This article is written by Sankalpita Pal, from Symbiosis Law School, Pune. This article will provide a detailed overview of the ongoing Vinod Dua sedition case along with giving an insight into the sedition law in India.

Introduction

The present contemporary discernment of the Sedition law in India encompasses all kinds of practices such as by words, deeds and even offensive writing that has the potential to disturb public tranquillity and bring about disorder and chaos in the State. Seditious comments can lead people to believe that debasing the Government would solve all statutory and administrative inefficiencies. In the present day, the Sedition law in India has assumed that the only kind of controversial comments, deeds or writings are largely aimed at the change in the body politic. The constitutional provision under Article 19 (1)(a), ‘Freedom of Speech’ is a fundamental right and it collides head-on with the concept of sedition. The law of Sedition in India is under Section 124A of the Indian Penal Code, 1860 also has its presence in statutes.

Vinod Dua’s case will provide a fair understanding of whether the sedition laws are misused in India or not? The verdict of the case is yet to be known. Thus, the case might as well be discussed on preliminary facts only.

Background

The legislative background of Section 124A of Indian Penal Code dates back to 1837. Indian law commissioners drafted in 1837 had a provision on sedition. The draft proposed to include the topic of sedition in the Indian Penal Code, 1860 to facilitate the Colonial rule.

For the effective operation of a democratic system, it is indispensable to create room for self-development by setting up a homogenous egalitarian society. The concept of freedom of speech and expression under Article 19 at the very least includes the freedom to critique State action. For a country like India where ‘unity in diversity’ is preached, there is a possibility that there will be differences between the majority and minority. Therefore, the government must be fair and inclusive with their policies. Thus, every citizen and community must be allowed to critique government policies, laws and their administration. Vinod dua’s is one such case. This article will discuss the ongoing case in detail and also provide a broader perspective on the intertwined concepts of freedom of speech and sedition. 

Even though India has attained Independence in 1947. It has still retained a few aspects of the coloniser’s restrictive policies so much so that the Indian legislature also expanded a few colonial laws. It was convenient for the legislature to retain a few laws and provisions as it would help in a faster transition for India. Otherwise, the drafting committees would have been required to start from scratch. Thus, retaining the imperial framework of good laws were convenient for the legislature at the time.

In 1897, the famous Queen Empress v. Bal Gangadhar Tilak case was brought to court where Kesari newspaper editor and independence activist Bal Ganga Dhar Tilak was put up for sedition trials. This was one of the first instances of sedition trials in Colonial India. The newspaper reported how the inaction of the Crown had led to the deaths and mismanagement in famine and plague. The writings in the newspaper would have caused disloyalty to the crown by the subjects. The verdict was passed by Justice Strachey. He observed even a mere attempt to create ill-will and disaffection towards the Crown was enough to hold one liable for Sedition. 

It must be noted that in this case, Justice Strachey didn’t consider the statement to have caused “disaffection”. The question of whether any had been produced at all? Was also not ventured into. He further explained that the term “disaffection’ is broad enough to circumscribe “enmity”, “hatred”, “dislike”, “contempt”, “hostility” and other types of aversions. 

A decade after Tilak’s second trial, Gandhiji himself faced Sedition charges. Along with him a  proprietor of an Indian journal also faced trial. Presciently he argued: “Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.” Gandhiji just like any other Indian Patriot proudly took up the conviction for Sedition charges and noted that “My experiences of political cases in India led me to the conclusion that in nine out of every ten the condemned men were totally innocent. Their crime consisted of the love of their country.” In 1942 a federal court decision raised the threshold for Sedition to speech that was not only violent in itself but also attained a level that “must either incite to disorder or must be such as to satisfy reasonable men that is the intention or tendency.” 

Once again in King Emperor v. Sadashiv Narayan Bhalerao, the standards of sedition charges were questioned in the Court of Law and the need for Legislative reforms was felt. The privy council once again reverted to Strachey’s standards for proving sedition. Presiding Justice Thankerton held that Section 124-A is plainly phrased. However, there is more than it meets the eye. Justice Thankerton also noted that Inducement of violence must also be a necessary standard to prove that the statements or writing were meant to excite the public with rage and feelings of rebellion. 

After almost 2 decades later (in independent India) Kedar Nath v. the State of Bihar changed the position of sedition law in India as the Apex Court overturned a decision of the Allahabad High Court. There were major issues whether the sedition law can be said to be a negative restriction (as it prevents such speeches and writings that may create public disorder),  striking at the very fundamental roots of the constitution.

What is sedition in India?

Sedition is essentially an offence against the state. It is treated gravely in our country. The alleged if found guilty are held criminally liable. The expression ‘disaffection’ is a broad concept and its scope has been expanding ever since the very first case of sedition in India (the Tilak Trials). It includes disloyalty, hatred in all forms such as communal and all feelings of enmity. 

