which are promoting violence and public disorder should be stopped

Disaffection and the State

• A seminar titled with ‘Azadi, the Only Way’ was organized by the Committee for the release of a Political prisoner in Srinagar.
• The controversy arises when Sedition was charged against Arundhati Roy, Syed Ali Shah Geelani, Varavara Rao and others who spoke at the said Seminar.
• Media reported that the Central Government was not in favour of initiating proceedings in this case.
• There are reports though of cases having been filed in New Delhi.
• Intimidation of cases being filed in other parts of the country against Roy, Geelani and other who spoke at the seminar.

Famous Trials of Sedition

1. Jogendra Chunder Bose [11]

Jogendra Chunder Bose was an editor of Bangobasi. He was charged with Sedition for voicing against Age of Consent Bill, 189

Cartoonist Aseem Trivedi

During a rally of Anti-Corruption crusader Anna Hazare in Mumbai, he had been accused of putting up banners mocking the constitution and posting the same on his website. He was charged under Section 124A of IPC, Section 66A of Information Technology Act and Section 2 of Prevention of Insults to National Honour Act.

Kashmiri Students

60 Kashmiri Students were cheering for Pakistan in a Cricket Match against India. So they were charged with Sedition in March 2014.

Folk Singer S Kovan

He was charged with sedition for two songs criticising the state government for allegedly profiting from state-owned liquor shops at the expense of the poor.

Binayak Sen

He was a pediatrician by profession and was allegedly supporting Naxalites. For which he was charged with Sedition by Chhattisgarh Government.

Akbaruddin Owaisi

On December 22, 2012, he purported hate speech at Nirmal. He was slapped with the charge of sedition by the District Police of Karimnagar.

Kanhaiya Kumar, Student of JNU [12]

JNU Student Leader, Kanhaiya Kumar was arrested in February 2016 on the charge of sedition. He was arrested for inciting violence through unlawful speech, allegedly spread not all over India but also across the world. This arrest has raised political turmoil in the country by which academicians and activists protesting against this move by the Government. On March 2, 2016, the videos purporting to show this activity were found to be fake and he was released after three weeks in jail.

Constitutionality of Law of Sedition in India

Kedarnath Singh v. State of Bihar [13]

• It was held that the law is constitutional and covered written or spoken words that had the implicit idea of subverting the Government by violent means.
• With an intention to create public disorder, Citizens can criticize the Government as long as they are not inciting people to violence against the Government.
• Supreme Court upheld the validity of Section 124A, it limited its application to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence.

Balwant Singh and Anr v. State of Punjab [14]

• After the assassination of Prime Minister Indira Gandhi, the accused had raised the slogan “Khalistan Zindabad” outside a cinema hall.
• It was held that two individuals casually raising slogans could not be said to be exciting disaffection towards the Government. Section 124A would not apply to the circumstances of this case.

Romesh Thapar v. State of Madras [15]

• The petitioner contended before the Supreme Court that the said order of banning his paper ‘Cross Roads’ by the Madras State.
• It has contravened his Fundamental Right of freedom of speech and expression conferred on him by Article 19(1) of the Constitution.
• The Supreme Court held that the Article 19(2) where the restriction has been imposed only in the cases where problem to public security is involved. Cases where no such problem could arise, it cannot be held to be constitutional and valid to any extent.
• Supreme Court quashed the order of Madras State and allowed the application of the petitioner under Article 32 of the Constitution.

The following acts are not considered seditious

• Improvement or alteration by lawful means with the disapproval of the measures of government.
• The strong words which are expressing disapprobation of actions of the Government and not encouraging those feelings which generate public disorder by acts of violence.
• To improve the condition of the people or to secure the alteration of those acts by lawful means without the feelings of enmity and disloyalty which involve excitement to public disorder or the use of violence.

National Crime Records Bureau Statistics on Sedition

When all the crimes are committed against the state or government, it disturbs public order. According to the data from 2014-2016 of NCRB, 165 people were arrested on the charge of sedition. During 2014, 47 cases were reported under sedition. Of the total sedition cases, Jharkhand and Bihar have reported 18 cases and 16 cases respectively. Besides, 5 cases in Kerala, 2 cases each in Andhra Pradesh, Assam, Chhattisgarh and Himachal Pradesh were also reported during 2014.

According to the NCRB, the latest crime data shows the cases of sedition fell from 2014 to 2015. A total of 30 sedition cases were registered in 2015, less than in 2014. Tamil Nadu topped the list for committing the crime against state including sedition. Of the 6,986 cases were registered in 2016, 1,827 cases were reported from Tamil Nadu, followed by U.P. 1,414, Haryana 1,286 and Assam 343 cases. In the last three years across the country, 165 people were arrested on the charge of sedition. According to the reports of NCRB, 111 people were arrested in four state i.e., 68 in Bihar, 15 in Haryana, 18 in Jharkhand and 10 in Punjab.

Conclusion

Sedition is the serious offence in the violation of Article 19. So there is a need that sedition laws should have expressly contained words which satisfied the restrictions of Article 19(2). The purpose of restricting speech under Sedition Act is the protection of National Security. Sedition laws should be interpreted and applied according to the guidelines given by the Supreme Court.

 

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References

[1] Section 124A of IPC, 1860 https://indiankanoon.org/doc/1641007/ (Date of visit the site- 09/02/2018, Time of visit the site- 11:55 AM IST)

[2] Indra Das v. State of Assam

[3] Balwant Singh v. State of Punjab

[4] Kedarnath Singh v. State of Bihar

[5] Nazir Khan v. State Of Delhi (2003) 8 SCC 461

[6] https://indiankanoon.org/doc/256394/ (Date of visit the site- 09/02/2018, Time of visit the site- 1:00 PM IST)

[7] Tara Singh Gopichand v. State, AIR 1951 E.P. 27

[8] Ram Nandan v. State, AIR 1959 All. 101

[9] AIR 1955 Manipur

[10] Queen Empress v. Bal Gangadhar Tilak https://indiankanoon.org/doc/890587/ (Date of visit the site- 09/02/2018, Time of visit the site- 2:15 PM IST)

[11] Queen Empress v. Jogendra Chunder Bose (1892) https://indiankanoon.org/doc/334102/ (Date of visit the site- 09/02/2018, Time of visit the site- 3:00 PM IST)

[12] Kanhaiya Kumar Case http://www.newindianexpress.com/cities/delhi/2017/apr/28/police-question-jnu-students-in-kanhaiya-sedition-case-1598800.html (Date of visit the site- 10/02/2018, Time of visit the site- 11:20 AM)

[13] AIR 1962, SC 955 Supreme Court, 5 Judges https://indiankanoon.org/doc/111867/ (Date of visit the site- 10/02/2018, Time of visit the site- 1:20 PM IST)

[14] AIR 1985 SC 1785 https://indiankanoon.org/doc/123425906/ (Date of visit the site- 10/02/2018, Time of visit the site- 2:05 PM IST)

[15] [1950; SCR 594] https://indiankanoon.org/doc/456839/ (Date of visit the site- 10/02/2018, Time of visit the site- 2:45 PM IST)