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OVERVIEW OF SEDITION LAW WITH SPECIAL EMPHASIS ON RECENT LAW COMMISSION RECOMMENDATIONS
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OVERVIEW OF SEDITION LAW WITH SPECIAL EMPHASIS ON
RECENT LAW COMMISSION RECOMMENDATIONS
AUTHORED BY - MANSHA GARG
Abstract:
The remarkable progress that India as
a country has made in the global arena is not hidden from anyone. Today, even
thinking about the independence from the colonial legacy brings the same smile
and happiness on the millions of faces
of Indians just like the feeling which
we undergo when we see nature’s scenic beauty. Sedition is a law which falls
under the category of Offences committed
against the State and it was basically brought forth by the BritisherS to
suppress the voice of Indian freedom fighters like Bal Gangadhar Tilak, Jawahar Lal Nehru etc. and still in the present times we have the
provision of Sedition in the Indian
Penal Code to protect the unity and integrity of our country, to maintain
public order and to ensure the stability of the government which is deemed to
be the representatives of people’s voices and opinions. The aim of this article
is to explain the Sedition Law, its need and issues associated with it and also
to highlight the recent recommendations of the Law Commission over the same. To
understand the nitty-gritty of the Sedition Law secondary research was being
done. The key findings of this article includes knowing about the Sedition law
with the changing nature of the society and to focus upon the recent
suggestions made by the law commission. Overall, we conclude that in a
democracy much emphasis is laid on citizen-centric measures and so what is
required is striking a proper balance between the citizen’s right of Freedom of
Speech and Expression and to prevent the disruption of public disorder.
Keywords: Sedition Law,
Need, Issues and Challenges, Recommendations of Law Commission.
I.Introduction-
Ø Sedition law was drafted by Thomas
Babington Macaulay who was a British historian politician in 1937, but the
provision was not incorporated when the
Indian Penal Code(IPC) was drafted in 1860. Later, Section 124A was added in
IPC by an amendment which was introduced by Sir James Stephen when the
need was felt that there should be a
provision which separately deals with the offence of Sedition. It was one of
the stringent laws enacted to suppress the voices of the people which were
holding a dissenting opinion.
Ø Section 124 A Of Indian Penal Code
talks about the offence of Sedition as “ When any person brings or attempts to
bring into hatred or contempt, or excites or attempts to excites disaffection
towards the government established by law in India by
·
Words,
spoken or written
·
Signs
·
Visible
representation, or otherwise.
Explanation 1- The expression disaffection
includes disloyalty and all feelings of enmity.
Explanation 2-
Comments expressing disapprobation of the measures of the government
with a view to obtain their alteration by lawful means, without exciting hatred
or attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Explanation 3-
Comments expressing the disapprobation of the administrative or other
action of the government without exciting or attempt to excite hatred, contempt
or disaffection, do not constitute an offence under this section.[1]
Now, for better
explanation for the same flow chart is illustrated below:
|
TRYINGTO DO
|
|
SEDITION
|
|
MEANSNS
|
|
WORDS
|
|
SIGNS
|
|
VISIBLE
REPRESENTATIONS
|
|
Brings or attempts to bring
§
Hatred
§
Contempt
OR
Excites
or Attempts to Excites disaffection towards the Government established by law in India.
|
Punishment :
|
Section
|
Offence
|
Punishment
|
Cognizable or Non-Cognizable
|
Bailable or Non- Bailable
|
By What Court Triable
|
|
124A
|
Sedition
|
Imprisonment for life +Fine or
Imprisonment for 3 years+Fine or Fine
|
Cognizable
|
Non-Bailable
|
Court of Session
|
·
A
person who is charged under this law is denied entry to do a government job.
·
Individuals who are charged under this law
their Passport is seized by the government.
·
Individuals
who are charged under this law have a responsibility to produce themselves
before court as and when required.
For Example- (1) If suppose there are three
persons namely A,B and C and “ A”
invited B and C for dinner in his house and the dining table contained cloth
that resembles our national flag, then in this scenario “A” can be made liable
for the offence of Sedition.
