This article is written by Jessica Kaur, a first-year student currently pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National University of Law, Punjab. Here, she discusses the concept of sedition as given in Section 124A of the Indian Penal Code, 1860.
Sedition is a controversial term that is rampantly and carelessly thrown about in today’s societal dialogue. With a distaste for the Government’s policies rising in the general populace, the expression of discontent by the youth is often labeled as sedition. However, many don’t know what it actually constitutes. Thus, we must first ask ourselves, what does sedition mean in law?
In this article, we shall look at the various aspects related to the crime of Sedition- understanding its essential elements as given in Section 124A of the Indian Penal Code, 1860 and examining certain important case laws that have led to the evolution and establishment of this concept. We will also analyse the Constitutional validity of the law with the help of major judgments given by the court, and look at possible reforms that can be brought in it.
Meaning of ‘Sedition’
The Constitution of India, 1950 grants us certain Fundamental Rights, which represent our basic human rights and liberties which all of us are entitled to. One of these rights is the ‘Right to Freedom of Speech and Expression’, granted by Article 19(1)(a). This right isn’t absolute though, and certain reasonable restrictions can be put on it in specific situations such as prevention of defamation of another person, maintenance of public order and decency, protection of the integrity of the nation, etc. which are mentioned in Article 19(2). One of the cases where the ‘Right to Freedom of Speech and Expression’ can be restricted is in the case of Sedition.
Sedition refers to overt actions, gestures or speech by a person in oral or written form which expresses his or her discontent against the established Government in the state, with the aim to incite violence or hatred against it. Classified as a crime in India since 1870, it has been defined under Section 124A of Chapter VI of the Indian Penal Code, 1860. This Section says that whoever, by spoken or written words, signs, etc. excites or attempts to excite hatred or disaffection towards the Government of India is said to have committed the crime of sedition.
Let’s have a look at some of the main cases which have shed light on the meaning and application of this law.
Reg v. Alexander Martin Sullivan (1868)
In this case that was held in the United Kingdom, Fitzgerald, J. defined sedition as any practice, “by word, deed or writing”, which intends to disturb the peace in a state and incite discontentment against the Government in the state and the laws of the empire. He said that the aim of sedition is to stir up opposition and rebellion in the state. It is an indication of disloyalty against the state. He further added that sedition is a crime against society and is very similar to treason, often barely falling short of being classified as the latter. This case acted as a founding stone in the establishment of sedition as a concept.
Queen-Empress v. Jogendra Chunder Bose and Ors. (1891)
In this case, Jogendra Chunder Bose was accused of inciting rebellion through an article he had written in his own Bengali magazine named ‘Bangobasi’. In this article, he had criticised the Age of Consent Act, 1891 which raised the legal age for sexual intercourse for women from 10 to 12 years. He called it “forced Europeanisation”, criticising the interference of the British government in Hindu customs.
While the Act itself was perhaps a boon for Indian society and was supported by reformers and women’s rights groups, the question here was of sedition and inciting violence against the Government. “Disaffection” towards the Government was defined in this case by Chief Justice Petheram as “a feeling contrary to affection, in other words, dislike or hatred” and included disloyalty towards the Government.
With regard to the fate of the accused in this case, Bose was released on bail and the case against him was dropped.
Queen-Empress v. Bal Gangadhar Tilak (1897)
This was the first case in which Section 124A was defined and applied.
In this case, the advocate and prominent freedom fighter Bal Gangadhar Tilak was charged with sedition. He spoke against the Indian Civil Services Officer Rand, who was the Plague Commissioner in Pune. Rand’s plague control methods were considered tyrannical by many, including Tilak. His revolutionary speeches encouraged other individuals to spread violence against the British, which ended with the death of two British officers.
