A Critical Analysis Of Sedition Law In India

deepak mehto
By deepak mehto October 8, 2019 12:42

Recently, a Bihar court has directed the filing of an FIR against 49 eminent persons who signed an open letter to the Prime Minister expressing concerns over mob lynching under sedition law. 

What is Sedition law and what does it say in the Indian Penal Code?

sedition law

The law was originally drafted by Thomas Macaulay. It was introduced in the IPC in 1870 to deal with “increasing anti-British Wahabi activities

Section 124A of the IPC defines sedition. It makes some kinds of speech or expression a criminal offence punishable with a maximum sentence of life imprisonment.

The Sedition law can be applied if the speeches or expressions 

  • bring or attempt to bring into hatred or contempt, or 
  • excite or attempt to excite disaffection towards the Government established by law in India.
It is classified as “cognisable” — the investigation process (including the powers to arrest) can be triggered merely by filing an FIR, without a judicial authority having to take cognisance —

It is also qualified as “non-bailable” — the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.

Incidents of use of sedition law

  • The law was first used to prosecute Bal Gangadhar Tilak in 1897. 
  • In 1929, Mahatma Gandhi wrote a stirring editorial in Young India calling for a countrywide agitation demanding the repeal of Section 124A. The section said Gandhi, constituted ‘rape of the word “law”’; it ‘hung over our heads’ whether ‘we are feasting or fasting’.
  • In the year 2014, some of the Kashmiri students were charged with sedition for supporting Pakistan in a cricket match between India and Pakistan. 
  • Kanhaiya Kumar, Patidar leader Hardik Patel and many others have been slapped with sedition charges. 

What is the debate?

  • The law clashes with the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is not even part of the “reasonable restrictions” on free speech under Article 19(2).
  • Centre and the States have invoked the section against activists, writers etc. to silence political dissent by accusing dissenters of promoting disaffection. 
  • According to the National Crime Records Bureau, 35 cases of sedition were reported in 2016. Many of these cases did not involve violence or incitement to violence.
  • Few questions have arisen. Can one be charged for sedition if he/she criticizes the government? Has the sedition law lost its relevance? Or it requires drastic changes? What is sedition exactly?

Sedition in Independent India

After independence, India retained Section 124A. Because the newly-born government of free India was threatened by 

  • right-wing extremism as well as by left-wing extremism
  • scarcity of food
  • the challenge of settling millions of Partition refugees
  • the conflict with Pakistan over Kashmir.

So the government needed sedition law to counter the challenges. The govt. Banned some newspapers for seditious activities. The affected editors then went to court. In 1950, the six judges of the Supreme Court decided two cases : 

  • Romesh Thapar v State of Madras and 
  • Brij Bhushan v State of Delhi.

In these cases, the court held that “public order” was not an enumerated exception to the right to free speech.

A law which restricted speech on the grounds that it would disturb the public order was unconstitutional. 

Then to nullify the judgements the govt. introduced the first amendment to the Constitution of India.

First Constitution Amendment

In June 1951, the Constituent Assembly (now functioning as a unicameral, provisional Parliament for India) amended Article 19(2) to include three new enumerated restrictions to the right to free speech. 

These were “public order”, “friendly relations with foreign states”, and “incitement to an offence”.

What are the SC guidelines in sedition cases?

In Kedar Nath Singh vs State of Bihar (1962), the SC upheld the law on the basis that this power was required by the state to protect itself.

But it placed some conditions for its applications. These conditions are:

Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless it is being used to incite mobs or crowds to violent action. 

Therefore, incitement to violence is the essential ingredient of the offence of sedition (emphasis added).

In Balwant Singh v State of Punjab, 1995, the Supreme Court acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabaad” outside a cinema after Indira Gandhi’s assassination. 

The Court held that mere sloganeering which evoked no public response did not amount to sedition.

How the sedition law is being misused?

    • Despite the clearly set out guidelines for applying the charge of sedition, lower courts have routinely failed to apply these parameters while considering sedition cases. There is a complete lack of percolation of settled judicial opinion to lower levels of the judiciary. Judiciary should address this systemic lapse.
    • Magistrates have the power to order a police investigation into cognisable offences. And the Supreme Court has, in Lalita Kumari vs. Uttar Pradesh (2013), laid down that registration of an FIR is mandatory if information received by the police discloses a cognisable offence, However, in recent cases, it is unclear how the court or the police could conclude that the contents were seditious.
  • The broad scope of Section 124A means that the state can use it to chase those who challenge its power, and the mere pressing of sedition charges ends up acting as a deterrent against any voice of dissent or criticism.

Why the sedition act should be abolished

  • Sedition is not mentioned in the Constitution: India’s Constituent Assembly was of the opinion that for the minorities, in particular, it is important to have an association and free speech so that they can make their voices felt by the Government. The essence of democracy is a criticism of Government.
  • So the Constituent Assembly omitted “sedition” as one of the permissible grounds of restriction on freedom of speech and expression under Article 19(2). But sedition remained as a criminal offence in the IPC 
  • The United Kingdom abolished sedition laws ten years back. Given the fact that the Section itself was introduced by the British to use as a tool to oppress the Indians, it is not justified to retain Section 124A in the IPC.
  • Another lacuna, as pointed by the Law Commission of India, is that the definition of sedition does not take into consideration disaffection towards (a) the Constitution, (b) the legislatures, and (c) administration of justice, all of which would be as disastrous to the security of the State as disaffection towards the executive Government.
  • Although the SC had upheld the sedition law in Kedarnath case. But the court in Kedarnath merely only read Article 19(2) of the Constitution. It did not, considered the effect of the right to equality (Article 14) or due process (Article 21). The Maneka Gandhi case decision states that Articles 14, 19 and 21 should be read concurrently, for testing legislation curtailing fundamental rights. 
  • In Navtej Johar v. Union of India, 2018, a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults in private, including homosexual sex. The court found that pre-constitutional legislation has no legal presumption of constitutionality. So the pre-constitutional sedition law can also be challenged on this basis.
  • India ratified the International Covenant on Civil and Political Rights in 1976. Article 51(c)  of the Constitution obligates the State to “foster respect for international law and treaty obligations.

Why Sedition law should not be abolished?

  • Govt. stand: There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements. 
  • SC has upheld the sedition law: In Kedar Nath Singh vs State of Bihar (1962), the SC upheld the law on the basis that this power was required by the state to protect itself.
  • In its 1968 report, the Law Commission had rejected the idea of repealing the section.
  • The Commission opined that “Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means.

sedition law

Way forward:

  • The sedition law should not be abolished as some measurements are needed to check communal violence & insurgency activities like Naxals.
    • The court also needs to examine the classification of the offence of sedition as cognisable and non-bailable.
  • Invocation of the section should only be in cases of slogans or statements which incite violence and have a manifest tendency to create public disorder. 
  • The SC has directed all authorities to scrupulously follow the Kedarnath verdict. It should be followed by all the courts.
  • The right remedy is to educate our law enforcement agencies and impress upon them that incitement to violence is the indispensable prerequisite for invoking Section 124-A. 
  • Our state rests on solid foundations, which cannot be disturbed by ill-tempered or pungent or stupid slogans. 
  • Misuse of the sedition law should attract appropriate penalties for law enforcement agencies coupled with a provision for compensation to the injured party.

Also read: Sedition in India Under Section 124A of IPC

Sedition Charges Imposed On Some Celebrities

deepak mehto
By deepak mehto October 8, 2019 12:42