In this article, Harsh Vardhan Tiwari of Rajiv Gandhi National University of Law discusses Section 124A of IPC. Is the sedition law an Anathema to Freedom of Speech and Expression?

This article discusses the impact of sedition law in India and questions the state power in using it. This law has been in news recently with JNU student leader arrest on the charge of sedition, Allahabad High Court quashing summon sighting to Finance Minister Arun Jaitley to Harki Patel parole where Supreme Court has been requested to re-examine Sedition law in the country. The article will cover what is section 124A? What is the constitutional history of sedition law? What are the reasonable restrictions imposed under Article 19(2)? What is the way forward? Should the law on sedition be repealed? Is it unconstitutional and does it compromises freedom of speech and expression assured under Article 19(2)? Is the Law on sedition an anathema to the freedom of speech and expression? There has been a demand made by the public activist in India to re-examine law on sedition. The article delves into the law itself, its use and misuse and on a larger question of the right to question the state.

What is the law on Sedition in India?

Section 124A of the Indian Penal Code, 1860[1]  in Chapter VI deals with the law on Sedition. It is considered as “Offense against the State”. There is no mention of the word “Sedition “in the particular section.  The sedition law in independent India has colonial origins being enunciated by the English Government in the year 1870 i.e. ten years later than the original Code due to reluctance of Macaulay to include it in the original code. It stipulates that –

“Whoever, by words, spoken or written, or by sign, 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 India, Shall be punished with

• Life Imprisonment with/without fine

• Imprisonment up to 3 years with/without fine

• Is a non-bailable, non-compoundable ,cognizable offense”

There are three explanations attached to section 124A.[2] Explanation 1 highlights the expression “disaffection [3]“ includes disloyalty[4] and all feelings of enmity[5]. Explanation 2 and 3 states what does not constitute an offense under this section, it includes comments expressing disapprobation of the measures of the government with a view to obtain their alteration by lawful means, without exciting of attempting to excite hatred, contempt or disaffection (Explanation 2). 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 offense under this section.(Explanation 3)

Simply put the offense of sedition under Section 124A is the doing of certain acts which would bring the Government established by law in India into hatred or contempt or create disaffection against it. [6]

Sedition law – Constituent Assembly Debate 1948

When the initial draft of the Indian Constitution was being debated on, sedition was included as one of the restriction on freedom of speech and expression. But, after deliberations took place, the scope and restrictions on the free speech was made, sedition was eventually excluded from the ambit of Article 19(2).

Numerous Members of the constituent assembly took oppositions to this and recapped the assembly that Indians had suffered greatly due the misuse of the sedition laws.

Shri Rohini Kumar Choudhari said ,” I must congratulate the House for having decided to drop the word “sedition” from our new Constitution. Unhappy word “sedition” has been responsible for a lot of misery in this country and had delayed for a considerable time the achievement of our independence.”[7]

Seth Govind Das stated, “I would have myself preferred that these rights were granted to our people without the restrictions that have been imposed. But the conditions in our country do not permit this being done. I deem it necessary to submit my views in respect to some of the rights. I find that the first sub-clause refers to freedom of speech and expression. The restriction imposed later on in respect of the extent of this right, contains the word ‘sedition’. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word ‘sedition’. [8]

Conflict between Article 19(1) (a) & Sedition law?

Article 19(1) (a) – guarantees the freedom of speech and speech as fundamental rights subject to “reasonable restrictions “mentioned under Article 19)2)

Article 19(2) – Reasonable restrictions can be imposed on the following grounds-

• Security of the State,[
• Friendly relations with Foreign states,
• Public order,
• Decency and morality,
• Contempt of court,
• Defamation,
• Incitement to an offence, and
• Sovereignty and integrity of India.

