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This article has been written by Aneesh Raj and Tanya Biswas. It has been edited by Khushi Sharma (Senior Associate, LawSikho) and Vanshika Kapoor (Senior Managing Editor, LawSikho).

Introduction

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

                                                                                 — U.S. Supreme Court Justice Louis D. Brandeis. 

In a recent decision. The Supreme Court has quashed the case of sedition against senior journalist Vinod Dua who was booked under section-124A because of his critical comment against the government for mishandling the COVID-19 pandemic which led to a stern migrant crisis during the lockdown last year. The Court while quashing the charges has referred to the principle established in the landmark verdict of Kedar Nath Singh v. State of Bihar. It said that his (Vinod Dua) remarks constituted an honest criticism of the ruling regime therefore, it couldn’t be categorized as a seditious activity.   

The observation of the apex court in Vinod Dua case gives rise to a concern that there is an immediate and pressing need to reconsider and reevaluate the constitutional validity of this draconian provision which tend to curtail the right of free speech and expression of the citizen and give unbridled power to the ruling regime to suppress the emerging voice of dissent in the name of maintaining public order. The guidelines of the Supreme court in Kedar Nath judgement are not sufficient today in ensuring freedom of speech and expression. A database analysis by ‘Article-14’ reveals that, as compared to the annual average from 2010 to 2014, the number of sedition incidents reported each year from 2014 to 2020 has increased by 28%.  Limited interpretation of the Kedar Nath verdict makes it easy for the government to invoke it against all its dissenters.  Therefore, it is high time to review Kedar Nath verdict so the right to free speech can be ensured.

In the light of ongoing debate and discussion concerning the rationality of sedition law, this article is aimed at critically analyzing how the interpretation of the term in the Kedar Nath Singh case laid Section-124 A subject to partial reading down and misuse. Further, it analyses the impact of such interpretation on the right of free speech and expression enshrined in Article-19(1)(a) of the Indian Constitution.

What is Sedition Law in India

The term ‘sedition’ has been defined under the section-124 A of the IPC-1860. It says that “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, to which fine may be added, or with fine.” Thus, it categorizes four sources of a seditious act. It includes “written words, spoken words, Signs or visual representation.” Apart from it, there are three explanations mentioned under section 124 A. The 1st explanation states that ‘dissatisfaction’ includes “disloyalty and all feelings of enmity.” The 2nd and 3rd explanations assert that “if comments are made to criticize the ruling establishment or administration or other activities of the government in a lawful manner and without inciting hatred or violence then, the act would not be labelled as seditious.”

The impugned provision of sedition that was held in the Kedar Nath case

The ultimate analysis of the apex court’s verdict in the Kedar Nath Singh case which upheld the validity of  Section-124 A states that “without incitement to violence or rebellion there is no sedition.” This interpretation is subject to partial reading down and has not closed the door on misuse of this law. The Court says that “only when the words written or spoken have the pernicious tendency or intention of creating public disorder” does the law step in. So, as per this interpretation, a policeman can arrest a cartoonist if he thinks he has a deleterious tendency to create public disorder. It is the personal opinion of the policeman that take into account. In the interpretation of sedition, the verdict in the Kedar Nath case become the locus classicus. It has made it easy for the law executing machinery to easily take the fundamental rights of the citizen.

This limiting interpretation of the apex court has made it easier to invoke sedition law against all the dissenters. The ruling of the court in this particular case has paved the way for misused of law, since then, the law of sedition has been misinterpreted repeatedly. More than fifty-five years have elapsed since the Kedar Nath verdict, which established the modern concept of sedition. Nonetheless, the provision under Section 124A is being invoked irrespective of fact that whether or not the alleged act or words are, in fact, seditious acts, or words constituting a “tendency to cause public disorder or incitement to violence.”   

The interpretation in Kedar Nath Singh’s verdict   is not compatible with free speech guaranteed under Art 19 (1)(a) of the Constitution

The interpretation of terms in the Kedar Nath case is not compatible with “freedom of speech and expression” contained in Article- 19(1)(a). This right is not just a right but a fundamental right of utmost importance which includes the right to express one’s view and opinion on any subject through any medium. It may be “words by mouth, writing, printing, picture, film, movie, etc.” In Romesh Thappar v. The State of Madras, Patanjali, J. has duly stated that “19(1)(a) is the very basis and essence of the constitution and our democracy.” 

