Open Access Research Article
SEDITION LAW: AN ANALYTICAL STUDY
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Article Details
SEDITION LAW:
AN ANALYTICAL STUDY
AUTHORED BY - GAUTAM SANJAY (LL.M)
Advocate
Abstract
Almost a year after the Apex Court
had stayed the operation of the sedition laws; the Law Commission in its 279th
report has recommended that the provision related to sedition be retained with
few alterations. This begs the question of these colonial laws being relevant
in a democratic society, with paramount significance given to fundamental
rights, which include the right to speech and expression. While the legislature
has made no attempt to remove the law, the judiciary has also held different
views on this matter time and time again. The article would first focus on the
history of the provision, along with the judicial interpretation. It will also
compare the sedition law introduced in the new code. Further, it will then
delve into the recommendations of the Law Commission and the relevance of the
provision in the present society.
“If liberty means
anything at all, it means the right to tell people what they do not want to
hear”
-George Orwell
I.
Introduction
A study of the applicability of Section 124A
of the Indian Penal Code was sought by the Ministry of Home Affairs of the
Government of India in the year 2016 along with a recommendation for any
required revisions. In response to the aforementioned request, the Law
Commission published its 279th Report, titled "Use of the Law of
Sedition." This report is so on the backdrop of the Apex Court
ordering that the 152-year old sedition law under Section 124A of the Indian
Penal Code should be effectively kept in abeyance till the Union Government
reconsiders the provision and requesting that neither the Centre nor the State
governments file any First Information Reports under the said provision while
it was being re-examined.[1]
The term ‘sedition’
is derived from the Latin word seditio which translates into ‘riot’.
However, sedition in its usage under English law did not actually mean an act,
unlike rioting.[2] The
law punishing seditious speech has its inception under English law. In medieval
England, libel and slander that would make the rulers unpopular with their
subjects were considered sedition.
It would be
interesting to note that when the Indian Penal Code was introduced in 1860,
this paragraph was omitted. James Stephen, however, immediately got to work
correcting this blunder. Sedition became a crime under Section 124A of the IPC
as a result of the Special Act XVII of 1870.
The national
struggle for freedom ended in the year 1947, and a constituent committee was
form to frame a Constitution to guide the newly independent nation. One of the
main contours of this Constitution was the Fundamental Rights given to the
citizens, especially the freedom of speech and expression, which was denied by
the previous repressive colonial regime. The Constitution's framers debated which model to adopt and
finally chose against the "absolutist" approach in favour of the
"expressly restrictive" for.[3]
The eight reasonable constraints
listed in Article l9(2) as the exclusive limitations on the basic right to free
speech and expression are not the only restrictions, it can also be suspended
during emergency under Article 358 of the Constitution of India. Thus, as is
clear from the discussions held in the Constituent Assembly and the debates and
deliberations leading up to the First and Sixteenth Amendments to the
Constitution, the entire objective of imposing one after another reasonable
restrictions on the freedom of speech and expression was to primarily safeguard
the sovereignty, territorial integrity, and security of India as well as
securing the interest of public order.
II.
Sedition under
Indian Penal Code and Bharatiya Nyaya Sanhita
According to the old
penal code, ‘The Indian Penal Code’, Section 124A referred directly to
Sedition, it stated “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.”
The new code Bharatiya Nyaya
Sanhita, 2023 under Section 150
titled ‘Acts endangering sovereignty unity and integrity of India’ discuss
sedition without using the term, it states “Whoever, purposely or knowingly,
by words, either spoken or written, or by signs, or by visible representation,
or by electronic communication or by use of financial mean, or otherwise,
excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings
of separatist activities or endangers sovereignty or unity and integrity of
India; or indulges in or commits any such act shall be punished with
imprisonment for life or with imprisonment which may extend to seven years and
shall also be liable to fine.”
The new section has no doubt expanded the offence. Earlier,
sedition might be seen as a crime against the state that punishes material that
could incite hatred, contempt, or dislike of the government and lead to public
disturbance or violence in the nation. It now provides a list of activities
which are seen as seditious such as exciting for secession, armed rebellion, subversive activities, or encourages
feelings of separatist activities.
It
should be noted that dissatisfaction with the government has been intended to
be distinguished from disaffection. Therefore, the people are allowed to voice
their disapproval of the government as long as they indicate a desire to submit
to its lawful authority.[4]
The Supreme Court has observed in Kedar
Nath Judgment [5]
that, “As long as the means adopted by the protesting voices are constitutional
and legal, criticism of the government would merely be disapprobation and not
disaffection. However, the moment such disapprobation leads to incitement of
violence or suggests incitement of violence as the only recourse available, the
offence of sedition becomes operative.”
III.
