Published Paper
Article Details
SEDITION
LAW IN INDIA
AUTHORED BY - GAURAV KUMAR,
ANIKET KUMAR & DR
VIVEK KUMAR
Abstract
The right
to freedom of speech is a sacrament and fundamental right of every Indian
granted by our constitution, the supreme law of the land. Sedition is one of
the restrictions on fundamental rights. Though enacted by the British during
their rule in India to curb the independence movement with this law was
retained by the government of free India to keep their hold on free speech and expression. But year by year Union government and various state governments started misusing this law to crack down on their
opponent party and various media houses that resemble different
ideology other than the government’s.
Keywords
Sedition, Freedom
of free speech
and expression, Fundamental rights, Disaffection towards
the government, Hate speech.
Research Methodology
This
paper is descriptive in nature and various articles, opinions, news articles,
and websites have been used for completion of this paper.
Introduction-
Mahatma Gandhi,
aptly referred to section 124A as the "prince among the political sections of the Indian Penal Code designed to suppress the
liberty of the citizen.".
What does the term sedition mean?
Encouragement
of opposition to a government or its laws is considered sedition. In most
nations, it is regarded as a serious offense and constitutes an offense against
the state, which can result in a fine or imprisonment.
Historical development of sedition
law
The
First Statute of Westminster, enacted in 1275, was the earliest known such
decree. It was the direct result of a "rebellion of the barons"
against the monarch, who "was considered the holder of the Divine Right.”.
The purpose of this was to keep the ruling class, including the nobility, safe
from popular uprisings that tried to overthrow the current system. This law was
based on the doctrine of Scandalum Magnatum, which means "scandal of the
magnates" in Latin. It prohibited scandalizing or criticizing royalty,
judges, or peers. The thirty-fourth chapter of the First Statute states-
“None
be so hardy to tell or publish any false news or tales, whereby discord, or
occasion of discord or slander
may grow between
the King and his people,
or the great men of the realm.”1
1 Lassiter, J. C. 1974.Scandalum Magnatum: The “Scandal of Magnates” in English Law, Society, and Politics,
This
passed through the Statues of Treason in 1352 and 1534 before becoming the
crime of seditious libel in 1606 thanks
to a Star Chamber
decision in de libellis famosis, also known as the law of libel or written defamation.
In this case, the court decided that criticizing the government and public officials would show disrespect for authority. Surprisingly, some of the safeguards outlined in the crimes of
Treason and Scandalum Magnatum were violated in this case. According to
Hamburger, the use of sedition against the written word increased in the 18th
century. Until its demise in the new millennium, it was a part of English law.
What is sedition law in India?
The term "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"2
was drafted in 1837 by British historian and politician Thomas Babington
Macaulay. Sec. 124A, which
criminalizes “disaffection towards the Government established by law” or
sedition, was finally introduced through an amendment
in 1870, by the then Law Member
of the Governor-General’s Council,
James Stephen.
Punishment for this offense
is imprisonment for life, or imprisonment that may extend to three years, and shall also be liable to a
fine and also, it’s a nonbailable offense.
This
colonial drafted law was enacted with the intention primarily to stamp out the
writings, speeches, and movement for independence by the Indian freedom
fighters by putting them behind the bar if they revolt against
the British government in India and still it remains in force.
Interestingly, the person
charged under this law is also barred
from a government job and their
passport is seized by the government.
Sedition law under British India
During
the British raj as previously mentioned sedition law was enacted with the
intention of stamping out the leaders of the Indian independence movement
against their rule. Many prominent freedom fighters were charged under this
rule.
In Queen-Empress v. Jogendra Chunder
Bose, 18913, the law of sedition was first applied
to a case 20 years after its
introduction. The Bengali magazine Bangobasi's proprietor, editor, manager, and
printer were tried under the law for publishing an article that criticized the
Age of Consent Act, which raised
the age at which a person can consent to sexual activity. However, there was no conviction in this instance. The jury was
unable to reach a unanimous decision. Bose was released on bail after the Chief
Justice of the Calcutta High Court, W. Comer Petheram, stated that "he
would not take any verdict that was not unanimous in this case."
