This article has been written by Bipasha Khatana.

Times have changed, developments have occurred and the cognitive capacities of individuals have gained impetus in the contemporary pro-rights world. The individuals have started questioning everything that appears wrong to them because as a matter of fact, the individuals have been conferred with ‘such rights’ by the law of their countries. The postmodernist era that we have entered into, reveres all sorts of arguments and beliefs that delineate scepticism or challenge to the established notions, provided a reasonable rationale is endorsed along with it. Therefore, it can be said that what society now wants is to be governed by ‘rationality and reasonability’ to shield their rights instead of some form draconian or stringent laws.

However, when we look at Section 124-A of the Indian Penal Code, 1860, there seems to be some incongruity in the current belief system and what the bold letters of the law iterate in black and white. Before unravelling the relevance of this law, it becomes inevitable to understand the reason why this law was incorporated into the substantive code of the country. This can be understood both jurisprudentially and historically.

Jurisprudential basis of section 124-A, IPC, 1860

One of the determinant factors of a ‘state’ is the fact that it possesses ‘sovereignty’ which cues that the other states are not able to question the authority of the state while undertaking the decision making with respect to the matters related to that very state and that no foreign state has any say or command or power over the matters of the state. The important thing is the ‘independence’ of the state from the other states and that the other states respect and honour this independence amid the comity of nations. Presence of sedition law safeguards this ‘sovereignty’ of the state by rendering a deterrent to indulge in actions that threaten the stability of the state mechanism. Otherwise, anyone can challenge the authority of the sovereign in case of a conflict between the public interest and private interest of the concerned individual which will disrupt the teleo (Aristotle’s term for end objective) of the society, that is social order.

Tracing the existence of society back to ‘social contract theory’ propounded by Hobbes, Locke and Rousseau, it becomes crystal clear that the people at large surrendered their natural rights and vested them into a sovereign body for a simple consideration of security to their life and property and to establish a ‘civil society’ that is governed by the principles of harmony and peace. Therefore, it becomes imperative for the subsequent societies to ensure that the dogmas of peace and harmony prevail in the society founded by their forefathers and this onus of ensuring the status quo and equilibrium like environment in the society was conferred upon the sovereign authority. This sovereign of social contract theory is analogous to the ‘state’ in contemporary society. Moreover, even in the ‘state of nature’, the starting stage of the civil society when some of the natural rights were vested in the sovereign, the right to rebel against the authority to overthrow him/her was retained contingent on the abuse of power by the sovereign. Treading on the same line of thought, the presence of S.124-A is similar to the controlling power vested in the sovereign at the time of ‘state of nature’. Therefore, it becomes imperative to highlight two important inferences here in this particular assertion. Firstly, the purpose of the establishment of codes of law by the people at large was to ensure security and stability in the society. And secondly, since the system of law is based on the interests and will of the individuals, it provide for a mechanism through which the individual can always keep a check on the powers exercised by the sovereign in the interests of the individual. And this very idea is the threshold for the ascertaining a link between the existence of the sedition laws in the Indian Penal code, 1860 and the established fundamental right guaranteed by the constitution of India by virtue of Article 19 that renders the right to freedom of speech and expression.

Historical background

The offence of Sedition was originally introduced under Section 113 of Macaulay’s draft Penal Code of 1837, but because of certain reasons, it was dropped when the Indian Penal Code was passed in 1860. Shortly thereafter, the then Law member of the Government of India Sir Fits James Stephen introduced an Amendment in the form of Section 124-A of the Indian Penal Code (Amendment) Act 1870 which was passed. The language of the Section at that time was different from the present Section 124-A. Thereafter a new Section 124-A was inserted in the place of the old Section by the Indian Penal Code (Amendment) Act, 1898 which was modified by the adoption of laws and orders of 1937, 1948 and 1950 and the Part B States (Laws) act 1951 resulting into the present form[1]. The main reason behind adding this provision was the augmenting nationalist feelings amongst the people of India that threatened the continuance of the British colonial government. The triggering moment for the Britishers was the ‘Revolt of 1857. The movement, albeit unsuccessful in its outcome, it was triumphant in frightening the British government and also victorious in showing the glimpse to future free India. The movement was undertaken by the Indian people to free the soldiers from the colonial government who were imprisoned in lieu of their refusal to use the cartridges that were coated with pig and cow fat. The discontentment was by both the sects- Hindus and Muslims who in unison rebelled against the Britishers. Since it was the first attempt to challenge the British government, the leadership skills were haywire which resulted in the containment of the movement and imposition of stringent draconian laws by the British government. One such attempt was the addition of section 124-A into the Indian penal code which laid down the foundation of the offence called as ‘sedition’.

