Open Access Research Article
Freedom Of Speech And Expression Vis-À-Vis Sedition Law In India By : Ananya Singh
Published Paper
Article Details
FREEDOM OF SPEECH AND EXPRESSION VIS-À-VIS SEDITION LAW IN
INDIA
Authored By : Ananya Singh
Course: B.A. LL.B. 5th Year
Institute: Jamnalal Bajaj School Of Legal Studies,
Banasthali Vidyapith,
Rajasthan
CONTENT
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S. No.
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TOPIC
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1.
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INTRODUCTION
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2.
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HISTORICAL
ASPECT OF THE LAW
2.1. REPORTS OF THE LAW COMMISSION ON SEDITION
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3.
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SEDITION
LAWS IN INDIA
3.1. PRE-CONSTITUTIONAL ERA
3.2. POST-CONSTITUTIONAL DEVELOPMENTS
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4.
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JUDICIAL APPROACH TOWARDS THE LAW OF
SEDITION
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5.
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SEDITION LAW: FROM NON-COGNIZABLE TO COGNIZABLE
OFFENCE
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6.
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ACTIVE JUDICIARY IS THE NEED OF
THE HOUR
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7.
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CHALLENGES TO SEDITION LAW
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8.
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SUGGESTIONS
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9.
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CONCLUSION
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10.
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BIBLIOGRAPHY
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ABSTRACT
Once again the topic of Sedition has
become the course of discussion. The Supreme Court is hearing the matters
challenging it, through the appeal filed by the Editor Guild of India. Major
General (Retd.) S.G. Vombatkere[1] states
about the Sedition law that it has a “chilling effect” on free speech and
expression and is an exception of it. Freedom of speech is one of the most
predominant and relevant requisite of democratic nation like India. It helps to
allow an individual to gain self-satisfaction, confidence, and democracy of
truth, helps a person to acquire the capacity to make commitments and maintain
equity between stability and social change. In the Constitution of India, which
is considered as a guardian of democracy, the fundamental right of freedom of
speech and expression is indispensable i.e., it is impossible to be without it.
It is the most basic human right; the first condition of liberty. A society is
said to be free due to this right. This right of freedom of speech and
expression is mentioned in the preamble of the Universal Declaration of Human Rights, 1948 and as a fundamental
right under Article 19[2] of the Constitution of India.
Laws should not be broadly or hazily
drawn to protect the freedom of speech or to ensure the fairness of democracy
and that is how the free speech has a breathing space. In India, where the Rule
of Law prevails, the unpredictable and unacceptable charges of seditious
offences cannot be link with the law of the nation. This paper is an attempt to
throw some light on the constitutional morality, individual freedom and
morality and the law of sedition in Indian penal code and their relation and
how they are working together. The role of judiciary and to understand that to
what extent the law of sedition is still required and how it should be placed
with the freedom of speech and expression in a country like India.
Keywords: freedom, speech, expression, offence, sedition, defamation,
public order, democratic, seditious, disaffection, chilling effect.
1.
INTRODUCTION
One
of the major principles of democracy is the free speech and expression. As a
democratic nation, we consider the freedom of speech and expression as the
first and foremost human right. This expression is the first condition of
liberty due to its considerance as the mother of all civil rights because it
makes the life worthwhile. This freedom is designated as the soul and spirit of
the society.
Article 19 (1) (a)[3]
of the Constitution of India assures the right of free speech and
expression as the fundamental right to all the citizens of the country. However,
there are certain restrictions provided under this Article 19(2)[4]
of the Constitution, which are as follows:
·
Interest of authority and ethics.
·
The safety of the State.
·
Amiable relations with foreign
countries.
·
Public order, dignity or
righteousness.
·
Contempt of Court.
·
Defamation.
·
Encouragement of an offence.
The
offence of Sedition is defined under Section 124-A[5]
of IPC. In a democratic nation, the relevancy of Sedition law is continuously a
controversial topic. The people, who oppose this law, see this offence as a
historical object of colonial era to suppress the public. While, some support
this law by saying that it provides reasonable restriction on the opinions that
are destructive to the security and public order of the nation.
In
general, “Sedition” means the use of words or actions that are
intended to encourage people to be or act against a government.
In
Legal term, Sedition is defined as “the
offence of creating a revolt, disturbance, or violence against civil authority
with the intention to cause its overthrow or destruction.
In
the colonial era, this Section had been expound broadly and was provocative to
instigate disaffection towards the government. So it was held punishable
whether or not it created public disorder or hatred. Clearly, the Section in
such a wide-ranging form could not be assisted under Article 19 (2) of the
Indian Constitution.
