Section 124A, which was enacted to effectively curtail free speech, has been highly disputed since its inception in 1870. The British inserted this Section to stifle freedom fighters who stand up for their rights in pursuit of an independent nation. Bal Gangadhar Tilak and Mahatma Gandhi were both charged with sedition. The debate over this provision got even more contentious when India attained independence, and its necessity was called into question. The objective for which the provision was adopted had now elapsed, and no alterations had been made to the broadly worded provision. Sedition law, as it currently stands, has become a political instrument for crushing dissent and free. political expression.
Section 124A of the Indian Penal Code prescribes that:
“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”
On a comparative note, seditious acts are heavily penalised. It is a cognisable, non-bailable, and non-compoundable offence. Furthermore, bail for a person charged with sedition is nearly impossible to get. As a corollary, it has been contended that there is a dearth of proportionality between the offence and its penalty. Another issue with the sedition statute is its broad range, notwithstanding the clarifications provided under the provision. Due to the extremely subjective character of the offence, judges must evaluate on a case-by-case basis whether any menace to the stability of the State has occurred and public order has been disrupted.
Queen Empress v. Jogendra Chunder Bose[1] was the first documented case concerning sedition in India. In its widely criticized ruling, the Court emphasized the difference between 'disaffection' and 'disapprobation' under the provision. Disaffection was characterized as the usage of words, spoken or written, to instil in the minds of individuals to whom the words
were intended a tendency to disobey the legitimate power of the government. The court while interpreting the scope of the provision held that
"It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government, and to hold it up to the hatred and contempt of the people, and that they were used with an intention to create such feeling."
The court in Queen Empress v. Ramchandra Narayan[2] reasoned that "disaffection" was not necessarily the polar opposite of "affection," but that attempting to "excite political discontent and alienation from their allegiance to a foreign sovereign" was to be construed as an attempt to "excite political discontent and alienation from their allegiance to a foreign sovereign.".
The Punjab High Court relied on the premise that a restriction on a fundamental right (in this instance, Article 19(a)) cannot be tolerated in Ram Nandan v. State[3] and Tara Singh v. State[4]. As a result, any broad legislation that infringes a fundamental right should be construed in such a way that the fundamental right is not infringed. In Kedar Nath Singh v State of Bihar[5], a landmark judgement confirming the constitutionality of Section 124A, the court held the same. The court used the doctrine of harmonious construction to strictly limit the section's range. The court ruled that criticism of the government cannot be classified as sedition unless it is coupled with encouragement or push to violence. The justices pointed out that if the sedition statute were given a broader meaning than this, it would fail the constitutionality test.
The court held that
“Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”
The court went on to add that
“It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.”
Several subsequent rulings addressing the legality of Section 124A have relied on this decision to establish their rationale. This is by far the most comprehensive decision on the subject of sedition. "The effect of the remarks must be measured from the criteria of sensible, strong-minded, solid and courageous persons, and not those of weak and vacillating minds, nor of those who sense danger in every antagonistic point of view," the court held in S. Rangarajan v. P. Jagjivan Ram[6]. The issue, however, is that uncertainties persist even after such standards have been established. Additionally, established criteria are not widely followed while lodging cases for sedition. One of the major arguments against sedition is its misuse as a political tool and exploitation of the broad scope.
There are various situations where sedition allegations appear to be absurd. Activists like Hardik Patel and Binayak Sen, authors like Arundhati Roy, cartoonists like Aseem Trivedi, and the people of Idinthakarai in Tamil Nadu protesting against the Kudankulam Nuclear Power Plant have all been charged with sedition. Sedition charges have also been brought against those who support the Pakistan cricket team, as ludicrous as it may appear. Seven persons were arrested on different offences, including sending WhatsApp statuses and Facebook postings hailing Pakistan's victory and shouting pro-Pakistan slogans. The police action was approved by Uttar Pradesh Chief Minister Yogi Adityanath, who said on his official Twitter account that "anyone celebrating Pakistan's triumph will face sedition charges."
These instances demonstrate how the provision has been exploited. Furthermore, in Raghubir Singh v. State of Bihar7, the court decided that a charge of sedition does not always require the accused to be the originator of seditious material. It was sufficient to show that the accused propagated or disseminated the seditious content. The law makes it perfectly clear that mere sloganeering is insufficient and that it must be accompanied by a threat of violence. The question of whether the clause should be interpreted in accordance with Supreme Court precedent does not arise during the registration of the FIR and the initiation of criminal proceedings. As a result, sedition allegations are easily levelled, but hardly ever sustain. The government's usage suggests that it has been abused to silence dissenters even when its conduct would not measure up to judicial scrutiny subsequently.
Another incentive of the government filing sedition accusations is that, regardless of whether further prosecution is warranted, the legal procedure itself serves as a deterrent to dissent. Even if a person is subsequently acquitted of sedition, the act of going through the trial is the penalty and, more crucially, a deterrent to any voice of dissent or criticism.
Ironically, after the advice of multiple law commissions, the United Kingdom themselves removed the sedition provision. The clause was seen to have a "chilling effect" on freedom of expression. and was also incompatible with the United Kingdom's international human rights duties. It's difficult to conceive why the same cannot be extended to the Indian setting. The United Kingdom Justice Minister Claire Ward argued rightly that,
“Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.... The existence of these obsolete
offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press
freedom...Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”
Finally, it has been emphasised that the courts must consider the increasing understanding and maturity of its citizens when assessing whose speech would be sufficient to encourage them to seek to overthrow the government via the use of violence. ' Words and actions that might imperil society change with time, depending on how stable that civilization is. Meetings and processions that would have been judged seditious 150 years ago can no longer be labelled seditious now. This is due to the fact that times have changed and society is stronger now than before.It only serves to undermine the public interest in having access to competing political perspectives, and such access cannot be prohibited only on the basis that it may lead to individuals adopting or acting on certain beliefs.
“The strength of a nation is not gauged by the uniformity of opinion of its citizens or a public profession of patriotism. The true strength of a nation is revealed when it does not feel threatened by its citizens expressing
revolutionary views; when there is a free and open press that can criticise the government; and when citizens do not resort to violence against their fellow
citizens, merely for expressing a contrary view. That is when we will have achieved liberty of speech. And that is when we will be truly free”. - Justice Shah This transpires at a time when the media is regarded as the fourth pillar of democracy. It is high time we open our eyes and respond accordingly.
[1] Queen Empress v. Jogendra Chunder Bose ,(1892) ILR 19 Cal 35. [2] Queen Empress v. Ramchandra Narayan, (1931) 33 BOMLR 1169. [3] Ram Nandan v. State, AIR 1959 All 101. [4] Tara Singh v. State, 1951 AIR 441. [5] Kedar Nath Singh v State of Bihar, 1962 AIR 955. [6] S. Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204.
[7] Raghubir Singh v. State of Bihar, 1987 AIR 149.
This article is written by Vikram Krishnan of Tamil Nadu National Law University.