This article is written by Divya Shree Nandini.

 

“There is only one thing which gathers people into seditious commotion, and that is oppression.”                                                                                          – John Locke

Introduction

In a democratic country, there is often tension between freedom of speech and expression and legal provisions related to sedition. Sometimes, we hear the news that due to such movement, they have been tried for sedition like sometimes a politician, sometimes a writer or sometimes a student. It is worth noting that whenever such a case comes to light, a big debate always takes place in the country that if freedom of speech and expression is the constitutional right of everyone, then criticizing the government or leaders, government policies or administrative officials, why and how is sedition?

In such a situation, some people in a democratic country call the laws related to sedition completely unnecessary. They argue on this point that in democracy, protesting or speaking out is the basic right of the people and this is what the meaning of democracy proves. Then on what basis does the government elected by the public nurture the colonial law to prove its citizens to be traitors, whereas, in this context, the main concern of the government should be to protect the country from the threats posed by militants, terrorists and any kind of extremism.

Actually, at the centre of this entire discussion is the conflict between Section 124A of the Indian Penal Code related to sedition and Article 19(1)(a) of the Constitution relating to freedom of speech and expression.

What is Sedition

Section 124A of Indian Penal Code, 1860 talks about 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 India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years.

In this section, all the impressions of Disloyalty and Enmity come under the term Disaffection. But commentary expressing dissatisfaction with the government’s administrative or other processes by statutory means without inciting hatred, contempt or dissent is not considered a crime. Although it is not considered a crime under this section to oppose the government by statutory means, what is that statutory instrument, it is not clear.

Evolution of sedition law

Section 124A of the Indian Penal Code relating to sedition is incomplete and ambiguous in its definition and it sometimes appears to be an iteration of the black law enacted during colonial rule. Raising voice against governance has been considered a punishable offence in all types of systems, whether it is monarchical or colonial, federal or communist. In India too, it was present in some form in the ancient and medieval times. In the modern period, the legal draft was prepared in 1837 by the First Law Commission under the chairmanship of Thomas Babington Macaulay during the British rule, legal provisions relating to sedition were inserted under its Section 113. 

But when the Indian Penal Code was created in 1860, the provisions relating to sedition were replaced under section 124A by removing section 113. After the 1857 War of Independence, the British rule found it necessary to implement sedition related provisions with punishment. This section was used extensively in crushing the violent Bahawi Movement. This law was further amended in 1898. In the meantime, laws like the Dramatic Performance Act, 1876 and the Vernacular Press Act, 1878 also served to snatch away the freedom of speech and expression of the Indian public. Such repressive laws made in the colonial era were made to protect the anti-people British power. It was a punishable offence to speak against the British or to question the British rule by any means such as press, speech, pictures etc.

Nevertheless, the patriotic people took the risk and raised their voice against British power. People like Bal Gangadhar Tilak (1897) and Mahatma Gandhi (1922) were also charged with sedition. The question raised by Tilak in the court during the debate is a universal question regarding section 124A even today. Tilak had asked, “Whether this is sedition (rajdroha) of the people against the British Indian government or treason (deshdroha) of the government against the Indian people?”

However, that period was of colonial rule and at that time opposing the British Indian government was considered synonymous with patriotism. If seen in that sense, then a law like Section 124A was brought against the Patriots by the British Government.

Why the sedition law was maintained after independence

Now the question arises that when India became independent, why did the government maintain that oppressive and anti-Indianism and nationalism law? Even after independence what was the need to keep the law which our patriot leaders always hated?

Probably keeping in mind the circumstances of the time like the partition of India, communal riots, the assassination of Gandhi and the requirements of the nascent and forming nation, a law like Section 124A was maintained which is still a part of our penal code.

Sedition under other Laws:

• Section 95 of The Code of Criminal Procedure, 1973
• The Seditious Meetings Act, 1911
•  Section 2(o)(iii) of The Unlawful Activities (Prevention) Act

Sedition related to famous cases

• Maharani vs. Bal Gangadhar Tilak

Perhaps the most famous cases of sedition in history have been the freedom fighters of our country against colonial rule. Bal Gangadhar Tilak, a staunch supporter of India’s independence, was accused of sedition twice. The first was in 1897 when one of his speeches allegedly incite others to violent behaviour and resulted in the death of two British officers. After this, in the year 1909, when he wrote an anti-government article in his newspaper Kesari.

• Kedar Nath Singh vs. the State of Bihar

This case was the first case of sedition in any court of independent India. In this case, for the first time, the constitutionality of sedition law was challenged in the country and while hearing the case, the court also clarified the difference between the country and the government of the country. Kedar Nath Singh, a member of the Forward Communist Party in Bihar, was accused of making a speech to denounce the then ruling government and call for revolution. In this case, the court had clearly stated that under any circumstances criticizing the government would not be counted as sedition.

