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SEDITION; AN ARBITRARY ARTICLE; STATUS BEFORE AND AFTER THE BNS BILL BY: KASHISH KHANNA
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SEDITION;
AN ARBITRARY ARTICLE; STATUS BEFORE AND AFTER THE BNS BILL
AUTHORED
BY: KASHISH KHANNA,
IILM University, Gurugram.
I. Abstract
The British employed the sedition
legislation to quell opposition and lock up freedom fighters who opposed the
colonial government's policies, such Mahatma Gandhi and Bal Gangadhar Tilak.
The authors of the constitution had spent a great deal of time discussing
different facets of this colonial statute after independence. K.M. Munshi was
among the most vocal opponents of the sedition legislation, claiming that an
oppressive law of this kind would endanger India's democracy. "In
actuality, criticism of government is the essence of democracy," he
asserted. The word "sedition" was removed from the Constitution as a
result of his efforts and Sikh politician Bhupinder Singh Mann's tenacity.The
First Amendment, which was approved by the administration led by Jawaharlal
Nehru, the first prime minister, however, restored this statute. "Now as
far as I am concerned that particular Section (124A IPC) is highly
objectionable and obnoxious and it should have no place both for practical and
historical reasons, if you like, in any body of laws that we might pass,"
Nehru said in 1951 when he introduced the first amendment to the Constitution.
The earlier we eliminate it, the better. He hesitated, nevertheless, since his administration
reinforced the sedition statute in 1951 by adding two new phrases to the list
of justifications for placing "reasonable restrictions" on free
speech: "friendly relations with foreign state" and "public
order.[1] Is
it an arbitrary article? Is integrity of state better? Is it just repealed for
name’s sake in the new bill? Are there any ways by which the new section that
has replaced sedition be made better?
Keywords: arbitrary, oppressive, sedition,
integrity, replaced etc.
II. Introduction
The
use of words or actions that are intended to incite people to be or act against
the state is known as the crime of sedition. According to Section 124A, Indian
Penal Code (IPC), sedition is defined as "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 excites
disaffection towards, the Government established by law 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."
Whereas Section 150 of the new Bhartiya Nyaya Sanhita Bill reads,
"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 means, or by any other means, incites or endeavors to incite
secession or armed rebellion or subversive activities, or encourages feelings
of separatist activities, or indulges in or commits any such act shall be
punished with imprisonment for life or with imprisonment that may extend to seven years and shall also be
liable to fine." Offences under the new section would be reffered as “desh
droh” rather than “raj droh”. This constitutes as one of the key changes
proposed in the Nyaya Sanhita bill. But there exist critics to this.The
liberal notion that there should be a place where people are free from societal
pressure gives rise to the concept of freedom of expression. This school of
thought's basic premise is that restrictions on an individual's freedom of
action should only be justified in cases when the behaviour may endanger other
people. This domain of non-coerciveness encompasses "liberty of
conscience, in the most comprehensive sense. This is the belief that everyone
has the right to an opinion on any topic, whether it be practical, theoretical,
moral, or religious, and that people are free to voice their opinions
regardless of how unpopular, offensive, or harmful they may be—with the
exception of situations in which they actually cause harm to others.
III. Research Methodology
The research methodology that has
been applied for this research paper is doctrinal research. Descriptive
research shall also be incorporated. A population, circumstance, or phenomena
is intended to be correctly and methodically described through descriptive
study. Works from scholarly journals, statutes, extracts from articles and
references from various websites shall be included as a part of the doctrinal
research.
IV. Sedition Before and After
BNS Bill
Important
Changes:
Change
in name of the section: The word sedition has been removed from
the section and has been replaced by "Acts endangering sovereignty, unity,
and integrity of India".
Change
in Punishment: a) The deletion of a clause that permitted
someone convicted of sedition to escape with merely a fine is a significant
alteration in the proposed text Section 150 of the BNS bill: The bill's section
150 specifies that in addition to a fine, the penalty is to be sentenced to
life in prison or to a term of imprisonment that may reach seven years.
b)
Minimum punishment was previously three years of imprisonment with or without
fine as per the circumstances of the case and the discretion of the court under
sedition 124A. Now, under the BNS Bill, the minimum punishment is increased to
seven years along with fine.