2. HISTORICAL ASPECT OF THE LAW OF SEDITION
The
term Sedition first came into being in the Elizabethan Era as the “conception to instigate by words or
writing disaffection towards the State.” There are some reports of law
commission which explains about the establishment of various laws, amendments
and also pre and post constitutional developments related to the Sedition Law.
2.1.
REPORTS OF THE LAW
COMMISSION ON SEDITION
The 39th Report (1968)
of the Law Commission, “The Punishment of Imprisonment for Life
under IPC”, recommended that offences like sedition should be punished
either by life imprisonment or rigorous imprisonment or simple imprisonment,
which may extent to 3 years, but not more.
Further,
in 42nd Report, the
Commission gave decisive suggestions for Section 124-A of IPC to be inserted
as:
i.
Inclusion of mens rea.
ii.
Defamation cannot be accepted against
the Constitution of India, Legislatures and Judiciary along with the
government, so the ambit of this section should be broadened.
iii.
Erasing the cavity between
“imprisonment for life” and “imprisonment which is extendable to 3 years” or
penance. It recommended a maximal punishment of 7 years in spite of the above.
But,
the government of India denied these suggestions and later came another report,
which was the 43rd Report
named, “Offences against the National Security (1971)”, also dispensed
with the “sedition” as it considered “sedition” as the part of national
security.
The
267th Report of the Law
Commission distinguished between “Sedition” and “Hate Speech” by explaining
that Hate Speech is the offence that affects the State indirectly by harming
the public peacefulness while “sedition” directly affects the State. Hate
Speech is dealt under Section 153A[6],
153B[7],
295A[8]
and 505[9]
of IPC while Sedition is dealt under Section
124-A of IPC.
After
discussing various reports on Sedition, later came the points to discuss about
Sedition laws worldwide and in India before Independence as it was the law
introduced during the colonial period to suppress the rights and speech of the
Indians who were strongly against the British government ruling over Indians.
3. SEDITION LAWS IN INDIA
3.1.
PRE-CONSTITUTIONAL ERA
Macaulay’s
Draft Penal Code, 1837 agreed to Section 124-A of IPC and proposed the
punishment of life imprisonment. Chairman of Second Pre-Independence Law
Commission, Sir John Romilly, suggested that in England, the punishment for
sedition is of 3 years and on this basis in India also, it should not extend
more than 5 years. However, this section was not included in the enactment of
Indian Penal Code, 1860. But it was a surprising decision.
Later
on, Mr. James Stephen dealt with to correct this omission and as a result
included the offence of sedition under section 124-A of IPC, 1860 throughout
the Special Act XVII of 1870. One of the main reasons of Mr. Stephen to
introduce this section was that if this section would not have been introduced,
the offence would be punished more severely under other provisions of the Code.
The intention determined under this section was to penalise the act of excited
feelings of dissatisfaction towards the government. Therefore, public was free
to express its feelings or expressions but in a way which would not show any
harm of disaffection towards the authority.
Section
124-A was added to the Code in 1870 but not in the present form. The term
‘disaffection’ was discussed in a number of cases during the course of 1870 to
1898. In Queen v. Jogendra Chandra Bose[10],
C.J. Petheram defined ‘disaffection’ as a feeling opposite to
affection, or dislike or hatred. The meaning of ‘disapprobation’ is simply
dissatisfaction. In this case, it was further said that if the words spoken or
written by any person create in the minds of hearers the feeling of hatred or
dislike towards the government, he will be guilty under this section. Further,
Strachey, J., agreed with this judgement and used it in the case of Queen
Empress v. Bal Gangadhar Tilak[11].
Bal Gangadhar Tilak was convicted of sedition twice. In 1897, Tilak was
convicted of by the Bombay High Court because of his seditious speech that
resulted into the murder of two British officers. This resulted into broadening
of the scope of ‘disaffection’ towards the government under section 124-A of
IPC to include disloyalty. Secondly, he was convicted in 1908 due to his
writings in a Marathi newspaper ‘Kesari’ which he founded in 1881.
Earlier,
Sedition was the law in United Kingdom to deal with the public who acted
against the government but due to the aggressions which were shown by the
Indian freedom fighters and the rest of the public against the British rulers
to get our nation free from them, the British government brought the laws
related to Sedition in India to deal with the hatred and disaffection which
arose against them. Hence, there came Section 124-A of IPC which dealt with the
provisions and punishment for Sedition in India.
The Indian Penal Code (Amendment)
Act, 1898 amended Section 124-A of IPC by providing for the
punishment of transportation for life or any shorter term. The previous section
included the feelings of dissatisfaction towards the government established by
law, while the amendment concluded that the section also focused to bring in
hatred or disrespect towards the government, punishable. Since then, the
offence was punishable with life imprisonment or with fine or imprisonment for
3 years and/or with both.