(2) If a person “ A” posted some
cartoon pictures which depicts the ruling government leaders are favouring a
particular religious sect by formulating policies in their favour which has a
tendency of inciting violence and also of communal clashes in the country, then
in this case “A” can be made liable for the offence of Sedition.
Case Laws Related To Sedition-
(1)
Kedar Nath V. State of Bihar(1962)[2]-
In this
particular case, Constitutionality of the Sedition law was challenged.
Facts :- In this case the accused who was a member of the Forward Communist
Party , was charged for sedition as he had given a speech which consists of
wrong words against the ruling Congress Party.
Judgement-
The court upheld the validity of the Sedition law in this case and was
of the opinion that Section 124A of IPC is in harmony with the Article 19(1)(a)
read with Article 19(2) ( provides for reasonable restrictions) and held that the accused could not be made
liable as he was not having an intention to incite violence or to disturb the public peace and tranquility or
to create any sort of public disorder.
Facts :- In this case the accused(government
servants) raised some slogans on the day Smt. Indira Gandhi, the then Prime
Minister of India was assassinated, in a crowded place but no disturbance was
caused and people in general remain unaffected.
Judgement- The court held that merely shouting
of slogans alone cannot be said to be aimed at exciting or attempting to excite
contempt, hatred or disaffection towards the Government and thus it does not amount to sedition.
Facts :- Journalist Vinod Dua criticized
Prime Minister Mr. Narendra Modi and the centre in a video for how they handled
the migration situation last year during Covid-19. He was charged with sedition
by the Himachal Pradesh government and the governing party under Section 124A.
They said that Vinod Dua had tried to incite fear amongt them by attempting to
circulate false or fake information in
the public.
Judgement :- While dismissing the case, the
Supreme Court observed that the words represented legitimate criticism of the
government and cannot be qualified to be called as seditious. The court protected the right to Freedom of
Speech and Expression of every journalist as long as they do so without
creating a violence.
II.Need Of The Sedition Law-
1.
To safeguard the unity and integrity of India -
The legislation will aid in combating anti-national, secessionist and
territorial forces that jeopardize the nation’s territorial integrity. It is
even more necessary for such a provision to be incorporated in the legislation
given the constantly expanding role of social media in radicalizing the
populace and inciting the feeling of hatred, frequently at the initiative and
facilitation of the foreign powers. Maoist insurgency and rebel groups openly
support revolutions that are aimed at toppling the state government and
therefore for maintaining the internal security, the provision for sedition is
required.
Also, if a contempt of
court may result in legal action, then contempt of the government should also
result in legal action.
2.
Stability of the State- A crucial requirement for the safety and stability of the
state is the continuous existence of the lawful government. It acts as a shield for the elected
government as it safeguards the government from all sort of negative
efforts that are made to overthrow the
government by inciting hatred or violence against them.
3.
Existence of the Counter- Terror legislations does not
obviate the need for Section 124A - The Unlawful Activities Prevention Act[5]
was passed in 1967 basically with an objective of providing adequate mechanisms
to deal with terrorist activities and National Security Act[6]
which was passed in 1980, is basically a preventive detention law which
empowers the central and state government to detain such a person who is likely
going to commit a crime in the future for protecting the safety and security of
the state. The existence of the UAPA and NSA Act, does not include all the
components of the offence as envisaged under Section 124A of IPC and also these
special laws prevents or punish the persons
who commits an offence against the state but Section 124A of IPC seeks to
prevent the illegal overthrow of a
democratically elected government. Furthermore, in the absence of provisions
like Section 124A , the persons would be tried under these special laws which
prescribes more stringent punishment for the accused.
4.
Realities differ in Every Jurisdiction-
Every
nation’s judicial system struggles with its own different set of realities .
Removing Section 124A of IPC solely on the ground that the other nations have
done so is effectively turning a blind eye
to the obvious ground realities present in India. Additionally, it is
clear that even in most of the developed countries of the world, the law of
sedition has only undergone some minor modifications without changing the
fundamental nature of the offence.
