This article is written by Momena Qaisar, a student of Faculty of Law, University of Delhi.

The law of sedition provided in section 124A of the Indian Penal code, 1860 has been under much debate and criticism since time immemorial. It has been vehemently argued that the law has been rampantly used for suppressing political dissent and not much for reason of national security for which it was initially incorporated in the statute. Its validity has also been challenged in various cases and has been brought under judicial scrutiny in many instances. 

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Sedition in colonial era 

Sedition as a law was introduced by Thomas Macaulay in the Indian Penal Code, 1860 (hereinafter called the IPC). It was similarly worded in the then section 113. However, it was not incorporated in Indian Penal Code, 1860 and it was only in 1870 that the British Colonial government introduced section 124A in Chapter VI of IPC under Offences against the State. The section was further amended in 1898 to extend the scope of the section by incorporating the words “hatred” and “contempt” along with disaffection. The motive of the colonial regime was to use it as a weapon to persecute dissent and blatantly curb any scope for criticism of the government during the freedom struggle. 

The first such known case was that of the trail of newspaper editor Jogendra Chandra Bose in 1891 where there was an objection by the editor on English rulers raising the age of sexual intercourse by Indian girls from 10 to that of 12 years. It is here that the judge gave an interpretation to the words disaffection and disapprobation. “Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval.” The father of our nation, Mahatma Gandhi was also tried under this section by the British government. In his words, “If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.” 

Post- Independence Debate 

The constituent assembly debates tells us that weaving of sedition law under article 13 was not acceptable to the framers of Constitution as a restriction on the freedom of speech and expression but it continued to find its presence in the penal statute as it is. During the discussion, Shri K.M Munshi said that “The sedition law is not made an offence in order to minister to the wounded vanity of Government. Public disorder is the gist of the offence. The acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that is their intention or tendency”.

While introducing the first Constitution amendment bill in 1951, Pandit Jawaharlal Nehru spoke on the law of sedition and emphasized on the particular section being an obnoxious one having no place in any body of laws. 

The current debate on its misuse

The debate around such unaccounted use of this section by elected governments lies in the particular provision only. The section says– “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 established by law in 103 [India], [***] shall be punished with 104 [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

“Explanation 1.-The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.-Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.-Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]”

A bare perusal of the relevant section gives an ambiguous impression. The words ‘attempts or excites disaffection towards the Government’ is in itself vague and stands subject to different interpretations of investigating officer as well as courts. The problem lies in the fact that there remains a wide gap between the words- “disaffection”, “contempt” and “hatred”. Interpretation of such cryptic words gives ample room for its gross misuse by stretching the words to mean absolutely anything. Although the explanation to the section provides that comments expressing an disapprobation of an administrative or other action of the Government without inciting hatred or contempt does not amount as sedition, still we are witnessing such gross misuse of this section. 

The judicial pronouncement by the Supreme court in Kedar Nath v State of Bihar (1962) is a binding authority where the court upheld the law with a caveat that ‘a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. This should be referred not only by courts but also the government as well. The court has categorically expressed in the case Balwant Singh v Union of India 1995 that every expression of criticism is not sedition and the real intent of the speech is to be taken into consideration before beaming it as a seditious act. In this particular case, the court refused to penalise the accused who resorted to sloganeering against the State (Khalistan Zindabad etc) as it did not amount to any threat to the government or gave rise to any enmity between any religious groups.

The court in Bilal Ahmad Kaloo v State of Andhra Pradesh 1997 quashed the charges of sedition and reiterated the same and held that an act was not substantiated that threatened the existence of the Government. In the case of Common Cause v Union of India 2016, the court reiterated that for invoking the charge of sedition, the principles laid down in Kedar Nath case should be strictly adhered to. 

