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SEDITION AND FREEDOM OF SPEECH AND EXPRESSION: CONFLICTING CONCEPTS
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SEDITION AND FREEDOM OF SPEECH AND
EXPRESSION: CONFLICTING CONCEPTS
AUTHORED BY - AADYA
SAHAY
STUDENT OF BBA LLB – 2ND
YEAR
IILM LAW SCHOOL
ABSTRACT
The freedom of speech and expression
is one of the most important fundamental right given to the citizens under
Article 19(1)(a)[1] of our
Indian Constitution. It enables people to express their thoughts, criticise the
government, and participate in public discourse without worrying about being
persecuted or subjected to reprisals. This right is not absolute, and it
occasionally runs conflicting of other interests like public order or national
security. Sedition laws are one area where this tension is particularly
pronounced.
Any action or utterance that aims to
stir up revolt or the overthrow of the government is referred to as sedition.
Governments have used sedition laws to quell dissent, crush opposition, and
steer the narrative throughout history. However, sedition laws can also be used
to prosecute legitimate political speech and expression, thus infringing on the
right to free speech.
This research paper will provide an
overview upon the freedom of speech and expression with that of sedition laws.
It will also look upon the relationship between the two of them. It will look
at how sedition laws have changed over time, how they are now implemented in
various nations, and the debates that surround them. It will examine the
justifications for and against sedition laws, their legal and political
implications.
This topic is very much of importance
because of the ongoing debate about whether the section of sedition should be
repealed or retained. On one hand sedition law can help in protecting national
security and public order but parallelly on the other hand they can also be
used to silence opposition and dissent. It is significant to strike a balance
between these concepts and to ensure that sedition laws are used judiciously
and fairly.
SEDITION AND FREE SPEECH: AN OVERVIEW
A. Definition of sedition
Section 124A[2] of
the Indian Penal Code defines sedition 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 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 law of sedition is just briefly mentioned in this section. The
meaning of sedition still remains vague as the statute does not clearly
describes it.
Sedition can be defined
as the act of inciting or encouraging people to rebel against or resist the
lawful authority of a government, typically through speech or writing. Sedition
is often used as a legal term to describe speech that is considered to be a
threat to the state or to public order. Sedition laws vary by country and can
range from strict restrictions on political expression to more permissive
approaches that allow for greater freedom of speech. In general, however,
sedition laws seek to regulate speech that is deemed to be seditious or
subversive, and can be used to prosecute individuals who engage in such speech.
Sedition laws are interpreted
and applied inconsistently in India, with some critics claiming that they are
frequently used to silence dissent and quiet political opposition. In recent
years, there has been a great deal of controversy about the use of sedition
charges against journalists, activists, and students. Some claim that the law
is being used to target those who criticise the government or its policies.
The Supreme Court
confirmed Section 124A's constitutionality in Kedar
Nath v. State of Bihar[3].
Sedition is not the same as merely criticising the government or expressing
contempt for how it runs its affairs. In order for an act to be considered
sedition, it must both inspire violence and have the aim to cause
disorder/disturbance of the public peace or law.
Guidelines on the use of
sedition laws were published by the Supreme Court of India in 2021,
highlighting the need for a careful and cautious approach to their application
in order to prevent them from infringement on the right to free speech and
expression. The court highlighted that sedition charges should only be brought
where there is a demonstrable threat of violence or public disorder, as well as
when there is proof that such a threat was intentionally intended to exist.
B. History of sedition laws in India
The sedition provision was originally
enacted as an extension of British Colonial Rule to silence opposing opinions
coming from the Indian freedom movement. Section 124-A of the Indian Penal
Code, 1860 wasn't included in the 1860 version of Macaulay's Indian Penal
Code and wasn't included until 1870 under James Stephen's leadership.
The British colonial authorities
utilised the sedition laws to suppress nationalist movements in Africa, India,
and other countries of the British Empire. Indian nationalist leaders like Bal
Gangadhar Tilak and Mahatma Gandhi were prosecuted under the sedition statute,
which the colonial authority first implemented in 1870.
