This article is written by Daisy Jain, pursuing B.COM.LLB (Hons) from the Institute of Law, Nirma University. This is an exhaustive article which deals with the need to examine the constitutional validity of the offence of sedition under Section 124A IPC.

Introduction 

In India, the sedition law was introduced by the United Kingdom, but the UK itself did not make any sedition charges against any person between 1972 and 2009. In the end, the UK abolished the sedition law completely in 2009.

When we talk about the history of the sedition law, it is linked to the Indian freedom movement. Following the Indian Independence Revolt of 1857, the first attempt was made to codify the criminal law in its current form. As a result, the Indian Penal Code was introduced in 1860, based on the recommendations of the 1st Law Commission, which was headed by Lord Macaulay and was established in 1860. There was no mention of Section 124A of the IPC (hereinafter referred to as the Act) which dealt with the sedition law in the IPC. Sedition was first introduced in 1870 as an offence under Chapter IV of the Indian Penal Code which is related to the offences against the state. The first trial of sedition was conducted in the case of the Queen v. Jogendra Chandra Bose (1891) of the Bangabasi case. There has been a long-running debate about the misuse of Section 124A, and whether or not this provision should be declared unconstitutional, which has been going on for a long time.

Section 124A IPC : an insight 

In normal terms, sedition is an offence when any person through its words, signs, or actions, attempts or brings any feeling of hatred or feeling of disaffection in the general public against the government. When anyone incites or attempts to incite hatred or contempt in other people against the government which is established under law, it is said to be an offence committed under sedition. It is necessary that incitement should cause violence in the general public. The incitement can be verbally or in a written form, or it can also be a sign or in any other related form. When anyone commits sedition, then the person can be punished with imprisonment of 3 years or a fine or both, or the imprisonment can be extended for imprisonment for life with a fine or without a fine. The following are the essentials for the offence of sedition:-

1. First and foremost, the words should be spoken verbally or should be in written form, or actions, or it can be through signs.
2. It should incite hatred or contempt or feeling of disaffection or feeling of enmity in the general public against the government.
3. Persons who cause violence or who incite others to cause violence constitute the important elements of seditious activity. It is possible to commit sedition if you attempt to persuade people to disrespect or oppose the government in any way via activities of public disorder or violent protests.

Sedition and its constitutional validity 

The Supreme Court of India, in the case of Kishorechandra Wangkhemcha v. Union of India (2021), that would discuss the validity of Section 124A, which criminalizes sedition. In connection with posts and cartoons that were posted on social media platforms, two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla have been accused of committing sedition in India. They have filed a writ petition challenging the constitutional validity of Section 124A, which criminalizes and punishes sedition. 

Section 124A is useful in the fight against anti-national, separatist, and terrorist factors, among others. It defends the elected government against attempts to destroy it through the use of violent acts and illegal methods. Maintaining the legitimacy of the government established by law is a necessary condition for the cohesion of a state. If contempt of court results in criminal prosecution, then contempt of government should result in criminal prosecution as well. 

Following independence, Section 124A has faced criticism on numerous occasions, with the argument that it restricts our “freedom of expression“. So-called “tyrannical” remains of colonial rule have been questioned by many in an India that is secular and independent, and where democratic principles are upheld. As a result, critics have asserted that this legislation of the Indian Penal Code is an infringement of the country’s Constitution. It was decided in a landmark judgment of Kedar Nath v. State of Bihar (1962), that Section 124A was constitutionally valid.

Kedar Nath Singh v. State of Bihar (1962)

• In this case, It was determined that the law was constitutional and that it applied to any written or spoken words that had the affirmative intention of circumventing the government through violent means, regardless of their source.
• Citizens who condemn the government with the aim of creating public disorder are permitted to do so, so long as they do not incite people to engage in violence against the government.
• While the Supreme Court upheld the constitutionality of Section 124A, it limited its application to acts involving the intent or inclination to create public disorder, disruption of law and order, or provocation of violence among other things.
• As the Court pointed out, the essence of the crime of “sedition” is the incitement to violence or the inclination or the intention to cause public disorder through words spoken or in a written form that has the potential or the impact of inciting hatred or contempt for the government established by law, or of causing disaffection in the sense of distrust to the state.

