Introduction150 Year Old Sedition Law in Abeyance
- Written by: Katari. Devi Nandini
In a developing country where the democratic traditions have yet to be established, the right of freedom of speech has to be given a pride of place. In an attempt to search and establish the values of our democratic life if some priorities and preferences are evolved it is not desirable that the liberty of speech be classed in the same category with rights like the right to property. The principle laid down in the Kedar Nath 1 case makes no contribution towards the promotion of democratic values in the country. The Supreme Court has upheld the constitutionality of the law of sedition without addressing itself to the need of laying down a clear cut principle to maintain a distinction between an incitement to action and an incitement to ideas. Every idea which was communicated has potentialities of incitement to action. The incitement of action might be remote in some cases and it can be immediate in some cases. The judiciary as the guardian of the fundamental rights, has to perform the delicate task of drawing a line between the two. On the contrary it has upheld a provision of law which penalizes advocacy of certain types of ideas without defining precisely the extent of proximity to the likelihood of consequential action. One such provision is sedition.
BACKGROUND:
Sedition is the vaguest of all offences known to the Criminal law. In colonial times,it was defined expansively in order to uphold the majesty of British power in India. Article 124-A 2 Sedition- whoever, by words, either spoken or written, or by signs, or by visible representation, or ortherwise, 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 fine. This section on sedition, though forming part of Macaulay’s Draft Penal Code of 1837-1839, was not included by the legislature in the 1860 Code. In 1870, however, an amending act incorporated in the code the original draft clause, with certain verbal changes, as section 124-A. An in 1898, an important change was made in the contents of the section altering its language and substance. In the section, as originally introduced, the gist of the offence was “exciting the feeling of disaffection towards the Government”. The amending at of 1898 added the words ‘bringing or attempting to bring into hatred or contempt”.
The judicial controversy on the scope of section 124-A begins with the decision of the Calcutta High Court in Queen Empress Vs Jogendra Chandra Bose 3 popularly known as Bangobasi Case, where Mr. Chief Justice Petheram, in his charge to the jury, explained the scope of the section thus: It is sufficient for the purpose of the section that the words used are calculated to excite feelings of ill-will against the government and hold it up to the hatred and contempt of the people and that they were used with the intention to create such feelings”.
The Indian law of sedition acquired a new perspective with the commencement of the constitution. In the draft constitution one of the grounds mentioned on which freedom of speech and expression could be restricted by law was “sedition”. But the Constituent Assembly dropped the word Sedition and substituted it by the term “which undermines the security of or tends to
overthrow the state”. In preferring the interpretation of the Federal court, the Chief Justice relied on the rule of interpretation that “if certain provisions of law constructed in one way would make them consistent with the constitution and the other interpretation would make render them unconstitutional, the court would lean in favor of the former construction”. Further it was adopted the rule that in interpreting an enactment not only the literal meaning of words used is to be seen but the antecedent history of the legislation, its purpose and the mischief it seeks to
suppress are to be taken into consideration.
PRESENT SENARIO:
The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”. The section carries with it the prospect of life in prison. What is more, right from its inception, the offence has been treated as non-bailable. This means that a person arrested without
trial has no inherent right to bail. He or she must apply to a judge to seek release. As is only too evident, the law was always meant to be used as a restraint on dissent, to crush any and every. form of opposition aimed at the government. Indeed, it was by pointing to these repressive
features and to the trials of Bal Gangadhar Tilak and Mohandas Gandhi that K.M. Munshi argued so forcefully in the Constituent Assembly to delete the use of the “equivocal” word “sedition” as a permitted restriction on free speech. Should the word not be deleted from the Draft Constitution, Munshi said, an “erroneous impression would be created that we want to
perpetuate 124-A of the I.P.C”.
Despite this governments across India continued to charge people with the offence. In the 1950s, two different High Courts struck down Section 124A as offensive to freedom. But, in 1962, in Kedar Nath Singh vs State of Bihar 4 , a five-judge Bench of the Supreme Court reversed these verdicts. The Court paid no heed to the debates that informed the Constituent Assembly.
Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order. However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
Undoubtedly, a law cannot be invalidated merely because it has been subject to misuse. But in the case of sedition, the rationale for the decision in Kedarnath singh and the survival of section 124A have both become untenable with time. Since then, the supreme court’s reading of fundamental rights has undergone a transformative change. Since 1973, sedition has also been
treated as a cognizable offence, that means that the police officer can arrest persons suspected of having committed the offence without a warrant.
