By Gautam Badlani (Project Assistant – CLAT EASY)
The sedition laws applicable in India originated during British rule and were retained into the Indian legal system after independence. The original purpose of the law was to curb any dissent against the British monarch. The sedition law was one of the most draconian laws of the colonial period.
This has led to many people questioning the applicability of such laws in the current times particularly when such laws have been scrapped by their original drafters themselves. The United Kingdom itself scrapped the draconian sedition laws in 2009 through the Coroners and Justice Act while these laws continue to remain applicable in India. The primary opposition that these laws face is that they place excessive power in the hands of the executive. Several advanced countries such as the United States of America, New Zealand, Australia have either repealed the sedition laws or have amended them to bring these laws in line with the freedom of speech and expression. On the other hand, we see that in India, the number of cases filed under the provisions of sedition has steadily increased for the past few years. This article aims to analyse the need to change the provisions of the sedition laws to limit the scope of such laws and to bring them in line with contemporary standards.
SEDITION LAWS IN INDIA
Section 124A of the Indian Penal Code, 1860 deals with the criminal offense of sedition. It makes any act bringing or aimed at bringing “contempt” or “hatred” or attempting to excite “disaffection” towards the government, a criminal offense punishable under law. The punishment stipulated under this section may extend up to life imprisonment along with a hefty fine. Furthermore, a person convicted under this law is neither eligible for a government job nor a passport and has to appear before the court whenever summoned. The primary reason why this section has been able to survive the judicial tests is Section 19(2) which places reasonable restrictions on the freedom of speech. One of the major arguments in the favor of sedition law is that it ensures the smooth working of the government by preventing any illegitimate attempts to overthrow a democratically elected government. Many Indian states also face the threats of Maoist groups and the sedition law serves as an effective tool in combating these insurgent groups.
Moreover, Section 95 of the Code of Criminal Procedure, 1973 empowers the State governments to forfeit any publication in violation of Section 124A of IPC and issue warrants for the forfeiture of every copy of such publications. Another Act that dealt with sedition was the Prevention of Seditious Meetings Act, 1911. However, this Act was repealed by the government in 2017.
The Law Commission of India, in its consultation paper on “Sedition” released in 2018, recommended limiting the use of sedition law in only those cases where an act is committed with the mala fide intention of disrupting public order or where an attempt is made for the violent overthrow of the government. Earlier, the Law Commission in its 42nd report had suggested broadening the scope of Section 124 to make comments instigating “disaffection” against the judiciary, executive or the Constitution chargeable under the sedition law as well while limiting the maximum punishment under this section to rigorous imprisonment for 7 years in addition to fine. The 42nd report further envisaged the inclusion of intention or mens rea as a requirement for prosecution under Section 124.
SUPREME COURT’S STAND ON SEDITION LAWS
The Constitutionality of the sedition law was upheld by the Supreme Court in the case of Kedar Nath Singh v. State of Bihar while overruling the judgment of the Allahabad High Court in the case Ram Nandan v. State where the High Court declared Section 124A of IPC to be void. In the Kedar Nath case, the Supreme Court held that the sedition law under section 124A of IPC cannot be used to curb and restrict free speech. The Supreme Court stated that strong criticism of the government “without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal”. The Court further observed that sedition charges can only be applied when it can be proved beyond doubt that the guilty party, through his speech, disturbed public order or incited violence. Intention to disrupt public order or to incite violence, under this judgment, is a pre-requisite for invoking the charges of sedition. Recently, this viewpoint was upheld by the Supreme Court in its judgment in the case of Vinod Dua v. Union of India & others, while quashing the sedition charges against journalist Vinod Dua. The apex court in its judgment in the Vinod Dua case held that the Kedar Nath judgment guaranteed protection to every journalist against the invocation of sedition charges.
Several High Courts have also highlighted the issue of sedition charges being unnecessarily invoked in frivolous complaints. Recently, the Bombay High Court remarked that workshops should be conducted to train police officials regarding the cases where sedition can be invoked. Similarly, the Bombay High Court in 2015 while deciding the case of Sanskar Marathe vs State of Maharashtra had held that mere criticism of the government’s actions does not amount to sedition.
Such frivolous charges should certainly be discouraged as it leads to the wastage of time of a judiciary which already has a heavy backlog of around 4.4 crore cases. The courts have time and again held that sedition charges must be invoked only in exceptional cases. In its submission to the Sanskar Marathe judgment, the Maharashtra government even agreed to issue guidelines to the police officers, through a circular, regarding the invoking of sedition charges. However, still, we see instances where sedition charges are recklessly invoked for crushing dissent and for harassing the people voicing their grievances against the policies of the government.
SEDITION LAWS AND FUNDAMENTAL RIGHTS
The Constitution’s right to freedom of speech and expression is guaranteed under Article 19(1)(a). While the freedom of speech and expression is not absolute and certain reasonable restrictions are imposed on it, there have been various demands to amend the existing sedition laws and to define certain legal limits within which the sedition laws can be invoked. The Supreme Court in the Kedar Nath judgment clearly stated that only those words which are of a pernicious tendency or which are intended to disturb public peace and incite violence can be charged under the offense of sedition.
The Supreme Court itself has acknowledged the need to review the provisions of the sedition laws. The Supreme Court while responding to a petition filed by Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, challenging the constitutionality of the sedition laws on the ground that they violate the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution, issued a notice to the Central Government to submit its viewpoint on the issue. In February, the Supreme Court dismissed a petition challenging the sedition laws on the ground that the petitioners were not aggrieved by the said provision and hence they were not the concerned parties. However, in the current petition, the petitioners have been charged under sedition themselves and hence are eligible to plead for a review of the sedition provisions in the larger interest of the society.
Explanations 2 and 3 of Section 124 state that mere criticism of the administrative or government policies or measures does not amount to sedition as long as it does not disturb public policy or incite violence. Despite this clarification, there have been several instances where the sedition provisions have been misused. Several frivolous cases are also filed under the garb of sedition laws. For example, only 2 convictions resulted out of the 112 cases registered under the offense of sedition from 2016 to 2018. Furthermore, in 2016, 2 of the sedition cases were mentioned to be false cases in the final reports. This shows that many times sedition is used merely as a tool for harassment. This wide scope of misuse under section 124A of the IPC needs to be curtailed.
While the sedition law is essential for maintaining national security and public order, such charges must be invoked with a degree of circumspection and should not be used as a tool for curbing free speech. Introduced by the British, the sedition law was drafted with a colonial mindset and requires certain changes to bring it in line with contemporary times. The limits of the sedition law have to be carefully determined to prevent its misuse while at the same time maintaining its effectiveness as a tool for maintaining social harmony. The current language of Section 124A contains ambiguous terms such as “disaffection” which leave a very wide scope for discretion by the concerned officer and thus a very wide scope for misuse. Therefore, there is an urgent need to reduce the scope of the sedition law. The wide range of punishments that can be inflicted upon a person for an offense under section 124A must also be reviewed and narrowed down as per the suggestion of the 42nd Report of the Law Commission.
The Kedar Nath judgment is almost 6 decades old and India has undergone significant socio-economic development since then. People have become politically, socially as well as legally more aware of their rights. The Internet has provided everyone with a medium and platform to express their views. The validity of the provisions of the sedition law in contemporary times must be review by the apex court while deciding on the petition filed by Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla.
The Indian judiciary is already facing a heavy backlog of cases. At such a juncture, misuse of Section 124A must be vociferously discouraged. Sedition cases also require speedy trials as the offense of sedition is non-bailable and an innocent person may end up spending years in jail if the matter is not taken up for urgent hearing.