Bal Gangadhar Tilak a prominent figure
of the Indian independence movement
was convicted twice for the offence of sedition by the British
court in India. In 1897, he was convicted by the
Bombay High Court for his article using the example of the Maratha warrior
Sivaji to encourage the Indian to overthrow British rule from India published in his magazine Kesari, a
2 Sec 124A IPC
1860,
3 (1892) ILR 19
Cal 35
Marathi magazine
founded by him in 1881. Again in 1908, he was convicted of sedition for his
writing in his Marathi magazine Kesari.
In
1922, MK Gandhi was charged with sedition for his highly sensitive article
published in Young India journal. Both Gandhi and the publisher of the journal
were pled guilty and were sentenced to imprisonment for six years in jail. Gandhiji said while pleading
guilty that ‘section 124A is a prince among all the
politically designed IPC sections to suppress the liberty of the citizens.4
In the case
of Niharendu Dutt Majumdar v the
King-Emperor5in 1942, the most relevant case today, the then
British Chief Justice of the federal court of British India held that
This
[sedition] is not made an offense in order to minister to the wounded vanity of
Governments, but because where Government and the law cease to be obeyed
because no respect is felt any
longer for them, only anarchy can
follow. Public disorder, or the reasonable anticipation or likelihood of
public disorder, is thus the gist of the offense.
The
acts or words complained of must, either incite to disorder or must be such as
to satisfy reasonable men that that, is their intention or tendency.
Sedition law in Free India
While
framing our constitution, the constituent assembly debated on this colonial law
and whether to retain this law in free India or not. One such debate was of K M
Munshi who was also a member of the drafting committee, single-handedly
proposed the amendment for the deletion of the word ‘Sedition’ from the law. He
said while moving his amendment on 10 December 1948 that-
“Sir,
the importance of this amendment is that it seeks to delete the word ‘sedition’
and use a much better phraseology, viz., ‘which undermines the security of, or
tends to overthrow, the state’. The object is
to remove the word ‘sedition’ which is of doubtful and varying import
and to introduce words which
are now considered to be the
gist of an offense against the state”. “I was pointing out that the word ‘sedition’ has been a
word of varying import and has created considerable doubt in the minds of not only the members
of this House but of courts of law all over the world. Its definition has
been very simple and given so far back as 1868. It says ‘sedition embraces
all those practices whether by word or deed or writing
which are calculated to disturb the tranquillity of the state and lead ignorant persons
to subvert the government’. But in practice, it has had a curious
fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition.
Even holding an opinion that will
bring ill will towards the government was considered sedition
once. Our notorious
Section 124- A of the Penal
Code was sometimes construed so widely that I remember a case where a criticism of a District
Magistrate was urged to be covered by Section 124-A. But public
opinion has changed considerably since, and now that we have a
democratic government a line must be drawn between
criticism of the government, which should be welcome, and incitement,
4 . S.G. Vombatkere vs Union of India WRIT PETITION(C) No.682 OF 2021
5 (1942) FCR 48
which
would undermine the security or order on which civilised life is based, or
which is calculated to overthrow
the state. Therefore, the word ‘sedition’ has been omitted.
As a matter of fact, the essence of democracy is criticism of
government. The party system necessarily involves an advocacy of the
replacement of one government by another. This amendment therefore seeks to use
words which properly answer to the implication of the word ‘sedition’ as
understood by the present generation in a democracy and therefore there is no
substantial change; the equivocal word ‘sedition’ only is sought to
be deleted from the
article. Otherwise, an erroneous impression would be created that we want to perpetuate 124A of the IPC [Indian Penal Code] or its meaning, which
was considered good law in earlier days.”6 Munshi’s amendment was
accepted by the assembly unanimously and resulted in erasure of the word
‘sedition’ from the constitution.
