04th Aug 2021

Author: Sahid Ahamed, B.A.LL.B , 2nd year, Surendranath Law College (Calcutta University)

Introduction

“Sedition is being used as a sort of iron hand to curb free speech, which I think is an overreaction to the expression of opinion (or an) expression of views by people.”[1]

Patriotism and nationalism have always been very personal feelings for many people all over the world. It is not necessary to convey one’s love for the country in words, as long as one’s feelings are genuine. Recent events in India show that this is not the case since individuals are urged to wear their patriotism on their sleeves and abstain from criticizing government institutions, even if they do so intentionally. The Indian government labels them as “anti-nationals” and charges them with sedition under Section 124-A of the Indian Penal Code, which is a severe punishment. Sedition has long been a contentious issue in Indian constitutional law, with views ranging from calls for the complete repeal of the provision from our statute books to arguments for the complete preservation of the provision, and with greater force. Various other individuals and organizations have argued for maintaining the provision but implementing it within defined legal limits in order to strike a balance between national security and fundamental rights.

Meaning of sedition

In general, sedition means act or rebel against the Government. In the legal sense, sedition contains all those acts and practices, which have their object to excite dissatisfaction towards the Constitution, or the Government, or the parliament to create public disorder or disturbances, which have a tendency to subvert the government by violence menace.

The following are the essential elements of the section[2]

  1. Bringing or attempting to bring into hatred
  2. Exciting or attempting to excite disaffection against the government of India.
  3. Such act or attempt may be done (a) by words, either spoken or written, or (b) by sign, or (c) by visible representation
  4. They must be intentional

Explanation 1 of this section sets out the scope of disaffection, and Explanation 2 & 3 criticism of Government measures or attempting to excite hatred, contempt or disaffection towards the Government established by law, is not sedition.[3] What is contemplated under this section is not the actual causing of hatred or contempt but even an attempt to do so. Therefore, ultimately, whether he actually fails or succeeds is not material. It is sufficient if he even attempts at causing hatred or contempt.

Background to the introduction of sedition provision in 1870.

It was passed at a period when India was governed by a foreign colonial authority. The British would not tolerate any kind of criticism against them. Their only objective was to deprive the citizens of this country of their rights, especially their right to freedom of expression. It should be remembered that sedition was not included in the original IPC in 1861 but was added in 1870 by the British Colonial government in response to revolutionary actions and discontent against the colonial rule and was therefore primarily used to suppress anti-colonial activities by Indians. Initially, it was said that the provision of sedition Section 124A was not meant to curb legitimate criticism but rather to be utilized only when the writer or speaker directly or indirectly urged or intended to provoke the use of force or violence. Following the country’s independence in 1947, the sedition law drew a great deal of criticism since it was seen as a colonial rule imposed on local Indians and as a significant barrier to freedom of speech & expression.

In fact, in 1951, the then Prime Minister, Jawaharlal Nehru, while introducing the Constitution (First Amendment) Act, 1951, in Parliament, he remarked that “Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in variety of ways and apart from the logic of the situation, our urges are against it.”[4]

 

Sedition in the Indian Penal Code

 

In 1891, the first significant instance of sedition was reported; in the case of Queen-Empress v. Jogendra Chunder Bose[5], the editors of a Bengali journal were prosecuted for criticizing the British government’s policies, particularly the Age of Consent Act of 1891. The publishers contended that the offence of sedition only penalized the writing of seditious content, not its publication, and they also questioned the validity of existing laws of sedition. The Calcutta High Court ruled that the publishers could not be excused from legal responsibility merely because they did not write the seditious material since their distribution of the magazine was meant to be read by the target larger population. The High Court further emphasized the difference between the words “disapprobation” (legitimate criticism) and “disaffection” (feeling contrary to affection). The court decided that since only disaffection is punished, the crime of sedition does not violate people’s rights.