Essential ingredients of the offence of sedition 

The term ‘sedition’ has not been used in the bare wording of the statute but to classify the offence under this section as sedition it has been mentioned in the marginal note. The bare wordings iterate- “Whoever, by words, either spoken or written, or by signs, by visual 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 India, shall be punished with 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.”[2]

The explanations attached to this section are useful in limiting the scope of the offence of sedition. Explanation 1 defines that ‘disaffection’ includes disloyalty and all feelings of enmity. Explanation 2 and 3 together ascertain the exclusions that do not constitute the offence of sedition. The comments expressing ‘disapprobation’ against the government measures, administrative actions or any other actions of the government and which the individual seek to alter in a lawful manner would not constitute sedition.

The bare language could be divided into two interpretations; any action falling within the boundary of any interpretation would constitute the offence. Firstly, any act done (words, signs, visual representation or otherwise) that cultivates hatred or contempt against the lawfully established government. Secondly, any act or attempt of an act that excites or attempts to excite disaffection against the government will also constitute sedition.     

Judicial pronouncements

The impact factor of sedition law can be better expounded through a series of case laws beginning from the British period and continuing till near present. In Queen Empress v. Jogendra Chander Bose[3], famously known as Bangobasi case, Jogendra Chandra, was an editor in the Bangobasi newspaper who while reacting to the passage of the age of consent bill (1891), raised the cry of ‘religion in danger’ and charged the Government with Europeanizing India by brute force and held it responsible for the economic deprivation of Indians. However, it also stated that Hindu neither believed in rebellion nor were they capable of it. The official attitude showed that it was increasingly becoming intolerant of the slightest criticism and albeit the proceedings were dropped, but the same happened owing to the apology advanced by the accused and not because of the liberal intent put in by the honourable judges. 

Similarly, in Pratod case, 1897[4], the publisher of a newspaper from Islampur in Satara district, R.N. Kashalkar was convicted for imprisonment for life and the printer, K D Hamalkar was convicted for seven years so as to set deterrent for the public at large to participate in seditious acts. An article titled “Preparation for becoming independent” was published on 27 May 1897 that described the resistance of the Canadian nationalist against the oppressive colonial rule and urged the Indian people to follow such nationalist blueprints to attain freedom and democratic rights for the Indian people.

During the late 19^th and early 20^th century, the trials of Bal Gangadhar Tilak are classic examples of the draconian approach followed by the judges to slap the charges of sedition against the thriving nationalism in the Indian subcontinent. The fundamental moral question that Tilak raised was whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the government against the Indian people. There are striking similarities between this and questions raised by contemporary targets of sedition law like Arundhati Roy who expounded that her alleged hate speeches were, in reality, an outcome of her love and pride in the country and her empathy towards the victims of brutality and cruelty.

“Tilak’s first trial began in 1897. The government claimed that some of the speeches that referred to Shivaji killing Afzal Khan had instigated the murder of the much-reviled Plague Commissioner Rand and another British officer Lieutenant Amherst, which occurred a week later. Tilak was convicted of the charge of sedition, but released in 1898 after the intervention of internationally known figures like Max Weber on the condition that he would do nothing by an act, speech, or writing to excite disaffection towards the government.”[5] 

In 1908, after the political situation created because of the partition of Bengal, the British enacted the Newspapers (Incitement to Offences) Act, a law that enabled district magistrates to confiscate printing presses that were used to publish seditious material. The colonial government also enacted the Seditious Meetings Act to prevent meetings of more than 20 people from assembling. These moves came in for severe criticism from Tilak. After the Muzaffarpur bomb incident[6], in which the wife and daughter of Pringle Kennedy, a leading pleader of the Muzaffarpur Bar, the Kesari carried an editorial, pointing to the effects of government repression. In 1908, Tilak was prosecuted once more for sedition.