Judicial Interpretation of sedition vis à vis Freedom of Speech
The Courts, starting from the British period, have interpreted the
section dealing with sedition. The first trial for sedition was held in the Bangabasi case of Queen
v. Jogendra Chandra Bose[6]. The owner, editor,
manager, and printer of Bangobasi were charged with sedition under Section 124A
as a result of the publication of the illegal articles in front of the Calcutta
High Court. The jury notified the court that it was unable to reach a unanimous
decision after examining the charge and the summation. After declaring that he
would only accept a unanimous ruling, Justice Petheram ordered a future jury
trial. The prosecution decided not to pursue its case when the accused expressed
regret for the articles hence the retrial was never held.
After
this there was a famous case of The
Queen-Empress v. Bal Gangadhar Tilak[7].
Bal Gangadhar Tilak was accused of
sedition twice. First, his words against Britons led to unrest that resulted in
the deaths of two British officers in 1897. The government later deemed his
1990 article about Maratha warrior Shivaji, which he authored for his newspaper
"Kesari," to be seditious. The word "disaffection" was
defined in this situation. In order to understand "disaffection,"
Justice Strachey presented the jury the pertinent evidence, saying: "It means hatred, enmity, dislike,
hostility, contempt and every form of ill-will to the Government. 'Disloyalty'
is perhaps the best general term, comprehending every possible form of bad
feeling to the Government.”
A jury
of 7 Anglo-Indians and 2 Indians found Tilak guilty with a 7:2 majority, and he
was given a sentence of 6 years in jail and a ?1,000 fine.
Another
pre independence case that was important is the case involving Mahatma
Gandhi[8].
Mohandas Karamchand Gandhi was accused of sedition in 1922 and tried in Bhadra,
Gujarat, for his divisive pieces that appeared in the Young India magazine.
Gandhi and the publisher of the publication both admitted guilt. At the trial,
Gandhi read aloud a statement describing the origins of his anger towards the
British government. In his opinion, Section 124A of the IPC violates people's
rights to free expression and assembly and makes it impossible to
"manufacture affection [against the government]." Gandhi received a
six-year prison sentence after being proven guilty.
In the
post- independence era, the courts, both High Court and the Supreme Court have
dealt with the issue of sedition time and time again. The first case to address the constitutionality
of Section 124-A was of Ram Nandan
v. State of U.P[9] in
which the Allahabad High Court declared that because Section 124-A of the IPC
contravenes Article 19(1)(a) of the Constitution, it is invalid. 124-A was said
to impede free expression.
However, the Apex Court in the Kedar Nath v. State of Bihar[10]
overturned the
decision in Ram Nandan v. State of U.P. In this case, the court determined that
this clause should forbid any actions that have the possibility or intention of
upsetting the peace or inciting violence. The court ruled that criticism of the
government is not considered sedition unless it also advocates or calls for
violence. However, it would be against Article 19 of the Indian Constitution if
this article were used arbitrarily.
The judgment
in Kedar Nath case was the authoritative judgment on the law of sedition,
however recently the Delhi High Court in Kanhaiya
Kumar v. The State of Delhi[11]
stated that the essential obligations of every citizen are outlined in Part IV,
Article 51A of the Constitution and are one side of the same coin when
exercising one's right to free speech and expression under Article 19 (1) (a)
of the Constitution. Based on the aforementioned judicial decisions, it has
been debated how to characterise seditious actions. In light of this, one may
argue that the behaviour does not fall under the purview of section 124A of the
IPC unless the words or deeds in question do not endanger public safety or
cause a serious public disturbance.
The law
of sedition has been temporary put on hold by the Supreme Court in S.G. Vombatkere v. Union of India[12].
The Central and State governments
are not permitted to prosecute anyone with sedition under Section 124A of the
Indian Penal Code, according to the Supreme Court. According to the Court, "All
pending trials, appeals, or actions relating to charges established under this
section would be placed in abeyance."
IV.
Law Commission report on Sedition
Grounds to retain
The Law Commission in its report has mainly relied on the following
grounds for retaining the provision related to sedition:
a)
To safeguard the Unity and Integrity
of India
According to the commission, every state, regardless of its form of
government, needs to be equipped with the authority to punish those who
endanger the security and stability of the state through their actions or
spread disloyal sentiments that have the potential to cause public unrest or
state disruption.[13]
It maintained its contention that Section 124A of the IPC serves as the
standard criminal procedure to handle the problem, despite the fact that there
are Central and State legislation to deal with cases of terrorism.[14]
b)
Sedition as a Reasonable Restriction
under Article 19(2)
According to the panel, a reading of the Constituent Assembly Debates
reveals that sedition was replaced with "which undermines the security of,
or tends to overthrow, the State" because the Constituent Assembly thought
the latter word to be more comprehensive and of more significance. The report
further relied on the judgment of Supreme Court in Janhit Abhiyan v. Union of India[15]
where it stated that, “if two interpretations of a legal provision are
possible, one which renders the concerned provision constitutional, and the
other, which renders it unconstitutional, the former construction, should
prevail over the latter.”