The court defined disaffection as the absence of affection. Therefore, it means “hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government.” The court further added that no man should excite or attempt to excite this kind of disaffection; he should not make or attempt to make anyone feel any kind of enmity towards the Government. With this in mind, the court convicted the freedom fighter of the crime of sedition and sentenced him to 18 months of rigorous imprisonment. However, he later received bail in 1898.
Which activities are considered seditious?
Going by the interpretation of sedition by Indian courts, the following are some examples of activities that are considered seditious in nature:
- A group of people raising slogans against the Government of India.
- A speech made by a person that clearly incites violence or public disorder.
- Written work, like a newspaper article, which incites violence or public disorder.
Punishment for Sedition
- As given under Section 124A of the IPC, a person convicted of sedition is punishable with either imprisonment ranging from 3 years to a lifetime, a fine, or both.
- Sedition is a cognisable offense, which means the police can arrest a person accused of sedition without needing a warrant for the same.
- Sedition is a non-bailable offense, which means a person arrested for sedition cannot be released on bail by the police as a matter of his right. He has to apply for bail before a court or a magistrate.
- Sedition is a non-compoundable offense, which means it cannot be settled with a compromise between the accused and the victim.
Origin of Sedition in India
The Anti-Sedition law was first formulated in India by British historian-politician Thomas Macaulay in 1837, but it was not included in the Indian Penal Code when the same was enacted in the year 1860.
Subsequently, in 1870, Section 124A was added to Chapter VI of the IPC, which deals with offenses against the state. This was done as a response to the rising radical Wahabi movement, led by Syed Ahmed Barelvi. Moreover, people were increasingly demanding more autonomy and independence for India. This was against the interests of the British government. Therefore, it sought to curb people’s speech and expression through this law.
Some of the most famous sedition cases during the British Raj involved charges against the leaders of the Indian Independence Movement. The first among them was the trial of Jogendra Chunder Bose in 1891, which we discussed above. There were many more cases against the speeches and newspaper articles written by Indians. The most well-known cases, however, were the three cases of Bal Gangadhar Tilak (one of which we discussed previously) and the trial of Mahatma Gandhi in 1922. In this case, Mahatma Gandhi and Shankerlal Banker were accused of sedition for three articles published in the magazine ‘Young India’, which criticised the British government. Gandhi’s powerful speech in court where he pleaded guilty to the charges against him led to a ruling in his favour.
After Independence, the Constitution (First Amendment) Act, 1951 added the term “public order” to Article 19(2), which meant that a citizen’s freedom of speech and expression could be put under legislative restrictions to maintain public order and stability too. Thus, sedition was recognised as a crime, though the then Prime Minister Jawaharlal Nehru was of the opinion that anti-sedition law held no place in free India. Since then, there have been numerous cases involving sedition where the courts have questioned its validity, but the Supreme Court in Kedar Nath Singh v. State of Bihar (1962) ruled in favour of this law. This continues to be the current stand of the court even today.
Essential Ingredients of Section 124A
Not every action of an individual, even if it expresses some sort of discontentment, can be classified as sedition. There are certain essential elements that such an action must include in order to be considered seditious. These elements can be derived from the explanation of sedition as given in Section 124A of the IPC. Let’s quickly have a look at them.
Words, Signs, Visible Representation or Otherwise
The first and foremost element of sedition under Section 124A is some act done by a person or a group of people- a gesture or sign, spoken or written words, etc. In a trial for sedition, the first thing that must be proved is that the person under trial actually participated in the act before checking if it was seditious or not. Without concrete gestures or words that can be traced back to the accused, a case for sedition cannot even exist against him.
Brings or Attempts to bring into Hatred or Contempt, or Excites or Attempts to Excite Disaffection
The essence of sedition lies in the intention of the person being accused. Such a person must have an active intention to create hatred, contempt, or disaffection towards the government in the minds of people. Disaffection has been specifically defined by Explanation 1 under Section 124A, as all feelings of disloyalty and enmity towards the state. The intention of a person to spread hatred or disaffection can be inferred from the act or speech itself. Under the Section, the mere attempt to excite hatred is also punishable and so it is not necessary to check whether the person achieved this purpose or not.