Analysis:
The coming up of the new section ‘integrity of state’ has not
helped the situation. It has rather added to despair. It has increased the
punishment to seven years. Although this increase of also suggested by the Law
Commission of India, previously, but was criticized. This has made the article
even stricter and more prone to misuse which could lead innocents to become the
accused. This has also narrowed down the scope of Article 19 of the Indian
Constitution and if this bill becomes an act, there is a heavy possibility of
it being challenged in the court of law to be unconstitutional as it is
expected to be against the basic structure doctrine. The words inciting
rebellion have still not be clearly elaborated. The court may strike down the
section for less clarity and vagueness.
V. Is Sedition an Arbitrary
Article?
Criticisms:
The
imprecise language of the sedition statute is one of its primary legal issues.
The government and police are empowered to harass law-abiding persons who live
across the fence from them since the phrases "bring into hatred or
contempt" and "attempt to excite disaffection" can be construed
in a variety of ways. Sedition legislation has a vague definition that makes it
easy for the authorities to falsely charge people of seditious activities. It
also gives a broad definition of what might be considered seditious, which
makes it vulnerable to abuse. Justice D.Y. Chandrachud brought attention to
this matter recently when she issued an order prohibiting the Andhra Pradesh
government from pursuing punitive measures against two Telugu news stations
that were charged with sedition under Section 124A of the Indian Penal Code
(IPC). The judge, Chandrachud, said, "Nothing can be subversive."
It's time we clarified what constitutes and does not constitute sedition.
"Expression of views which is dissent and different from the opinion of
the government cannot be termed seditious," Justice Chandrachud declared
in a significant case (a PIL brought against former Jammu and Kashmir Chief
Minister Farooq Abdullah). According to the Delhi High Court's decision in the
Disha Ravi case, citizens cannot be imprisoned by the government "just
because they chose to disagree with the state policies" and "the
offence of sedition cannot be invoked to minister to the wounded vanity of the
governments." These judicial decisions obviously deviate from the
executive branch's interpretation of the sedition statute and demonstrate how
the law is being arbitrarily abused by them.[2]
Due to its possible interference with the rights to free speech, expression,
and dissent, sedition laws in India have drawn a lot of criticism and
controversy. These laws have drawn a lot of criticism for the following main
reasons:
1.
Unclear and Vague Wording: One of the main
complaints centres on the sedition laws' unclear and vague wording. Acts that
aim to instigate violence, disrupt public order, or overthrow the government by
unlawful methods are punishable under Section 124A of the Indian Penal Code.
But authorities sometimes have a great deal of discretion when deciding what
exactly qualifies as seditious action since there are unclear criteria and a
subjective interpretation. Due to this sweeping interpretation, there
are worries about misuse and abuse, with opposing viewpoints being singled out
and suppressed on the grounds of sedition.[3]
2.
Suppression of Dissent: According to critics,
sedition laws have often been used as a weapon to quell lawful dissent and
criticism of the state or its policies. Sedition accusations have frequently
been brought against activists, journalists, students, and other people voicing
divergent viewpoints, which has resulted in self-censorship and a stifling
impact on freedom of expression. Open communication, democratic debate, and the
capacity to hold people in positions of authority responsible are all hampered
by the fear of being labelled seditious.
3.
Breach of Freedom of Speech: It has been argued
that sedition laws are incompatible with the Indian Constitution's guarantee of
the basic right to free speech and expression. In any democratic country, the
freedom to voice divergent viewpoints, critique the government, and participate
in nonviolent demonstrations is seen indispensable. However,
the broad application and potential for abuse of the sedition laws foster a
climate of fear, restricting the exercise of this basic right.
4.
Non-compliance with global norms: India is a
party to global human rights accords, including the International Covenant on
Civil and Political Rights (ICCPR), which underscores the significance of
safeguarding the liberty of speech and thought. Sedition laws in India,
according to critics, violate individual rights and unnecessarily restrict the
ability to voice divergent opinions, making them incompatible with the norms
established by these international accords.
5.
Arrests and Harassment: The public's outrage at
these laws has been heightened by reports of arrests and harassment made in
connection with sedition charges. Outrage has been generated by high-profile
cases involving activists, journalists, and students accused of sedition. These
instances highlight worries about the abuse of the legal system to silence
genuine dissenting voices.[4]
Reasons
behind criticism of Sedition:
1.
Poor application of court directives: Each time
a sedition case was dismissed, the judiciary gave advice to the law enforcement
organizations on its relevance. The law enforcement agencies, however, do not
follow the guidelines in letter or spirit.