T. T. Krishnamachari one of the members of the constituent
assembly, argued that the word sedition was anathema to Indians given their
experience of it and he suggested that the only instance where it was valid was
when the entire state itself is sought to be overthrown or undermined by force
or otherwise, leading to public disorder.7
One
of the early cases of sedition in India was Romesh
Thapar v State of Madras8in this case there was a ban put on the
circulation of a magazine named crossroad which was owned by a follower of
Marxist ideology Romesh Thapar and criticized Jawaharlal Nehru's policies,
particularly his foreign policy, Thapar filed an appeal with the Supreme Court,
marking the first case involving Sec. IPC Section 124A. In Romesh Thapar v. State
of Madras (1950), the Supreme Court declared that any law restricting freedom
of speech and expression would not be subject to Article 19(2) of the
Constitution unless the freedom of speech and expression threatened the
"security of or tend to overthrow the State.". One of the court's
best judges, Justice Patanjali Sastri,
was the one who handed
down the verdict.
She was intelligent, rational,
and generous. "It is also worth noting that the word 'sedition' occurred
in Article 13(2) of the Draft Constitution prepared
by the Drafting Committee and was deleted
before the Article
was finally passed as Article 19(2)," he stated. This is related to
the fact that the Federal Court in Niharendu
Dutt Mazumdar v. The King-Emperor9 defined sedition as “the acts
or words complained of must either incite to disorder or must be such as to
satisfy reasonable men that this is their intention or tendency.” However, the
Privy Council overturned that decision and reaffirmed the view expressed in
Tilak's case that “the offense consisted in exciting or attempting to excite in
others certain bad feelings towards the government.
In the case of Kedar Nath Singh v. Union of India10, the accused was charged under the sedition law for criticizing the state government of Bihar accused’s
conviction was upheld by the Patna
High Court but in Supreme Court
held that sedition is defined as any spoken or written words that "implicit in them the idea of subverting government by violent means." However, the Court made it clear that strong statements criticizing the
government's actions or policies do not
fall
6 https://frontline.thehindu.com/the-nation/how-a-supreme-court-judgment-brought-back-the-sedition-law-in-
india/article33481062.ece
8 1950 AIR 124
9 (1942) FCR 48
10 1962 AIR 955
under the definition of seditious speech.
Therefore, any words
or statement which criticizes the government established by law will
not be considered as a sedition. Though Supreme Court made it clear that
“allegedly seditious speech and expression may be punished only if the speech
is an ‘incitement’ to ‘violence’, or ‘public disorder'”.
Sedition case in recent
time
In most recent case of sedition is Vinod Dua v Union of India11 in
which Vinod Dua a journalist criticises Prime Minister
Narendra Modi for his tactic of death and terror act to get vote in an election
and handling of the COVID pandemic. The local BJP leader from Shimla lodged an
FIR against him with sedition charges. Respondent argued that the
aforementioned claims made by the petitioner are bizarre and unfounded, as well as false. By claiming that the PM has
gained votes through acts of terrorism, Mr. Vinod Dua has spread erroneous and
malicious information. This is directly inciting citizens to act violently and
will undoubtedly disturb public peace. This is an attempt to provoke violence
against the Prime Minister and the government.
Additionally, he attempts to disseminate false information, such as the erroneous
assertion that the government lacks sufficient testing
facilities, which causes panic and disturbs
public order. The government has taken all necessary measures to control the
pandemic and has sufficient facilities to contain it. But
the Supreme Court
confided in the judgment of Kedar
Nath Singh in which the Supreme Court held that the mere speech or comment
against the government did not attract the sedition law unless and until it
incites violence against the government established by the law. So, in the present
case, the journalist only made a comment
that is critical of the government and the Prime Minister did not attract
the sedition law. There
is no incitement of violence in his comments against the government. Supreme Court
quashed the charges of sedition against the journalist.