Sedition and its interplay with Fundamental rights 

Through rampant slapping of sedition cases on individuals who question the government or do not stand in consonance with the actions of the regime, the democratic ethos are being ruptured. Countries like the United Kingdom who introduced us to this very law have themselves abolished it quoting that they do not want to be remembered as a country which uses Draconian laws. Australia is another country which after the recommendation from Australian Law Reform Commission changed the term sedition to references of ‘urging violent offences.’ The Law commission of India in its recent consultation paper published in 2018 have recommended repealing of section 124A of IPC and invoking this section only in cases where the intention behind any act is to disrupt public order or to overthrow the Government by violent or illegal means. It has been emphasised in the paper that every irresponsible exercise of right to speech and expression cannot be termed seditious. “For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under Sedition.” 

The legitimate exercise of constitutionally guaranteed freedom of speech and expression is often constrained due to this relic of colonial legacy. Intolerance towards criticism by the government has resulted in clamping down on such exercise behind the garb of anti- national activity. In the case of Shreya Singhal v Union of India, section 66A of Information Technology Act 2000, which criminalised online speech considered ‘grossly offensive’ or ‘menacing’ was struck down due to the ambiguity of the terms. The definition of sedition also suffers from such dubiety which results in its abuse. Overbroad definitions carry certain loopholes and they must be addressed to strengthen the system of justice. 

It is for the courts now to apply the judicial precedents and uphold the civil rights of individuals if there is a case of mere throttling of dissent in the garb of naming it as sedition. The literal meaning of the words should not be taken into account individually but collectively by way of looking at the history of the legislation, the intent and purpose of the law as well as the injury it intends to carry on any other rights guaranteed by the Constitution. The law being a cognizable one gives authority to the police to arrest someone on the charge at the drop of a hat. It is extremely imperative to understand that the arduous procedure that follows after slapping of such a charge is often the greater punishment in comparison to conviction. 

Justice Deepak Gupta, a sitting judge of the Supreme Court has given an important insight on how if not abolish the law of sedition, it definitely needs to be toned down. In a valedictory address in a workshop organised in Ahmedabad elucidated on the law of sedition and its interplay with fundamental rights specially that of freedom of speech and expression. He said, “The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right ot disagree. As long as a person does not break the law or encourage strife, he has the right to dissent”. He added that freedom of expression being a constitutional right must get primacy over laws of sedition. 

It is to remembered that any condemnation of the government or its institutions can never amount to sedition alone unless the intention stems from causing any injury to national security or public order. This is because of a basic reason that no government symbolises the aspiration of every citizen in the country. Dissent and debate are integral part of a democracy. It does not weaken it, instead strengthens the pillars of democracy. 

There is a need for the law of sedition or is there?

The essential ingredients to invoke a case of sedition is disturbance of public order and incitement of violence. The act must be such as causing hatred. The term public order has been defined and distinguished from “law and order” and “security of state” in the case Ram Manohar Lohiya v State of Bihar 1966. It was held that “An act may affect law and order but not public order just as an act may affect public order but not security of state”.

There are other statutes such as the Indian Penal Code,1860 and the Unlawful Activities and Prevention Act which also have provisions which cover disruption of public order and are sufficient safeguards for protection of national security. Chapter VI of the IPC includes the offences against the State, inter alia, waging or attempting to wage war (section 121), collecting arms, etc. with intention of waging war against India (section 122), concealing with intent designed to wage war (section 123), covering a wide range of malicious intentions against the State. Chapter VII of the same statute covers provisions relating to abetting mutiny (section 131 and 132). Further, Chapter VIII, titled offences against the public tranquillity covers actions which, if allowed, would disturb the peace of the society. Section 153A prohibits the actions promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and acts prejudicial to maintenance of harmony. The Criminal Law Amendment Act, of 1961 was enacted with the purpose of curbing activities that are likely to jeopardise the security of the country and its frontiers point.

The indiscriminate use of this archaic law for dissenting against the government has resulted in arbitrary restrictions on the freedom of speech of the citizens and this whimsical slapping of charges stands inconsistent with democratic aspirations of the country. 

Diversity of opinions cannot be endangered by the way of slamming sedition charges for making statements that in no way undermine the security of the nation. It is thus time that this law is redefined.

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