In case it is a speech, it should be studied as a whole, freely and fairly. On this basis, the intention of the speaker should also be judged. Words should not be taken out of context. Only if the speech advocated for a rebellion or action to overthrow the Government through dishonest or illegal means, with the use of violence or even the threat of violence, should that speech be included in sedition.
The following case of Niharendu Dutt Majumdar v. King-Emperor (1942) was amongst the first where the court established this element as essential to the crime of sedition.
Niharendu Dutt Majumdar v. King-Emperor (1942)
In this case, the appellant delivered a speech in Calcutta on 13th April 1941, due to which he was accused and convicted of sedition and sentenced to “rigorous” imprisonment of 6 months along with a fine of Rs. 500. This ruling was challenged on the grounds that the appellant’s speech did not amount to sedition.
The court held that sedition essentially means a person’s intention to promote public disorder or his reasonable anticipation that his words or actions will promote public disorder. Therefore, “incitement to violence or the tendency or the intention to create public disorder” is a crucial element of sedition. Regarding the facts of the case, it was held that the speech by the appellant did not exceed the legal limits of criticism of the Government and, therefore, could not be considered sedition under the Defense of India Act, 1939 (this Act was repealed in 1947).
Government Established by Law
The main principle behind sedition is that the Government established by law in a state should remain stable and there should be no such contempt towards it which could threaten the integrity of the state through a rebellion. Therefore, an essential element of the crime of sedition as per Section 124A is that the actions or words of the person should have expressed hatred towards the Government and it should incite disaffection and violence against the Government established by law in India.
In the case of Kedar Nath Singh v. State of Bihar (1962) (which will be discussed in detail later), the Supreme Court noted for the first time, that the term “Government established by law” here does not mean “the persons for the time being engaged in carrying on the administration”, but instead referred to the Government as “the visible symbol of the State”.
Expressing Disapprobation- Explanations 2 and 3
Three explanations have been given in Section 124A. Two of them- Explanation 2 and 3– attempt to explain what cannot be included in sedition. They say that comments which express a person’s disapprobation i.e. disapproval or dislike of the measures or actions of the Government of India are not considered sedition if their only aim is to bring about a lawful change in the Government’s policies, without wanting to excite hatred or contempt towards it. With the addition of these explanations to the IPC, the court has attempted to prevent a literal interpretation and application of Section 124A.
These two explanations are extremely crucial, and Section 124A would be incomplete without them. This is because they recognise a citizen’s ‘Right to Freedom of Speech and Expression’, indicating that criticism of the state and its policies by the people is a fundamental part of a democracy and therefore, it cannot be snatched away.
Constitutional Validity of Section 124A
In post-Independence India, Section 124A has come under criticism many times on the grounds that it curbs our ‘Freedom of Speech’. Many people have called it a tyrannic relic of the colonial times, questioning its existence in a free India based on the principles of democracy. Thus, critics have claimed that this provision of the Indian Penal Code stands in violation of the Constitution of India. However, what does the law have to say about this?
Let’s take a look at the 1951 case of Tara Singh Gopi Chand v. the State, where the Punjab and Haryana High Court addressed the issue of Constitutional validity of Section 124A.
Tara Singh Gopi Chand v. the State (1951)
In this case, two pleas were pending against Tara Singh with regards to two speeches that he had given, one in Karnal and one in Ludhiana. One of the sections under which he was charged was Section 124A. He challenged this, saying that the very crime of sedition is inappropriate in India after the foreign rule has ended, and submitted that Section 124A should be declared void as it is in contravention of the ‘Right of Freedom of Speech and Expression’ guaranteed by Article 19 of the Constitution.
The High Court agreed with the claim of Constitutional invalidity of Section 124A, and that it was a violation of the ‘Fundamental Right to Freedom of Speech and Expression’. It struck down this provision and at the same time, quashed the proceedings against Tara Singh and ordered for him to be set free.
