In recent times, the country has witnessed many debates and discussions regarding freedom of speech and expression. Rightly so, because if we compare our nation to what it stands today from when our constitution was being created, we can see a remarkable difference. When our constitution came into force there were communal riots everywhere due to the partition so, the lawmakers contrary to their American counterparts had to put restrictions on free speech keeping in mind the conditions that persisted then. But, those conditions aren’t prevalent now and hence there is an urgent need to look at these restrictions in a new light and either reform or abolish some of these laws. This article deals with one such law called Sedition and its constitutionality.
What is Sedition?
Sedition can be defined as conduct or speech that incites people to rebel against the authority of a state. The term first came up in the Elizabethan Era as the notion of exciting by words or writings disaffection towards the state or constituted authority. The term sedition is defined in the Indian Penal Code under Section 124(A) and reads as: “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.”
This provision wasn’t a part of the original IPC, 1861. It was introduced in the year 1870 by the British after the Wahabi revolt. Initially, the section only used the term “disaffection”, however, soon the term “hatred” and “contempt” were added when British realized that clever Indian nationalists were giving speeches filled with hate but made no mention of disobedience and hence got away with it. Many journalists, poets, authors and nationalistic politicians, including national heroes like Bal Gangadhar Tilak and Mahatma Gandhi were put on trial by the colonial government using this law.
Post-independence, this law came under a lot of criticism and even Jawaharlal Nehru in one of the parliamentary debates promised to “get rid” of this section. Nonetheless, there was no move by the parliament and hence the matter had to be taken up in courts. Before the amendment to article 19(2), Punjab High Court mentioned that sedition went against free speech in a democratic republic and struck it down as unconstitutional.
After the amendment, Allahabad High Court followed suit. Finally, the matter was handed to the Supreme Court which gave a landmark judgement in the Kedarnath Singh v. State of Bihar case in 1962, five judges upheld sedition as constitutional. Court held that there were two views regarding article 124A in pre-independent India, the most popular view was that any speech that could cause “disaffection”, “hatred” and “contempt” was to be termed sedition and there was a minority view as well, borrowed from the English law which saw sedition as a crime against public order. In the Kedarnath case, SC went on with the minority view and said only so far as the seditious speech could incite public disorder, it was to be punishable under section 124A, rest was spared.
Although in section 124A, there is no mention of public order and the court in order to keep the provision constitutional, read into a phrase which wasn’t even present in the text. This is the reason why section 124A is one of the most grossly misused provisions in the IPC. Court took the help of article 19(2) of the constitution and in particular the term “in the interest of” and allowed the state a lot of leeways to regulate speech that it felt might be dangerous to public order.
Arguments against Sedition
Does the India of the 21st century need a British era law? Activists say that this law has been used to suppress dissent in India particularly against marginalized communities and minorities and almost every government has used this law to their benefit. In 2012-13, this law was slapped on thousands of people protesting against the Kudankulam Nuclear Powerplant in Tamil Nadu. Recently, hundreds of cases of sedition were filed against Anti-CAA protestors in Uttar Pradesh.
Courts see sedition as a serious offence, making it almost impossible for the accused to seek bail and hence, the process of a long drawn trial then becomes the punishment. The number of sedition cases being filed each year has been on the rise. According to the NCRB data, between 2016 to 2018, 332 people were arrested under the sedition law, but only 7 were convicted. Lawyers say the problem is not the conviction rate, but mere opposition to the government is being termed as ‘anti-national’, making it easier for the police to make arrests, citing any protests as a threat to public order. Activists, writers and even cartoonists have been booked under this section.
The biggest opposing factor to the sedition law is that its definition remains too broad. These definitions cover both the harmless and the harmful act. Under this, strong criticism of the government policies and its personalities fall under the ambit of a ‘seditious’ act. In August 2018, the Law Commission of India published a consultation paper, to revisit the sedition law, recommending that it was time to either amend or repeal section 124A. It wants to present various issues before the public for a national debate. An important question, in particular, was raised: How is it justified by India to keep an offence that was used by the British to suppress the freedom struggle, when the same law has been abolished by Britain ten years ago.
Arguments in favour of Sedition Law
While people who argue in favour of this law say it is a necessary evil to combat anti-national propaganda. It also serves to protect the elected government from being overthrown by violent and illegal means. The existence of a government established by law is an essential condition to maintain a stable state.
Many states in India have large districts which are in direct control of Maoists and rebel groups who openly advocate overthrowing of the state government by a revolution. Simply abolishing section 124A would do the country more harm than good. Parliament has made it clear that it is not taking any steps to repeal this law. Minister of State of Home Affairs, Nityanand Rai in a reply to Rajya Sabha in July 2019 said, “There is no proposal to scrap the provision under the IPC dealing with the offence of sedition. There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements”.
India, being the largest democracy in the world, should defend its democratic values which entail right to free speech and expression, the idea of labelling something as ‘seditionary’ just because it is not in accordance with the government policies should be denounced. Law commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. Given that this law favours the government, it is unlikely that it will be scrapped anytime soon, however, this law shouldn’t be misused to curb free speech or dissent.
Better that ten guilty persons escape than that one innocent suffer