The right to freedom of speech & expression constitutes one of the essential foundations of a democratic society.^[9] Overbroad restrictions on freedom of expression are invalid.^[10] Each person has a right to hold & articulate opinions;^[11] any overbroad restrictions on this fundamental right of expression should therefore be carefully scrutinised.^[12] When a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.^[13] The government’s interest in public order must be balanced with the people’s interest in preserving free expression.^[14]

Criminal sanctions are the most severe sanctions that society can impose on a person[15], both in terms of the restrictions that they place on his freedoms & the damage they do to his reputation. There must be proportionality between the effects of the measures responsible for limiting the right or freedom, & the objective which has been identified as of “sufficient importance.”^[16] This test has been relied in a number of other jurisdictions.^[17] Moreover, the act which has been curtailed should be of such a nature so as to create a clear & present danger & that it will bring about substantive evils that the legislation seeks to prevent.^[18]

According to the Johannesburg Principles,^[19] the freedom of expression or information cannot be restricted unless the government can demonstrate that the restriction is prescribed by law & is necessary in a democratic society to protect a legitimate national security.^[20]

While international instruments can only be enforced in a country if the country has ratified it, they still have an overbearing significance and influence law-making. As a member of the United Nations General Assembly, India has ratified the UDHR[21] and ICCPR[22] and, therefore, has enforcement value in the country. In India, while the offence of sedition is per se not in violation of international standards, any restriction on the freedom of speech and expression needs to be justified as recognized by international covenants and treaties.

Constitutional History of Sedition law

Tara Singh v State of Punjab[23]: Section 124A was struck down as unconstitutional being contrary to Freedom of Speech and Expression guaranteed under Article 19(1).

Ram Nandan v State[24] : Allahabad High Court overturned Ram Nandan conviction and declared Section 124A to be unconstitutional because –

If criticism without having any tendency in to bring about public disorder, can be caught within mischief of section 124A of the Indian Penal Code, then the Section must be invalidated because it restricts freedom of speech, and is capable of striking at the very root of the Constitution providing right to speech and expression with certain limitations provided under Article 19(2) of the Constitution of India.

Kedarnath v State of Bihar[25] : The Supreme Court overruled the 1958 judgment and held that the Sedition law was constitutional but at the same time observed that the sedition law must be narrowly interpreted and if given wider interpretation, it would not survive the test of constitutionality.

The apex Court sustained the constitutionality of Section 124A, but at the same time limiting its connotation and restraining its application to acts linking intention or propensity to create chaos, or disturbance of law and order, or provocation to violence. The Supreme Court distinguishing clearly between unfaithfulness to the government and remarking upon the actions of the government without inciting public disorder by act of violence.

Indra Das v State of Assam[26] : the Supreme Court reiterated that all laws, including Section 124A, have to be “read in a manner so as to make them in conformity with the Fundamental Rights”. In Arup Bhuyan v State of Assam[27] , Supreme Court reiterated that the speeches which amounts to “incitement to imminent action “can only be criminalized. Recently in the Shreya Singhal v Union of India[28], the Supreme Court clearly drew distinction between “Advocacy” and “incitement”, in which only incitement can be punished.

Therefore, only the words and speech which cause incitement to “imminent violence” can be criminalized and punished. Mere using words however distasteful, do not constitute sedition.

Laws dealing with Offense of Sedition

Apart from section 124A of the IPC, 1860, there are some other legislations too which deals with the offense of the sedition in India.

1. Indian Penal Code, 1960 – Section 124 A.
2. Criminal Procedure Code, 1973- Section 95.
3. Unlawful Activities (Prevention) Act, 1967- Section 2(o) (iii) and Section 13.
4. Prevention of Seditious Meetings Act, 1911- Section 5.

The use and abuse of Sedition law in Colonial and post-colonial era

In the 19^th and 20^th century, there took place several high profile trials in cases involving the sedition laws in India which also comprised of several Indian Freedom fighters. The most famous of such trial was that of Bal Gangadhar Tilak- (1897 killing of plague commissioner Rand). Strachey J. stated the law in the following terms;

“The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”[29]

The vital ethical question that Tilak raised was whether his trial constituted sedition of the people against the British Indian Government (Rajdroha) or the government against the Indian people or of the government against the Indian people (Deshdroha).

The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. “Section 124A under which I am happily charged is perhaps the prince among the political section of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for the person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplates, promotes or incites to violence. I have studied some of the cases tried under it, and I know that some of the most loved Indian patriots have been convicted under it, I consider it a privilege, therefore to be charged under that section.”[30] Stated Gandhi.