In 1916, the DIG of Police, Criminal Investigation Department (CID) J A Guider moved the district magistrate, Pune, alleging that Tilak was orally disseminating seditious information. He cited three of Tilak’s speeches in 1916, one given in Belgaum and two in Ahmednagar. The Federal Court had, in defining sedition in the Niharendu Dutt Majumdar case[7] held that in order to constitute sedition, “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”, but the Privy Council, in the Sadashiv case[8] overruled that decision and emphatically reaffirmed the view expressed in Tilak’s case to the effect that “the offence consisted in exciting or attempting to excite in others certain bad feelings towards the government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.

Even after India had attained independence from the clutches of the British colonial rule, this draconian law continues to exist in the statute book of the substantive law of India and is repeatedly perused by the authorities to suppress any sort of political dissent. The first major constitutional challenge to sedition laws arose in 1958, when the constitutional validity of Section 124-A of the IPC, 1860 was challenged in an Allahabad High Court case that involved a challenge to a conviction and punishment of three years imprisonment of Ram Nandan, for an inflammatory speech given in 1954. In this speech Ram Nandan criticised the Congress regime for not being able to address extreme poverty in the state and exhorted cultivators and labourers to form an army and overthrow the government if needed. He also accused Nehru of being a traitor for dividing the country into two[9]. The court overturned Ram Nandan’s conviction and declared Section 124A to be unconstitutional. This decision was overruled in 1962 by the Supreme Court, which held that the sedition law was constitutional in the infamous case of Kedar Nath Singh v. State of Bihar[10]. In this case, the Kedar Nath Singh was a member of the Forward Communist Party in Bihar and was charged with the offence of sedition for his slanderous speech against the government wherein he called the C.I.D. officers as ‘dogs’ and Indian National Congress as ‘Goondas’. He further eloquently put forward his belief in the revolution and claimed that the rebellion would occur which will burn the capitalist, zamindars and the Congress leaders who have done nothing but loot the country. Amidst this, he also targeted the redistribution policy of land undertaken by Vinobha Bhave. A trial court convicted Kedar Nath with rigorous imprisonment for a period one year. Even the Patna High Court on appeal affirmed the conviction. Further appeals were made and conclusively, the constitutional bench of the honourable Supreme Court while holding section 124-A of IPC as constitutional, upheld the conviction of the accused. The apex court laid down that the sine qua non for the commission of an offence of sedition is the incitement to violence or the tendency or the intention to create public disorders by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State. The principles laid down showed a liberal approach of the Indian judiciary towards the sedition cases.

Therefore, the status of sedition law is still intact which tacitly vests exorbitant powers in the hands of the government which ultimately invests this power in propagating its own political ideology. There have been various incidents that depict such abuse of powers by the government in the contemporary scenario. However, the judiciary has also not taken the back seat and has actually taken proactive steps while ascertaining the ambit of the sedition law. In Common Cause v. Union of India[11], Supreme Court has affirmed that the principles laid down in Kedar Nath Singh case will be followed while adjudicating any sedition case. In another recent case before the Delhi HC, Bankim Kulshrestha v. Union of India[12], the complaint was against a statement- “after 2019 Elections, there won’t be any in 2024” and the respondent has affirmed that “I am an ascetic and I speak whatever comes to my mind and I am feeling that after these elections there will be no elections n 2024. There is only this election now and this is being fought in the name of the country”. The petition was dismissed after advancing the reasoning that ‘Democracy and free elections are the basic structure of our constitution and indestructible by a cavalier and fallacious interpretation of the constitution expressed by the respondent.’ This shows the significance of judicial activism that is manoeuvring the limit on the use of the sedition laws in the present pro-rights society.

The constitutional validity of section 124-A, IPC, 1860 

It now becomes important that sedition law envisaged under section 124-A of IPC, 1860 be now evaluated on the touchstone of Article 19 of the Indian Constitution.

Freedom of speech and expression guaranteed by the Indian Constitution by virtue of Article 19 is a sacred fundamental right that renders the plenary right to the individual to express her/him in a manner that adds to a better living of their lives. And it will be valid to assert that the constitution-makers were on the same page with the contemporary constitutional thinkers and jurists who attach exorbitant importance to the fundamental rights envisaged in part III of the Indian Constitution. And, the social contract theory makes it very clear that the individuals from the very inception were conscious to protect their natural rights as the very consideration to subject them to some authority was the realization of this ‘sense of security’. Also, in the 21^st century, when the world is racing towards a pro-rights society, it becomes all the more important to ascertain what remains the legitimate limit of restriction on an individual to practice her/his fundamental rights.

