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ANALYSING INTRUSION OF SECURITY IN FUNDAMENTAL RIGHTS
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ANALYSING
INTRUSION OF SECURITY IN FUNDAMENTAL RIGHTS
Authored
By- Chesta Upadhyay & Trishi Mathur
INTRODUCTION
Fundamental rights serve as the
cornerstone of a democratic society, assuring its citizens essential liberties
and protections. In the context of India, The Constitution provides citizens
with the fundamental right to freedom of speech and expression, as mentioned
under Article 19(1)(a). The article encompasses freedom to voice one's
thoughts, opinions, and beliefs on any subject through diverse means, including
spoken words, written text, or print. It not only guarantees the freedom to
communicate but also the right to disseminate and publish one's viewpoints. It
is also crucial to acknowledge, however, that these freedoms, while inherent to
an individual's status, are not without limitations and are subject to
reasonable restrictions.
This article ventures into the
complex overlap when we put this fundamental right with "Sedition
law" enshrined under section
124A of Indian Penal Code (IPC). This legal provision occasionally sparks a
conflict, as it restricts actions intended to incite hate or lack of loyalty toward the government
duly established by law. Over time, the judiciary has grappled with the
interpretation and scope of this section, aiming to make a delicate balance
between the preservation of rights and the limitations imposed by Sedition
laws. This dynamic has sparked continuous debate and discussion, as a legal
provision that originated in colonial India has persisted into an independent
and democratic India, raising concerns that it might be misused to stifle
dissent. In this exploration, we delve into pivotal cases that have
significantly shaped the legal landscape in India, shedding light on the
ever-evolving relationship between freedom of making speech of opinions and the
Sedition law.
HISTORY:
THE SEDITION LAW
Roots of India's Sedition law, a
contentious and much-debated legal provision, can be seen back from the era of
British colonial rule. It was introduced in 1837 by the British Government,
under the stewardship of Thomas Macaulay, this law, codified under section 124A
of the Indian Penal Code (IPC), served to be a powerful tool wielded by the
colonial masters to suppress dissent and quell any voices of opposition.
The first significant episode
involving this law unfolded in 1897 when Bal Gangadhar Tilak, an iconic freedom
fighter and journalist, became the first individual to be convicted of Sedition
in colonial India. The British authorities levied charges against Tilak,
alleging that articles published in his Marathi newspaper, Kesari, were
inciting people to rise against the government's efforts to combat a
devastating plague epidemic in India.
At that time, the punishment
prescribed for Sedition was nothing short of severe - life imprisonment.
However, even within the colonial administration, there were voices of
moderation. The Chairman of the Second Pre-Independence Law Commission, Sir
John Romilly expressed his reservations about the proposed punishment for
sedition, drawing a parallel line with the United Kingdom where the maximum
penalty for such offenses was 3 years. Recommendation was made that in India,
this punishment given in this offence should be up to five years, signalling
the recognition of the need for a more balanced approach to address acts of
sedition.
The primary objective behind the
introduction of section 124A was to penalize actions that incited feelings of
disaffection or dissatisfaction towards the government. It wasn’t easy to
differentiate between this disaffection and mere disapprobation. The former
constituted the essence of the offense, intended to curb actions that might
threaten the stability and authority of the government.
In the legal realm, the
interpretation of the section has witnessed significant evolution. In Niharendu
Dutt Majumdar v. King Emperor[1],
1942, Federal Court held that offense of Sedition essentially hinged to the
anticipation or likelihood of public disturbance. Nonetheless, this interpretation was
later reversed when Privy Council in the 1947 came across the case of King
Emperor v. Sadashiv Narayan Bhalerao[2].
Privy Council in this case reevaluated Tilak's case and established a new
precedent, asserting that the incitement to violence was not a mandatory
element for the offense of sedition. Instead, the act of arousing hostile
sentiments toward the government was considered adequate to establish offence
under section 124A.
Following India's independence, the
makers of constitution recognized the need to reevaluate and, in some
instances, discard relics of the colonial past. In 1948, "sedition"
was expunged from the Constitution of India, reflecting a collective desire to
cleanse the legal framework of remnants that could potentially curb freedom of
speech and expression.