The Prevention of Seditious Meetings
Act, 1907, was enacted by the West Minster Parliament, to stop
the public meetings to withheld in order to prevent the offence of sedition or
to cause disrespect or disaffection as in many parts of India meetings were
held against the British rulers by the Indian leaders to aware the public about
the main objectives of the British.
The
Act of 1907 was then repealed by the Prevention of Seditious Meetings Act,
1911. Therefore, Section 5 enabled the government to prevent the public
meetings to hold in order if they disrespect or spread hatred towards the
statutory authority, violation of which could be punished with imprisonment for
a term of 6 months or fine or both.
In
Dutt
Niharendu Majumdar v. The King Emperor,[12]
sedition was defined by the Federal Court of India as leading to ‘public
disorder or reasonable anticipation of public disorder’. The Court highlighted
that sedition inferred some form of lawlessness. But the decision was overruled
by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao[13].
While
discussing sedition in a debate in the Constituent Assembly in 1947, Sardar
Vallabhbhai Patel proposed an exception for ‘seditious’ language saying that it
must serve as an exception to the right to free speech. Further, the
Constituent Assembly rejected the proposal in 1948 by counting sedition as an
instrument of British rulers to restrain the Indians from standing against the
cruel acts of the British.
To
conclude the pre independence seditious aspect in India the word ‘sedition’ was
tried to drop from Article 13(2) of the Draft Constitution of India by Hon’ble
Justice K.M. Munshi through an amendment. On 26 November, 1949, the word
‘sedition’ was removed from the Constitution and an absolute and total freedom
of speech and expression was given to Article 19 (1) (a) of the Constitution.
Although, Section 124-A remained to continue in the Indian Penal Code.
3.2.
POST-CONSTITUTIONAL DEVELOPMENTS
After
independence, the framers of the Constitution did not consider Sedition as a
penal statute because it was not accepted to them to impose restriction on the
freedom of speech and expression.
In
Romesh
Thappar v. State of Madras,[14]
the Sedition first came into consideration as an offence under section 124-A of
IPC after independence. In this case, the Supreme Court held that anything will
not lie under the ambit of Article 19(2) of the Constitution of India until and
unless it threats or harms the security of the State. For this reason, two
restrictions were added by the First Amendment Act, 1951[15]:
i.
Good ties with foreign countries.
ii.
Public security and order.
In Kedar
Nath Singh v. State of Bihar,[16]
the constitutionality of Section 124-A of IPC was challenged. In this
case, a 5 judge bench reversed the previous decisions of the high court and
confirmed the constitutional validity of Section 124-A of IPC but with certain
reasonable restrictions, to avoid its misuse. Ensuing the decision of Romesh
Thappar case, the court held that any speech unless accompanied with
hatred or disaffection would not be considered as an offence under section
124A, IPC. The speech should incite some “public disorder” to fall under the
category of “sedition”. The court also issued certain “guidelines” when a speech cannot be determined as seditious in
nature.
In
its guidelines under the verdict, “public disorder” is considered to be the
necessary ingredient for the offence of sedition. The court held that mere
slogans accompanied with certain hatred or threats would not be qualified as
sedition.
But
in Kedar
Nath case, the Court did not
provide any direction to choose who decides if there is an encouragement to
violence.
In
Balwant
Singh v. State of Punjab,[17] the petitioners were accused of
sedition because of their slogans- “Khalistan
Zindabad, Raj Karega Khalsa (Hindus will leave Punjab and we will rule)” in
the public place, as the real intention behind the speech would be taken into
account before considering the offence as seditious in nature.
In
further rulings, Dr. Vinayak Binayak Sen v. State of Chhattisgarh,[18]
the court held that a person, who has not written the speech but circulated it,
can also be charged with sedition.
In
the case of Arun Jaitley v. State of Uttar Pradesh,[19] the former minister, Arun Jaitley
criticized the Supreme Court’s ruling declaring the National Judicial
Appointment Commission unconstitutional- would not amount to sedition.
4. JUDICIAL APPROACH TOWARDS THE
LAW OF SEDITION
In
Patit Paban Halder v. State of West Bengal[20],
the Police obtained information about a conference
being held in a village where seditious lectures were being delivered. They
were found to have various seditious pamphlets and handouts. A complaint was
filed against them and they were charged under
section 121-A[21],
122[22],
124-A of IPC, Section 25(a)[23]
and 35[24]
of Arms Act, 1959, Section 4[25]
and 5[26]
of the Explosive Substances Act, 1908.
The
Calcutta High Court observed that the prosecution had failed to prove the
allegations against the appellants and there was no evidence to link the
accused with the charged offences. Therefore, the appellants were given the benefit of doubt[27].