Ø Pre-Independence Cases of Sedition
In the case of [Queen Empress Vs. Jogendra Chunder Bose & Ors., (1892)][4],
the editors of a Bengali magazine were charged of sedition for their criticism
of British government policies, particularly the Age of Consent Act, 1891. This
case is considered to be the first significant example of the crime of
sedition. The publishers contended that the crime of sedition only punished the
creation of seditious material, not its publication, and they also disputed the
validity of the sedition legislation itself. They argued that it was against
the law's original intent to punish people for exercising their rights. The
Calcutta High Court ruled that because the publishers circulated the magazine
with the intention of it being read by the target audience, they could not be
relieved of legal responsibility merely because they had not written the
seditious content. The High Court further stressed the difference between the
phrase’s "disaffection" and "disapprobation," which refer
to "any feeling contrary to affection" and justified criticism,
respectively. The court reached the conclusion that the crime of sedition does
not violate people's rights because only disaffection is punished.
The Queen
Empress Vs. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897)[5]
case was the following significant one in this area. Bal Gangadhar Tilak was charged
for sedition in this case for allegedly inciting through speech which led to
the killing of two British Officials. In this instance, a single judge bench of
the Bombay High Court acknowledged with the definition of
"disaffection" set forth in Jogendra Chunder Bose and expressed the
opinion that any "bad feelings" towards the government, no matter how
strong, are unlawful.
The High Court effectively rejected
all legitimate criticism in this way. It was also stated that the act of
sedition need not have any material repercussions at all. According to the
court, the primary consideration in sedition cases is the offender's intention,
which can be inferred from the seditious speech's content, audience, and
context.
Ø Post-Independence Cases of Sedition
The first instance of a court in
independent India ruling on the constitutional legality of Section 124-A of the
Indian Panel Code, 1860, was in the matter of [Tara
Singh Gopi Chand Vs. The State,
1951[6]]. Since
India was now a republic with its own government, constitutional regulations
took precedence over British rules. In this case, the then-Punjab High Court
acknowledged that Section 124-A was unquestionably a restriction on the right
to free speech and expression and invalidated the clause on the grounds that it
violated Article 19 of the Indian Constitution's fundamental right to free
speech and expression.
The
Constitution (First Amendment) Act, 1951[7], which was soon after passed by
independent India's first Parliament, intended to address a discrepancy in the
constitutionality of the sedition statute as a result of the Tara Singh Gopi
Chand Judgement, among other things. It accomplished this by presenting fresh
justifications for putting reasonable limitations on the freedom of speech and
expression. The security of the State, defamation, contempt of court, and
decency and morality were the only reasons listed in the original
Constitution's Article 19(2) for restricting free expression. The Amendment Act
added new justifications for limiting free speech and expression, including
public order, relations with other countries, and incitement to offences.
Within two years, the amendment was
put to the test in the case of [Debi Soren & Ors.
Vs The State, 1954[8]],
in which the accused, an Adivasi leader, was charged with making a derogatory
speech about the government. A Division Bench of the Patna High Court clearly
distinguished between disapprobation and disaffection in its judgement and
concluded that only disaffection causes public unrest. The Indian Panel Code,
1860's Section 124-A was likewise upheld as being lawful by the High Court,
which ruled that it did not contravene Article 19 of the Indian Constitution.
Many nations still have sedition laws
on the books today, and they are still used to prosecute people for political
statements or activities that are seen as subversive or dangerous to the state.
However, there is ongoing discussion regarding how to strike a balance between
individual rights and liberties and national security while using them.
C. The right to free speech and
expression
All citizens are guaranteed the right
to freedom of speech and expression under Article 19(1)(a). Foreign nationals
and other non-Indian citizens do not have access to this right, which is only
available to Indian citizens.
The right to freely express one's
thoughts and beliefs without restriction through spoken words, written words,
printed words, visual images, or any other means is known as freedom of speech
and expression. Thus, it includes the expression of one's ideas through any
kind of communication or through outward manifestations like gestures, signs,
and the like. The expression also implies publication, therefore press freedom
falls under this heading. The freedom of expression is thought of as the genus
and the freedom of the press as a species. The necessary goal is the free
transmission of ideas, which can be accomplished through the press or on a
platform.
The right to free speech and
expression is not absolute, however, and may be subject to reasonable
limitations in the interest of India's sovereignty and integrity, security,
friendly relations with other countries, public order, decency, or morality, or
in cases involving judicial contempt, defamation, or incitement to commit an
offence. Article 19(2)[9] of
the Constitution outlines these limitations. The Indian courts have interpreted
Article 21, which protects the right to life and personal liberty, to also
include the freedom of speech and expression.
Despite the constitutional
safeguards, India's right to freedom of speech and expression has faced
numerous limitations and obstacles over the years, notably in connection to
problems like hate speech, political dissent, and religious sensitivity.
Sedition laws and other legislation have been used by the Indian government to
stifle dissenting opinions and limit freedom of expression, which has drawn
criticism.