 

The next landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak[6]. In this case, Bal Gangadhar Tilak was prosecuted for sedition for suspected instigation via speech that resulted in the murder of two British officials. Strachey J of the Bombay High Court also offered the same interpretation to Sec. 124A wherein he held that the offence of sedition as outlined in S. 124A ‘consists in exciting or attempting to excite in others certain feelings towards the Government’ and ‘not’ in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small’.[7] “Feelings of disaffection to the Government” is “equivalent to an attempt to produce hatred towards the government as established by law, to excite political discontent, and alienate the people from their allegiance.”[8]

On March 18, 1922, Mahatma Gandhi[9] was charged with sedition under Section 124A to undergo imprisonment for 6 years for attempting to incite disaffection against His Majesty’s Government, established by law in British India. In his famous statement at trial, Gandhi joyfully pleaded guilty to sedition and criticized Section 124A as “designed to suppress the liberty of the citizen”. He contended, “affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Colonial Continuity: Why is this law bad?

 

Eminent author Gautam Bhatia in his book Transformative Constitution wrote that “transformation of Indians from subjects to citizens,” but its provisions remained indifferent to section 124A of the Indian Penal Code, 1860, which relates to sedition. This law has an infamous history, as the colonial administration and post-independence governments whimsically applied it to stifle political opponents and dissenters.[10]

During his infamous 1922 trial for sedition, which was instituted for writing articles in Young India, Mahatma Gandhi called this law the “prince among the political sections” of the IPC. In the 2016 JNU sedition case, it was alleged that “anti-national” slogans were raised, though the matter still awaits trial. In recent years another egregious use of the law was the charge of sedition against 10,000 Adivasis from a district in Jharkhand who were fighting against the seizure of their land by the government. These troubling events demonstrate how Section 124A has become massively misused.[11]

In February 2020, UP Police filed Sedition Case Against 135 CAA (Citizenship Amendment Act) protesters in Azamgarh[12], the police in Jharkhand’s Dhanbad city, filed Sedition charges against more than 3,000 people for protesting against the Citizenship Amendment Act.[13]

 

In January 2020, Bidar’s Shaheen Urdu Primary School, Karnataka had performed a play sensitizing the children to the impact of NRC-NPR on the citizens, in which one participating child reportedly criticized the Prime Minister, Narendra Modi. Karnataka Police slapped Section 124(A) and Section 153A, Indian Penal Code, 1860, respectively and arrested the headmistress and the mother of the child who allegedly made the derogatory comment against the Prime Minister, and sent them to judicial custody. As young as 6 to 7 years, the children were questioned, harassed, and intimidated by the police for hours on several days, for merely participating in a play that talked about the ill-effects of the NRC, and allegedly criticize the Prime Minister.[14] Later Bidar Court granted bail to the mother of a student, Headmistress of school in Sedition matter and observed that “What the children have expressed….[T]here is nothing to show that, he has committed the offence of sedition. The dialogue, in my considered opinion, does not go to bring into hatred or disaffection towards the Government.”[15]

 

A Delhi Court on February 2021 granted bail to 22-year-old climate activist Disha Ravi, who was charged under sedition & arrested by the Delhi police from Bengaluru for allegedly sharing with Swedish climate change campaigner Greta Thunberg a “toolkit” related to the farmers’ protests. “Considering the scanty and sketchy evidence on record, I do not find any palpable reason to deny bail,” Additional Sessions Judge Dharmender Rana noted in the order granting bail.[16]

 

We have already seen examples of the State bringing sedition against individuals like Binayak Sen, Arundhati Roy, S.A.P. Geelani, Aseem Trivedi, Uday Kumar (Kudankulam activist), the more recently against Kovan, etc. The arrest under the law of sedition strikes ‘the right to dissent’ given under the democratic constitution of the country.

Conviction Rate:

According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period.[17] This obviously shows that the State misused this power to bring unfounded or frivolous lawsuits. Individual’s freedom of expression will inevitably be hampered as a result of such abuse since they will be forced to self-censor. The invocation of sedition under Section 124A must thus be reviewed urgently, and it must be ensured that the crime is employed only within specified legal boundaries in order to strike a balance between national security and the basic rights of people.