5.
Sedition is a reasonable restriction under Article 19(2)- Article 19(1)(a)[7] which talks about Freedom of Speech and
Expression is subject to reasonable restrictions provided under Article 19(2),
which means the provision of Sedition in our legislation is not violating
Article 19(1)(a) as it is falling under the category of exceptions provided
under Article 19(2) like protecting the security and sovereignty of India,
friendly relations with foreign states, public order, decency , morality,
defamation etc. In the case of Janhit Abhiyan V. Union of India
, [8]doctrine
of reading down was applied to save a statute from being struck down on the grounds of
constitutionality.
Similarly, in the case of
Delhi Transport Corporation V. DTC Mazdoor Congress Sawant ,[9] it
was held that “When two interpretations of the same statute is possible, one
rendering it constitutional and the other rendering it unconstitutional, then
the former one would prevail.”
III.Issues And Challenges Associated With The Sedition Law –
1.
Colonial Legacy- The offence of
sedition is sometimes considered as a continuation of the colonial legacy because of the time period in
which it was created and its application in history basically to suppress the
voice of Indian freedom fighters. Under the colonial regime, the relationship
between the ruler and the ruled is of a Master and Servant whereas in a
democratic form of government like as in India where ruler is considered to be the servant of the people as
the ruler is elected by the people according to their own wishes, so keeping this into consideration it is felt
that the provision for Sedition law is not required as the healthy criticism of
the government by the citizens is the
very bedrock of democracy.
However, we also need to
have a broader outlook and have to look into the merits because the mere fact that a particular
provision is colonial in nature does not by itself make it a valid reason for
its repeal and India itself follows some of the practices associated with the
time of Britishers like the idea of
Police Force, Civil Services etc.
So, what needs to be
taken into account is that,the use of Sedition law should be done wisely and judiciously.
2.
Vague Definition- Due to the
improper legal definition , determining the precise type of speech that might
be labeled as seditious is particularly challenging. It would be difficult to
exactly differentiate between seditious
discourse from appropriate expression of speech.
3.Misuse of the
Sedition Law- In a healthy democracy , dissent and
criticism of the government are crucial components of public debates and
discussions. But it has been found that the sedition law is being utilized to
suppress the political dissent. Governments have frequently used the sedition
law unjustly merely to suppress the voices of the opposition. The sedition
statute has affected social activists, journalists, political opponents most
amongst the others.
4.
Lower Conviction Rate- Despite the fact that police are accusing more
persons of sedition, very few instances end in conviction. According to 2021
National Crime Records Bureau(NCRB) Report, 2021, number of sedition cases
registered were seventy-six(76). Sedition is still an uncommon offence compared
to other offences as it makes up less than 0.01% of all the IPC crimes.
5.
Inconsistent with the International Convention-
India ratified the International Covenant of Civil and Political
Rights(ICCPR) which lays forth the internationally recognized standards for the
protection of freedom of expression. However , misuse of the term sedition and
arbitrary imposition of charges are in contradiction with India’s international commitments
IV.Recent Recommendations Of The 22nd Law Commission .
Nearly a year after the
Supreme Court stayed the operation of the sedition law , the Law Commission of
India which is currently headed by the former Karnataka High Court Chief Justice
Ritu Raj Awasthi , has recommended some changes in the sedition law in its 88
page report. The commission recommended that the Section 124A should be retained in the Indian Penal
Code(IPC). Other recommendations of the Law Commission are as follows:-
1.
Incorporation of the ratio of the Kedar Nath Judgement- According to the law commission
report, the essence of Kedar Nath V. State of Bihar needs to be
incorporated into the sedition law. Kedar Nath case affirmed the validation of
the sedition law by stating that it complies with the reasonable
restrictions on freedom of speech
outlined under Article 19(2) of the Constitution. The court held that act of
sedition can be proven when the words or actions tends to incite violence or
lead to public disorder. The report defines tendency to incite violence as
a “ mere inclination to incite violence
or cause public disorder rather than proof of actual violence or imminent
threat to violence.” However, the report
claims that, in its current form , Section 124A fails to explicitly defines the
meaning of the terms “actions” leading to ambiguous interpretations.