D. The relationship between sedition and
free speech
Sedition and the freedom of speech
and expression have a complicated and controversial relationship. On the one
hand, the freedom of speech and expression is regarded as a fundamental human
right that is necessary for a democratic society to function since it enables
people to voice their thoughts and engage in public discourse while also
holding those in positions of authority accountable. Sedition, on the other
hand, is a crime that is intended to punish people for engaging in speech or
other forms of expression that are regarded to be seditious or dangerous.
Sedition is primarily a criminal offence that targets speech or expression that
is deemed to be dangerous to the safety or stability of the state, or that
challenges the legitimacy of the executive branch or other established
institutions. This can include discourse that incites hatred or dislike between
various communities or calls for violence or revolt against the government.
Journalists, scholars, and artists who are only practising their right to free
speech and expression have occasionally been the targets of sedition
legislation. Sedition laws are criticised on the grounds that they can be used
to limit free speech and repress legitimate criticism. They point out that
sedition laws have frequently been used by governments to suppress political
opponents, human rights supporters, and other people who disagree with the
government or its policies.
In conclusion, there is friction and
conflict between the right to free speech and expression and acts of seditious
behaviour. While these are crucial components of a democratic society, there is
frequently a trade-off between the two as governments attempt to strike a
balance between the need to defend freedom of expression and dissent and the
need to ensure national security and maintain public order.
Landmark case: Kedar Nath Singh
Judgment[10]
A five-judge constitutional bench of
the Supreme Court upheld the constitutional validity of Section 124-A of the
Indian Penal Code, 1860 and then clarified the proper position of the sedition
law in India in Kedar Nath Singh, which is regarded as the most authoritative
judgement of the Supreme Court on the interpretation of the sedition law. Kedar
Nath Singh, a member of the Forward Communist Party of Bihar, was accused of
sedition in this case for making derogatory remarks about the country's ruling
Indian National Congress government. The Apex Court ruled that Section 124-A of
the Indian Penal Code, 1860 could only be enforced if it could be
demonstrated that the seditious remark in question had incited violence or
would cause public disorder. It was made clear that this provision could not be
utilised to stifle free expression. Kedar Nath did not commit sedition since he
criticised the Congress party, not the Indian state, and no violence was called
for as a result of his speech.
In a different significant ruling, Balwant Singh & Anr. vs State of Punjab,
1995[11], the
accused had been tried for the crime of sedition because, in the wake of Indira
Gandhi's assassination he had participated in sloganeering in favour of an
independent Sikh majority State. A two-judge panel of the Supreme Court ruled
in the accused's favour on the grounds that Balwant Singh's actions did not
constitute sedition because the speech in question did not cause any disruption
of public order and was not likely to incite violence in the minds of the
intended audience.
WHAT CAUSES FREE SPEECH AND SEDITION
TO HAVE SUCH A TENSE RELATIONSHIP
The misuse of the sedition rule has
already cost the lives of a number of people. This is demonstrated by the
quantity of people who have been arrested and convicted. Nine percent of the
ongoing sedition cases reported in 2019 have been closed because it is
difficult to find the suspects. Only 17% of the cases led to the filing of
charges. Only 3.3% of these cases in 2019 ended in a conviction. Since 2014,
our administration has been misusing this law, as evidenced by the 96% of
sedition lawsuits against 405 people for opposing politicians and governments
that were reported after that year. Since then, the number of sedition lawsuits
recorded has climbed by 28% from the years after. 10,938 persons have been
accused of sedition since 2010, and almost 65 percent of them have ties to the
current administration. 93 charges of sedition were registered in 2019, up from
35 in 2016, according to the National Crime Records Bureau's report, Crime in
India.
Since Section 124A of the Indian
Penal Code does not clearly define what amounts to sedition and what does not,
it is not definite when it crosses the border line of the fundamental right to
freedom of speech and expression. Also, due to the stated reason, there’s a
chance of misusing power and overpowering those who are dissatisfied.
LEGAL CHALLENGES
In the case of Kishore Chandra
Wangkhemcha & Anr. Vs Union of India, the Supreme Court, comprised of
Justices U. U. Lalit, Indira Banerjee, and K. M. Joseph, decided to examine the
constitutional validity of the offence of sedition under Section 124-A of the
Indian Panel Code, which penalises the crime of "sedition." Two
journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, who operate in
Chhattisgarh and Manipur, respectively, have petitioned the Supreme Court to
strike down Section 124-A of the Indian Panel Code, 1860. According to the
petition, Section 124-A violates the freedom of speech and expression that is
guaranteed by Article 19 (1)(a) of the Indian Constitution.