Recently,
the National Crime Record Bureau (NCRB) released its report on sedition cases.
In its report, Assam was on the top for recording sedition cases (69) followed
by Haryana (42), Jharkhand (40), Karnataka (38), Andhra Pradesh
(32) then Jammu
& Kashmir (29) respectively
These six states accounted for 250 cases more than half the number of total
sedition cases recorded in the country in the last eight-year period. Among
states Meghalaya, Mizoram, and among union territories Andaman & Nicobar
Islands, Chandigarh, Pondicherry, Dadra & Nagar Haveli & Daman & Diu where sedition
cases were not registered even one case was not registered12.
Sedition around the World13
The global movement
has been overwhelmingly anti-sedition, and various nations
have either relaxed or abolished the law. The United Kingdom,
Ireland, Australia, Canada,
Ghana, Nigeria, and Uganda
are just a few democratic nations that have viewed sedition
laws as undemocratic,
11 Writ Petition
(Criminal) No.154 of 2020
12 https://indianexpress.com/article/india/most-number-of-sedition-cases-in-last-8-years-came-from-assam-
ncrb-data-8131263/
undesirable,
and unnecessary. The protection
of free speech has been the primary justification for banning sedition. Another
factor is the possibility of using sedition
laws to advance political
goals. Following below are the examples of nations that removed the law of sedition from their
statute or eased their seditious law.
South Korea
The Republic of Korea abolished
sedition laws during
democratic and legal reforms in the year 1988.
Ghana
On July 27, 2001,
Ghana’s parliament unanimously repealed the Criminal
Libel and Seditious Laws, which
had been used to incarcerate a number of journalists in the past.
The repeal follows the passage of the Criminal Code
(Repeal of the Criminal and Seditious Laws Amendment Bill) Act 2001 by a
unanimous vote in the House.
Scotland
Section 51 of the Criminal
Justice and Licensing Act, 2010 abolished the common law offences
of sedition with effect from March 28, 2011.
Indonesia
In 2007, Indonesia declared
sedition law as an unconstitutional provision of law, similar to the
laws of its Dutch colonizers.
Australia
The first comprehensive law in Australia to include a sedition offense
was the Crime Act of 1920. It was the subject
of reviews in 1984 and 1991. In 2005, Schedule
7 of the Anti-Terrorism
Act (No. 2) of 2005 underwent revisions. The Australian Law Reform Commission
(ALRC) investigated the use of the term "sedition" to describe the
offenses outlined in the 2005 amendment. An ALRC proposal was adopted in 2010
and the definition of "sedition" was changed to "urging violence
offenses" in the National Security Amendment Act of 2010. Section 51 of
the Criminal Justice and Licensing Act of 2010 abolished the common law offense
of sedition in Scotland on March 28, 2011.
Singapore
83
years after it was first enacted to quell local opposition to British colonial
rule, Singapore, which, like India, inherited colonial
English law, repealed
its sedition law last year. According to the Home Ministry, the Sedition Act's
key provisions have not been relevant in contemporary
Singapore for a considerable amount of time, and prosecutions rarely made use
of the law. It stated that the issues covered by the sedition law could be
adequately addressed by a number of new laws. Over the years, Singapore has
enacted additional laws to address Act-covered issues in a more targeted and
calibrated manner.
United States
Some sedition
laws in the United States
have been struck down or are no longer in effect. Free speech is well-protected by the courts. The US Code's sections 2381 to 2385 deal with acts of
treason, sedition, and subversion that call for the overthrow of the
government. However, the law of sedition is rarely enforced in order to uphold
the right to free speech.
New Zealand
The Crimes (Repeal of Seditious Offences) Amendment Bill, which was
introduced in 2007 and took effect on January 1, 2008, abolished the crime of
"sedition."
United Kingdom
In the UK, the sedition law was finally
repealed in 2009 after becoming
obsolete in the 1960s.