Ø The definition of the term “tendency”
as a slight inclination gives the law enforcement agencies wide discretion to
subjectively decide whether the words, signs
or visible representation has the potential to incite violence or public
disorder.
2.
Removal of the Oddity in punishment prescribed for Section 124A of IPC-
The recent report has suggested to increase the punishment for the
offence of sedition because of the fact that the current provision leaves the
judges with wide discretion with respect to sentencing. Section 124A prescribes
a jail term up to three years or life imprisonment which means the punishment
could either be up to three years or of a
life imprisonment or a fine but nothing in between can be imposed.
Ø The Law Commission has now proposed
to enhance the jail term up to seven years or life imprisonment.
3.
Introduction of new procedural safeguards- To prevent the misuse
of the law, some procedural changes in the Criminal Procedure Code (CrPC)[10] were also suggested by the Law Commission.
It suggests that the
police officer not below the rank of inspector or higher, must conduct a
preliminary inquiry before the filing of the First Information Report(FIR). The
Central Government will then decide
whether or not to permit the filing of the FIR in the light of the preliminary
inquiry report. Section 154 of CrPC will be amended as a result of this change.
Further, the Law Commission stated that these recommendations were made after
the Supreme Court findings in the S.G Vombatkere V. Union of India[11](
where a retired army general has challenged the constitutionality of the
Section 124A) regarding the potential misuse of
Sedition law was taken by the Commission into account.
v
Reasons Given By The Law
Commission To Retain the Sedition Law
Ø To protect the Unity and Integrity of
India.
Ø Realities differ in every
jurisdiction (Though the Britain has abolished the sedition law through the Coroners
and Justice Act of 2009, but the ground realities of both the countries are
different, so the sedition law must be retained).
Ø Existence of several counter-terror
legislations is not sufficient .
Ø Colonial legacy is not a strong
ground for striking down the law in the context of India’s contemporary
democracy.
Ø Sedition Law falls under the purview
of reasonable restrictions that are provided under Article 19(2) of the
Constitution.
V.Conclusion –
Thus, to conclude India
is one of the largest democracies of the world and the quintessential feature
of a democracy is the freedom given to the citizens to express their views and
opinions freely without any hesitation even up to the extent of fair criticisms
of the Government. A reassessment of this harsh law is now required as sedition
is one of contentious law of the country.
The Government should try to maintain a fine balance between freedom of
speech and expression and the ability to openly criticize the government, as
fair criticism not only helps in the prosperity of a nation but in the long run
it acts as a guiding light for the government to act in a legitimate manner.
As it is said that Law
evolves with the changing nature of the society, keeping this into
consideration what is required is that the provisions of the sedition law
should be made in line with the changing
circumstances and situations.
VI.References-
Ø K.I Vibhuti , P.S.A Pillai Criminal
Law 335 ( Lexis Nexis , Butterworths, Nagpur ,2012).
[1] The Indian Penal Code,1860,
Sec.124A, No. 45, Acts of Parliament, 1860 (India).
[2] Kedar Nath V. State of Bihar, 1962
AIR 955.
[3] Balwant Singh v. State of Punjab,
(1995) 3 SCC 214.
[4] Vinod Dua V. Union of India, 2021 SCC OnLine SC 414.
[5] The Unlawful Activities (
Prevention) Act, 1967, No. 37, Acts of Parliament, 1967 (India).
[7] The Constitution of India, Article
19.
[8] 2022 SCC OnLine 1540.
[9] 1991 AIR SC 101.
[10] The Code of Criminal Procedure
Code, 1973, No. 2, Acts of Parliament. 1973 (India).
[11] (2022) 7 SCC 433.
Article Information
OVERVIEW OF SEDITION LAW WITH SPECIAL EMPHASIS ON RECENT LAW COMMISSION RECOMMENDATIONS
Authors: MANSHA GARG
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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International Journal for Legal Research and Analysis
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