The main legal challenge that has
been faced by the sedition law in India is that, over the years, it has been
challenging and conflicting with the fundamental right conferred in our Indian
Constitution. One right gives the citizen the freedom of speech and expression,
whereas on the other hand, another section restricts the same right.
CONTROVERSIES SURROUNDING SEDITION
LAWS
A. Arguments in favour of sedition laws
·
Maintaining
political stability: By prohibiting people or organisations from calling for
the overthrow of the government, sedition laws can be employed to stop
political instability and to safeguard the constitutional order.
·
Protecting
national security: Those who support sedition laws contend that by stopping
individuals or groups from inciting violence or revolt against the government,
they are important to safeguard the country's stability and security.
·
Upholding
law and order: By deterring people from taking part in actions that could
endanger public safety or disturb social harmony, sedition laws are considered
as a way to uphold law and order.
·
Sedition
laws can be used to stop inciting violence and hate speech directed at certain
people or groups based on their race, religion, or other traits. Sedition laws'
supporters contend that they are required to defend government institutions
like the judiciary and the military forces against unfair criticism and
assaults.
Sedition laws' opponents counter that
they can be used by governments as a tool to quiet opposition and keep hold of
power, and that they can be used to stifle free speech and legitimate political
criticism. Furthermore, opponents claim that because sedition laws are
frequently written broadly, they can be applied to prosecute people for actions
that do not actually endanger public safety or national security.
B. Arguments against sedition laws
·
Government
abuse: Governments can readily employ seditious speech laws to silence dissent
and keep hold of power. Governments have taken advantage of sedition laws in a
number of instances to quiet opponents, human rights advocates, and
journalists.
·
Sedition
laws are frequently vague and ambiguous in nature, which leaves them open to
abuse. Critics contend that these laws can be used to target a variety of
actions that don't actually endanger public safety or national security.
·
Sedition
laws are frequently applied to silence legitimate political dissent and
government criticism, posing a threat to free speech. Critics claim that these
rules pose a threat to free speech, citizen expression, and the capacity to
hold people in positions of authority accountable.
·
Deterrent
to democracy: Sedition laws have the potential to undermine democracy by
suppressing dissent and restricting people' freedom of speech. This may
eventually result in a culture of fear and compliance, where people are
reluctant to criticise the government or voice their ideas.
·
International
norms are frequently violated by seditious laws, including those pertaining to
freedom of expression and human rights. Sedition laws should be abolished,
according to the United Nations, because they conflict with the right to free
speech.
In conclusion, opponents of sedition
laws contend that they pose a risk to democracy, free speech, and human rights
and that they are simple targets for abuse by governments seeking to crush the
opposition and hold onto power.
C. Case studies of controversies
surrounding sedition laws
Here are some examples of
controversies surrounding sedition laws in India:
·
JNU
controversy involving Kanhaiya Kumar: In 2016, Kanhaiya Kumar, the former
president of the JNU Students Union, was charged with sedition along with other
students for allegedly shouting anti-India slogans during a protest. The case
provoked a lot of demonstrations and discussions about how sedition laws are
sometimes used to silence dissent and opposition to the government.
·
Kishorchandra
Wangkhem of Manipur was detained in 2018 under the country's sedition laws
after criticising the state's chief minister on social media. His arrest drew
heavy criticism for being a violation of free speech and the freedom of the
press.
·
Akhil
Gogoi of Assam: In 2019, Akhil Gogoi, a peasant leader and human rights
advocate in Assam, was detained for allegedly inciting violence during
anti-Citizenship Amendment Act (CAA) protests and was charged with sedition.
The arrest of Gogoi was strongly criticised as an attempt to silence dissent
and the right to protest.
·
Munawar
Faruqui of Haryana: In January 2021, Munawar Faruqui, a stand-up comedian, and
four other people were detained in Indore on allegations of insulting Hindu
deities while performing a comedy act. Faruqui was accused of inciting hatred
amongst various religious groups and engaging in sedition.
The misuse of India's sedition laws
for the purpose of suppressing dissent and government criticism is highlighted
by these cases, which have sparked broad demands for the law's repeal.
CURRENT STATUS OF SEDITION LAWS
I.
Recent developments in sedition laws
These latest changes to India's
sedition legislation are listed below.:
Disha Ravi's sedition charges were
dropped after her detention in February 2021 on suspicion of editing and
distributing a toolkit for the farmers' protests. Disha Ravi is a climate
activist. She was accused of sedition, but the Delhi High Court overturned the
charges against her in June 2021, claiming that making a toolkit is not the
same as sedition.