Yet, Sedition as a law remained
intact within the part of IPC, raising questions about its continued relevance
and application in the new, independent India. In 1951, Dr. Jawaharlal Nehru's
government took proactive steps and initiated the first amendment in the
Constitution. This amendment introduced Article 19(2), through which the State
can impose "reasonable restrictions" on the fundamental right of free
speech, thus placing checks on the unbridled exercise of this fundamental
right.
The constitutional validity of
section 124A was put to the test once more in the case of Kedar Nath Singh
v. State of Bihar[3],
where constitutional bench uphold provision's validity. This judgment signified
a pivotal moment in the legal narrative, as the court underlined the phrase
"Government established by law" in section 124A should be set apart from critiques
directed at particular parties or individuals. The court made it clear that
Sedition would only apply when the spoken or expressed words demonstrated a
tendency or intent to incite disturbance or disrupt public peace through the
use of violence. This limitation, as outlined in Article 19(2), was deemed
constitutionally sound, reaffirming the state's power to restrict speech in the
pursuit of upholding public order.
In the leadership of Prime Minister
Indira Gandhi in 1973, Sedition was transformed into a cognizable offense in
India. This meant that individuals could be arrested without the need for a
police warrant, heightening the gravity of this offense. Moreover, the offense
under section 124A became non-compoundable, meaning it could not be resolved
through a compromise between the accused and the victim, and it became a
non-bailable offense, where if someone is arrested and imprisoned for a serious
crime or, non-bailable offense they are not eligible for bail as their right.
LANDMARK
JUDGMENTS
The historical trajectory of India's
Sedition law reveals a complex interplay of colonial legacies,
post-independence reforms, and evolving judicial interpretations. This legal
provision, though born under the British colonial regime, has endured into the
democratic era, prompting questions about its necessity, scope, and
implications for freedom of expression in modern India. In the ensuing
sections, we delve into landmark cases that have left an indelible mark on the
Sedition law's contemporary relevance and application, illuminating the ongoing
debate over the delicate balance between free speech and the state's authority
to curb seditious acts.
The judiciary in India has recognized
the prominence of freedom of speech in a democratic state. Democracy thrives on
free debate and open discussion, which serve as checks on government actions.
The judiciary consistently emphasized on the subsequent ground where
individuals have the right to voice their opinions on regarding matters involving general concern, open criticism of
government policies should not serve as a basis for curtailing the freedom of
expression. According to data from the National Crime Records Bureau (NCRB), in
2019, 93 cases of Sedition were filed, resulting in only two convictions.
Likewise, in 2020, 73 cases were filed, yet none led to convictions. In 2021,
76 cases were registered under IPC section 124A across the country.
In the case Patit Paban Halder v. State
of West Bengal[4]
the police were informed that a conference is going on in a village, where
seditious lectures were being delivered. Among the attendees there were 30 to
40 people having guns. When the police arrived at the scene, the people started
to run away, and the suspect was later taken into custody. In this case, court
held the importance of providing concrete evidence when charging someone with
sedition. In the absence of credible evidence. Hence, court observed that
without complete and proper evidences proved no one can be charged in sedition.
In the case of Amish Devgan v.
Union of India[5],
a television journalist was charged of insulting a revered Muslim saint as a
terrorist intruder. The Supreme Court emphasized the importance of protecting
free speech while safeguarding group dignity and national unity. The court also
mentioned to emphasize the need to balance the issue of freedom of speech and
expression with the need to prevent the spread of hatred and social unrest. It
highlighted the media's role in promoting responsible journalism and preventing
the spread of hate speech.
In Vinod Dua v. Union of India[6],
Mr. Vinod Dua was accused of making inflammatory accusations in his YouTube
program. The Supreme Court in this case ruled that the words used by Mr. Vinod
were not created to incite others or demonstrate a proclivity for causing trouble
or disturbing public peace through the use of violence. but were only the
expressions of disapproval of measures taken by the government and its
officials for the crisis to be resolved swiftly and efficiently. Hence,
Sedition charges should be invoked only when there is an intention to incite
violence or cause public disorder.
