Introduction: What is sedition?
Sedition is an offence committed against the state by an individual. It is an act of writing or speaking or expressing one’s views through any mode, which incites any kind of hatred, violence, disaffection or disloyalty among the people, against the government of a country. It is a game of intention. Under English Law, seditious intention is described as an intention which brings hatred, contempt or excites disaffection against the king, or government or Constitution of the United Kingdom, or any house of the parliament, or administration of justice etc. Sedition includes all those practices be it by word, writing or deed, which ends up disturbing the tranquillity of the state and lead the ignorant people to destabilize the government. It is done with an intention to induce discontent and to stir up the opposition to the government.
Law regarding it in India
The law of sedition is primarily embedded under Section 124-A of the Indian Penal Code (hereinafter ‘IPC’), whereas it is also mentioned under Section 95 of the Criminal Procedure Code. It also had a history under Prevention of Seditious Meetings Act, 1911 which was repealed in the year 2017. Section 124-A is placed under Chapter VI of the IPC which carries the head of “Offences against the State” which deals with serious offences including waging war against the state. The punishment for sedition under the provision is threefold. First, it can extend up to life imprisonment and may be fine. Second, imprisonment up to three years, and may be fine. The last one, only fine. It is a non-bailable offence. This provision has distinguished between bringing hatred or contempt, and exciting or attempting to excite disaffection towards the government. It appears that this provision has been set forth having the broadest range. Intention, or as we call it mens rea, of inciting hatred is an essential element here, however it is not necessary to prove that ‘actual disturbance’ was caused.
Sedition in India is viewed as a cadaver of British rule. The history of the legislation shows that the draft of Section 124-A of IPC was made at a time when mere harbouring of certain untoward feelings against the government amounted to sedition. This law primarily has an origin under the English law, which was adopted in the Indian conditions. Although sedition is stricter under the English Law and more comprehensive than what is provided in Section 124-A of IPC, yet it has never proved to be a serious threat to freedom of opinion in England. Apart from the English Law, sedition even traces its origin from the Treason Felony Act (Britain) and common law of seditious libel.
A provision on sedition was a part of Macaulay’s Draft Penal Code of 1837- 1839 under Section 113, but it was not included by the in the Code in 1860, rather it was included by inserting Section 124-A in the Amendment Act of 1870 which incorporated the clause in original draft but had certain verbal changes. This was included as a result increasing Wahabi revolts between the period of 1863 and 1870. Then, further in 1898, an important change was made in the provision by altering its language and substance. Earlier it stated “exciting the feeling of disaffection towards the government”, which was changed to “bringing or attempting to bring into hatred or contempt” in 1898. Later in 1951, after the Supreme Court decided on a couple of cases, the Constitution underwent another amendment which included the word “public order” as one of the restrictions in Article 19(2).
There have been several historical trials on sedition which included Indian Nationalist Leaders. The most well-known are the three sedition trials of Bal Gangadhar Tilak which were followed by his followers and admirers all over the country and even abroad. The most prominent trial after Tilak’s was the trial of Mohandas Gandhi in 1922, where he was charged with Shankerlal Banker for publishing three articles in the magazine ‘Young India’. The third famous sedition trial was that of Annie Basant. Post-Independence, this law was also criticised by Jawaharlal Nehru as an infringement of fundamental right in Article 19(1)(a). Thus, it can clearly be said that there lasted a long battle between sedition and freedom of speech and expression.
It is pertinent to note that the word ‘sedition’ is not at all used in the Constitution, but the argument against sedition often finds its basis in Article 19(1)(a). With the enactment of the Constitution of India, the Indian Law of Sedition acquired a new perspective. The word ‘sedition’ existed as a ground for restricting freedom of speech and expression, in the draft Constitution. But it was later changed to the phrase of “which undermines the security of or tends to overthrow the state” by the Constituent Assembly.
It is not staggering to notice that there occurred a number of instances where validity of Section 124-A of IPC was challenged after the introduction of the Constitution. The first in the queue was Romesh Thapar v. State of Madras where it was held to be unconstitutional for being outside the scope of Article 19(2) of the Constitution. There was also a case of Tara Singh Gopi Chand v. State of Punjab, where the court also held it to be unconstitutional for being violative of freedom of speech and expression. This actually happened in a trilogy of cases where the first one was Tara Singh, then Sabir Raza and finally Ram Nandan.