Observations of the Supreme Court on
the Sedition statute: In September 2021, the Indian Supreme Court made some
remarks against the abuse of the sedition statute. The court ruled that
criticism of the government or its policies cannot be classified as sedition
unless there is a demand for violence or widespread disturbance. The law should
not be used to quell dissent, the court said.
Sedition Law Repeal Proposal by
Jharkhand: In November 2021, the Jharkhand government put out a proposal to
remove the sedition law from its state statutes. Human rights advocates and
civil society organisations, which have long called for the repeal of the
sedition legislation, applauded the decision.
These recent events highlight the
need to strike a balance between preserving national security and defending the
right to free speech and expression while also raising concerns about the
overuse of sedition legislation in India.
II. Current situation of sedition law
with respect to right to speech and expression
There is continuing discussion and
controversy about how India's sedition statute currently affects the right to
free speech and expression. Supporters of the sedition law contend that it is
important to safeguard the country's integrity and security. They claim that
the law is solely meant to stop acts that endanger the sovereignty and
territorial integrity of the nation, not to silence legitimate criticism of the
government or its policies. Opponents of the sedition statute contend, however,
that it is being employed as a tool to stifle dissent and criticism and that it
has a chilling effect on free speech and expression. They contend that the law
lacks specificity, is too broad, and does not offer enough protections against
abuse. Recent events demonstrate that there is a growing understanding of the
need to strike a balance between preserving national security and defending the
right to free speech and expression, such as the Supreme Court's observations
and the recommendations to repeal or reform the sedition statute. Sedition law
in India is still a difficult issue, and it is possible that there will be more
discussions and arguments on the matter in the future.
CONCLUSION
Sedition laws are a controversial
topic that have repercussions for freedom of speech and expression, to sum up.
Although they are meant to safeguard national security and stop violence and
disturbance, they can be abused to shut down legitimate dissent and criticism.
The problem with imprecise and overbroad provisions in sedition laws is that
they might result in unjustified prosecution and the violation of fundamental
rights.
Since the language of Section 124-A
of the Indian Penal Code, 1860 is so broad, any attempt to critique how
the Indian government operates would be unsuccessful. This law's severe nature
is a result of the broad interpretation of this Section and the severe
penalties. In accordance with Article 19(1)(a) of the Indian Constitution, it
also interferes with the freedom of speech and expression, rendering it
inherently unlawful. A democracy's defining characteristics are also interfered
with by this. This sedition statute threatens India's development,
notwithstanding the country's significant advancement over the years. Because
of this, the Supreme Court has determined that India's sedition laws need to be
reviewed. Sedition laws in India have drawn debate and criticism, with many
contending that they have been applied to target people and organisations who
are exercising their right to free speech. The current state of India's
sedition law with regard to the freedom of speech and expression is still a
reason for concern, notwithstanding certain recent developments that offer some
optimism.
Governments must make sure that
sedition laws are strictly enforced and do not unreasonably restrict the right
to free speech and expression. This is crucial in a democracy because it allows
citizens to hold their leaders accountable for their actions and ensure that
their interests are protected.
Reference sites:
Reference
books:
§ The
Constitution of India Bare Act
§ VN
Shukla Constitution of India
§ The
Indian Penal Code, 1860 Bare Act
[1]
Art.19(1)(a), Indian Const. 1950
[2]
S.124A, IPC 1860
[3] Kedar
Nath v. State of Bihar 1962 AIR 955, 1962 SCR Supl. (2) 769
[4] Queen
Empress Vs. Jogendra Chunder Bose & Ors., (1892) ILR 19 Cal. 35
[5] Queen
Empress Vs. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR Bom 112
[6] Tara
Singh Gopi Chand Vs. The State, 1951 Cri. L. J. 449
[7] The
Constitution (First Amendment) Act, 1951
[8] Debi
Soren & Ors. Vs The State, 1954 Cri. L. J 758
[9]
Art.19(2), Indian Const. 1950
[10] Kedar
Nath Singh vs State Of Bihar 1962 AIR 955, 1962 SCR Supl. (2) 769
[11] Balwant
Singh & Anr. vs State of Punjab, 1995 (1) SCR 411
Article Information
SEDITION AND FREEDOM OF SPEECH AND EXPRESSION: CONFLICTING CONCEPTS
Authors: AADYA SAHAY
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/05/15
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
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