Context: In May 2022 The Supreme Court of India directed the Centre and States to suspend all pending trials, appeals, and proceedings with respect to the charges framed under Section 124A of the Indian Penal Code (IPC), which deals with the offense of sedition.
Stand of Central Government on the Law of Sedition: The central government is on the stage of reconsideration of the colonial laws.
Post-Independence: a large chunk of around 1200 archaic laws were scrapped at the time of independence. Indian system of governance is still influenced by the colonial laws directly (Sedition) or Indirectly.
What is and What not is Sedition as per IPC:
Section 124A of IPC defines sedition as: “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 shall be punished with imprisonment for life, to which fine may be added…”
The provision also contains three explanations:
- The expression “disaffection” includes disloyalty and all feelings of enmity.
- Comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offense under this section.
- Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section.
Origins of the sedition law:
Thomas Macaulay drafted the Indian Penal Code, which included the law on sedition, however, it was later added as an offence in 1890 through a special act. The punishment prescribed was transportation beyond the seas for the term of his or her natural life. This was amended to life imprisonment in 1955.
Use Of sedition act against the Independence Movement: The provisions of Section 124A were used against the freedom fighters like Tilak, Annie Besant, Shaukat Ali, and Muhammad Ali, Maulana Azad, and Mahatma Gandhi in order to curb the political dissent.
The legality of the Law and Interpretation by Courts:
Initially, courts followed a literal interpretation which turned into a disposition to render obedience to all lawful authority and support it against the unlawful attempts to resist that authority.
The Constituent Assembly members had differing views on sedition as an exception to the fundamental right to freedom of speech and expression Therefore constitution nowhere mentions the word sedition. However, in the initial phases of Independence Sedition was necessary to be kept as a part of the legal structure.
In Queen Empress v. Bal Gangadhar Tilak took place in 1898 it was held that 'disaffection' is the equivalent merely of ' absence of affection.
Cases so far against IPC Section 124A:
- Romesh Thapar v State of Madras 1950: SC held that “criticism of the government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the state.”
- Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) declared that Section 124A of the IPC was primarily a tool for colonial masters to quell discontent in the country and declared the provision unconstitutional.
- Kedarnath Singh v State of Bihar 1962 Supreme Court through a five-judge Constitution Bench overruled the earlier rulings of the high courts and upheld the constitutional validity of IPC Section 124A. However, the court attempted to restrict its scope for misuse. The court held that unless accompanied by incitement or call for violence, criticism of the government cannot be labeled sedition. The ruling restricted sedition only insofar as seditious speech tended to incite “public disorder”. The court also issued seven “guidelines”, underlining when critical speech cannot be qualified as sedition. Post Kedar Nath verdict, “public disorder” has been considered a necessary ingredient for the commission of sedition.
Guidelines on using the new, restrictive definition of sedition law, the court said not all speech with “disaffection”, “hatred,” or “contempt” against the state, but only speech that is likely to incite “public disorder” would qualify as sedition.
- Balwant Singh v. State of Punjab (1995), It was reiterated that the real intent of the speech must be taken into account before labeling it seditious. The petitioners were accused of sedition for raising slogans of “Khalistan Zindabad, Raj Karega Khalsa, etc. in a public space.
- Dr. Vinayak Binayak Sen v. State of Chhattisgarh (2011), the court also held that a person can be convicted for sedition even if she is not the author of the seditious speech but has merely circulated it.
- Arun Jaitley v State of Uttar Pradesh, 2016 the Allahabad High Court held that criticism of the judiciary or a court ruling would not amount to sedition.
Punishment under IPC Sec 124A:
- Sedition is a non-bailable offence.
- Punishment under IPC for sedition ranges from imprisonment for three years to a life term, which may be added by a fine also.
- A person charged under this law is barred from a government job.
- They have to live without their passport and must produce themselves in the court at all times as and when required.
What is the need for such a law:
- Reasonable restrictions to the right to freedom of speech and expression in order to ensure that it shall not create public disorder.
- Maintaining the unity and integrity of the nation becomes challenging when we have secessionist tendencies in the federal units of the state.
- Maintaining stability and security of the nation which is surrounded by rogue and deep state nations like Pakistan and China.
What are the Underlying Problems of This Law:
- Reports of the Law Commission of India and even the Supreme Court, have underlined the rampant misuse of the sedition law.
- The Kedar Nath guidelines and a textual deviation in law puts the onus on the police who register a case to distinguish between legitimate speech from seditious speech.
- It is seen as violative of the democratic principles by most of the constitutional and legal experts all around the world.
E.g: in Vinod Dua v Union of India, 2020 the Supreme Court quashed the FIRs charged against the journalist for criticizing the government in power for mishandling the COVID-19 crisis and cautioned against unlawful application of the 124A.
A fresh challenge to sedition law:
A group of journalists and some politicians, Kishorechandra Wangkhemcha, Kanhaiya Lal Shukla; and Trinamool Congress MP Mahua Moitra, among others have recently filed a new petition against this law.
The Supreme Court has agreed to hear such petitions through a much larger seven-judge bench.
What else: The bench will consider whether the Kedar Nath ruling was correctly decided or not.
The Government: in a fresh answer the central government told the court that it is mulling a fresh review of the colonial law.
The petitioners demanding the removal of the archaic law have argued that the restrictive Kedar Nath definition of sedition can be addressed through several other laws also e.g: the Unlawful Activities Prevention Act (UAPA).
Sedition laws in other countries
In the United Kingdom: The sedition law was officially repealed in 2009, citing a chilling effect on freedom of speech and expression. The common law on sedition was termed arcane and from a bygone era when kings used to enjoy the divine Right to rule and when freedom of expression wasn’t seen as the right it is today.
In the United States: In spite of its liberal and democratic values, the law of sedition still exists in the US today. Sedition is a federal crime regarded in the US and many other judicial systems as more serious than a misdemeanor. It is now being used against rioters involved in the January 6 attack on the Capitol.
Australia: It repealed its sedition law in 2010.
Singapore also repealed the law in 2021, having other laws to deal with the sedition.
The way forward: As the government is considering the law, judicial intervention remains crucial. As witnessed in the case of Amendability of fundamental rights for implementing DPSPs the tussle between judiciary and legislature ended up in the formation of the doctrine of basic structure. India has been following a stringent approach of least tolerance towards anti-national, secessionist, and terrorist elements which should be continued. However, A pragmatic way to save the right to freedom of speech and expression of Indians and to secure the public order for nations' growth must be invented.