On 11th of June, 2020, a student from Bangalore was granted Bail by Magistrate. This 19-year-old student was arrested on the Charge under Section 124-A of India Penal Code i.e. Sedition. The student was granted Bail because of delay by the Police in the filing of Charge sheet, also known as “Default Bail” and not on the facts or merits of the case. This student was a part of the Anti Citizenship Amendment Act protests which erupted in our Country, due to its apparently repressive clauses, and prominently because of misinformation. The arrest was facilitated by a slogan raised, “Pakistan Zindabad!” multiple times. And let’s face it, whether it is seditious or not is a question of legality, but hearing “Pakistan Zindabad!” must be intolerable for any Nationalist, be that person in support of the CAA or against it.
For the ease of understanding of Section 124-A of the Indian Penal Code, 1860, the Section is reproduced under.
Section 124-A. Sedition. – 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 in Law [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.
Sedition has been substantively understood as an offence against public tranquillity and being connected in some way or the other with public disorder.
According to Justice Fazal Ali, as his Lordship then was, Sedition undermines the security of the State usually through the medium of Public Disorder. He was also of the opinion that it is essentially an offence against the public tranquillity as much as although it is not accompanied by violence, it tends to cause it.
Justice Das, as his Lordship then was, was of the opinion that on the interpretation given by the Privy Council, the provisions of Section 124-A of the Indian Penal Code imposed reasonable restrictions on the interest of public order giving that expressions a fair and reasonably wide meaning.
Constitutional Validity – Sedition or No Sedition
The story of Constitutional Validity of Section 124-A has undergone a meandering trail. First came the case of Tara Singh Vs. State of Punjab, in this case the Supreme Court held Section 124-A of the Penal Code to be ultra vires the Constitution, as being contradictory to the freedom of speech and expression as guaranteed under Article 19 (1) (a).
After this decision of the Supreme Court, to make reparations to Section 124-A, the 1st Constitutional Amendment Act, 1951 was passed by the Parliament. In this amendment, the Legislature added a few words of the widest amplitude to Article 19 (2) viz. “in the interest of Public Order”. Thereby incorporating a few legislative restrictions on Freedom of speech and expression. Later, due to the enactment of 1st Constitutional Amendment Act, 1951, a few people were of the opinion, Section 124-A was no more in contradiction to Article 19 (1) (a) as it was saved by the reasonable restrictions laid down by the 1st Constitutional Amendment in Article 19 (2).
Even after passing a Legislation to amend the Constitution in 1951, while deciding a case the Allahabad High Court in Ram Nandan Vs. State of U.P. held that, Section 124-A imposed an unreasonable restriction on Freedom of Speech, which is not in the interest of the public at large. Hence, the Allahabad High Court held Section 124-A of the Penal Code unconstitutional.
Nevertheless, this decision was overruled by the Supreme Court in the case of Kedar Nath Singh Vs. State of Bihar. The Supreme Court held though Section 124-A imposes restrictions on Fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible Legislative interference with the fundamental rights.
A very important aspect of any crime under the Indian Penal Code is the Intention/ Mens rea behind the commission of a crime.
The Supreme Court in a 1959 judgment had held that the offence punishable under Section 124-A does not require an Intention to incite violence or public disorder. Not only this but the Court also held, it also does not require any outbreak of violence or an apprehension of it as a consequence of the speech. The contention advanced on behalf of the State that every speech made punishable under Section 124-A involves a threat to public order must be rejected as unwarranted.
To the antithesis of the above judgment, the Delhi High Court, recently (2015) while deciding an issue related to Sedition and Article 19 (1) (a) of the Constitution held, the basic foundation of the offence under Section 124-A of the Penal Code is the intention with which the language is used, and judging the intention, the utterances or the speech made should be looked at holistically and fairly without giving undue importance to separate passages.
Hence, it would not be inappropriate to say that Intention must be given enough weightage while deciding a case of Section 124-A of the Penal Code.
In recent times, also as per the instance of the 19-year-old person mentioned above, this factor was not considered by the police and the Courts to some extent, as well. As per a few judgements passed by High Courts of our Country, Intention is a paramount aspect to be pre-eminently considered before a person is charged under Section 124-A. It was in the old times, in the times of British Reign, when Mahatma Gandhi and Bal Gangadhar Tilak were charged under Sedition without even considering their Intentions (And their intentions were of course, malicious towards the British, for the good of India). It is the lack of consideration of Intention behind any Seditious material which has led to maximum acquittals of people charged under Section 124-A and a marginally a small number of people have been charge-sheeted.