The Allahabad Court passed a similar ruling in the case of Ram Nandan v. State (1959), where Section 124A was declared ultra vires of the Constitution.
In the face of such sentiments against the Anti-Sedition law, the Government of India appealed to the Supreme Court. For the first time, the Apex Court addressed the issue of the legality of this colonial-era law in the case of Kedar Nath Singh v. State of Bihar (1962). Let’s examine this case, which has proved to be one of the landmark cases relating to the concept of sedition.
Kedar Nath Singh v. State of Bihar (1962)
In this case, the appellant was charged with sedition for certain speeches that he had delivered. In his speeches, he called officials of the CID “dogs”, and members of the Government “Congress goondas”, whose election was a mistake by the people. He encouraged the audience to strike against the then Government and drive them out like the British. For this, he was convicted under Section 124A by a Magistrate’s court in the state of Bihar. He appealed to the Patna High Court but his conviction was sustained. He then obtained special leave to appeal to the Supreme Court, where his main argument was that the restrictions imposed by Section 124A on the ‘Freedom of Speech and Expression’ of a person were beyond the ambit of the legislative power as given by Article 19(2).
The Supreme Court noted that Article 19(2) of the Constitution, which imposes certain restrictions on the ‘Freedom of Speech and Expression’, was amended in 1951 to include public order. This means that any comment by a person which threatens to disturb public order or the security of the state is a crime against society and cannot be allowed. This is what sedition does. The court said that sedition has been ruled as a crime to prevent the subversion of the Government by inciting contempt or hatred towards it, which can rock the very stability of the society. It, however, clarified that a citizen is allowed to criticise the Government so long as he does not intend to cause public disorder or violence. Hence, essentially, it sided with the ruling given in the previously mentioned case of Niharendu Dutt Majumdar v. King-Emperor (1942). Thus, Explanations 2 and 3 were added to Section 124A.
Is Anti-Sedition a good law?
The Supreme Court gave its judgment based on the conclusion that some sort of restriction on the ‘Freedom of Speech and Expression’ is necessary to maintain public order and is essential to prevent any threat to the integrity and stability of the nation. This is true- our Fundamental Rights cannot be absolute; they need to be confined in reasonable boundaries to ensure that they don’t bring harm to others around us. However, criticism of the state is a part of the very essence of democracy, which has been emphasized by the courts too. The problem arises when the Anti-sedition law is misused against the citizens and used as a tool to suppress free speech in order to make the public quietly abide by whatever the Government says.
Here are some of the arguments given by people for and against the Anti-Sedition Law:
Arguments in favour of Section 124A
- Preserves national integrity: The Anti-Sedition law is essential to protect and preserve the stability of the Government and to prevent speech and expression that aims to cause public disorder. All this is necessary to ensure that national integrity and security remains intact.
- Punishment for hostile activities: There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists. They cause violence and attempt to establish parallel administrations in the areas. They openly advocate the overthrowing of the government for their personal interests. These groups must be strictly punished.
- Contempt: The Government of India is an official authority provided for in the Constitution and established by law. Therefore, there must be restrictions on expressing unnecessary contempt or ridiculing the Government beyond certain limits. If contempt of court invites penal action, then contempt of the Government should too.
Arguments against Section 124A
- Colonial tool for suppression: The Anti-Sedition Law was first added to the Indian Penal Code in 1870 by the British. It is no surprise that the provision aimed at suppressing the resistance of the Indian masses towards foreign rule. Many freedom fighters were charged under this law, including Bal Gangadhar Tilak and Mahatma Gandhi. The Mahatma, in fact, described this law as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.