The soundness of all laws has to be tested on the touchstone of the constitution and have to be infallible when subjected to safeguards mentioned in Part III of the constitution. The ‘test of constitutionality’, is often used as a euphemism for ‘test of reasonableness’ and the restrictions laid down by an impugned legislation, must be viewed from a perspective of reasonability. Legislation that criminalizes expression based on unconstitutionally ambiguous and imprecise descriptions of “disaffection toward the government” and other terms is an unreasonable and unjust restriction on the fundamental right of “speech and expression” and leads to a constitutionally impermissible “Chilling Effect” on speech.

In Niharendu Dutt Majumdar v. King-Emperor, The Federal Court ruled that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”. It has the view that “sedition infers resistance or lawlessness in some form.”  In King-Emperor v. Sadashiv Narayan Bhalerao, the Privy Council quashed the decision of the Federal Court and ruled that “excitement of feelings of enmity to the government is sufficient to make one guilty under Section 124A of IPC.” 

However, in the case of Ram Nandan v. State, the Allahabad High Court declared Section-124A unconstitutional as the Court had view that “the said section transgressed its authority by imposing unreasonable restriction on the freedom of speech enshrined under Article- 19(1)(a).” As a result of this, the meaning of the term “Sedition” given by the Privy Council was rejected. But in the Kedar Nath Singh case the Privy council’s construal of “Sedition” was modified by the Supreme Court i.e., “it was narrowed down to fit the existing scenario as well as to fall within the ambit of Article-19(2) thereby becoming a reasonable restriction.” The Supreme Court took the advantage of phrase “in the interest…of public order” in Article-19(2) and hold that sedition occurs when utterances have the potential to cause public disorder or violence. This act of reading down Section-124 A plainly brought it under Article-19(2) and saved the sedition law. Since then, it has become a political weapon to stifle the voice of dissent and thus, the limiting interpretation of the term ‘sedition’ in Kedar Nath ruling is not compatible with free speech guaranteed under Art-19(1)(a) of the Constitution of India.

Misapplication of sedition law is currently being used to destroy all resistance to the political party in the rule. Its widespread usage continues to stifle the citizen’s rights. Civilians are threatened with harsh punishment under the Sedition Act. The statute is misconstrued by the Police, in carrying out apprehensions and invoking charges, hardly have they given any respect to the restriction of “incitement to violence or threat of public disorder.”   Despite the fact that there is no immediate danger, it is still utilised to restrict the right to free speech and expression. As a result, sedition law imposes an unjustified limitation on the fundamental right. NCRB data can be used to infer that how violently Section-124 A has been used in recent years. The number of charges brought under Sedition surged by 160% between 2016 and 2019, although the conviction rate declined to 3.3%  in 2019 from 33.3 % in 2016. This data is enough to assert that the government has falsely invoked sedition charges on various occasions to deal with dissent or criticism. It is so because not even 4% of the accused are convicted.

Conclusion

Voice of dissent is an essence of democracy and it should prevail at all costs. Criticism of the government for its policy or some sort of failure concerning its function is fundamental for the sustenance of democracy. Any statute that arbitrarily imposes a restriction should be struck down with an immediate effect. In Bennett Coleman & Co. &Ors. v. Union of India &Ors.  Beg, J. has stated that “the freedom of speech and that of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.” It is said that the paradigm of reasonableness should be adjudged with due regard to the social and political context of a nation and its concept must change accordingly. When the sedition law was enacted, there was a different political setup. India was a colony of Britain and there was not enough emphasis on the idea of free speech. The reason behind its enactment was to curb the emerging voice of people. But now India is a free democratic nation and freedom of speech and expression has become a part and parcel of life. Therefore, it is sine qua non that the law of sedition which is draconian legislation should be held unconstitutional and scrapped from the statute book.


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