In
Kishorechandra Wangkhemcha v. Union of India[28],
in 2018, two journalists were charged with sedition
who had posted on social media against the government functionaries. In 2021, a
writ petition was filed at the Supreme Court challenging the constitutional
validity of Section 124A of IPC. They proposed that it infringes their Right of
Expression under Article 19(1) (a) of the Constitution and the restriction
forced upon by Section 124A, IPC does not lie under the provisions of
‘reasonable restrictions’ within the meaning of Article 19 (2) of the Constitution. They also claimed
that the judgement set in Kedar Nath case in 1962 is outmoded as it does not follow the current laws
concerning with safety, security and public order.
In
Vinod Dua v. Union of India[29],
Supreme Court
indicates FIR filed against Journalist Vinod Dua. In 2021, a two- Judge Bench of the Supreme Court
rejected the FIR of sedition filed against a journalist who commented against
Prime Minister, Narendra Modi about handling the COVID-19 crisis in the country.
Hon’ble Justice U.U. Lalit held that his comments could not amount to sedition
as it did not create any public disorder. According to this case, the Court
also recapitulated the Kedar Nath judgement.
Rajina
Parbin Sultana v. State of Assam[30]
Ms. Rajina Parbin, the petitioner was detained under section 124-A of IPC and Section 2 of
the Prevention of Insult to National Honour Act, 1971[31],
when a photo of her enjoying meal at the dining table with her family on the
occasion of Eid went viral on social media. She was accused of using the National
Flag as the table cloth in the photo. In this case, it was argued that the
accused used a table cloth that looked very similar with the national Flag.
The
Court accepted the defence and advised the petitioner to be careful in the
future; because it did not appear like an act of overthrowing hatred or
disaffection against the government.
In
December 2020, the Government of Delhi sued 18 people who were charged with Delhi riots case which took place on February
24, 2020 due to the controversy occurred against the citizenship law. This
included Umar Khalid and his fellows from J.N.U., Sharjeel Imam, Devangana
Kalita, Natasha Narwal, and local politicians, Tahir Hussain and Ishrat Jahan-
brought under many trials including Sedition.
In
January 2021, cases related to Sedition were filed in Madhya Pradesh and Uttar
Pradesh. A Parliament member, Shashi Tharoor and some journalists namely,
Rajdeep Sardesai, Zafar Agha, Mrinal Pandey, Vinod Jose, Paresh Nath and Anant
Nath; regarding a tweet which blamed the police for the death of a farmer in
Delhi during a protest on the Republic Day. The arrests were kept on hold by
the Supreme Court of India and the decision is still pending.
On
February 26, 2021, the government of Delhi gave punishment to the students of
Jawaharlal Nehru University (J.N.U.), namely, Kanhaiya Kumar, Anirban
Bhattacharya, Umar Khalid, Mujeeb Hussain, Aquib Hussain, Muneeb Hussain,
Rayeea Rasool, Umar Gul, Basir Bhat and some other student extremists were
charged with Sedition for a case in 2016.
In
Shreya
Singhal v. Union of India[32]
the Hon’ble Supreme Court of India entirely refuted Section 66-A[33]
of Information Technology Act, 2000. Section 66-A was constitutionally
ambiguous according to the argument of the petitioners. Two women were arrested
by the police because they posted disrespectful and insulting comments on
facebook regarding the closing of city of Mumbai due to the death of a
political head. The police arrested these two women and charged them under
section 66-A of the Information Technology Act, 2000 which says about
punishment to the individual who sends any offensive and disrespectful
information or content through the computer resources or any other
communication system. The content transferred should be for creating
obstruction, ambiguity, vagueness, disrespect, ill-will, danger, risk, or
hatred.
The
police then released them and dissolved their after which those women appealed
and challenged the constitutionality of Section 66-A of Information Technology
Act, 2000 on account that it violates the right to freedom of expression. The
Court held the Section 66-A of Information Technology Act, 2000 as
unconstitutional because it violated right to freedom of expression under
Article 19 (1) (a) of the Indian Constitution, also the ground of petition of
the women was rejected because this section was already declared as
unconstitutional.
G.S.
Mani v. Commissioner of Police Delhi & Ors.[34] Here, Kerala
MLA KT Jaleel made some tweet regarding Kashmir. The Delhi Court dismissed the
complaint by saying that the MLA did so only to get certain “political mileage”
which did not harm peace or create any kind of public disorder and also that
the secularity and peace of the nation is not that frail or weak that it would
get disturbed by such political stunts or get spoiled by random statements of
the politicians.
These
are very less instances. In the last few years, Sedition has been seen as being
registered to those who withstood a nuclear power plant, tribals who protested
against their territory snatch, protestors against the Citizenship (Amendment)
Act, 2020, those who were against National Register for Citizens (NRC), just
criticizing the Prime Minister or the Chief Minister of any State, or farmers
and those who were protesting in favour of the farmers against the Farmers
Bill, 2021.