Right to Dissent

Article 19(1)(a) of the Constitution guarantees the freedom of speech and expression.[18] Article 19(2) permits the State to impose ‘reasonable restrictions,’ ‘in the interests of’ eight special grounds. Three of these grounds are India’s sovereignty and integrity, the security of the State, and public order, suggesting that the regulation of subversive or revolutionary speech is an important constitutional concern.[19] Of course, Article 19(2) does not interpret itself; the question of what constitutes a reasonable restriction in the interests of public order has to be decided by the courts.[20]

 

Speaking at the workshop, Justice Deepak Gupta of the Hon’ble Supreme Court expressed

Criticism of the Government by itself cannot amount to sedition. In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. You cannot force people to have affection for the Government and merely because people have disaffection or strongly disagree with the views of the Government or express their disagreement in strong words, no sedition is made out unless they or their words promote, incite, or tend to promote, incite violence and endanger public order.[21]

Judicial interpretations

 

The Constitutionality of the Section was challenged in the case, Ram Nandan vs. State of Uttar Pradesh,[22] wherein the Allahabad High Court held that Sec. 124-A was unconstitutional. The Court stated that “mere criticism of the government without any tendency to create public disorder has caught within the mischief of Sec. 124-A, then that section would be invalidated” as it restricts freedom of speech and expression. This decision was overruled in Kedar Nath Singh vs. State of Bihar,[23] wherein the Constitution Bench of the Court held Section 124-A constitutional. The Court held that

[D]isloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.[24]….A citizen has a right to say or write whatever he likes about the Government or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder[25]

The words clearly suggest that the colonial decision test of sedition is an objective test, not a subjective test. Sedition can only be attracted when the words were spoken must have the tendency to create public disorder or incite violence. Therefore not only that the words should create feelings of disloyalty, but also it should lead to the subversion of the government. Therefore, Apex the court has used the test of the proximate connection between the speech and its effect. It makes us evident that mere speech does not attract the provision of sedition unless there is actual harm, violence, or incitement to violence.

This test of proximate nexus was even borrowed in Balwant Singh vs. State of Punjab,[26] the accused were alleged to have raised some slogans on the day Smt. Indira Gandhi, the then Prime Minister of India, was assassinated in a crowded place. The prosecution case was that they raised slogans a couple of times, which however did not evoke any response from the public. No disturbance whatsoever was caused, and the people, in general, were unaffected and carried on with their activities. The Supreme Court held that mere raising of casual slogans, once or twice by two individuals, alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the government as established by law in India. The court felt that the police officials ‘read too much’ into the slogans and exhibited a lack of maturity and sensitivity in arresting the two government servants.[27]

There are other instances where the Court affirmed that, if an individual criticizes and raises slogans against the army, she/he cannot be booked under the Section as the ‘army’ does not constitute a ‘government established by law’ but is only engaged in carrying on the government machinery.[28]

Similarly, a person cannot be charged under this provision for criticizing the Prime Minister or her/his acts. The Court in Javed Habib v. Govt. of NCT Delhi,[29] remarked, “Where the leader of a political party becomes the head of the government, any criticism of the person and his policies as head of the political party or Government cannot be viewed as sedition.”

Bona fide Criticism of the Government

 

The Section expressly permits legitimate criticism of government actions and policy. As a result, harsh remarks or criticism used by a person to show disapproval of the government would not draw the Section. The sole exception is that such criticism should not be used to encourage public disturbance or violence. Notably, famous politician Mr. Arun Jaitely was charged with sedition for criticizing the verdict of the SC in the National Judicial Appointments case. Quashing the charges, the Court held, “A citizen had a right to say or write whatever he likes about the Government or its measures by way of criticism or comments so long as he did not incite people to resort to violence against the Government established by law or with the intention of creating public disorder.”[30]

Upholding the citizens’ right to criticize the government has quashed the FIR lodged against Journalist Vinod Dua over his YouTube show on communal riots in Delhi earlier last year. Citing Kedar Nath Judgment[31] , the Court held,