The decision of Supreme Court in Kedar Nath Singh v. State of Bihar[13] besides resolving the judicial controversy regarding the validity of section 124-A of the Indian Penal Code, I860, brings out pointedly one of the basic problems involved in India in the enforcement of fundamental rights. These rights, guaranteed in the Constitution, have to be applied within a legal system devised originally by an alien government with an object which is no longer valid in the present-day context. The result, therefore, is that there often arises a conflict between the rights and the pre-Constitution laws still in force, and the courts are called upon to decide the validity of such laws under psychologically different and entirely changed socio-economic urges and conditions[14].  

The problem involved in the case, in fact, represents that eternal conflict between the two concepts of liberty and security, which has eluded final solution in all the democratic societies. In the United States, an attempt has been made to resolve the conflict, so far as the freedom of speech is concerned, by the application of the “clear and present danger” test enunciated by Mr. Justice Holmes in the famous case of Schenck v. United States[15] and further refined and applied in a number of subsequent cases where the test sought to draw a balance between the freedom of speech of the individual and police power of the state and provided a handy guide to the courts for deciding cases involving restrictions on freedom.[16]

No doubt, the sedition laws have been very peacefully assimilated into the India legal system under the pretext that their existence is inevitable to ensure the security and sovereignty of the nation. However, when looked from the constitutional prism, the significance of the fundamental right of speech and expression guaranteed by the constitution loses its importance when the sedition laws are exploited to curtail and abridge the rights of the individual. In the contemporary times, the individuals are entitled to have opinions as the socialisation and the circumstances of the society have altered and it becomes important for the reformation of the laws as the ready-made law of the British period is unsuccessful in meeting the needs of the society.

Critical Analysis

The background picture for the sedition laws in the Indian backdrop has been dealt with in an elaborative manner in the previous sections of this project. Next in a cue, will be the deliberation upon unravelling the answer to the research question of the project. The scepticism attached to the presence of the sedition law in the substantive code of the country is no new notion amongst the minds of the renowned jurists and constitutional law thinkers.

The restriction imposed upon the right guaranteed by Article 19 of the Indian Constitution includes ‘sovereignty, integrity, security and public order’ conveying the message to the citizens of the country to abate certain actions that fall under any of the said category. Moreover, such restrictions on the fundamental rights being guaranteed have been widely accepted in the constitutional jurisprudence backing the principles of society and the mechanism that supports the efficient functioning of the state. All these arguments prepare a strong ground to raise a question if in the presence of a full proof plan to curb and control any action that can attempt to challenge the foundation of our constitutional democracy, what relevance does section 124-A of the Indian Penal Code, 1860 hold which does nothing more than render a way out to the government to exploit the law by molding the situation and executing their wishes to realize their discontentment against an individual. And such an action is completely anti the philosophy for which this legislation was inserted into the code first handedly.

The dilemma and doubts that have been normatively expressed above are also visible in the practical actions of the government in the past few months when the sedition laws were exploited to infringe the rights of the individuals. Recently, in February 2019, 14 students of Aligarh Muslim University were booked for the charges of sedition under section 124-A of IPC. The accusation owes to the tussle between two groups who went hand-to-hand with each other on the university campus following a protest against an alleged attack on a visiting crew from Republic TV[17]. Another such incident was when four female paramedical students of Kashmiri-origin have been slapped with sedition charges after being suspended from the private institute for allegedly celebrating the Pulwama terror attack by posting ‘anti-national’ messages on the instant messaging apps.[18] 

Another striking incident that happened was when Mr Veewon Thokchom, who was a student of Ambedkar University and advisor to the Mnaipur student’s union of delhi had helped organise a press conference in Delhi in January to condemn the arrest of Manipur journalist Kishorechandra Wangkhem, who was arrested under the National Security Act after he criticised Manipur Chief Minister N Biren Singh in a “derogatory” Facebook post. Mr Veewon was vocal against the Citizenship (Amendment) Bill, which saw massive protests in Manipur and other states in the northeast earlier this month. And for such acts of expression, the state booked him for the case of sedition as committing an offence against the state.[19]