While
considering so many petitions, the Supreme Court challenged the constitutional
validity of Section 124-A of IPC and declared not to register any new case
under the sedition law. The court also pronounced that the existing cases would
be provided with bail and released immediately.
Further,
the Supreme Court pronounced sedition as a colonial law which was used against
the freedom fighters of India to suppress their voice and the court also
questioned its existence even after 75 years of independence.
By
examining the extensive abuse of the sedition law, a bench headed by the Chief
Justice of India, N.V. Ramana issued a notice to the Central Government. The
Court asked the Centre to tell why it is not getting rid of the colonial era
penal law of sedition, which was used by the British to silence the public like
Mahatma Gandhi, Bal Gangadhar Tilak, etc. to stop or suppress their voice of
freedom movement.
“Hon’ble
Chief Justice of India, N.V. Ramana said that the use of sedition is like a
carpenter being given an axe to cut the tree but he uses it to cut the entire
forest.”
The
constitutionality of the sedition law under section 124A of the India Penal
Code, 1860 is challenged by the Major General S.G. Vombatkere (Retd.) because
it causes a “chilling effect” on the
fundamental right to freedom of speech and expression. By The Doctrine of Chilling
effect it can be understood that the chilling effect is the quashing of
free speech and legitimate forms of disagreement among the public because of
fear of the consequences. The effect occurs within a society because of
punitive actions taken against others who have exercised their rights. It does
not directly affect the free speech but has the impact of self-denial. The
restriction imposed by the legislation should be narrow enough and must not be
broad and vague to create the problem of chilling effect. The direct as well as
inevitable consequence of the restriction imposed must be considered by the
court while deciding the constitutional validity of the legislation.
Chilling
effect was first used as a legal term in 1965 by J. William Brennan in Lamont
v. Postmaster General[35],
earlier it was referred to as a deterrent effect on freedom of expression. In New
York Times v. Sullivan[36],
the Supreme Court of U.S. recognized the chilling effect by observing that
incorrect statements are inevitable in a free discussion and thus must be
protected to allow freedom of speech to have a breathing space.
So
far, what is more agitating is once detained under sedition law, it is
immensely strenuous to get bails as the trial process can be extensive.
This
leads to aggravation of nascent people and brings out a terror and loss of
courage in others to speak unfavourable towards the government. The cases of
Kashmiri disciples in Hubli is an example of the difficulty of getting bail in
a sedition case as they got default bail after 100 days of Police custody.
Sometimes,
we can say that Sedition is the prime wrongdoing but many times it blends with
the Unlawful Activities (Prevention) Act, 1967 (UAPA) and other ruthless laws.
Continuously, it has been seen that people just having a divergence of thoughts
or views land behind the bars, charged with Sedition. Journalists, Dalits,
tribals, activists are being major targets. In India, Assam tops in Sedition
cases since 2014, followed by Haryana, Jharkhand, Uttar Pradesh and Karnataka.
There is a data which indicates that approximately 65% of cases were filed in
2014. There were mainly students, journalists, authors and academics among who
were charged with Sedition in spite of Supreme Court’s Kedar Nath judgement in
which it was strictly upheld that student, academics, journalists, etc. should
not be charged with sedition just to criticize or having diverse thoughts about
the government or politicians.
96%
of the cases were implicated for having disaffectionate thoughts regarding
politicians and government since 2014. 149 of them were for having crucial
remarks against the Prime Minister, Narendra Modi and 144 were for having been
against Uttar Pradesh Chief Minister, Yogi Adityanath. Many of these were filed
during the protests against the Citizenship Amendment Act, 2020 and the rape
case of a Dalit in Hathras, Uttar Pradesh. It is ironical that in many cases,
courts have quashed the FIR’s or provided accused with regular bails, the
police regularly continues to file the FIR on shallow charges of Sedition and
even arresting the accused which also include tribal extremists, journalists,
etc.
This
law has been severely misused creating the chilling effect among the public.
Some have the resources to reach the Supreme Court but the rest who are poor
suffer a lot by spending a lot of useful months or years of their life behind
the bars which affects their families, career, jobs, study and metal health.
Subsequently, Sedition is merged with UAPA and other adverse laws which
entangle the cases and thus poor people suffer more because it is not easy for
everyone to reach the court and get proper legal aid.
The
judiciary, thus, continuously keeps paying heed on Kedar Nath case which
highlights that the person should be charged with Sedition by properly
calculating the intensity of the crime or violence to apply Sedition
beforehand. The police is also repeatedly advised to stick to this judgement
before filing an FIR.