In the post-independence era, its record of use since independence of India points out repeated instances of misuse. It has been used arbitrarily to curb dissent. Its main target have been writers, journalist, activists who question government policy and projects, and political dissenters.

From people objecting to the nuclear plants at Kudnakulam, to writers like Arundhati Roy, to journalists and cartoonists ( like Aseem Trivedi ) and to social activists like Binayak sen, there is sufficiency of evidence to exemplify the indiscriminate manner in which this provision has been used.

Recent Cases at a Glance

Aseem Trivedi, Cartoonist (September 2012): Arrested for offense of sedition on the complaint that his cartoons made mockery of Indian Constitution and the National Emblem.[31]

Hardik Patel (October 2015): Man behind spearheading protest with the demand of reservation for the quota. Arrested by police on charge of sedition in two separate cases. [32]

Kanhaiya Kumar, Student JNU (February 2016): Arrested for voicing anti-national slogans.[33]

Conclusion and Suggestions

We need to understand that there lies a difference between populist opinion and constitutional morality. The Indian Judicial System should be allowed to interpret the law, trial by media is uncalled for. Dr. Ambedkar observed: “the question is, can we presume such a diffusion of constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic. [34]“Thus, the father of the Indian Constitution had a premonition that in the absence of constitutional morality, democracy may flounder in India.

There is an urgent need to narrow down the interpretation of the section 124A of IPC and prevent its indiscriminate use in the frivolous arbitrary manner as the instance of misuse of section 124A has a “chilling effect “on freedom of speech and expression.

Sedition as a crime has been disfavored in many States. It has either been repealed ( UK and News Zealand) , is rarely being used, punishment is only fine or less punishment than the death penalty, further efforts are being made to repeal such law.  Indian law should be brought in consonance of accepted international principles and most contemporary democratic outline like that of UK, USA and New Zealand.

It is hereby recommended to

1. Repeal Section 124A of IPC, 1860.
2. Remove reference to section 124A from Section 95 of CrPC (Criminal Procedure Law), 1973.
3. Repeal the Prevention of Seditious Meetings Act,1911
4. Repeal the Criminal law Amendment Bill, 1961.
5. Remove the reference to Disaffection from Section 2(o) (iii) of the Unlawful Activities (Prevention) Act, 1967.
6. Make Speech related offenses bailable.
7. Make speech related offenses non-cognizable.
8. Extend Section 196(1) of CrPC to Section 124A of IPC i.e. Prior sanction of government required.
9. There should be action against malicious complaints.
10. There is time to raise the burden of proof on person claiming that his sentiments got hurt.

The freedom of speech and expression is a fundamental right and also a basic human right. It gives an opportunity to an individual to express himself, dissent, self-improvement and free flow of information both imparting and receiving. The restriction on it have to be constitutionally valid and reasonable not arbitrary.  Section 124A of IPC needs a relook in the present scenario. There is need to maintain proper balance between the sedition laws and freedom of speech and expression.

[1] K.D Gaur, Textbook on the Indian Penal Code, Universal Law Publishing, 2009, pg. 229.

[2] Kedar Nath Singh vs State Of Bihar, 1962 SCR Supl. (2) 769.

[3] Ratanlal and Dhiraj Lal, Law of Crimes, 24^th Edition, Vol. 1 ,Pg. 505-506.

[4] Queen Empress v. Amba Prasad, (1897) ILR 20 All 55

[5] Emperor v. Bhaskar Balwant Bhopatkar,(1906) 8 Bom LR 421.

[6] Bilal Ahmed Kaloo v State of Andhra Pradesh, (1997) Supreme Today 127.

[7] Constituent Assembly debate on 2 December, 1948, Part 1 (Available at: https://indiankanoon.org/doc/1389880/ ; last accessed on 15^th April, 2016 at 04:12 PM).

[8] Ibid.