… a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder; and that it is only when the words or expressions have a pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.[32]

 

Previously dismissing a PIL seeking action against former Chief Minister of Jammu and Kashmir, Farooq Abdullah, for his comments on abrogation of Article 370 of the Constitution, the SC held that “It is not seditious to have views different from the Govt,“[33]

While granting bail to the activist Disha Ravi in the “Toolkit” case, the Delhi High Court observed that ….[C]citizens are conscience keepers of government in any democratic Nation. They cannot be put behind the bars simply because they choose to disagree with the State policies. The offence of sedition cannot be invoked to minister to the wounded vanity of the governments. Relaying upon the case Ministry of I&B Vs. Cricket Association of Bengal,[34] The Court observed that…[T]he right to dissent is firmly enshrined under Article 19 of The Constitution of India. In my considered opinion, the freedom of speech and expression includes the right to seek a global audience. There are no geographical barriers on communication. A Citizen has the fundamental rights to use the best means of imparting and receiving communication, as long as the same is permissible under the four corners of law and as such have access to audiences abroad.[35]

Suggestions for Revising S.124-A

 

 “Every irresponsible exercise of the right to free speech and expression cannot be termed seditious. For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section”– Law Commission published in its report, and it comes with a serious relook at Section 124A of IPC and ignited debate on balancing ‘Dissent’ and ‘Criticism’. It also suggested ten crucial issues that require careful consideration while revisiting Sedition law.[36] When we have sufficient safeguards to protect our unity, integrity, and public order, such as Reasonable restrictions provided under Article 19(2), the Unlawful Activities (Prevention) Act, 1967, Sections 121,122,123,131,141,143,153-A, the Contempt of Court Act, 1971, and the Prevention of Insults to National Honour Act, 1971, why do we need a Draconian colonial law and place the onus on the government to use it arbitrarily?

On May 31, 2021, the Supreme Court restrained taking coercive action against two Telugu channels for airing critical views on the Andhra Pradesh government. A three-judge bench headed by Justice D.Y. Chandrachud raised concerns about the indiscriminate use of sedition against critics, journalists, social media users, activists, and people for expressing their complaints about the government’s handling of COVID-19. “We are of the view that the ambit and parameters of the provisions of Sections 124A (sedition), 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation,” the court noted in its order. “It is time to define the limits of sedition,” Justice Chandrachud said.[37]

Conclusion

Each and every right is associated by a corresponding responsibility, and as a result, the right to dissent must be supported by a correlative obligation, namely the duty to tolerate disagreement that can be discerned in accordance with constitutional provisions. This is a valid argument for pluralism. However, we must also take basic responsibilities seriously, such as the responsibility to maintain the Constitution and its principles, the obligation to safeguard Indian sovereignty, unity, and integrity, and the duty to foster peace and brotherhood among all people (See Article 51-A). Another important obligation that must be addressed is the duty to tolerate; otherwise, constitutional democracy will be surrounded, and the precious right to dissent will be imprisoned by a vigilante mob.

[1]Former Supreme Court Judge, Justice Madan Lokur on September 14, 2020 during a virtual discussion on ‘Freedom of Speech and the Judiciary.’

[2] Indian Penal Code 1860 § 124A; See also K D Gaur, Textbook on INDIAN PENAL CODE 369 (7 ed.).

[3] Id.

[4]Selected Works of Jawaharlal Nehru, Vol. 16, Part I, p. 200.

[5](1892) ILR 19 Cal 35.

[6](1897) ILR 22 Bom 112.

[7]Id. at 135.

[8] Queen empress v. Amba prasad, (1897) ILR 20 All 55; See alsoK I Vibhute, Criminal Law 386 (14 ed.).

[9] Emperor v. Mohandas Karamchand Gandhi and Shankaralal Ghelabhai Sankar, Session Case No. 45/1922 Ahmedabad.