Supreme Court, on May 11th 2022, suspended pending criminal trials and court
proceedings under Section 124A of IPC while allowing the Union of India to reconsider the British-era law. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in abeyance," a three-judge Bench led by Chief Justice of India N.V. Ramana ordered. It was argued in court that about 13,000 people were already in jail under the sedition provision.
The apex court order would act as a powerful message against the rampant misuse of the sedition law by governments to silence dissent and violate personal liberty. Undertrials booked under Section 124A can now use the order to seek bail. Mr. Sibal had said the Kedar Nath judgment had only covered how sedition affected free speech and expression enshrined in Article 19(1)(a) 5 and did not touch upon how the provision would snuff out the right to life (Article 21) 6 and right to equal treatment (Article 14) 7 . But the government had argued as “Merely because Article 14 and 21 are not mentioned, would not undermine its final judicial conclusion. The five-judge Bench read down Section 124A only to bring it in conformity with Article 14, 19 and 21 of the Constitution. No reference, therefore, would be necessary nor can the three-Judge Bench once again examine the constitutional validity of the very same provision”.
SEDITION STATISTICS:
As per the 2020 National Crime Records Bureau (NCRB) report 8 , in 2018, 70 sedition cases were filed; however, not a single person was convicted. Similarly, in 2019, 93 cases were filed, while only two were convicted. Similarly in 2020, 73 cases were filed and no one was convicted of sedition.
Here are some recent notable cases of the sedition charge being invoked:
- Against environmental activist Disha Ravi, for sharing a ‘toolkit’ for a global online campaign supporting the farmers’ protest
- Against activists Umar Khalid, Sharjeel Imam, Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, Gulfisha Khatoon, Ishrat Jahan, Safoora Zargar and Meeran Haider, for alleged inflammatory remarks at anti-CAA meetings and ‘premeditated conspiracy’ to create riots in Delhi in February 2020.
- Against journalist Siddique Kapan, for proceeding towards Hathras, where a 19-year-old Dalit woman was gangraped and alleged links with Popular Front of India (PFI).
- Activists Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao, Hany Babu, Anand Teltumbde, Shoma Sen, Gautam Navlakha, Surendra Gadling, late Father Stan Swamy, Arun Ferreira, Rona Wilson, Mahesh Raut and Sudhir Dhawale, for speeches at an Elgaar Parishad meeting ahead of the violence in Bhima Koregaon on the occasion of the bicentennial anniversary of the 1818 battle.
CONCLUSION
The expression or the thought that is not in Consonance with the policy of the government should not be considered as sedition, because India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. Section 124A is not a tool to misuse and the freedom of speech and expression. It needs to be examined under the changed facts and circumstances and also on the anvil of ever-evolving tests of necessity, proportionality and arbitrariness. Personal liberty and the right to free speech are hallmarks of liberal democracy and sedition laws and their gross misuse attack the very foundation of these liberties enshrined in the Indian Constitution. The need of the hour requires the judiciary to review this draconian law. Even if abolishing this law may not be feasible, toning it down and issuing strict guidelines to limit its indiscriminate use can definitely help India’s democratic standing apart from safeguarding freedom of expression in the country.
BIBLIOGRAPHY:
1. Fali S Nariman, The Sedition law must go, Indian Express, June 1 2022, available at
https://indianexpress.com/article/opinion/columns/a-dispiriting-sedition-law-indian-penal-code-constitution-7946323/
2. Overdue Review: On the Sedition Law, The Hindu, July 17, 2021, available at
https://www.thehindu.com/opinion/editorial/overdue-review-the-hindu-editorial-on-the-sedition-law/article35372665.ece
3. Krishnadas Rajagopal, Sedition law need not be revisited, government tells SC, The Hindu, May 07, 2022,available at
https://www.thehindu.com/news/national/1962-verdict-which-upheld-validity-of-sedition-law-is-a-binding-precedent-government-tells-supreme-court/article65392379.ece
4. Misra, R. K., Freedom of Speeh and the Law of Sedition in India, Journal of the Indian Law Institute, vol. 8, no. 1, 1966, pp. 117–31. JSTOR, https://www.jstor.org/stable/43949872
5. Wallace, M. G. “Constitutionality of Sedition Laws.” Virginia Law Review, vol. 6,
no. 6, 1920, pp. 385–99. JSTOR,
https://www.jstor.org/stable/1064269?origin=crossref&seq=1
6. Krishnadas Rajagopal, SC puts colonial sedition law on hold, The Hindu, May 11,
2022,
https://www.thehindu.com/news/national/sc-asks-centre-states-to-not-file-fresh-firs-in-sedition-cases/article65403622.ece