Firstly, to constitute an offence under Section 124-A, it is not necessary to look into whether the allegedly seditious matter was aimed at exciting a mutiny or a rebellion. Even an attempt to excite feelings of Hatred or Contempt is sufficient enough to constitute such an offence. In Niharendu v. Emperor was held that incitement to violence by mere abusive words is not enough to constitute sedition. The very gist of the offence is whether there was a possibility of Public disorder or not. Therefore, it is completely immaterial whether or not the attempt to excite disaffection was successful or not. The strength of the language is essential. Even if the attempt to excite disaffection was unsuccessful then also such a case will be treated at par with the ones which actually created public violence. The same was also held in the Kedar Nath case.

Other essential ingredients of the offence of Sedition are as followings: 

1. To create an upsurge and incite people to rise against the Government. Speech, writing or visual impact causing the people to believe that to not obey the lawful authority of the Government. This essentially defines the term ‘disaffection’. If a person incited the people to attain ‘Swaraj’ it was held that ‘Swaraj’ did not necessarily mean the exclusion of the existing Government but its ordinary acceptance was home rule under the Government. Therefore it did not amount to sedition. 
2. Now disaffection may be exhibited in an umpteen number of ways. Writing, poem, drama, novel, story, telenovelas may be used for Sedition. But if seditious writings remain unpublished that is it doesn’t reach the public then it does not constitute sedition. However, the publication can once again be made in a number of manners. For instance, it can be made by post (serialised or social media). It can even be in the form of wood engravings of any kind. That’s how widely the term disaffection is interpreted.   
3. Different people can be accused even if the author of the seditious matter is one. In other words alongside the author, the ones who use the writings or speeches to excite feelings of disaffection are equally liable. Thus, in most cases, the printer, the publisher, the editor or even the owner of the press of any type of seditious publication is held liable. The only way out of such charges is to prove their absence during the publication of the seditious matter. However, it is not a defence to show that the seditious articles are merely copied from a foreign newspaper.

As per Section 124A, Sedition is any form of speech, acts and writing, that incites hatred against the government harms the systematic peace of the country. A seditious word written against the ruling government and authority is called ‘Sedition libel’. The Punishment includes imprisonment for life or Imprisonment for three years along with a fine based on the nature of seditious charges. There is a restriction which is imposed by the Constitution in the interest of public order and within the limit of permissible legislative interference with the fundamental right.

Role of intention in sedition

Intention is an essential ingredient that needs to be present to submit the offence of sedition under Section 124-A of the IPC. The very essence of the crime of Sedition depends on the intention to commit it. While speaking in a public forum one needs to measure their words, however, if the language is used with the intention to incite the public and cause chaos it amounts to sedition. 

The primary basis to judge the presence of an intention to cause public disorder is the language itself. While determining whether there was any intention involved the speech must be looked at as a whole. This is because parts of sentences may be misleading and can lead to the conviction of an innocent unnecessarily.  In case the language used is a regional language then a translatory script of the same must be read and interpreted accordingly. It is also not open to the alleged speaker to deny the facts without the consideration that the language used naturally bears a seditious meaning to it. 

it is not necessary for the prosecution to prove the intention directly by evidence in order to prove sedition. In fact, in most cases, this would sound impracticable. According to the sedition law, the intent behind the statements made and the language used by an accused shows whether the intention is good or bad. The conduct of the accused is also important as it plays an important role to show whether there exists any type of sedition or not.

Defences against sedition charges

There are 3 defences available to a person who has been alleged of Sedition. In order to exempt oneself from any criminal liability, one has to prove any of the following defences: 

1. Deny all allegations that the alleged person may try to prove that he/she didn’t speak or write the words due to which he was charged. In cases where one has been charged with sedition for making a sign or representation against the government then one may deny the same. 
2. The alleged person must try to prove that he/she didn’t try to excite disaffection. The speech was a representation of his/her personal opinion only and that the public tranquillity was in no way at danger of being breached (via strife, communal violence, riots etc.).
3. In cases where public disaffection was evident, one may try to take the defence that such a disaffection was not in any way against the Government

Facts of the case

Vinod Dua a Padma Shri awardee and a successful journalist was booked for sedition allegedly by  Bharatiya Janata Party (BJP) leader Ajay Shyam. The Shimla police summoned him for the same. Earlier the Delhi High Court had stayed an FIR filed by Naveen Kumar, against him in which he was levelled with charges of spreading fake news through his YouTube channel. On the 11th of June, 2020 the Delhi High Court temporarily stayed the investigation. He was alleged of spreading fake news on communal violence which was a sensitive issue in Delhi during the month of February this year. He was charged for spreading communal disharmony via his YouTube channel. The FIR booked by the Shimla police also relates to the same YouTube show.