[9] Handyside v UK (1976) 1 EHRR 737; M Janis, R Kay & A Bradley, European Human Rights Law: Text & Materials (Clarendon Press, Oxford 1995) 157; DJ Harris, M O’Boyle & C Warbric+k, The European Convention of Human Rights (Butterworths, London 1995) 373.

[10] Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999) ¶ 80.

[11] International Covenant on Civil & Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) Art 19(1).

[12] Amnesty International v Sudan (2000) AHRLR 297 (ACHPR 1999), ¶ 80.

[13] UNHRC ‘General Comment 34’ in ‘Article 19: Freedoms of Opinion & Expression’ (2011) UN Doc CCPR/C/GC/34, ¶ 21.

[14] Zana v Turkey (1999) 27 EHRR 667, ¶ 55.

[15] Ariel L. Bendor, Prior Restraint, Incommensurability, and the Constitutionalism of Means, 68 Fordham L. Rev. 289 (1999); Available at: http://ir.lawnet.fordham.edu/flr/vol68/iss2/2( Last accessed on 18^th April 2016).

[16] R v Oakes [1986] 1 SCR 103 (Canada); R. v Big M Drug Mart Ltd., [1985] 1 SCR 295 (Canada); Leary v United States 395 US 6 (1969); Singh v Minister of Employment & Immigration 1985 1 SCR 177 (Canada).

[17] Nyambirai v National Social Security Authority & Anr 1995 (9) BCLR 1221 (Zimbabwe).

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

[19] The Johannesburg Principles on National Security, Freedom of Expression & Access to Information, UN Doc E/CN.4/1996/39 (1996). Principle 1.1.

[20] The Sunday Times v United Kingdom App No 6538/74 (ECHR, 26 April 1979); Albert Womah Mukong v Cameroon Communication No 458/1991, UN Doc CCPR/C/51/D/458/1991 (10 August 1994) (HRC); Surek v Turkey App No 24122/94 (ECHR, 8 July 1999); Herrera-Ulloa v Costa Rica Petition No 12367 (IACHR, 2 July 2004); UN Human Rights Committee, ‘General Comment 34’ in ‘Art 19: Freedom of opinion & Expression’(2011), UN Doc CCPR/C/GC/34/CRP.2; UN Human Rights Committee ‘General Comment 10’ in ‘Art 19: Freedom of Opinion & Expression’ (1983) UN Doc CCPR/C/GC/10/REV.1.

[21] Article 19, Universal Declaration of Human Rights, 1948 (UDHR).

[22] Supra 2.

[23] Tara Singh v State of Punjab, AIR 1950 SC 124.

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

[25] Kedarnath Singh v State of Bihar, AIR 1962SC 955.

[26] Indra Das v State of Assam, (2011) 3 SCC 380.

[27] Arup Bhuyan v State of Assam, (2011) 3 SCC 377.

[28] Shreya Singhal v Union of India, AIR 2015 SC 1523.

[29] Queen Empress  v. Bal Gangadhar Tilak, (1898) ILR 22 Bom 112.

[30] M.K Gandhi , The Voice of Truth, Part 1 , Navajivan Publishing House , Pg. 14-24; Available at : http://www.mkgandhi.org/ebks/voice_of_truth.pdf( Last Accessed on 15^th April,2016 at 01:21 PM).

[31] Mail Today, IndiaTodayi.n, September 9, 2012; Available at: http://indiatoday.intoday.in/story/anti-corruption-cartoonist-aseem-trivedi-arrested-on-sedition-charges/1/216643.html (Last accessed on 15^th April 2016 at 4:36 PM).

[32] IndiaToday.in, October 19, 2015; Available at: http://indiatoday.intoday.in/story/hardik-held-for-insulting-national-flag-charged-with-sedition/1/502402.html (Last accessed on 15^th April 2016 at 03:46 PM).

[33] PTI, New Delhi, The Indian Express, February 12, 2016; Available at: http://indianexpress.com/article/india/india-news-india/afzal-guru-event-jnusu-president-arrested-after-anti-india-slogans-in-campus/ (Last Accessed on 15^th April 2016 at 05:03 PM).

[34] Ramchandra Guha, ‘Makers of Modern India ‘, Penguin Books India, Pg 316.