In Rajat Sharma v. Union of India[7],
the case involved comments made by Farooq Abdullah about Article 370 of the
Constitution of India as Abdullah had said in an interview that the Kashmiris
prefer to be ruled by the Chinese rather than feeling or wanting to be Indians.
The court stressed out that expressing diverse opinions and viewpoints that
diverge from a decision made by the Central Government cannot be classified as
Seditious in essence.
Finally, there was a case putting
hold on further convictions under Sedition - S.G. Vombatkere v. Union of
India[8], where
two journalists, Kishore
Wangkhemcha and Kanhaiya Lal Shukla, filed a petition in the Supreme Court
challenging the constitutionality of Sedition law.
Supreme Court in the case gave an
important aspect to the decision with a clear direction to the state and
central government. They were ordered to refrain from registering any FIR,
conducting investigation or initiating police action under Section. This move
was a clear signal to prevent misuse of a long and controversial law.
Also, if a new case is registered
under Section, the person currently affected will be free to seek relief from
the appropriate court. The Supreme Court has expressly requested the courts to
take into consideration its existing decisions and the clear views of the Union
of India on the issues. On the procedures regarding all pending cases, appeals
and charges under Sedition be kept in abeyance, this important step reflects
the Supreme Court's determination to prevent injustice that may result from the
improper use of Sedition laws. This best approach is consistent with the
Court's mission to ensure the democratic application of the law and to protect
freedom of speech and expression.
Decision of Supreme Court in this
case was an important step towards an attempt of striking a balance between
national security concerns and upholding democratic standards. The verdict is a
testament to the court's commitment to justice and accountability, giving hope
to those protesting for the protection of democratic values, law and society in
India.
THE NEW
APPROACH OF PARLIAMENT
The Home Minister
Amit Shah brought new bills in Lok Sabha with a vision of improving the judicial
system by amending the British-era laws. Although many English laws have been
criticized over the years, the act of Sedition is one of them. He said that the
crime of Sedition under section124A will be abolished in “Bharatiya Nyaya
Sanhita, 2023”. The law of Sedition according to him will be changed by section
150 in the new bill.
The new law that
will fall into place would be section 150 which 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." Here, "subversion" in this section shows the desire
or intention to subvert, destroy, or overthrow the existing state or system,
especially the appropriate government or set beliefs. Also, the removal of
“disaffection towards the Government” is an effort made to open dissatisfaction
and opinions against the government but in a non-rebellious way.
Criticism of this
bill is in controversy because it did not fully repleaded the seditious laws as
implicated but just changed the word to subversion which may leave room for
interpretation of the law by the judiciary to safeguard the fundamental rights
as it may not stop the misuse of such laws against the innocents.
NEED FOR A
BALANCE BETWEEN FUNDAMENTAL RIGHT AND SEDETION
Fundamental rights
serve as the foundation of any independent and democratic state. Among these
rights, free speech and expression often considered a basic right that plays a
very crucial role in the society. However, the exercise of free speech raises
complex questions, particularly about the limits of the state to justify the
all actions of a person. Basically, the person’s autonomy is the heart of such
freedom and eventually any restriction on it requires careful scrutiny.
While reasonable
restrictions take an important place on this right to ensure responsible use
and fair approach to all citizens, the law of Sedition in a country like India
which is known for the democracy and serving the safeguard of rights, remains a
matter of ongoing debate.
Fundamental rights
stand as the cornerstone of any sovereign and democratic nation. Among these rights,
the freedom of speech and expression, often deemed a fundamental right, plays a
pivotal role in society. Nonetheless, the exercise of free speech poses
intricate questions, particularly concerning the extent to which the state can
justify its regulation. Essentially, an individual's autonomy lies at the heart
of this freedom, making any curtailment of it a subject of careful examination.
While reasonable
restrictions are placed on this right to ensure responsible usage and equitable
access for all citizens, the presence of laws related to Sedition in a country
like India, renowned for its democratic values and commitment to upholding
rights, remains a topic of ongoing debate.