However,
it is astonishing that not even a single police officer is sued for blatant
misuse of Sedition as an offence and not even a single victim has been
compensated for his harm or loss. It is a basic understanding that in a large
number of cases, Police measures have been feverishly supported and shielded by
the Solicitor General of India, the Assistant Solicitor General and the
Advocate General of the State. The Assistant Solicitor General has even reached
to the Sessions Court to defend the Police measures and to repel the bail of
students and journalists.
5. SEDITION LAW: FROM NON-COGNIZABLE
TO COGNIZABLE
OFFENCE
It
is a salient characteristic which needs to be paid heed on. The verdict of Kedar
Nath Singh case was conveyed in 1962 when India was under the control of
British rule Code of Criminal Procedure, 1898. During that period, sedition law
was considered to be non-cognizable offence, which means that an accused under
the offence of Sedition could be arrested only after a warrant issued by the
Magistrate. There occurred a judicial interrogation taking place before the
arrest. For example, M.K. Gandhi was arrested after the Magistrate issued a
warrant against him under the charges of Sedition.
Later,
today’s Code, the Code of Criminal Procedure, 1973 replaced the Code of 1898.
Beneath the new Code, Sedition Law is considered as a cognizable offence which
means that now there is no need to get a warrant issued by the magistrate
before an arrest under Sedition Law. Police can directly arrest the accused
without any judicial warrant of Magistrate. Hence, the supervision of judiciary
has been repealed. It has given unrestricted power in the hands of Police.
The
Sedition Law has undergone several changes and through a long journey from
being brought to India by the British Government to be called as
unconstitutional during the debate of Constituent Assembly to being held as
constitutional along the Republican period, to even becoming more powerful from
being called as non-cognizable offence to become a cognizable offence in 1973.
6. ACTIVE JUDICIARY IS THE NEED OF THE HOUR
Sedition
law is one of the most oppressive laws in India among UAPA, National Security
Act, 1980, Armed Forces (Special Forces) Act, 1958, etc. which have the
necessity to get revoked. The utmost exploit and misapplication of Law of
Sedition can no longer be soothed by writing down, readings, guidelines, or
pleasing the Police or Politicians. It is an oppressive, anti-democratic law
and in opposition to freedom of speech and expression. It is continuously going
to be used to violate the fundamental right to life and personal liberty[37].
This law will not be revoked by the Parliament because the political party
in power has so many benefits from it and even it is misused by the opposition
parties too whenever they get the chance. Therefore, the Apex Court of the
country should stand high and try to repeal such law which stands in between
the fundamental rights of the citizens.
7. CHALLENGES TO SEDITION LAW
·
Sedition was used by the Colonial
executives as a tool to overpower the people who condemned the British
policies. The hard-working, loyal freedom fighters like Lokmanya Tilak, Bhagat
Singh, Jawaharlal Nehru and M.K. Gandhi were charged with Sedition for
dictating seditious writings, activities and speeches. Hence, pervasive use of
this law harks back to the colonial period.
·
As Hon’ble Justice K.M. Munshi said, “the essence of democracy, is the criticism
of government.” The sedition law sets aside this core spirit of the freedom
of speech and expression. It penalises critics and opposition and it weakens
the basic structure of a democratic republic to the point of exhaustion.
·
The restrictions imposed in Kedar
Nath Singh case have rarely been observed. In the recent years, there is seen
an enhanced misuse of law, where even the most affectionate acts of opposition
have been met with a charge of sedition.
·
Section 124A is an object of virtue
of colonial legacy which is unsuitable for democracy. It is a restriction on
lawful discharge of freedom of speech and expression.
·
Right to question and criticize is
the fundamental of democracy which should not be raised as sedition.
Disapproval and criticism of government in a decent manner are the rights and
essential ingredients of the public residing in a democratic state.
·
The British who introduced sedition
in India to suppress the Indians have themselves set aside this law in their
country. So, there is no reason why India should not abolish this section.
·
IPC and Unlawful Activities
Prevention Act, 2019 have provisions to penalize “public disorder” or
“displacing the government with violence and illegal means”. These are
sufficient enough for protecting national integrity and the government from
disaffection. There is no need for sedition law under section 124A of Indian
Penal Code.
·
Nowadays, sedition is being misused
frequently as a tool to abuse political disputes. As being a part of democratic
nation, we should decide to set this rule aside which is becoming a great issue
of debate and a stain on democracy of such a vast and unified country.In 1979,
India accepted the International Covenant on Civil and Political Rights
(ICCPR), which sets forth international standards for the protection of freedom
of expression. However, misuse of sedition is in disagreement with India’s
international commitments.
8. SUGGESTIONS
·
Section 124-A should not be misused
as a tool to restrict free speech. The Supreme Court’s warning given in Kedar
Nath Singh case on execution under the law can check its misuse. It needs to be
re-examined under the changed circumstances of new era and also on the anvil of
ever-evolving tests of necessity, proportionality and arbitrariness.