c)
Existence of Counter- Terror Legislations
does not obviate the need for Section 124A
The Section l24A of the IPC was enacted to prevent the violent, illegal,
and unconstitutional overthrow of a democratically elected government
established by law. The Commission was of the opinion that special laws and
anti-terror legislations dealing with national security seek to prevent or
punish the commission of offences targeted towards the state. As a result, not
all components of the offence contemplated by Section 124A of the Criminal
Procedure Code are implied by the existence of the former.[16]
Furthermore, the commission opined that without a provision like Section
124A of the IPC, any speech that calls for violence against the government
would undoubtedly be prosecuted under special laws and counterterrorism
legislations, which have far stricter restrictions for how the accused will be
treated.[17]
d)
Sedition being a Colonial Legacy is
not a valid ground for its repeal
The commission was of the opinion that the crime of sedition is
frequently referred to as a colonial legacy because of the time period in which
it was created, particularly considering its history of use against India's
freedom fighters. However, based on that virtue, the Indian legal system's
whole foundation is a product of colonialism. Another temporary holdover from
the British era is the police force, as well as the concept of an All India
Civil Service. Merely ascribing the term 'colonial' to a law or institution
does not by itself ascribe to it an idea of anachronism.[18] Only the malicious tendency to instigate violence or produce public
disturbance under the cover of enjoying the right to freedom of speech and
expression is what Section l24A of the IPC intends to punish.[19]
e)
Realities differ in every
jurisdiction
The judicial system in every nation must contend with a unique set of
circumstances. The ground realities in India differ from other nation and a
blind eye could not be to it. The report compared sedition laws in various
nations like U.K, U.S, Canada, etc., and observed that these nations have
histories, geographies, and populations, levels of diversity, and legal systems
that are not comparable to those in India. It also stated that contrary to
popular belief, some of these nations have combined their anti-sedition laws
with anti-terrorism laws. [20]
Recommendations
The Law Commission provided the
following recommendations:
a)
Incorporation of Ratio of Kedar Nath
Judgment in Section 124A.
The Supreme Court's criteria in Kedar Nath Singh judgment is a
well-established legal principle. The act would not be covered by Section l24A
unless the words spoken or the actions taken had no tendency to instigate
violence, provoke public disorder, or disturb the peace of the community. The new code provide more clarity with a
list of activities which includes exciting
for secession, armed rebellion,
subversive activities, or encourages feelings of separatist activities.
b)
Procedural Guidelines for preventing
any alleged misuse of Section 124A.
The
Commission has proposed a change to Section 154, CrPC, 1973 to add a proviso
that stipulates that a FIR for the crime of sedition may only be filed after a
preliminary investigation has been conducted by a police officer with at least
the rank of Inspector and after permission has been granted by the Central
Government or the State Government, as applicable, on the basis of the
preliminary investigation report[21].
This safeguard is being recommended by the Law Commission taking into
consideration the observations made by the Apex Court in S.G. Vombatkere v. Union of India[22]. However, no such change has been made in
the new Bharatiya Nagatik Suraksha Sanhita.
c)
Removal of Oddity in punishment
prescribed for section 124A of IPC
The
Law Commission recommended that sedition be made punishable with life
imprisonment or for a term up to 7 years or with fine on the ground that the
scheme of punishment should be brought in parity with the other offences under
Chapter VI of IPC. The new code has
incorporated the same.
V.
Conclusion
Although, the Law Commission has provided
reasonable grounds for retaining the provision for sedition, it still remains
that it is a huge restriction on the fundamental right of speech and
expression. A democratic Society is characterized by freedom of expression.
This freedom is meant to help people find their own sense of fulfillment, aid
in the search for the truth, improve their capacity for making decisions, and
help strike a balance between societal change and stability. Sedition laws should be used with caution by
the Government and deliberated carefully by the Courts.
Although sedition laws have a
colonial legacy; that does not mean that in the ground reality it is need for
securing the sovereignty of a country that is surrounded by nations who may not
have its best interest in their hearts.
[1] KEEP THE SEDITION LAW IN ABEYANCE:
SUPREME COURT RULES IN A HISTORIC ORDER available at https://www.livelaw.in/top-stories/breaking-supreme-court-urges-centre-states-to-refrain-from-registering-firs-invoking-section-124a-ipc-198810 (last visited on April 10th,
2024)
[2] Chitranshul Sinha, The Great Repression: The Story of
Sedition in India 40 (Penguin Random House, India, 2019)
[3] Dr. Ambedkar, Motion Re Draft
Constitution, Vll CAD 4'h November 1948, ovailable at:
https://www.constitutionofindia.neVconstitution_assembly_debates/volume/?/1948-11-04
(last visited on April
15, 2024).
[18] A Barra. "What is
"Colonial" About Colonial Laws?" 3l(2) American Llniversity
lnlernational Law Review
(2016).
Article Information
SEDITION LAW: AN ANALYTICAL STUDY
Authors: GAUTAM SANJAY
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/20
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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