Sedition by an alien—one who is a resident but not a citizen of the country—is still an offense.
Criticism of the law
This
sedition law is always criticized especially in the colonized country due to
its colonial relic it resembles as it was introduced by the colonial
power to quell
the anti-colonial movement. The natives of the colonies
suffered from this barbarian law. Many colonies after gaining independence repealed
or eased the inherited law of sedition. The government misuses
this law to suppress the
opposition party, especially government attacks on media platform under this law.
This law has been criticised also for putting
restrictions on the fundamental right of free speech
and expression. The provision of it is that any individual charged with
sedition will be barred from government jobs and they cease to have a passport.
People charged with sedition are required to present
themselves whenever required
by court or government which is
a complete violation of the right to
live with dignity.
India
signed the International Covenant on Civil and Political Rights (ICCPR) in
1979, going against its international commitment. There are sections in both
the IPC and the Unlawful Activities Prevention Act that make "disturbing
the public order" or "overthrowing the government by violence and criminal means" illegal. These are adequate to safeguard national integrity. Section 124A is not
specifically required.
Argument for the support
of sedition law
The IPC's Section 124A is helpful in the fight against terrorist,
separatist, and anti-national organizations, which is why it is supported.
Additionally,
it shields the elected government from illegal or forceful attempts to
overthrow it.
If
disrespecting the court results in criminal prosecution, then disrespecting the
government should also result in criminal prosecution. The stability of the
state depends on the legal government remaining in place.
In several
districts of states,
Maoist rebel groups
successfully run a parallel government. These organizations are outspoken supporters of a revolution to
topple the state legislature.
Suggestion
The government should not always use the law of sedition to quell its
criticism, as India is a democratic country and criticism is an essence of
democracy. Sedition provision should be made less stringent against its
citizens.
The government should welcome criticism with an open hand but not always.
Sedition should only be used against terrorists or those who tend to
disturb the public peace.
Government
– citizen relation is like of parent and their children, parent don’t abandon
their children for their disrespect. The government should treat citizens as
its children.
Sedition law should be reformed or reviewed
from time to time.
Conclusion
India is the largest
democratic country in the country
and its people
have fundamental rights of
freedom of speech and expression. Criticism is an essential ingredient of any
democratic institute. The government should not use sedition law arbitrarily
against its own citizens. The purpose of the sedition law should be to secure
national integrity of the nation. Sedition law must be reviewed in order to
satisfy the restriction mentioned under article 19 of the Constitution.
Bibliography
·
Indian Penal Code,1860 Act no. 45 of 1860
·
Harikishan Sharma, ‘The most number of sedition cases from last 8 years came from Assam’, August 2022, https://indianexpress.com/article/india/most-number-of-sedition- cases-in-last-8-years-came-from-assam-ncrb-data-8131263/
·
Praveen Shekhar, ‘How countries junked sedition laws’
May 2022 https://www.indiatoday.in/law/story/how-countries-junked-sedition-law-supreme-court- section-124a-1948152-2022-05-11
·
Blog ipleader -Sedition law’ https://blog.ipleaders.in/sedition-
law/#:~:text=Introduction,public%20disorder%20in%20the%20nation.
·
Lawrence Liang ‘Sedition and status of
Subversive speech in India’, Feb 2016,https://thewire.in/law/sedition-and-the-status-of-subversive-speech-in-india
·
A G Noorani, How SC brought back sedition law in
India, July,2021https://frontline.thehindu.com/the-nation/how-a-supreme-court-judgment-brought- back-the-sedition-law-in-india/article33481062.ece
·
Lassiter, J. C. 1974.Scandalum Magnatum: The “Scandal of Magnates” in English Law,
Society, and Politics,
Article Information
SEDITION LAW IN INDIA
Authors: GAURAV KUMAR, ANIKET KUMAR, DR VIVEK KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/12
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.