·
The higher judiciary should use its
executive power to sensitize the statutory authority and police to the
constitutional provisions protecting free speech. The definition of sedition
should be narrowed down to indicate only the issues relating to territorial
integrity of India as well as the sovereignty of the country. To protect our
country, we must keep a check on the constitutional guarantees to personal
liberty and freedom so that they do not go in vain. For that, each of our penal
laws must have a concern for equality, justice and fairness.
·
There should be formation of a
committee which could help the public to keep their problems forward, in front
of the authoritative statute without any fear or harm to their dignity which
they have to face by getting debarred.
·
The public should get aware of their
rights and principles so that they can come forward to safeguard themselves
from the politicians or others who misuse the charge of Sedition by
fraudulently accusing innocent people.
·
The State and the Central Governments
should stop from further filing any FIR regarding Sedition charges until any
decision is taken by the Apex Court either against or in favour of Section
124-A.
·
Nor the Sedition Law must be
decriminalised neither it should be treated so strictly that it creates a
chilling effect among the people. It has been repealed from the United Kingdom
from where India got origin of Sedition. Now, it is the time when India should
also stop treating it as a cognizable offence. Rather, it should be again
treated as a non-cognizable offence so that police must not get the whole power
in their hands and the accused could get a chance to prove him before getting
any punishment.
·
As the safeguards of the State, the
public legal officers and the police should find and consider these cases as a
misapplication of law to protect public order and safety of the citizens and
try not to create a chilling effect amidst them.
9. CONCLUSION
Dr.
Justice (Retd.) Balbir Singh Chouhan said that the sedition law needs
reconsideration. To conclude, sedition laws and their heightened misuse by
government (including opposition - ruled states) are a matter of fundamental
concern. Personal liberty and the right to freedom of speech and expression
authenticate the free democracy but sedition laws are their blatant misuse.
They attack the basic structure of democracy and the related rights provided in
the Constitution of India. India has faced a lot of trouble due to Sedition
since last 75 years of independence, due to which there is an immediate need
for the judiciary to fix this oppressive law with some apposite and
consequential changes and provides a broad margin of what can be classified as
seditious.
It
is undoubtedly true that a law cannot be made unconstitutional merely because
it has been subject to misuse. But in the case of offence of sedition, the
logic for the judgement of Kedar Nath Singh case and the survival of Section 124-A
have both become inadmissible with time.
·
Since 1962, when the judgement was
passed, the Supreme Court’s reading of Fundamental Rights has undergone a
transformative change.
·
For instance, the Court has, in
recent times, struck down penal laws on grounds, among other things of
ambiguity in their language and of the chilling effect that the restrictions
have on free speech.
India
is the largest democracy of the world and the right to freedom of speech and
expression is the basic fundamental right of the people living in such a vast
democratic nation. Therefore, the mere expression of thought which is in
disagreement with the government of the nation should not be treated as the
offence of sedition and so it should be decriminalized.
10.
BIBLIOGRAPHY
A. Primary Sources
1.
Statutes
·
The Arms Act, 1959
·
The Code of Criminal Procedure, 1973
·
The Explosive Substances Act, 1908
·
The Indian Constitution Act, 1950
·
The Indian Penal Code, 1860
2.
Case Laws
·
Arun Jaitley v. State of Uttar
Pradesh (2016)
·
Balwant Singh v. State of Punjab
(1995)
·
De
Libellis Famosis case (1606)
·
Dutt Niharendra Majumdar v. The King
Emperor (1939)
·
G.S. Mani v. Commissioner of Police,
Delhi & Ors. (2022)
·
Kedar Nath Singh v. State of Bihar
(1962)
·
King Emperor v. Sadashiv Narayan
Bhalerao (1943)
·
Kishorechandra Wangkhemcha v. Union
of India (2021)
·
Lamont v. Postmaster General (1965)
·
New York Times v. Sullivan (1964)
·
Patit Paban Halder v. State of West
Bengal
·
Queen Empress v. Bal Gangadhar Tilak
(1917)
·
Queen v. Jogendra Chandra Bose (1892)
·
R.
v. Boucher (1951)
·
Re
Debs case (1895)
·
R.
v. Sullivan (1868)
·
Rajina Parbin Sultana v. State of
Assam (2020)
·
Romesh Thappar v. State of Madras
(1950)
·
S.G.
Vombatkere v. Union of India (2022)
·
Shreya
Singhal v. Union of India (2015)
·
Dr. Vinayak Binayak Sen v. State of
Chhattisgarh (2011)
·
Vinod Dua v. Union of India (2020)
B. Secondary Sources
1.
Books
·
Constitutional Law of India by Dr.
J.N. Pandey
·
Criminal Procedure Code by C.K.