The interpretation of the word “Disaffection” is paramount, as it is the backbone of the offence under Section 124-A. As per the Act, Disaffection includes disloyalty and all feelings of enmity. In the very renowned judgment of Queen Empress Vs. Bal Gangadhar Tilak [i], which was tried by Jury and the Judge presiding over this case Strachey J. held that ‘Disaffection’ simply means absence of affection. The Judge also stated that the apt interpretation to “Disaffection” is perhaps, “Disloyalty”, as mentioned in the explanation of the Penal Code. The Judge stated that the intensity, amount, or ferocity of the “Disaffection” is entirely immaterial and inconsequential. To simply understand what the Judge meant was, if a person excites or even attempts to excite, a feeling of disloyalty against the Government of India amongst other people, irrespective of the amount of disaffection or disloyalty, he shall be punishable under Section 124-A of the Indian Penal Code.
This shall also be considered whether any words said or published, brings or attempts to bring hatred or contempt against the Government established by Law in India. For better understanding Explanations from the Penal Code are reproduced below.
Explanation 2: Comments expressing disapprobation of the measures of the Government, with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.
Explanation 3: Comments expressing disapprobation of the administrative or other actions of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this Section.
In the abovementioned explanation, it has been specifically laid down that if a person protests or expresses disagreement against an act of the Government and which in no way excites disaffection towards the Government but the Actions taken by the Government, then such a person cannot be arrested under for sedition, and in fact, a person as a matter of right can question or protest or express his views against certain actions or decisions of the Government, that that person deems inappropriate. For instance, let us again consider the example of the 19-year-old, who was a participant to the protest against CAA. Factually, that person had been protesting the CAA, an act of the Government, apparently not acceptable to many people in our Country. That person had a right to disagree with an act of the Government, such protestation cannot qua the law of our land be said to be exciting disaffection against the Government of India.
An Overview of Statistics -Sedition
According to NCRB, the number of Cases being registered under Section 124-A has substantially increased from the year 2015. In the year 2018, a total of 70 cases were reported under Section 124-A but to our astonishment, only 2 concluded in Conviction. This similarly occurred in the year 2016 and 2017 when a total of 35 and 51 cases were reported in both the years respectively, but in both years only one case concluded with conviction. Also, even though 70 cases in the year 2018 were reported, according to NCRB in 2018, 190 cases had a pending and incomplete investigation.
The Government to combat similar issues has passed legislation under the name of Unlawful Activities (Prevention) Act, 1967. The Indian Penal Code and Unlawful Activities (Prevention) Act, 1967 have provisions which penalize “disrupting the public order” and “overthrowing the government with violence and illegal means”. In a popular book authored by Adv. Chintrashul Sinha, “The Great Repression” about the prevalence of Sedition in India, by the end of the book the author mentions that with the UAPA in force, Section 124-A of the Indian Penal Code is somewhat redundant.
The Unlawful Activities (Prevention) Act, 1967 was incorporated with plenty of provisions with reasonable restrictions on Freedom of Speech and Expression, Rights to Assemble peacefully and without arms, Rights to form associations and unions. One of the extremely draconian clauses of the UAPA is that a person can be detained for an unthinkable period of 180 days without charges. This gives the state power to detain a person who can allegedly prove to be a threat to our national security. In “Sedition, UAPA denial of basic freedoms” Suraj Yengde, author of Caste Matters, has gone a step ahead and has stated these laws get their DNA from the British-era brutality. He compares these allegedly draconian laws to the Rowlatt Act which permitted incarceration without a trial. He lastly states that to continue with such draconian legislation is to continue with the legacy of British oppression.
According to the reports published on NCRB, in 2017, 1,554 people were arrested under the charges of UAPA. In the year 2018, a total of 1,182 cases were registered under UAPA in our Country.
Because of its oppressive clauses, UAPA has had to face the same amount to criticism as Section 124-A of the Penal Code. Even after bringing in Unlawful Activities (Prevention) Act, 1967, the offence of sedition under Section 124-A stands audaciously.
The number of FIRs with the charge under sedition has increased in recent years, as people are being more vocal about their disagreements with the ruling Government. And being vocal about disagreement with the Government has more often than not led to violent protests, to put it in words of Penal Code, brings or attempts to bring hatred or contempt, or excites disaffection against the Government.
Similarly, on more and more analysis of Section 124-A and the execution of the charge, more and more ambiguities are found in the execution of the charge. Hence, it won’t be inappropriate to state that the Legislature shall give due consideration to the validity of the offence mentioned under Section 124-A and if not the validity, but the facilitation of the charge. It should not be facilitated at the stake of fundamental freedoms and rights bestowed upon people by the Constitution.
[i] Queen Empress Vs. Bal Gangadhar Tilak I.L.R., (1898) 22 Bom. 112
About the Author: Mr Suyash works as an Associate to at D. N. Salvi and Associates, Bombay.
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