1.1. Tracing
Case Laws
1.1.1
State of Bihar v. Kedar Nath Singh (1962): This
case is regarded as a seminal ruling on sedition in India. The Indian Penal
Code's Section 124A, which addresses sedition, was upheld by the Supreme Court.
However, the court made it clear that just voicing disagreement with the
government or dissenting opinions does not qualify as sedition unless it
incites violence or causes widespread disturbance.
1.1.2
In the 1995 case of Balwant Singh v. State of
Punjab, the Supreme Court ruled that unless there was a demand for violence or
public disturbance, yelling slogans in favour of a separate state did not
qualify as sedition. The court stressed how crucial it is to discern between a
genuine incitement to violence and the mere statement of a viewpoint.
1.1.3
In the 2011 case of Arup Bhuyan v. State of
Assam, the Supreme Court held that sedition requires a direct encouragement to
violence or public disorder. Sedition does not occur until there is a call for
violence. This includes just expressing strong opinions against the government or
belonging to an organisation that has separatist demands.
1.1.4
Shreya Singhal VS Union of India (2015): This
case is noteworthy even though it had nothing to do with sedition since it
addressed the constitutionality of Section 66A of the Information Technology
Act, which made online speech illegal. Section 66A was declared illegal by the
Supreme Court, which also said that it infringed against the right to freedom
of speech and expression.[5]
2.
Sedition is being abused more and more, as seen
by the 160% increase in Section 124A prosecutions for sedition. Although the
conviction rate fell from 33.3% in 2016 to 3.3% in 2019, it did so overall.
2.1 Tracing
Case Laws:
2.1.1 (2011): Binayak Sen v. State of Chhattisgarh
This case
emphasizes the criticism of the abuse of sedition accusations, even if it is
not a sedition case. Human rights activist Binayak Sen was accused with
sedition; the Supreme Court granted him bail, highlighting the requirement for
proof of intent to cause public disturbance or instigate violence.
VI. Addressal of the Misuse
How is
its misuse being addressed? Civil rights groups and human rights advocates have
called for the removal of Section 124A, arguing that any democracy should not
tolerate this oppressive colonial law. They claim that the law's definition of
sedition endangers the liberties and rights of its people. Even in situations
where there is no threat to public order or encouragement to violence, it is
nonetheless implemented.Civil rights groups and human rights advocates have
called for the removal of Section 124A, arguing that any democracy should not
tolerate this oppressive colonial law. They claim that the law's definition of
sedition endangers the liberties and rights of its people. Even in situations
where there is no threat to public order or encouragement to violence, it is
nonetheless implemented.[6]
VII. The
current debate: Current Case
SG Vombatkere v Union of
India
The Supreme Court will
decide if Section 124A of the Indian Penal Code, 1860, that criminalises
sedition, is unconstitutional.
Two journalists, Kishore Wangkhemcha
and Kanhaiya Lal Shukla, petitioned the Supreme Court on February 17, 2021,
contesting the legality of the sedition legislation. The Indian Penal Code,
1860's Section 124A enforces the legislation, which dates back to India's time
as a British colony. "Attempts to excite disaffection towards the
Government established by law in India" is how S 124A defines
sedition.Journalist and local news presenter Mr. Wangkhemcha, who is located in
Manipur and works for ISTV, was detained after he made disparaging remarks
about the Manipur administration and its affiliation with the NDA government.
In a video posted to social media, he referred to the Chief Minister as a
“puppet of Hindutva." Journalist Mr. Shukla from Chattisgarh engaged in a distinct kind of
political criticism by sharing cartoons on social media that parodied
purportedly fictitious encounters carried out by the Gujarat police between
2002 and 2006. Sedition
charges were brought against Mr. Shukla in April 2018 and Mr. Wangkhemcha in
August of the same year. Subsequently, they contested the law's origins and
present applicability in a 2021 Supreme Court petition. The wide scope of the
legislation has always been attacked for being used as a means of restricting
free expression. The petition submitted by Mr. Wangkhemcha and Mr. Shukla
echoes this concern, claiming that the provision's ambiguity permits the
arbitrary application of sedition legislation to suppress dissent. New defences of the unconstitutionality
of the sedition legislation have been added to the growing roster of
petitioners. In addition to its impact on free expression, the law's
appropriateness and suitability for India are questioned; this is particularly
true considering that the UK, from whence it originated, has since abolished
the statute. The ruling in Kedar Nath v Union of India (1962) by the Supreme
Court now takes precedent when deciding whether words or deeds qualify as
seditious. According to the Court, evidence of seditious behaviour cannot be
established without a "incitement to violence" or a "tendency or
intention to create public disorder." This judgement has drawn criticism,
nevertheless, for being in conflict with itself. The Supreme Court has been deliberating on whether to
assign the case to a seven-judge bench since May 5th, 2022. On May 9, 2022, the
Union Government announced that it will be reviewing the sedition legislation.