Growing misuse of Section 124A IPC 

Because of the widespread use of this law in the past years, not only against journalists but also against other nonviolent dissenters, this is not unusual. To sustain law and order in society, the state has a useful weapon in the form of the law against sedition. It cannot, however, be used to quell unrest under the pretext of silencing the perpetrators of criminal activity. Naturally, any act that has the potential to cause disorder or distress to public order through the use of violence is prohibited by law. As a result, it is presumed that Section 124 A can be lawfully upheld against the person, although there was no admonishment, call, incitement, and instigation to cause disorder or disruption of public peace by resorting to violence, or any indirect reference or unsubtle statement or even any indication towards this aim, ascribed to the person accused. In the opinion of many, invoking Section 124 A is a highly contentious issue.

When someone asserts their right to free expression, this does not imply that they may say anything to anyone. A regrettable but necessary limitation on the right to vote has been imposed. People who use their freedom of speech to divide people on the grounds of religion or caste are those who are abusing it. To safeguard the rights of others in a democratic society, it is necessary to set limits on one’s freedom.

For people to exercise their right to freedom of expression to the fullest extent possible, they must also do so in a responsible manner. At this point, the right to free expression is limited to speaking out against what is wrong. It is being abused by people who spread misleading information in the name of their freedom. The right to free expression is an important tool in the process of bringing about change and enhancing the government’s misguided activities. Critics in society are frequently regarded as insults or defamation as a result of the dissemination of false information in the media. To prevent the spread of such false and false assumptions, which may have an impact on other people, restrictions must be placed on their distribution.

Important judgments on sedition 

There are some significant cases that have contributed to the restructuring of Section 124A over the years.

The Queen-Empress v. Bal Gangadhar Tilak

The instances of our country’s freedom fighters fighting against colonial rule are among the most well-known examples of sedition in history. Bal Gangadhar Tilak, a courageous supporter of India’s independence, was accused of committing sedition on two separate occasions. It was awarded for the first time in 1897 for speeches that supposedly incited other people to engage in violent behavior, resulting in the deaths of two British officers. In 1898, he was found guilty and granted bail, and in 1909, he was brought to trial for seditious writing in his newspaper Kesari, which he owned at the time.

The year 1897 marked the first time that Section 124 A was defined and applied. The incitement to violence and uprising was irrelevant in the eyes of the ruling Privy Council when it came to determining the blame of a person who had been charged with sedition, according to the court. This case served as an example of how to interpret the term “Disaffection”. Disaffection towards the government includes feelings of hatred, disagreement, enmity, disrespect, and every other form of ill will toward the government. 

Dr. Binayak Sen v. State of Chattisgarh

At the Session’s Court in Raipur, Dr. Binayak Sen was found guilty of sedition for his involvement with the Naxalites, and he was imprisoned for life imprisonment. A charge was brought against him for allegedly assisting active Naxalites by sending texts from one prisoner to another outside the jail. He claims that he was always under the oversight of a prison official and doing something like that was not an option; rather, it was his criticism of Salwa Judum’s role in their fatalities that brought him to this point. It was explained to me that the state government was supporting this group in their efforts to clear village land and mine for diamonds, bauxite, and iron ore from it.

Balwant Singh and Anr v. State of Punjab

In this case, following the assassination of Prime Minister Indira Gandhi, the accused chanted the slogan “Khalistan Zindabad” in front of a movie theatre. Two people carelessly raising slogans could not be considered to be inciting dissatisfaction with the government, according to the court’s conclusion. Because of the facts of this case, Section 124A would not apply.

Aseem Trivedi v. the State of Maharashtra

Aseem Trivedi, a sensational political cartoonist and activist famed for his anti-corruption campaign and cartoons against corruption, was prosecuted on charges of sedition in 2010. He was released on bail the following year. In the complaint, filed by Amit Katarnayea, a legal advisor for a Mumbai-based NGO, Trivedi is accused of displaying ‘insulting and derogatory’ sketches, including one that portrayed the Parliament as an outhouse and another that portrayed the National Emblem in a poor context by replacing the lions with wild beasts, at the activism against corruption organized by Anna Hazare, and then uploading them to social networking sites.

