This article is written by Arijit Kundu, pursuing a Certificate Course in Advanced Criminal Litigation and Trial Advocacy from Lawsikho.
Table of Contents
Introduction
Thomas Paine once said “…Society in every state is a blessing, but the Government, even in its best state, is but a necessary evil; in its worst state an intolerable one…“. Had he said that today, he might well have been subject to incarceration.
India is the largest democratic nation of the world and also, it has the longest written constitution of the world. It’s constitution in unambiguous words states that the right to free speech and expression is protected as a fundamental right as per article 19 (1) (a) of the Constitution of India.
In the case of Indian Express Newspaper (Bombay) (P) Ltd. v. UOI (AIR 1986 SC 515) it was decided that the four main purposes of the free speech and expression are to:- assist the individual or citizen to attain self-fulfilment, assist in the exposure or discovery of truth, strengthens the capacity of the individual in participation in the decision-making process and further, furnishes a mechanism to establish a possibility of reasonable balance between stability and social change.
However, the right to such speech and expression is not absolute and is subject to various reasonable exceptions. One such exception is that of seditious utterances against the government of India.
What is Sedition?
Sedition means the conduct or speech that causes a rebellion against the lawful authority of a state or monarch. As per section 124A of the Indian Penal Code 1860- Whoever, by words, either spoken or written, or by signs, or by visible representation, etc. brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with-
a) imprisonment for life and fine, or
b) imprisonment which may extend to three years and fine, or
c) fine.
Sedition is thus considered to be one exception to the fundamental right to speech and expression.
Vinod Dua’s Case – Charges
Padmashri recipient journalist Vinod Dua has been recently charged with various grave offenses including sedition (section 124A), public nuisance (section 268), printing defamatory matter (section 501) and intent to cause public mischief based (section 505) for his comments on the preparedness regarding COVID 19 by the government of India. He has also been alleged for making personal comments against the Honourable Prime Minister of India, Shri Narendra Modi.
What happened after this? The stance on staying of FIR
Various criminal cases were lodged against Dua regarding a Youtube broadcast in which he allegedly falsely reported about the unpreparedness of the government of India regarding the Covid pandemic and also levelled personal attack on P.M Modi. The Delhi High court had stayed the FIR lodged in Delhi against Dua owing to lack of confidence on the materials of the FIR but the Supreme Court has refused to stay the FIR lodged against him in Himachal Pradesh but granted him protection from arrest till the next date. The Apex court has also sought for a status report from the investigative agencies.
The matter is currently pending before the Apex court. The court has already observed that a Gandhian peaceful protest does not come within the ambit of unlawful assembly. On the other hand, Senior Advocate M Jethmalani argued before the Ld. Court that Dua had tried to incite riots by stating in his broadcast that the government did not have sufficient testing facilities and that the supply chains were blocked, without any sufficient material to back the same.
How is Sedition dealt with in the USA
As per American criminal jurisprudence, one person is incapable of causing sedition against the state and it requires that at least two persons should conspire against the government, in order to bring it as an offense of sedition. A sole person’s statement of criticising the government is thought to be well within the ambit of free speech.
Although it cannot be disagreed that fair or constructive criticism is very much necessary for the progress of a nation, it has also to be seen that individuals are not allowed to revolt against the state as a state is very much considered to be a necessary institution for the safeguarding of collective interests.
How is Sedition dealt with in the UK
Sedition was considered as an offense in the UK as part of the common law. In order to charge a person with sedition, it was required that such person must be intending to take power in his own hands and they must have used some sort of physical violence in order to be charged. The last prosecution of sedition in the UK was in the year 1972, in which ultimately the state failed to prove the charge of sedition and the accused had received sentences under other provisions. In the year 1977, a law commission recommended the abolishment of the charge of sedition but it remained unimplemented until when it was accepted and the offense of sedition was abolished from the law of the UK with effect from 12th January 2010 by bringing in the Coroners and Justice Act. It is pertinent to mention here that sedition still remains punishable for foreign nationals in the UK.
Observation by Indian Courts
Recently, Calcutta High Court has held in the case of Sanmay Banerjee vs State of West Bengal (W.P 21526/19) that – “Particularly in a multi‐party democracy like India, it is often seen that the ideologies of political parties in control of the State machinery acquire pre‐dominance over the actual will of the public, although on paper elected representatives of the people run the Government. As such, it would be an infinitely risky proposition to equate the State with the Government in power, since that would be the very antithesis of a democracy.”
In the case of Balwant Singh vs State of Punjab (Criminal Appeal 266/1985) it has been held that the casual shouting of slogans few times by some individuals cannot be said to be an act of sedition.
Is Sedition a necessary evil?
The charge of sedition has its own needs and disadvantages. The world is being globalized each and every day and people are becoming netizens. In such a state of affairs, it is very easy to be misguided by wrong information or thoughts which makes an individual to have ill feelings towards the very state in which one was born and brought up. Very often we see that youths, in particular educated ones are misled to join various terror organizations via social media platforms and they are used to carry out various terror activities within the state or even make various statements which have the capacity to create unrest in the country. On the other hand, we also see that there is a rise in the advocacy of individual freedom and liberty and the minimal state intervention or dictation. People condemn even the slightest attempt by the state to regulate their personal lives.
Initially the necessity of sedition was there to prevent unnecessary revolt against the authority that was in power, whether a monarch or a government. It was required because frequent revolt would tend to disrupt the proper functioning of the sovereign function and in turn would adversely affect the welfare of the people. In the modern concept of a welfare state, although sedition seems unnecessary in the penal statutes, it is required to curb the separatist and terrorist activities of various groups and other international authorities from trying to exert control over the government established by due process of law.
The need for striking a balance
What we require is that either the legislature or the judiciary frame proper guidelines regarding prosecution of offenses under sedition to ensure that the actual culprits get punished but young but misguided minds do not end up behind the bars. Each charge under sedition is a serious infringement of the fundamental right to speech and expression and it is to be taken care that such action does not take place at the instance of the whims and caprice of an executive authority or at the prompting of some political or otherwise influential group. An expert committee could be constituted whose task would be to preliminarily inquire into the seriousness or the veracity of a charge under sedition and a report be submitted before the concerned judicial magistrate, who would only after considering such report and applying his judicial mind decide whether the investigative authorities would be allowed to investigate into such offense or not. Such checks and balances should be there in place in order to ensure a ‘ balance ‘ between individual liberty and the control of the sovereign over its subjects.
Conclusion
Journalists have been said to be the fourth pillar of the government. They are expected to uphold constitutional values and proper protection of their right to free speech should be ensured for the preservation of the concept of the state. It is also true that various incidents have come to light which have shown the political inclined reports of various media houses. The sanctity of journalism rests on impartiality and it is imperative that it retains the same. We all would like to dream of a world where no malafide speech in order to incite ill feelings against the authority of the state happens and no misuse of the law of sedition is used to curb dissent and constructive criticism but until that day, the people need to ensure that the ethos of plurality cannot be crushed by arbitrary action of the state.
References
- https://indiankanoon.org/doc/223504/
- https://indiankanoon.org/doc/28212048/
- https://indiankanoon.org/doc/123425906/
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