By Pratibha Chandiramani
In the most elementary sense, sedition can be described as criminal acts committed against the state. Often, the term sedition is confused with treason however, the terms vary in meaning. Treason refers to more dangerous and violent acts against the state, including physical attacks. Sedition is restricted to the acts of arranging or inciting hostility against the government through speech or writing, which does not add up to the dangerous crimes amounting to treason. The English Common Law was the first to criminalize use of seditious speech or writing. Even though citizens have been guaranteed the right to criticize the government in democracy, the right is not absolute and comes with certain restrictions. The restrictions are mainly those concerning the integrity and sovereignty of the nation.
Sedition, in a way, is a tool to control political criticism of the leaders and the presiding government. Sometimes, it becomes difficult to differentiate between hateful speech and sedition when it comes to politics. The freedom of speech and expression and the freedom of press has safeguarded people from prosecution for committing sedition in today’s society. However, many a time the government uses the tool of sedition to prosecute people only to quash dissent. If one deliberately speaks, publishes, writes, or issues any untrue, degrading, derogatory, or abusive material about the form or functioning of the Government, commits sedition. Anyone scheming to destroy or overthrow the government or even delaying the execution of any law by force amounts to sedition.
Position of Sedition Law in India
The introduction of sedition law in India can be considered as a byproduct of the British rule. The law was implemented in India by the Britishers for the sole purpose of oppressing condemnatory speech emerging from the Indian freedom movement and to weaken the Independence movement. The law was introduced in the Indian Penal Code of 1860 under Section 124A after almost 10 years through an amendment introduced by J. Fitz James Stephen, an English Lawyer, in 1870. After sedition was introduced, the first landmark case on this matter was of Queen Empress v. Bal Gangadhar Tilak (1897). Tilak was prosecuted for sedition for inciting hate through speech that led to the killing of two British Officials. The court in this judgement pronounced that any bad feelings concerning the government amounts to sedition. Almost 20 years later, Tilak was again prosecuted for sedition for writing an article criticizing the civil services in India. He argued that the British government and the civil services are two separate institutions.
During the first case of sedition under Section 124A of IPC after India attained Independence, (Tara Singh Gopi Chand v. The State, 1951) it pronounced by the Punjab High Court that Sec. 124A is unarguably a restriction on the freedom of speech and expression and thus breached Article 19 of the Indian Constitution which guaranteed citizens’ freedom of speech and expression. However, later Article 19 was amended and an exception to the right was added. Thus, citizens have the right to freedom of speech and expression as long as they do not harm the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, commit contempt of court, defamation or incitement to an offence.
An important authoritative judgement expounding the sedition law was pronounced in the case of Kedar Nath Singh by the Supreme Court. The Court in this case held that section 124A of IPC cannot be invoked by the state to curtail freedom of speech, and could be used only if evidence shows that the seditious material under consideration encouraged violence or resulted in public disorder. It has been made clear by the court that only if the seditious speech led to public disorder or at least a reasonable likelihood of public disorder arose, the accused could be tried for sedition otherwise not. As per the data released by the National Crime Records Bureau, cases filed under Section 124A of the Indian Penal Code between 2016 and 2019 increased by 160% while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016. These statistics show that the government has been using Sec. 124A inappropriately only to file unsubstantiated and petty cases. This misuse by the authorities indirectly pressurizes the individuals to censor their own speech and surely violates citizens’ freedom of speech.
Section 124A of The Indian Penal Code
The aforementioned section criminalizes Sedition in India. It is included in Chapter VI of the Indian Penal Code, which deals with offences committed against the state. According to this section, a person commits sedition when they incite or strive to incite hatred or disrespect, or if they arouse or at least try to arouse disaffection for the duly established Government of India. The punishment prescribed for anyone found guilty of sedition is-
- imprisonment for life and penalty may be charged as well, or
- with imprisonment for a term not extending three years and fine may be charged along with, or
- with fine only.
For the purpose of avoiding uncertainty, the section further explains that disaffection includes unfaithfulness towards the state and all feelings of animosity. Provisions contained in the section also explain what does not constitute sedition. According to these provisions, any utterance or statement made by a person that conveys dissatisfaction of the actions or administrative functions or measures undertaken by the Government with the intention of altering them by lawful means only, and it does not in any way arouse or aims to arouse hatred, contempt or disaffection towards the government does not amount to sedition. The offence is not a bailable one. A person guilty of committing sedition is not eligible to apply for a government job. During the tenure of Indira Gandhi’s government, for the first time in the history of Indian judiciary, Sedition was declared a cognizable offence in 1973, that is, no warrant is required, and a person could be arrested even without it.