According to the complainant, Dua was accused of making statements that affect the reputation of Prime Minister Narendra Modi. He stated that PM Modi was utilising death and terror attacks to engage in vote bank politics.

This matter was taken up on a special Sunday sitting on the 14th of June 2020 a Supreme Court Bench comprising Justice Uday Umesh Lalit, Justice Vineet Saran and Justice  Mohan M. Shanatanagoudar. 

Initially, Dua sought for the guidelines that govern the procedure to be followed in order to seek prior permission. Prior permission is required before Journalists are booked. 

Court’s stance at present

In the former case, a single-judge bench of Justice Anup Jairam Bhambhani of the Delhi High Court held that there is no prima facie case against the journalist to warrant any kind of registration of FIR. The Court also observed that there were no adverse consequences, riots, violent attacks, communal hate strifes or any kind of ill-will was incited due to his webcast. Therefore, the FIR probed against him was not a prima facie case and didn’t fulfil the very first essentials of sedition.

Misinformation and rumours can be classified as fake news and these do have the potential to incite communal hatred. The Delhi High Court should have at least allowed the investigation in some form.

In the latter case, however, Dua was granted interim protection from arrest by the Apex Court. The 3 Judge Bench also passed a few guidelines regarding the procedure for seeking prior permission before registering an FIR against a journalist. The bench also issued notice to the Central government and the Himachal Pradesh Government as well as the Police. The directions are:

1. Even though there are pending orders that are yet to be given by the court the petitioner must not be arrested.
2. The Petitioner must be present in all the online hearings and fully cooperate during the video conferences.
3. The Court directed the Himachal Pradesh Police to carry on the investigation and interrogation of the alleged Petitioner at his residence. The Petitioner must also be provided with a 24-hour notice.

Misuse of sedition law and majoritarianism

Once again it is a countrywide debate that the inception of sedition law is from foreign imperialist who colonized India and it was important for the subsistence of their rule to repress the voice of the natives. 

The British did not want any opposition or criticism so that they could rule smoothly and drain our country of our resources. Thus, in order to achieve their aim, they made laws that would suit their administerial convenience and would facilitate their governance to be obeyed. Therefore, they deprived the people of their rights to express their views on the antiquities of imperial governance. Interestingly, the first draft of the Indian Penal Code (IPC) by Lord Macaulay included sedition as an offence. However,  when IPC was enacted in 1860 sedition was not at all included; it was only later on that it was amended in 1898 through the introduction of Section 124A.

Initially, the understanding behind Section 124A was that the intent behind this provision was to use it only when a writer or a speaker suggests any intention (directly and indirectly) either overthrow the government’s use of force in public and not to curb legitimate nonconformity.

Another justification provided was that the insertion of Section 124A was required in order to prevent Muslim preachers from advocating Jihad or religious wars against Christians. 

Subsequently, the actual intention behind the incorporation of this provision came to light. Justice Deepak Gupta has stated that the Colonial rulers wanted to curb any demand or uproar for independence. He also referred to the case of Queen Empress v. Bal Gangadhar Tilak in order to explain this point.

Majoritarianism shouldn’t be allowed to be the law 

The constitutional validity of Section 124A must be read in tandem with Article 19. Time and again it has been debated that a majority government must focus on the needs of the minority. Their voices also need to be heard. Often it is seen that when a minority community comes up with their issues their expression is misinterpreted for hate speech or comments against the government and sedition charges are imposed on them irrespective of whether there was an upsurge of any violence or not.

Majoritarianism cannot be the law. Even the minority has the right to express its views.  We must also remember that in India we follow the “first past the post principle”.  Besides, it has been stated that even Governments which come in with a huge majority do not get 50% of the votes.  Therefore, though they are entitled to govern as the majority, it cannot be said that they represent the voice of all the people.

Criticism of the existing high functionaries is not sedition

It is also observed that sometimes even speech or words criticising Senior government functionaries are also treated as sedition. There is a major flaw in the legality of sedition charges in such a situation. Sedition is when freedom of speech is misutilised in order to upsurge violence against the government or communal hatred and may give rise to riots, strife etc. When the position and reputation of senior government functionaries are attacked then it isn’t sedition but defamation. However, in treatment, such speeches or words or writings etc. are supposed to be charged under defamation.     

Law of sedition in India: constitutional intent and articulation 

Since the very Inception of the Constitution of India, one of the most important questions with regard to the Constitutionality of Section 124-A was how far does Article 19 collide with Section 124A of IPC. The Right to Freedom of Speech and Expression under Article 19 was raised in a few cases. The issue was that High Courts have given conflicting decisions. Thus, a middle ground needs to be found that would consolidate the divergent contentions with regard to sedition and freedom of speech. 