- Vague law: The law is vague, because it contains terms like “disaffection”. It is not clear what can or cannot be classified as disaffection in various situations. This means that the law can be interpreted differently as per the whims and interests of the authorities involved. In recent years, the law has sometimes been used to persecute political dissent. Some of the most recent examples include the arrest of a Manipur student activist for a social media post on the Citizenship Amendment Act, 2019, the arrest of 14 students of Aligarh Muslim University for raising “anti-national” slogans, and the charge of sedition on four Kashmiri students in Rajasthan over social media posts about a recent terror attack in Jammu and Kashmir.
- Inconsistent with International Commitments: India has signed various international treaties and covenants, including the International Covenant on Civil and Political Rights (ICCPR) in 1979. It sets forth international standards for the protection of freedom of expression in the world. However, misuse of sedition and arbitrary charges in India are inconsistent with such types of international commitments.
- Unnecessary provision: There are other provisions in the Indian Penal Code and the Unlawful Activities (Prevention) Act, 1967 that criminalise “disrupting the public order” or “overthrowing the government with violence and illegal means”. One example is Section 121A, which penalises conspiracy to wage war against the Government. Therefore, as there are other provisions which criminalise actual tangible threats to the Government, Section 124A is not required.
As we see above, the disadvantages of this law seem to outweigh the advantages. However, considering the approach taken by the Supreme Court as well as the views of the Government on this law, it seems that this section is unlikely to be scrapped soon. But, it is possible to make certain reforms in the law after proper review and deliberation. This is discussed in the next section.
Proposals for Reform of Section 124A
While the Anti-Sedition law may not be scrapped, it can be reformed to restrict its application to only those cases where the speech or actions by individuals are extremely hateful and pose a serious threat to the national security and integrity.
In the 2015 case of Shreya Singhal v. Union of India, the issue before the court was ‘In exactly which situations the Government could restrict the speech and expression of a person when he or she made comments that appeared offensive?’. While the immediate concern was the restrictions given under Section 66A of the Information Technology Act of 2000, it also had great implications for Section 124A, which was addressed in this case. The court declared that a line needed to be drawn between advocacy and incitement by the speech. The Constitution, through its guarantee of ‘Freedom of Speech and Expression’, permitted the state to restrict this right not when a person advocated the use of force or violation of law, but only when he incited or attempted to incite the same.
Reduction in Quantum of Punishment
The punishment for a person convicted of sedition should be made more reasonable, in accordance with the changing times. Today, with greater freedom of speech and expression and stronger views on the government amongst the masses, the crime of sedition in most cases does not warrant imprisonment up to a life sentence or other such harsh punishments. Also, it is always possible in cases of sedition that the person’s words were taken out of context or that they were said in the heat of the moment. Unless the seditious actions have actually brought concrete damage to another, they should be dealt with more rationally.
In 2018, the Law Commission of India published a consultation paper recommending that it was time to re-think or maybe even repeal Section 124A. It said that expressing frustration over the state of affairs could not be treated as sedition. At the same time though, the report said that if contempt of court invites punishment, then contempt of Government should too.
There has been an increase in sedition charges pressed against authors, journalists, human rights activists, students, etc. The most recent cases of sedition have included personalities such as Arundhati Roy, Hardik Patel, Kanhaiya Kumar, and others. Some of these cases were dealt with unreasonably and did not require the application of Section 124A. The Government, throughout the years, has been criticised multiple times for using this law to suppress the voices of individuals. Only time will tell what the future holds for this law and its usage in India.
Sedition is, no doubt, a controversial concept; it must be held in a delicate balance with our ‘Right to Freedom of Speech and Expression’. While no citizen should be allowed to spread unnecessary hatred among the masses and incite violence against the Government (especially in a country founded on the principles of non-violence) every citizen should also possess the freedom to express their views on the Government. The interpretation laid down by the Indian courts and the actual implementation of this law sometimes differ, which has led to people labeling the applied law as “draconian”. In an era where the citizens are increasingly aware of their rights and liberties and have a growing sense of duty and responsibility in this democratic system, perhaps it is the perfect time to consider reform in this law.
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