Meanwhile, on May 11, 2022, the Supreme Court decided to be even more cautious
and issued an order stating that "no coercive action" be done in
instances of sedition that are still pending while the Union reexamines the
statute.[7]
VIII. Why
did sedition cases increase sharply after 2014?
Since the BJP came to power in 2014,
there has been a sharp rise in sedition charges, according to the records
released by Article14, MHA, and NCRB. These studies show how, in the face of
public criticism or demonstrations, state administrations led by the Bharatiya
Janata Party (BJP) have effectively employed sedition accusations as a tactic.
The database showed a spike in sedition charges during demonstrations or other
activities unfavourable of the BJP government in the states and at the federal
level. Sedition charges
under NDA showed a steep increase.65% of the almost 11,000 defendants in 816
sedition cases since 2010 were put on trial following the election of the Modi
administration in 2014.95% of the 405 Indians who were charged with sedition in
the past ten years for against governments and officials were prosecuted after
2014. Of them, 149 were charged with uttering "critical" or
"derogatory" statements against Modi, and 144 against Yogi
Adityanath, the chief minister of Uttar Pradesh.According to the data, the
number of sedition charges filed annually increased by 28% over the period of
2014 to 2020, or during Modi's administration, in comparison to the average of
the UPA's second term in office from 2010 to 2014.[8]
IX.
Conclusion
In conclusion, there is cause for
grave worry over the increasing abuse of sedition legislation by governments of
all hues, including those in states controlled by the opposition. Liberal
democracies are known for their emphasis on individual liberty and the freedom
of expression. Sedition laws, when abused, undermine the fundamental rights
guaranteed by the Indian Constitution. The judiciary must reconsider this harsh
statute due to the urgent requirement. In addition to preserving the right to
free speech in India, weakening this statute and establishing stringent limits
to restrict its indiscriminate application may undoubtedly improve India's
democratic status.[9] The ability to express oneself freely
and raise one's voice is a fundamental human right in the modern day and is a
component of democracy. Therefore, the latter should always take precedence
over the former in cases when there is a conflict between the sedition
legislation and freedom of speech and expression. The freedom of expression,
is an inalienable right that cannot be restricted in any way.[10]
[1] Sedition; Threat to Indian
Democracy, ORF Onine,
https://www.orfonline.org/expert-speak/sedition-law-threat-indian-democracy/,
Last Visited on 1st November 2023, 10:00AM.
[2] Supra Note 1.
[3]Challenging The status quo, Prime
Legal, https://primelegal.in/2023/05/28/challenging-the-status-quo-unmasking-the-criticisms-surrounding-sedition-laws-in-india/,
Last Visited on 1st November 2023, 10:00 AM.
[4] Supra Note 3.
[5] Supra Note 3.
[6] Sedition; Used in Modi Era, The
Wire, https://thewire.in/law/explainer-how-the-sedition-law-has-been-used-in-the-modi-era,
Last Visited on 10th November 2023, 10:00 AM.
[7] Sedition Case Background,
Scobserver,
https://www.scobserver.in/cases/sg-vombatkere-v-union-of-india-constitutionality-of-sedition-case-background/,
Last Visited on 11th November 2023, 10:00 AM.
[8] Supra Note 6.
[9] Supra note 1.
[10] Sedition, The Law Brigade,
https://thelawbrigade.com/wp-content/uploads/2021/05/PRITHIVI-RAJ-SALRJ.pdf,
Last Visited on 12th November 2023, 10:00 AM.
Article Information
SEDITION; AN ARBITRARY ARTICLE; STATUS BEFORE AND AFTER THE BNS BILL BY: KASHISH KHANNA
Authors: KASHISH KHANNA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/04
- Issue 7
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International Journal for Legal Research and Analysis
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