In some earlier
cases, the court emphasized that strong and fair criticism of government
actions or policies does not amount to disloyalty of disaffection to the
government. In order to establish a balance between such law and basic rights
without inciting disloyalty or enmity that could lead to public disorder or
violence, the government needs introduced clear clauses in the law. While
citizens have the right to express their views on various matters, this right
is subject to certain restrictions in order to have peace and public order.
Every individual has
the right to voice his opinion about working of government through comments or
criticism, as long as such expressions do not incite violence or public unrest.
This approach seeks to strike a delicate and thin line balance between
protecting fundamental rights and addressing violative issues. The persistent
existence of a law like Sedition has a deterrent impact on freedom which is
being safeguarded by Constitution.
Moreover,
considering the extensive scope of actions covered by Sedition, each act should
be subject to its distinct provisions, instead of being merged within a general
offence, all-encompassing offense with harsh penalty. This method would enable
a more refined and context-specific enforcement of the law.
CONCLUSION
AND RECOMMENDATIONS
In summary, it is crucial for the
proper functioning of a democratic nation that its citizens are allowed to
engage in constructive criticism, debates, and analyse the government's
policies and workings. Although these discussions may at times be harsh,
derogatory, or unpleasant to some, this alone should not be the criteria for
charges under sedition. This should be applied when there is undoubtful proof
or strong evidence of an intent to disturb public order and peace or subvert
the government through violent and unlawful methods.
It is important for the legislature
to establish clear limits governing the exercise of freedom of speech and
expression and to outline the conditions under which convictions under Sedition
are justified. The legal framework should differentiate between lawful
criticism and acts that qualify as Seditious.
Moreover, there is a need for a
stricter framework for Sedition laws, especially concerning the cognizable and
non-bailable nature of the offense. The power of arrest without a warrant
should be exercised judiciously to prevent the wrongful incarceration of
innocent individuals.
The modification in the law through
the new bill signifies the government's intent to provide a broader and more
precise scope to the section by incorporating the term "subversion."
This action addresses those cats that harms the sovereignty, unity, and
integrity of India, and it is considered a reasonable limitation on the
fundamental right of free speech and expression.
Additionally, another vital issue to
address is the number of frivolous cases filed in the name of public interest,
primarily for gaining media attention or personal gain. The government should
demonstrate clarity in this regard and refrain from invoking Sedition in
situations better addressed by other legislations, that deals with the Unlawful
Activities, or The National Security Act, 1980, which specifically deal with
offenses related to terrorism and insurgency.
In essence, while preserving the
integrity of the nation and safeguarding public order is paramount, so is the
protection of fundamental rights. A fine balance between these two objectives
is essential for a democracy to thrive. To navigate this delicate balance, it
is incumbent upon India to revisit and revise such laws, ensuring they reflect the
values and transitions of a modern society while upholding the tenets of
democracy and freedom.
Because every individual possesses a
fundamental right to shape their opinion on matters reflecting general
interest. Publicly criticizing government policies and actions should not be a
basis for limiting the right of free expression. Intolerance is detrimental to
both democracy and the individual. In a democratic society, it's not required
for everyone to share the same viewpoint or perspective[9].
[1] Niharendu
Dutt Majumdar v. King Emperor,
AIR 1939 Cal 703
[3] Kedar Nath Singh v. State of
Bihar, AIR 1962 SC 955
[4]
Patit Paban Halder v. State of West Bengal CRA
No. 337 of 2006
[6]
Vinod Dua v. Union of India (2005) 6 SCC 1
(2014) 2 SCC 1
[7] Rajat
Sharma v. Union of India (2021) Writ Petition (Civil) No. 80/2021
[8] S.G. Vombatkere v. Union of India,
WP (C) 682/2021
[9] S. Rangarajan v. P.Jagjivan Ram,
1989 (2) SCC 574
Article Information
ANALYSING INTRUSION OF SECURITY IN FUNDAMENTAL RIGHTS
Authors: Chesta Upadhyay, Trishi Mathur
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/17
- Issue 7
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International Journal for Legal Research and Analysis
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