• Aseem Trivedi vs. the State of Maharashtra

Controversial political cartoonist and activist, Aseem Trivedi, best known for his anti-corruption campaign (Cartoons Against Corruption), was arrested in 2010 on charges of sedition. Many of his colleagues believed that Aseem Trivedi has been accused of sedition because of his anti-corruption campaign.

Sedition vs freedom of expression

Freedom of speech and expression is the cornerstone of democratic governance. Every democratic government attaches great importance to this freedom. Without this, it is not possible to develop the logical and critical power of the people, which is necessary for the proper functioning of democratic government. Freedom of speech and expression means expressing your thoughts through words, articles, printings, signs or any other way or to spread the thoughts of another. From the freedom of the press to political speech, freedom of speech and expression is the fundamental right of the citizens. Here come its differences with section 124A of the Indian Penal Code related to sedition, because it prohibits writing, speech, or visual presentation that creates hatred, contempt, or dissatisfaction with authority. So can freedom of expression be shelved or ignored for the protection of power? Is it not a violation of democratic values?

It is an exaggeration to say because power never restricts the rule or reasonable criticism of leaders in a vibrant democracy, rather, the government prohibits it due to fear of the deteriorating environment. Aseem Trivedi made a cartoon at the time of Anna’s movement depicting the burning of the Parliament House. The picture of the burning of the Parliament House here seemed to reject democratic beliefs and provoke the public to attack Parliament. Therefore, the government arrested Aseem Trivedi to stop it from spreading unrest and filed a case of sedition on him for inciting public outrage. Similarly, Arundhati Roy made a controversial statement on the Kashmir issue that “Kashmir has never been a part of India and after independence, India’s character has also become colonial.” This type of statement on the Kashmir issue was completely contrary to the official stand of the Government of India and it seemed to promote unrest by weakening the Indian side. In this way, Hardik Patel, who promoted widespread disturbance, demanding Patel reservation, gave a speech to kill the leaders on sight. 

Therefore, the sedition case filed in all these cases was not just because of the criticism of the regime or the leaders, but because of the possibility of widespread unrest and violence. The Supreme Court of India is the greatest protector of fundamental rights.

Scope of sedition under Section 124A

In the case of Kedarnath Singh vs the State of Bihar, the Supreme court limited the scope of Section 124A of the Indian Penal Code to not violate the freedom of speech and expression in the case of sedition. This was a kind of amendment in this section. The court said that this section can be enforced against anyone only when his act has provoked widespread violence. It means widespread violence or fear of violence is the mainstream of Section 124 A or sedition.

Also, the other thing is that freedom of speech and expression is not unlimited, but reasonable restrictions are also imposed on it. Article 19(2) mentions some grounds on which the freedom of speech and expression of citizens can be banned. Such as – Public order, the security of the state, in case of criminal incitement and to protect the sovereignty and integrity of India. The case of sedition here collides most in the context of disturbing the public order. It is worth noting that public order has a wide dimension. Any such thing which causes unrest or disturbance in the society, the government can also take advance action to maintain public order. But criticism of the government is not considered to be a threat to public order or public safety. 

This is also evident in the decisions of the Supreme Court (Romesh Thapar v. the State of Madras and Central Jail, Fatehgarh v. Ram Manohar Lohia). Thus, if seen, Section 124A of the Indian Penal Code does not appear to be completely inconsistent with Article 19(1)(a) of the Indian Constitution. Wherever the security of the state, public order and the unity and integrity of the country is threatened, the constitution itself speaks of a restriction on freedom of speech and expression. But yes, things like lawful criticism in the provisions of treason and the possibility of violence and life imprisonment calls for additional deliberation.

Arguments against Section 124A of the Indian Penal Code

Those opposing section 124 A of the Indian Penal Code believe that this section violates the basis of ‘freedom of speech and expression’ given to citizens by the constitution. Experts argue that when Article 19 (2) of the Constitution provides for restricting the freedom of ‘speech and expression’ under specific circumstances, Section 124A should not be required. Those who oppose this clause also argue that, in any democracy, the greatest right to citizens is the – RIGHT TO DISAGREE. It means, if someone feels that there is some flaw in the governance or the government of the country, then they can oppose them. But sometimes, sedition cases are filed against people, weighing this protest as the test of patriotism. Be it Seema Azad or Vinayak Sen, accused of possessing Naxalite literature, or Ashish Nandy, a sociologist who criticized the government over the Gujarat riots.