After the 1951 amendment, it again became a debatable topic, since the government can possibly claim that those restrictions to freedom of speech and expression were in interest of public order. But, this was well settled in 1962, where the Apex Court upheld its constitutionality, and limited the scope of its application only to the acts which involved a tendency to create ‘public disorder’ vis-à-vis Article 19(2). In the Kedar Nath case, the court overruled the Ram Nandan case and further distinguished between the “government established by law” and “persons for the time being engaged in carrying on administration”. It was finally decided that a charge of sedition can be made only if the accused has incited violence through his or her speech in question, otherwise it would attract Article 19(1)(a) of the Constitution of India.
What is the similarity between a prominent tribal rights activist, an eminent Indian author, a master cartoonist and a group of Kashmiris cheering for Pakistan in a cricket match? All of these innocents, at some time or the other, have been the victim of the ‘draconian’ law of Sedition in India. This law has been misused to a very great extent of late. Certain arrests of Aseem Trivedi, cartoonist, and several Kashmiri students show the disconnection between the actual position of law and its implementation in practical scenarios.
Similarly, even Arundhati Roy, a renowned author, when commented “Kashmir has never been an integral part of India”, was alleged of sedition. The most recent of all these incidents is, when JNUSU leader Kanhaiya Kumar along with Umar Khalid and Anirban Bhattacharya were charged for sedition for chanting slogans in JNU campus. The provisions dealing with sedition have been subject to uncontrolled scrutiny along with public criticisms, where some have even in favour of a complete repeal.
India, being a democratic country, the right to express one’s views and opinions about the government is not only advisable but also necessary for its proper operation. Hence, this is closely linked with free speech and expression. More often than not, any speech which does not have the nature of a seditious speech is alleged to be so, and as a result of that, people suffer from prosecutions simply on the account of having availed their freedom guaranteed under Article 19(1)(a). It is observed that a thing which is constitutional is not to say that it is also desirable. To say that the restrictions on the freedom of speech and expression are embodied under the Constitution, does not mean that any restriction or restraint is desirable or should be imposed.
The law of sedition serves the government and not the community as a whole. To be honest, it has become a slave of the State and has turned absolutely against the society, which as a result poses serious threats for the functioning of democracy in India.
Scope of improvement
Freedom of speech and expression is a right that should not be taken away from an individual. And, while alleging someone of sedition, it is important to note whether the speech uttered or written was just a simple observation or critique towards a specific instance or something which could be related to the functioning of the state, or it actually had the intention to create disaffection towards the Government of India. Going by Fali S. Nariman’s point of view, that sedition should be considered as an offence only if the speech incited violence or disorder, and that a mere hatred speech or expression should not amount to sedition.
There is a need of either, clarity in judicial pronouncements or a stricter law which is clear enough or a strict interpretation of current law, in order to make the law of sedition a good one and not just to take away the fundamental right granted by the Constitution. Though the court in the Kedar Nath case, as stated previously, held that a person can be charged with it only if he ‘incites violence’, but that is barely followed, and the innocents are made the victim of it.
To encapsulate, it cannot be said that the law of sedition is not required or is unconstitutional. It has its own importance to control people inciting violence. But simultaneously it should not be used as an aid to disrupt the voice of the people. It is true that the future of this law is very uncertain, but in the author’s opinion, the law is not at all disastrous or monstrous in itself, but rather its application proves to be so every time it is used to suppress the views of an individual, the reason being, it does not go hand in hand with the line of thought of the government in power.
If this keeps on happening, the values and the preamble set up by the framers of the Constitution of India, will successfully and unfortunately be defeated. It is strange to notice in several instances how the high courts have preferred to go against the decision of the Supreme Court in Kedar Nath and have held some debatable and contrary decisions.
 Sabir Raza v. State, Cri App No. 1434 of 1955.
About the Author Jaanvi [2018-23 Batch] is pursing B.B.A.LL.B(Hons.) from School of Law, Bennett University
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