Takwani
·
Indian Constitutional Law by M.P.
Jain
·
Indian Penal Code by S.N. Misra
2.
Websites referred
·
https://www.orfonline.org/expert-speak/the-sedition-law-the-past-present-and-future/
·
https://www.legalserviceindia.com/legal/article-9072-is-democracy-threatened-by-sedition-laws-.html
[1] S.G. Vombatkere v. Union of India (2022)
[2] Protection of certain rights regarding freedom of speech-
a)
To freedom of
speech and expression;
b)
To assemble
peaceably and without arms;
c)
To form
associations or unions;
d)
To move freely
throughout the territory of India;
e)
To reside and
settle in any part of the territory of India;
f)
To practice any
profession, or to carry on any occupation, trade or business.
[3] All citizens have the right to freedom of speech and expression.
[4] Nothing in sub-clause (a) of clause 1 of Article 19 shall affect
the operation of any existing law, or prevent the State from making any law, in
so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of [the sovereignty and
integrity of India,] the security of the State, friendly relations with Foreign
States, public order, decency, or morality or in relation to contempt of court,
defamation or incitement to an offence.
[5] 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 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 with fine.
[6] Promoting disharmony, enmity or feelings of hatred between different
groups on the grounds of religion, race, place of birth, residence, language,
etc. and doing acts prejudicial to maintenance of harmony.
[7] Imputations, assertions prejudicial to national integration.
[8] Deliberate and malicious
acts intended to outrage religious feelings of any class by insulting its
religion or religious beliefs: whoever, with deliberate and malicious
intention of outraging the religious feelings of any class of citizens of
India, by words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to insult the religion or
religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine, or with
both.
[9] Statements conducing to
public mischief: whoever makes, publishes or circulates any statement,
rumor or report with intent to cause or which is likely to cause, any officer,
soldier, sailor or airman in the Army, Navy or Air Force of India to mutiny or
otherwise disregard or fail in his duty as such; or with intent to cause, or
which is likely to cause, fear or alarm to the public, or to any section of the
public whereby any person may be induced to commit an offence against the State
or against the public tranquility; or with intent to incite, any class or
community of persons to commit any offence against any other class or
community.
[11] (1917) BOMLR 211
[12] AIR 1939 Cal 703
[13] Crl No. 363 of 1943
[14] 1950 AIR 124
[20] CRA 337 of 2006 with CRAN 3530 of 2018
[21] Conspiracy to commit
offences punishable by Section 121: whoever within or without India
conspires to commit any of the offences punishable by Section 121 or conspires
to overawe, by means of criminal force or the show of criminal force, the
Central Government or any State Government, shall be punished with imprisonment
for life, or with imprisonment of either description which may extend to ten
years, and shall also be liable to fine.
[22] Collecting arms, etc.,
with intention of waging war against the government of India: whoever
collects men, arms or ammunition or otherwise prepares to wage war with the
intention of either waging or being prepared to wage war against the Government
of India, shall be punished with imprisonment for life or imprisonment of
either description fir a term not exceeding ten years, and shall also be liable
to fine.
[23] Whoever manufactures, sells, transfers, etc., any arms or
ammunition in contravention of Section 5, shall be punishable with imprisonment
for a term which shall not be less than 3 years but which may extend to 7 years
and shall also be liable to fine.
[24] Criminal responsibility of persons in occupation of premises in
certain cases.
[25] Punishment for attempt to cause explosion.
[26] Punishment for making or possessing explosives under suspicious
circumstances.
[27] A concession that a person or statement must be regarded as
correct, if the contrary is not proved.
[28] Writ Petition (Crl.) No. 106 of 2021
[29] Writ Petition (Crl.) No. 154 of 2020
[30] Case no. : Bail Appln./1123/2020
[31] Insults to Indian National Flag and Constitution of India.
[33] Punishment for sending offensive messages through communication service,
etc.: Any person who sends, by means of a computer resource
or a communication device,
(a)
Any information that is grossly offensive or has
menacing character; or
(b) Any
information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal
intimidation, enmity, hatred or ill will, persistently by making use of such
computer resource or a communication device;
(c)
Any electronic mail or message for the purpose of
causing annoyance or inconvenience or to deceive or to mislead the addressee or
recipient about the origin of such messages,
shall be punished
with imprisonment for a term which may extend to three years and with fine.
[34] Dated on 16/09/2022.
[35]381 U.S. 301 (1965)
[36] 376 U.S. 254 (1964)
[37] Article 21 of Indian Constitution Act, 1950: No person shall be
deprived of his life or personal liberty except according to procedure
established by law.
Article Information
Freedom Of Speech And Expression Vis-À-Vis Sedition Law In India By : Ananya Singh
Authors: Ananya Singh
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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