In a huge democracy like India there is always a rift between government and its citizens.
But it is an undeniable fact that each resident has been offered opportunity to speak and express their point of views under Article 19(1)(a) of the Constitution of India. But at any condition this opportunity or right cannot be absolute and some reasonable restrictions have been imposed on this under Article 19(2).
When a person does an act by his words, signs or representation, which is held to be disdainful towards the Government or disrupt the public peace or harmony of the state, at that point such act is punishable under section 124A of Indian Penal Code, 1860.
The provisions of Section 124A is exceptionally wide and it covers the act of defamation as well excluding any kind of criticism made with bona fide intention.
History of Sedition Law in India
Initially the Law of Sedition was placed in the Code, under Section 113 when Thomas Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was omitted from the actual Code.
Then finally it was presented in the Indian Penal Code, 1860 (Section 124A); the Code of Criminal Procedure, 1973 (Section 95); the Seditious Meetings Act, 1911; and the Unlawful Activities (Prevention) Act [Section 2(o)].
The bare reason for such a law is the possibility of disaffection that we have acquired from the British rulers. Disaffection has been characterized as an inclination that can exist just between the rulers and the ruled. Sedition law came into force in British India to reduce the wave of anti-establishment, to bind people to accept the government as a ruler.
However, the Drafting Committee of the Constitution included sedition law to maintain the public order and to prevent the abuse of the power of the fundamental right to freedom of speech and expression, Article 19 of the Constitution of India.
But it was omitted from the list of exceptions of the freedom of speech and expression. But in August 1870, the law member of the Governor General’s Executive Council, Sir James Fitzjames Stephen, draftsman of the Indian Evidence Act, 1870, reintroduced it to read: “Whoever … 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…”[i]
Though many of the Assembly raised objection that time on the word ‘sedition’ and by saying that India had already experienced a massive misuse of sedition laws.
Sedition Law and Some Precedents
Section 124A of the Indian Penal Code explains sedition in broad and magnanimous terms.
As we know initially it was not a part of the Constitution and was even dropped once but it was introduced in the first amendment, which also included detailed limitations on freedom of speech.
The then Prime Minister Jawaharlal Nehru was categorical in his belief that the offence of sedition was fundamentally unconstitutional and told “now so far as I am concerned [Section 124A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons. The sooner we get rid of it is better.”[ii]
But still now Sedition law is one of the most controversial topic. Recently Kanhaiya Kumar,[iii] Former President of Jawaharlal Nehru University Student Union, Patidar leader of Gujrat Hardik Patel[iv] was slapped with sedition charges. Even in the year 2014, some of the Kashmiri students were charged with sedition for supporting Pakistan in a cricket match between India and Pakistan.[v]
In the case of Shreya Singhal v Union of India[vi] the bench of Justice Chelameswar and Justice Rohinton Fali Nariman drew a clear distinction between “Advocacy” and “incitement”, in which only incitement can be punished. And therefore held, only the words and speech which cause incitement to “imminent violence” can be criminalized and punished. Mere using words however distasteful, do not constitute sedition.
In the famous case of Kedar Nath v State of Bihar[vii] the five-judge bench of the Supreme Court held that, Section 124A and Section 505 of the Indian Penal Code are constitutionally valid. But at the same time Supreme Court observed that the sedition law must be narrowly interpreted and if given wider interpretation, it would not survive the test of constitutionality.
The Apex Court sustained the constitutionality of Section 124A, and explained the meaning of creating a chaos, or disturbance of law and order and provoking mass against the State.
Thus Supreme Court laid down a clear distinction between criticism and unfaithfulness to the State.
In this case the bench of the Hon’ble Supreme court referred two conflicting judgements of the Federal Court in Niharendu Dutt Majumdar v. King Emperor[viii] and the Privy Council in Emperor v. Sadashiv Narayan Bhalerao[ix].
While dealing with these two judgements, Hon’ble Supreme Court drew a conclusion that if the interpretation of the Federal Court is acknowledged, then at that point Section 124A and Section 505 would come within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression.
And in other side if the judgement of Privy Council be accepted then at that point Article 19(1)(a) and Article 19(2) would be at risk to be suppressed by those two sections.
In the case of Tara Singh Gopi Chand v. State of Punjab[x] where Allahabad High Court strongly criticized the authoritarian nature of Section 124A by upholding the fundamental right of freedom of speech and expression, which is the root of the democratic structure of our country and struck down the section as unconstitutional.\n\nIn this case Allahabad High Court held that if any strong criticism without any intention to make any public disorder also comes under Section 124A then the section must be invalidated.
In another case of Balwant Singh & Anr. v. State of Punjab[xi] where the accused had raised three slogans ‘Khalistan Zindabad’, ‘Raj Karega Khalsa’ and ‘Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da’ outside a cinema hall on 31st October 1984, the day Smt. Indira Gandhi, the then Prime Minister of India was assassinated, it was held that, two individuals casually raising slogans without provoking mass against state could not be said to be exciting disaffection towards the Government. Section 124A would not apply to the circumstances of this case.
Criticism and Opposition-these are the backbone of any democratic structure. And we should always uphold the freedom of speech and expression to strengthen the backbone of our system. India had already experienced massive misuse of sedition law during British period. So, government should take proper care and caution while using the sedition law and while making distinction between two things, whether they are claiming freedom from country or claiming freedom in country.
Sedition law is like a weapon which is essential to maintain law and order and integrity of our country. But a little lack of caution while using this could give it an authoritarian turn, which will be “anti-India”, that is against the idea of a legitimate, liberal democratic state.
[i] The Indian Penal Code, Act No.45 of 1860, §124A, Indian Code (1860).
[ii] Anushka Singh, Sedition in Liberal Democracies, in Contributions to 53 Indian Sociology Issue – Social Life of Law in India (Issue 1, Feb 2019) (Oxford University Press, New Delhi, 2018).
[iii] Ankit Singh, Revisiting the Law of Sedition in India: A Critical Study in the Light of the JNU Fiasco, available at: scconline.com (last visited on April 22, 2020).
[iv] ‘Hardik Patel held in sedition case’, available at: https://www.thehindu.com/news/national/hardik-patel-held-in-sedition-case/article30595671.ece (last visited on April 22, 2020).
[v] Sandeep Rai, Kashmiri students charged with sedition: freed after controversy, available at: https://timesofindia.indiatimes.com/india/Kashmiri-students-charged-with-sedition-freed-after-controversy-erupts/articleshow/31553407.cms (last visited on April 22, 2020).