Sedition law – a Vagary

“When the people fear the Government, there is tyranny, when the Government fears the people, there is liberty.”

                                                                                                                      ~Thomas Jefferson.

India is a democratic country; the right of a citizen is backed by the Indian constitution as commonly said, but does it really stand with the same notion of being a democratic nation is still a question.

The most common intricacies are person’s free speech, the laws and norms oppressing it presumed in the interest of society at large which has been a perennial issue since the advent of social structures and primitive democracies, “Hallmark of a democracy is that citizens have the right to question the Government on its actions”. – Justice AP Shah, Chairman of the Law Commission.

Sedition law is a Draconian colonial relic that reminds us of the demeaning past. The history of Sedition law saw peaks and valleys since time.

The narratives of the Sedition law are from Section 113 of the Penal Code 1837 drafted by Thomas Babington Macaulay which was later omitted from the actual code. In the year 1870, it was added on the suggestion of James Fitzjames Stephen, who was at the time handling legal issues in the colonial government of India.^[2]

With the rise of Wahabi activities and the fear of Muslim preachers to incite religious war in the Indian Subcontinent, the British Raj introduced this section under the title “Exciting Disaffection”. Later it was amended in 1898 through the IPC Amendment Act of 1898.

This Draconian law has often been misused by Colonial dispensation, and its legacy of misuse is still very common even after Independence as successive Indian governments do not hesitate in invoking it to curb dissent and harass individuals who are too critical of government policies.

What constitutes Sedition?

The Sedition law is enlisted under Chapter VI of the code ‘Offences against State’. Section 124A of the IPC in its present form, reads “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.“

The Sedition law in India is essential in order to protect the National Integrity and must not be used as a tool to curb free speech. The Constitution of India has made “Little or no substantive difference to the right to free speech in India”^[4].

Along with it, criticism and demand to wash away the law from our statues has always topped our legal debates and has been advocated since pre-independence.

Mahatma Gandhi in 1922, after being charged with sedition by the British Government for publishing an article in the local magazine had said – “Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of a citizen”.

 P Jawaharlal Nehru, Democratic India’s first Prime Minister, had termed the draconian law as “obnoxious” and “highly objectionable” and had observed that “the sooner we get rid of it the better”.

Lacuna in the Sedition Law:

Sedition kept drawing criticism in Independent India as well and lately it is also one of the topics for public debate catching the light on its pernicious effect on the right to free speech.

The sedition law impedes multiple Human Rights such as freedom of expression, the freedom of association, assembly, and the Right to free trial, unlike International law which backs the Human rights of a person.

The verbatim of Section 124A is often considered vague in its essence since it lacks a frame of strong guidelines. This opens a gate for selective prosecution and interpretation for law enforcement officials.

Why is it so that a cartoonist like Aseem Trivedi is jailed after arrest on Sedition charges, whereas if the same thing is spoken in words, we barely pinpoint ‘the same thing’.

The offense of Sedition is cognizable and non-bailable, and when such grievous charges are levied on a person, he/she is left with no other choice but to be tried by the sessions court until he/she meets a magistrate. Until then, the accused has to endure the problem of being in a prison, even if it’s one day.

Law, as interpreted by the Supreme Court, is no longer the same British oddment. The mighty concern of the Sedition law to get imposed is based on ‘Incitement of violence’, however in contemporary times, we do require it along with the proper remedies to safeguard the people based on their voice of criticism backed by free speech.

Adding up to it, there were certain exceptions to the right to free speech which included Sedition (and hate speech), obscenity, contempt of court, and defamation. They remain virtually unchanged in the constitution. Dissent and criticism have a wide ally in robust public debates on major policy issues as a part of a vibrant democracy.

Post-Independence, it is invoked against activists, detractors, writers, cartoonists- seeking to silence political dissent by accusing them of promoting disaffection towards the Nation. In years past, those charged include Arundhati Roy (2010), Binayak Sen (2007), cartoonist Aseem Trivedi (2012), and politicians Praveen Togadia (2003) and Simranjit Singh Mann (2005), and many more in the list. 

As pointed by The Law Commission of India in its 42^nd Report, the Indian Penal Code concisely talks about the role of the Right to criticize and the Right to offend are the rights protected under free speech.

Section 124A: Sedition, which should be invoked only in cases where the intention behind any act is to disrupt public order in order to overthrow the government with violence and illegal means. ‘Every irresponsible exercise of Right to free speech and expression cannot be termed as Sedition’.

Free speech and the test of reasonableness:

The limits of free speech are to be judged on the basis of what amounts to reasonable restrictions in the backdrop of constitutional provisions under Article 19(1) and Article 19(2) of the Indian Constitution.

Free Speech does amount to positive and negative criticism both, however for an act to be referred to as a Seditious act, negative criticism is the key, but what behavior is prohibited is the thin line you draw between speaking the truth and spreading hatred.      

The test of reasonableness is satisfied if you limit the scope of application of the provisions to the situation where any statement that you make amounts to incitement of violence. The grounds for reasonableness are based on the freedom of expression. The freedom to speak is constitutionally a fundamental right, and very important when serious topics like sedition, defamation are discussed.

However, when we think of any other laws, statues or topics for say when religious sentiments come into the picture, the freedom of speech takes a back seat, and we’re left with the option of taking care of each word, otherwise, it amounts to defamation or sedition inciting violence. When we talk about free speech absolutism should apply to every issue of every entity.

The Indian judiciary plays a very significant role in one of the notable judgments of Kedarnath Singh V/s State of Bihar, 1962. The constitution bench of Supreme Court upheld the validity of the citizen’s act and had ruled that: “… 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”.

The Court also stated that a person can be charged with sedition only if there is incitement to violence in his speech, writing, or any intention or tendency to create disorder or disturbance in law and order.

In addition to it, in another landmark Judgment of Shreya Singhal v/s Union of India, 2015 the Supreme Court eventually struck down the destructive provisions of Section 66(A) of Information Technology Act, 2000 and minutely examined the content of Article19(1)(a) and extent of restrictions.

The Supreme Court held that Section 66(A) would not apply in this case as the petitioner’s actions had no element of any tendency to create public disorder which ought to be an essential ingredient of an offense. The Court observed that regardless of the degree of derogation and insult, a certain degree of proximity needs to exist between the utterance and the potentiality of public disorder.

Conclusion:

     “The essence of democracy is the criticism of the Government.”

   ~ KM Munshi

The demand for amending the sedition law or repealing this British relic of the past decades has been growing on an outstanding scale.

Hence, there is an urgent need to first address the systematic flaws and loopholes so that no one with or without authority can misuse these laws so as to mock free speech in India.

Along with this, it’s an alarm to the government so that they can issue guidelines stating clear grounds of Jurisprudential parameters of the law of sedition, as the major problem with it is that the decisions of courts are based on the precedents where they constantly rely upon Judgments like the KedarNath case while in the case of Common cause vs Union of India, where Prashant Bhushan had filed a PIL to question the misuse of sedition law. Otherwise, the state will fail to ensure the right to dissent and the democratic fabric of the country.