Some have argued that Section 124-A is ultra vires to the authority of the Constitution i.e. it awards punishment for having mere bad feelings against the acts of the Government. In Ram Nandan v. State of Uttar Pradesh, the court held that the way Section 124A is constructed, it puts an unreasonable restriction on the Right under Article 19(1) (a) under the guise of ‘in the interest of maintaining Public Order’. 

Initially, the terms ‘Sedition’ and ‘public order’ were included in the draft of the Constitution (under Article 13). It is interesting to note that the purpose of including these terms was to limit on how laws must be framed that would put reasonable restrictions on the fundamental right to Free speech and expression.  

Later on, it was revealed that both these terms were eliminated from the final draft. This posed a significant contradiction to the framers of the Constitution. The issue was whether ‘Sedition’ is to be included as an exception under Article 19(2), if so then in what sense shall the term be used.

On one hand, the framers of the Constitution had to bear in mind that ‘Sedition’ is an offence against the public peace and tranquillity. On the other hand, the judicial committee stated that the term Sedition, as defined in the IPC, essentially implies any intention to incite disorder. Thus, it became difficult for the framers to create a balance and get rid of their dilemma. 

In the case Brij Bhushan and Anr v.The State of Delhi. it was held that Sedition undermines the security of the state usually and shall not be used loosely under Article 19. 

Other recent sedition cases

Amulya Leona’s Case

Amulya is a student of journalism in a prominent college in Southern Bengaluru. She has finished her schooling from Manipal, Udupi and Koppa. She successfully completed her graduation from the NMKRV College for Women in Jayanagar. 

Amulya was charged with sedition as she and her fellow activists were trying to spread a word against the government’s recently promulgated the Citizenship Act. Amulya has utilised every kind of social media platform in order to mobilise supporters for the cause (protests) they were charged for. She even used dating apps like Tinder for the same. She was alleged of admitting to the citizenship of some other country other than India as she mentioned ‘Pakistan Zindabad’. However, On February 16, one of Amulya’s friends revealed that she had posted the actual speech that she was supposed to deliver while protesting. The actual speech was in Kannada. Once the speech was effectively translated, many started doubting whether the sedition charges on her were justified or not.

In the Facebook post, she had mentioned “Zindabad to all neighbouring nations of India”. If this information is true then once again the sedition law is being misused and the freedom of speech is jeopardized. 

Hubli sedition case

Earlier this year 3 Kashmiri Students were charged with sedition under Section 124A. They were allegedly found to have posted pro-Pakistan videos on social media. Their case is still doing its rounds in Court as they haven’t been found guilty of the charges yet. However, they were released on default Bail. A Judicial Magistrate First Class, posted at Hubli, granted them default bail after they completed 100 days in custody.

Sharjeel Imam’s case

Sharjeel Imam is a Ph. D student at JNU for Historical Studies. He is also a former student of IIT, Mumbai. He has been booked for several cases for making seditious comments in public and causing chaos and disorder. He had also allegedly delivered inflammatory speeches against the Citizenship issue caused due to the Citizenship (Amendment) Act and National Register of Citizens. A case of sedition under Section 124A was lodged against him. His speech at Aligarh Muslim University was responsible for causing chaos and public disorder. On January 28, he was arrested from his hometown (Jehanabad, Bihar). The sedition charges were issued after a video featuring him delivering a hate speech which went viral on various social media platforms. In the video, he was allegedly instigating people to cut off Assam from the territory of India. Subsequently, the Assam police lodged an FIR under the anti-terror law. His hate speeches have been causing public disorder in various places all around India. Imam was sent to 5-days of police custody by the Delhi Court.

Conclusion

It is abundantly clear that the position of Section 124A of IPC is still under question as its maintainability is debated every now and then. The main point raised is that many believe that by adhering to Section 124A of IPC Indian legislations are still perpetuating the colonial legacy. It has been noted that in 1950 when Article 19 came into force, sedition as a concept was dropped. However, in 1951 it was brought back under the vague collective term of ‘Public Order’. In fact over the years, various amendments and new statutes have imposed more fetters on the exercise of free speech.

The ongoing Vinod Dua case goes on to show that sedition laws are misused and misconstrued in more ways than one, it is a tool to muzzle the press. It is pretty evident that neither the legislature nor the judiciary will take a look at the aspect of misuse of sedition laws despite all the hue and cry going on at present.

References

• https://shodhganga.inflibnet.ac.in/handle/10603/143397
• http://images.assettype.com/barandbench/import/2019/09/Justice-Deepak-Gupta-speech-on-sedition.pdf
• http://www.lawjournals.org/download/110/3-2-30-950.pdf
• http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-2F6909F3CF11.pdf

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