Conclusion

All these three incidents are merely a glimpse to the real picture of exploitation of this substantive law by the state. The point of consideration here is not whether the individuals who have been taken aback by being charged with sedition, have done such acts are not. But the real lacuna here pertains to two issues. Firstly, the magnitude of occurrence of such incidents in the Indian legal system and the extent to which the restrictions are being imposed on the individuals to express their opinions, beliefs, apprehension and fears with respect to those in power and govern them. As students and young ignited minds, all the accused in the three cases had the right to criticize guaranteed by Article 19(1)(a) and Article 21 of Indian Constitution and put forth their notions and no doubt the principle of rule of law and constitutionalism should be respected at all twists and turns of the path, but the state mechanism should start realizing that the shape of our sedition law is such that it will be quite successful in taking a toll on the liberty, fraternity and human dignity of the individuals in near future. 

The main motto of Section 124-A is to protect the people against agitators as it to maintain the stability of the Government. The nature of the criticism depends up at on the condemnation of any service. It is sufficient to excite any feeling of hatred or contempt or disaffection towards the Government by established in India. It would be a question of fact to be determined in each case with reference to its circumstances. Therefore, it could be asserted that this right which falls under the umbrella of a fundamental right is made circumstantial and contingent on the adjudication of the facts by the courts. This means that if the court decides the criticism to be fair, then the act of speech or expression would fall under the block of fundamental right but if the action stirs up the public at large, immediately all the privileges rendered to the action is taken away and succumbs to the charges of sedition. Therefore, this shifts our attention to evaluate the real significance of the laws when its implementation is losing pragmatism and predictability in the minds of the governed. Such a situation could be analogous to Lon Fuller’s lawlessness during the reign of King Rex when the laws that existed were not predictable and it was not clear for the people at large to ascertain what actions of theirs would actually contribute to an unlawful act. Therefore, the ultimate responsibility lies on the legislature to either evaluate the reasonability of keeping this draconian law in our substantive code or ascertain the limits and boundaries within which this law should operate so as to prevent its encroachment on the fundamental rights of persons. 

Endnotes

[1] T. Bhattacharya, “The Indian Penal Code”, 9^th ed, 2019.

[2] S. 124A, The Indian Penal Code, 1860.

[3] Queen Empress v. Jogendra Chander Bose, (1892) ILR 19 Cal 35

[4] Queen Emperess v. Ramchandra Narayan, (1897) 22 Bom 152

[5] Sidhharth Narrain, Disaffection and the law: The Chilling Effect of Sedition Laws in India, Economic and Political Weekly, Vol. 46 (2011).

[6] Ritu Chaturvedi and S R Bakshi (ed.), Studies in Indian History – Bihar through the Ages: ‘The J P Movement’, Sarup and Sons, Vol 3, 2007.

[7] Niharendu Dutt Majumdar v. The King Emperor, AIR (29) 1942 FC 22.

[8] King Emperor v. Sadashiv Narayan Bhalerao, (1947) LR 74 IA 89.

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

[10] Kedar nath singh v. State of Bihar, AIR 1962 SG 255

[11] Common Cause v. Union of India, (2016) 15 SCC 269

[12] Bankim Kulshrestha v. Union of India, (2019) SCC OnLine Del 9446.

[13] Supra 10

[14] R. K. Misra, FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA., Journal of the Indian Law Institute, Vol. 8, no. 1, 1966, pp. 117–131.

[15] Schenck v. United States, 249 US 47 (1919)

[16] Whitney v. California, 274 US 357; Abrams v. United States, 250 US 61

[17] Alok Pandey, 14 Aligarh Muslim University Students Charged With Sedition After Clash With BJP Activists, NDTV (14/02/2019), available at https://www.ndtv.com/india-news/14-aligarh-muslim-university-students-charged-with-sedition-after-clash-with-bjp-activists-1993067, last seen on 28/09/2019

[18] Four Kashmiri paramedical students suspended from Jaipur institute for WhatsApp post on Pulwama attack, Hindustan Times (17/02/2019), available at https://www.hindustantimes.com/india-news/four-kashmiri-paramedical-student

[19] Ratnadip Choudhary, Manipur Student Leader Charged With Sedition, To Be Taken To Court, NDTV (18/02/2019), available at https://www.ndtv.com/india-news/manipur-student-leader-veewon-thokchom-charged-with-sedition-to-be-taken-to-court-in-imphal-1995478, last seen on 28/09/2019

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