Recent developments in Sedition Law
The issue of constitutional validity of Sec. 124A has always been a controversial one in India. On May 31, 2021, a three-judge division bench of the Supreme Court announced the decision in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. that the limits of sedition are not required to be defined. Later in the week, in the case of Vinod Dua v. Union of India & Ors., a two-judge division bench of the Supreme Court quashed an FIR against the petitioner for the offence of sedition. The court held that every journalist needs to be protected from the charge of sedition taking into consideration the interpretation of sedition that was given in the case of Kedar Nath Singh v. State of Bihar
In May 2021, a plea challenging the constitutional validity of sedition law under Sec. 124A was filed in the Supreme Court by two petitioners, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla. Both of them are journalists by profession. They argued in their plea that the number of sedition cases doubled from 2016 to 2018. The petitioners appealed to the Supreme Court for a suitable writ, order or direction that declared Section 124A of the IPC as unconstitutional and void. Both of the journalists are facing sedition charges themselves and have also served jail time. They were found guilty of sedition for criticizing political leaders. After the Supreme Court agreed to hear the plea, it issued a notice to the Union of India seeking its thorough response by July 12, 2021, on scrutinizing the constitutional validity of Sec. 124A and give a decision on the matter. The plea also states that section 124A indisputably violates citizens’ fundamental right of freedom of speech and expression as safeguarded under Article 19(1)(a) of Indian Constitution. The petitioners prayed for reconsidering the judgment given in Kedar Nath Singh v. State of Bihar which upheld the constitutional validity of Sec. 124A and criminalized acts involving conspiracy or tendency to initiate disorder, or disruption of law and order, or provocation of violence.
The petition stated that the terms “intention” and “tendency” mentioned in the interpretation of Section 124A are subjective which makes this law uncertain and indeterminable and invites abuse by authorities. The restrictions prescribed in the section are not reasonable and unnecessary to preserve the interests of state security and avoid public disorder because are adequately protected in other statutes in Indian law. India has signed the International Covenant on Civil and Political Rights (ICCPR) and thus, it has to abide by the rules mentioned under it. The petitioners have argued that Section 124A does not meet the universal standard of “necessity” as mentioned in ICCPR. The next hearing of this plea has been postponed to 27 July 2021.
On 15 July 2021, the CJI of India, N.V. Ramana, publicly denounced the actions of Central and State law enforcement agencies for using sedition law to censor dissent, suppress citizens’ freedom of speech and expression and for rejecting bail to imprisoned journalists, students and activists. Attorney General K.K. Venugopal and Solicitor General Tushar Mehta were representing the state. The CJI’s comments on sedition law has solicited the court’s need to introspect the court’s judgment in 1962 which pronounced section 124A constitutional, in the Kedar Nath case. The CJI questioned the existence of Section 124A, a colonial law, after 75 years of independence. He remarked that the section has been repeatedly misused by the state. The CJI brought to the attention of the state representatives the conviction rates under sec. 124A in the past few years and said that the reason behind the low conviction rate under sedition is misuse of power by representatives of the executive.
The CJI made a very critical remark on the use of sedition by the state that it is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself. He raised the concerns over misuse of the law and the lack of accountability by the culprits. Section 124A bestows extensive powers on every official authority including police officers, political leaders, civil services officers to crush citizens’ right to liberty and free speech. He also stated how the political parties misappropriate sedition law in a way that if one party does not like what the other is saying, sedition charges are imposed on the opposition party. The attorney general responded to CJI’s statements by replying that there is no need for the court to strike down Section 124A. He reasoned that the court should order the state to limit its use to the section’s real purpose only, however, they were not in favor of scrapping the section. But the statements made by the CJI brought attention to the government that the apex court is seemingly satisfied with the evidence that section 124A has been not used appropriately in the past by the authorities.
Aisha Sultana, a filmmaker from Lakshadweep, was recently booked under Section 124A for sedition in June 2021. She made a statement concerning the Lakshadweep’s administrator Praful Khoda Patel’s mismanagement during the pandemic. This shows how the government used this section as a tool to digress the media from the topic of Patel’s mismanaged policies and to repress the criticism regarding it.
The misuse of sedition by the government was truly brought to the attention of the judiciary and the general public when back in 2011, cartoonist Aseem Trivedi was detained for sedition for his allegedly offensive and obscene drawings displaying the National Emblem and the Parliament in a negative spotlight.
While the CJI gave his views related to sedition law, another case concerning Disha Ravi, an environmental activist, was also discussed. Disha shared a toolkit on Twitter which contained information about the ongoing farmer’s protest in India against the central government. The toolkit was seen as derogatory, and she was booked under charges of sedition. She was accused of being a key conspirator for preparing and sharing the document. This continues to show that government uses the tool of sedition to suppress dissent and criticism against it regardless of whether the actions will give rise to public disorder or create disaffection against the state.
All the above-mentioned incidents pose a similar question- Is Section 124A constitutional? At present, a plea to repeal Section 124A has been filed in the Supreme Court by Arun Shourie, a senior journalist and NGO Common Cause. The petitioners are represented by public interest lawyer Prashant Bhushan. Their petition is on the ground that the sedition law (Sec. 124A) was inserted in the IPC by the British parliament before the formation of constitution thus a law implemented prior to enactment of constitution cannot be declared constitutional.
The statistics of the past few years clearly indicate the government’s misappropriation of Sedition law. The rate of conviction under sedition law in 2019 was as low as 3.3%, which clearly shows that most of the cases are trivial and baseless. A colonial law that was established to enfeeble the freedom movement and to quash the voices of independence is still in existence in the country. The CJI has conveyed a firm indication to state that Section 124A of the Indian Penal Code has turned into a stale law and questioned the government as to why it hasn’t scrapped it off till now.
People have suffered a lot in the past due to the government’s misuse of sedition law, and will probably continue to do so if stringent actions are not taken against it. Thus, it is essential to re-examine the need and validity of section 124A, IPC to prevent violation of citizens’ fundamental rights along with maintaining national security. The need to amend Section 124A, if not to completely dispose of it from the code, has been a persistent demand of citizens.