Shreya Singhal v. Union of India

This case has a significant impact on the Indian law system because it questioned the constitutionality of Section 66A of the Information Technology Act, 2000, and ultimately succeeded in having it repealed because it was found to be in violation of Article 19(1)(a) of the Indian Constitution. Two teenage girls were detained by the Mumbai Police for conveying their dissatisfaction with a protest called by the Shiv Sena following the death of Bal Thackery by uploading comments on Facebook. Shreya Singhal, a law student at the time, filed a petition in 2012 to amend Section 66A of the Information Technology Act, 2000, claiming that it violates Article 19(1) of the Constitution of India. After three years of litigation, the case was finally resolved in 2015 with a distinction made between “advocacy” and “incitement,” with only incitement being punishable under the law. According to the court, no one can be prosecuted for sedition unless they have a direct connection to the commission of violence or the instigation of public disorder.

Kanhaiya Kumar v. the State of Delhi 

The Delhi Police detained Kanhaiya Kumar on February 12, 2016, for violating Sections 124A and 120B of the Indian Penal Code. He was accused of violating the country’s dignity by yelling slogans that were derogatory to the country’s dignity at an event organized by JNU students in commemoration of the hanging of Afzal Guru. Kanhaiya Kumar denied all of the accusations and stated that he did not say anything which is seditious. His detention sparked a political uproar between left-wingers and right-wingers in the United States. The University conducted an investigation into the incident and took disciplinary action against the individuals involved, as well as levying an Rs. 10,000 fine on Kumar. In a subsequent ruling, the Delhi High Court struck down the fine, declaring the committee’s decision to be “illegal, infrequent, and unreasonable.” The arrest triggered a strike that rendered the university’s administration unable to function.

Conclusion 

As the world’s biggest democracy, India recognizes the importance of the right to free expression and speech as a fundamental component of democracy. It should not be assumed that sedition is committed when someone expresses or thinks something that is in opposition to the government’s policy. It is correct that the Law Commission stated that “an expression of dissatisfaction with the current state of affairs cannot be regarded as sedition.” When it comes to accepting constructive condemnation there isn’t much of a difference between the pre and post-Independence periods in this country.

It goes without saying that maintaining national integrity is indispensable. Depending upon the legal opinion and the government’s support for the law, it is unusual that Section 124A will be repealed anytime soon. The Section should not, however, be abused as a weapon to stifle freedom of expression.

Sedition is, without a doubt, a contentious concept, and it must be balanced delicately against our constitutionally protected right to freedom of expression. While no citizen should be permitted to incite unneeded hatred among the populace or to incite hatred and violence against the government (especially in a nation founded on the principles of non-violence), every citizen should be permitted to express their opinions about the government in a free and open manner. In some cases, the viewpoint given by Indian courts and how the law is implemented are at odds, leading some to describe the law as “draconian” in its application. In an era in which citizens are becoming more and more aware of their rights and individual liberty, as well as a growing sense of responsibility and duty in this democratic system, it may be the ideal time to consider reforming this law.

Sedition is the most serious offence that can be committed in violation of Article 19. Consequently, sedition laws must explicitly contain language that complies with the restrictions of Article 19(2). The objective of limiting freedom of speech under sedition is to ensure the safety of the nation’s citizens. The Supreme Court’s guidelines for interpreting and applying sedition laws should be enforced by law.

References

• https://www.indiatoday.in/news-analysis/story/why-supreme-court-rulings-have-revived-debate-on-sedition-law-1810902-2021-06-04
• https://www.thehindu.com/news/national/law-commission-backs-dissent-in-a-democracy/article24822850.ece
• https://www.mediawatchjournal.in/wp-content/uploads/2020/07/Freedom_of_Speech_and_Expression_A_Study.pdf

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