[10]ZAIN HAIDER MOHD ZEESHAN AHMAD, Lawmakers Must Examine: Does Free India Need a Sedition Law?, TheLeaflet (2021), https://www.theleaflet.in/lawmakers-must-examine-does-free-india-need-a-sedition-law/ (last visited Jun 30, 2021).

[11]Supriya Sharma, 10,000 people charged with sedition in one Jharkhand district. What does democracy mean here?, Scroll.in , https://scroll.in/article/944116/10000-people-charged-with-sedition-in-one-jharkhand-district-what-does-democracy-mean-here (last visited Jun 30, 2021).

[12]Anti-CAA Protests: UP Police File Case Against 135, Arrests 20 On Sedition Charges In Azamgarh,  https://www.ndtv.com/india-news/anti-caa-protests-up-police-file-case-against-135-arrests-20-on-sedition-charges-in-azamgarh-2176202 (last visited Jun 30, 2021).

[13]CAA protests: Sedition case filed against 3,000 people in Jharkhand’s Dhanbad, https://scroll.in/latest/949203/jharkhand-sedition-charges-filed-against-over-3000-anti-citizenship-act-protestors-in-dhanbad (last visited Jun 30, 2021).

[14]Amritananda Chakravorty, Sedition law has no place in a democratic society, TheLeaflet (2020), https://www.theleaflet.in/sedition-law-has-no-place-in-a-democratic-society/ (last visited Jun 30, 2021).

[15]“Ingredients of Sedition are prima facie lacking” – Bidar Court grants Anticipatory Bail to Shaheen School management in Sedition case, , https://www.barandbench.com/news/litigation/bidar-court-grants-anticipatory-bail-to-shaheen-school-management-in-sedition-case (last visited Jun 30, 2021).

[16] State v. Disha A. Ravi, Bail Application No. 420/2021, decided on 23-02-2021.

[17]Rahul Tripathi, Arrests under sedition charges rise but conviction falls to 3% – The Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/arrests-under-sedition-charges-rise-but-conviction-falls-to-3/articleshow/81028501.cms (last visited Jun 30, 2021).

[18] India Const. art. 19, cl. 1(a).

[19] India Const. art. 19, cl. 1(b).

[20] Chintamani Rao v. State of M.P., AIR 1951 SC 118.

[21]Valedictory address on “Law of sedition in India and freedom of expression” by Hon’ble Mr. Justice Deepak Gupta, Judge, Supreme court of  India, at the workshop of lawyers, organized by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, Gujarat on 07.09.2019.

[22] Ram Nandan v. State of Uttar Pradesh, AIR 1959 All 101.

[23] Kedar Nath v. State of Bihar, AIR 1962 SC 955.

[24]Id. ¶36.

[25]Id. ¶ 37.

[26] Balwant Singh v. State of Punjab, AIR 1995 SC 1758.

[27] See K I Vibhute, supra note 8 at 390.

[28]Bilal Ahmed v. State of Andhra Pradesh, (1997) 7 SCC 431; Balbir Singh Saini v. State of Haryana, 1988 SCC Online P&H 616.

[29] 2007 SCC Online Del. 891, ¶5.

[30]Arun Jaitley v. State of Uttar Pradesh, (2015) SCC Online All 6013.

[31]Supra, Note 23.

[32]Vinod Dua v. Union of India, 2021 SCC OnLine SC 414, (decided on 03.06.2021).

[33]Rajat Sharma vs. Union of India, Writ Petition(s) (Civil) No(s). 80/2021.

[34] (1995) 2 SCC 161.

[35]State v. Disha A. Ravi, Bail Application No. 420/2021, decided on 23-02-2021.

[36] Law Commission Of India, Consultation Paper on “Sedition”, (Aug 30, 2018).

[37]Krishnadas Rajagopal, It’s time to define limits of sedition, says SC, The Hindu, May 31, 2021, https://www.thehindu.com/news/national/its-time-to-define-limits-of-sedition-says-sc/article34688053.ece (last visited Jun 30, 2021).

 

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