An argument in this context also implies that punishments have already been ensured in different sections in the Indian Penal Code in acts such as spreading religious hysteria, generating social malice, disturbing peace and damage to one’s reputation. Sections 121 and 121 A of the Indian Penal Code for conspiring to wage war or to wage war against the government, to increase bitterness between different communities and to act against national integrity, sections 153A and 153b of the Indian Penal Code provides for punishment, there is given a provision of punishment in sections 504 and 505 of the Indian Penal Code for instigating the spirit of individual or group for selfishness and disturbing the peace, there is a separate act for the prevention of disrespect of national emblems and symbols. Thus, when there is already a specific legal provision for such crimes, why is there a separate requirement of colonial law like sedition? It has also been removed in England, which built this stream.

Validity of Sedition law

The validity, utility and relevance of this law have often been questioned. It is considered as a weapon in the hands of the government, which the government uses to annoy its opponents. To some extent, this seems to be correct as the government has at times been severely reprimanded by the judiciary in the cases of Ashish Nandy, Seema Azad and Vinayak Sen etc. Yet the most interesting thing is that even the Supreme Court never declared Section 124 A of the Indian Panel Code unconstitutional. The problem is not about its provisions but its implementation. Whenever the government mishandles the use of the section, the judiciary curbs it. In such a situation, a question arises that should this law continue to exist under the protection of the judiciary? Probably the answer would be – yes!

There are several reasons for this, for example –

• It is not appropriate to dismiss the law directly for the problem in implementation. When the Supreme Court in 1962, in the case of Kedarnath Singh v. the State of Bihar, revised the strict provisions of this law to limit its scope, then it is not pertinent to point fingers directly at the law. Now the Supreme Court has also ordered the police that it is mandatory to give written reasons for imposing sedition on anyone.
• If this law were completely unnecessary, then the Law Commission would also recommend its removal, but it is not so. The country is grappling with problems like terrorism, extremism and communalism. At some point, the Naxalites and others present a serious challenge to national security. Such strict legal provisions become necessary to deal with such situations to enable the states to deal with such extreme situations.
• Of course, Section 124 A of the Indian Penal Code is misused in some cases, but it cannot be said in the context of all the cases. When a criminal case was registered against the controversial Saint Rampal of Haryana, he openly challenged the power instead of giving arrest and waged war against the government by provoking people. Similarly, Tamil leaders Vaiko or many separatist organizations of Kashmir and North East, all of them occasionally spew fire against the Indian Union and also keep demanding different nationalities. Many times leaders also create an atmosphere of riots in the country by inciting religious sentiments and disturbing the public order. Would it not be appropriate to make them stand in the dock of justice by registering a case of sedition against them? It is right that if a cartoon is made or a speech or a paper is written that the MP is corrupt, then it cannot be sedition because everyone has the right to criticize democracy. But if someone publicly protests that Parliament should be demolished by a bomb or shot all MPs, should it not be considered sedition?
• There are indeed many clauses in our law which provide stringent punishment for violence or peace in the country, yet all these clauses are effective for various situations from 124 A. There is no mention in any of these sections that what punishment should be incurred if a person tries to instigate violence or create an atmosphere against national integrity by writing, speaking, painting or film in a precarious manner? Whereas in this era of an information revolution, people can execute this work from anywhere. Therefore, despite having much law, Section 124 A of Indian Penal Code has its special significance. As far as the matter is concerned, the punitive provisions related to sedition will be diluted as it can carry up to a maximum of life imprisonment, so there is a possibility of reconsideration. Apart from this, the methodical criticism mentioned in this section also needs special clarification as to what is lawful criticism?

Conclusion

Overall, if seen, the government and people have their arguments regarding sedition law and freedom of speech and expression, but both of them are seen standing on two ends. Proponents of human rights consider law such as sedition to be a petty concept of a nation even in the modern democratic system. In this context, the understanding of power is to maintain the unity, integrity, internal security and public order of the country. However, the important question is to identify which restrictions on freedom are necessary and justified and which are not?

A satisfactory answer to this question is found in the book ‘On Liberty’ by John Stuart Mill, the famous British political thinker of the 19th century. In consultation with political theory, this is called ‘Harm Principle’. According to this, such actions by any person may be prohibited which cause harm to others. If seen in this light, the purpose of the sedition law seems to be justified, provided that it is not executed in this malicious manner. The reason behind this is that India is still forming as a nation and as embellished democracy where the danger of Terrorism, Extremism, Separatism and Maoism etc. also exists. Hence the law of sedition is required. As far as the misuse of the law is concerned, not only the sedition law but the misuse of any other law is also possible and happens. Therefore, it is also not right to be deprived of its benefits due to fear of misuse of the law.

References

• Indian Penal Code, 1860
• Dramatic Performance Act, 1876
• Vernacular Press Act, 1878
• Constitution of India

---

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: