In India, the freedom of speech has been guaranteed under Article 19(1)(a) of the Constitution of India, Act, 1950, which is in Part III of the Constitution devoted to Fundamental Rights. The Fundamental Rights has been given the highest position in the Constitution and any violation of it is a deterrent to democracy.
Even the Parliament (occupied by representatives elected by the citizens of India) cannot make laws inconsistent with Part III (Fundamental Rights) of the Constitution and if they do so, such laws will immediately fall under the radar of ‘Judicial Review’ under Article 13.
But the guarantee of free speech under Article 19(1)(a) has a concrete wall before it in the name of ‘sedition law’ under Section 124A of the Indian Penal Code, 1860.
The main rationale behind the continuance of sedition law even after independence was to avert the citizens of India from misapplying the free speech that would instigate or incite others towards hatred and violence or make an attempt to do so.
Further, it can be argued that according to Article 19(3) of the International Covenant on Civil and Political Rights, 1966 (ICCPR) which India has signed and ratified provides limitations upon Freedom of Expression under Article 19(2) when it is necessary for the respect of the rights or reputations of others, for the protection of national security, public order or public health or morals.
The Legislators then must have felt it necessary to keep the sedition law as it is, to prevent the misuse of free speech provided to the people of India. India is a multi-cultural country, wherein different cultures, caste, religion, and creed reside together it wouldn’t be a difficult task to spark hatred among each other through speech because every individual has a different opinion.
But, the problem arose when the sedition law was abused and misused by the authorities in power to keep things in their favor – this poses a question of whether we should readdress at it.
GENERAL MEANING OF FREE SPEECH AND SEDITION:
- Free Speech means the right to express your opinion publicly.
- Sedition means language or behavior that is intended to persuade other people to oppose their government.
PROVISIONS ON FREE SPEECH AND SEDITION:
- Article 19(1)(a) of the Constitution of India Act, 1950:
All citizens shall have the right to freedom of speech and expression.
- Article 19(2) of the Constitution of India Act, 1950:
This Article empowers the State to put ‘reasonable’ restrictions on the following grounds, e.g., the security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to offense and integrity and sovereignty of India.
- Section 124A: Sedition Under Indian Penal Code, 1860
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, 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.
LANDMARK JUDGMENTS ON SEDITION BY THE SUPREME COURT OF INDIA:
The Supreme Court held that ‘a citizen has the 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’.
The Supreme Court says, ‘Raising slogans (here there were allegations of yelling ‘Khalistan Zindabad’) a couple of times… which neither evoked any response nor any reaction from the public cannot attract such punishment.’
The Supreme Court drew a clear distinction between ‘advocacy’ and ‘incitement, stating that only the latter would be punished.
ARGUMENTS ON SEDITION VERSUS FREE SPEECH:
“Speech is silver, silence is gold”
- Mahatma Gandhi
The silence of the people against the unruly and unconstitutional behavior and actions of the Government is harmful for the nation. The sedition law has been used to distort any kind of opposition or dissatisfaction against the political parties in power.
The utility of Section 124A of the Indian Penal Code, 1860 has increased in recent years, Why? To tranquil people who are showing their concerns against the various reforms of the Government.
The age-old Section 124A must be either eschewed from the statute books and everyday vocabulary or amended, but instead, the Government has been using it tremendously to drown any kind of discontentment of the people of our country.
Slowly and gradually Article 19(1)(a) of the Constitution of India Act, 1950 is losing its essence and is being pushed down into the pit of fire, Reason?
The government is using the weapon called ‘sedition law’, owing to which people who are willing to speak are retreating themselves, and those who are still moving forward have to face imprisonment either under sedition law or under The Unlawful Activities (Prevention) Amendment Act, 2019.
Another technique adopted by the Authorities is misreading the statements to attribute motives – which happened in Prashant Bhushan’s case. What is more dangerous is that people are slowly forgetting to express their opinions freely.
Dr. Kafeel Khan was detained under the National Security Act, 1980 over a speech made against the Citizenship Amendment Act, 2019 – his speech was misinterpreted and motives were ascribed to them. The Allahabad High Court quashed his detention and held that his speech was intended to promote national integration and unity.
The students, activities, journalists, and common citizens are randomly put behind the bars by misjudging their voices and labeling them as anti-social elements, invoking The Unlawful Activities (Prevention) Amendment Act, 2019. But certain ‘people’ who talk about ‘violence’ on ‘social media platforms’ or ‘television debates’ about revenge/breaking down ‘things’ are freely trekking around in society.
In 2019, the National Crimes Record Bureau (NCRB), has collected different data on sedition since 2014. In 2014, there were 47 cases, which have increased to 70 cases in 2018. This shows the growing trend of sedition cases being registered by police from 2014 to 2018. The creaky Section 124A has been used by the authorities to mum the voices of the people.
The above data shows the percentage of sedition cases between 2014-18 in the state of Assam, Jharkhand, Haryana, Kerala, Bihar, and other states. Assam and Jharkhand have 37 cases each, which comes to 32 percent in total. In the above-mentioned states, sedition charges have been used frequently.
In January, more than 3,000 protestors were charged with sedition for protesting against the Citizenship Amendment Act, 2019, while 3,300 farmers were charged with sedition for protesting about the land disputes.
The data above shows the huge difference between the number of cases reported in each year and those cases being convicted in the respective year.
Although delayed justice and sedition laws are two entirely different topics, they are not so distant from each other in the respect that when a person is charged with sedition, he/she has to go through the whole trial process, during which his motive or intention for a “supposedly seditious statement” may no longer exist.
Furthermore, their voices during this period of a trial are silenced. It is clear, from the above column chart that the maximum of the cases which were reported in 2016 to 2018 resulted in acquittal or their cases being quashed by the respective Courts.
In 2019, the Commission headed by former Supreme Court judge Justice B.S Chauhan suggested it was time to rethink or even repeal Section 124A. The Commission went on to say that ‘in the democracy of the world, considering that the right to free speech and expression is an essential ingredient of democracy. Why should India retain sedition when the British who introduced sedition to oppress Indians have themselves abolished the law in their country.
Free Speech is one of the pillars of a democratic country – which is now nowhere to be found. The cold reality is that the art of tête-á-tête is in one’s own good time dying down. There is no normal and healthy discussion/contention; no advocacy on the principles, issues, policies, and reforms of the Government.
Sadly, the common refrain is that you must agree with me, or else you become my enemy and the worst situation is that you will be labeled as an enemy of the nation or an anti-national.
We are the proud citizens of a democratic nation with a ‘finger on the lip’ gesture – stating thereby ‘Democratic India’ with no or terminated free speech.
“State is using an iron hand to curb free speech, which I think is an overreaction to people’s expression of opinion”
- Justice (Retd.) Madan B Lokur
Former Judge of the Supreme Court
The presence of Section 124A of the Indian Penal Code, 1860 makes sure that the dissenting opinions of the citizens of our country are quenched.
This kind of propensity weakens the foundation of a democratic nation also the section slows down the growth, prosperity, and solidarity of the nation because without any difference of opinion unanimous decisions would be taken which is not healthy for the nation.
This throws light on the reason as to why there is always the presence of the Leader of Opposition in the Parliament sitting against the Government (especially the winning political party(s)). We always need someone to question the ruling party, so that when we decide on something, we re-think upon and then decide and also take in the suggestions of the other side.
Similarly, this Free Speech enables the people to punctuate the various reforms brought in by the Government and present their views and opinions for the same. Because at the end of the day, those reforms are made for public welfare.
Another thing that should be kept in mind, even if a Government is formed by the majority, they do not get 100 percent of the votes, that is to say, they do not represent the voice of all the people.
They should take in people’s opposing perspectives and out-look and ponder upon it and provide better Governance. Dropping down people’s voices will do no good, but can instead instigate the people and in turn, annihilate the political party in power. They should learn to accept the fact that people may have another point of view different from theirs.
Globally, the sedition law has been seen as a controversial law. Even the United Kingdom, who was a pioneer in drafting our Indian Penal Code back in 1860 has in their own country removed the sedition law from their statute books in 2010.
In India, two attempts were made for removing Section 124A through private member bills in the Parliament, but they went in vain. Those bills were not introduced in the Parliament and the Government baffled them without any second thought.
As such, Section 124A is not at fault all alone – the people who are misusing it, ought be stopped.
This gives two options to the Legislators: One, repeal Section 124A from the statute books of the Indian Penal Code, which will liberate Article 19(1)(a) – free speech, or Two, limit the scope of Section 124A, wherein amendments can be made into the section highlighting the ‘motive’ behind the ‘action’ and not considering the whole ‘action’ itself.
Free speech is much needed in this progressive society. Article 19(1)(a) is already subject to Article 19(2), which empowers the State to place reasonable restrictions on the grounds: the security of the State, friendly relations with foreign States, public order, decency and morality, contempt of court, defamation, incitement to offense and integrity and sovereignty of India.
The Constitution has not left free speech completely unchecked. Restrictions are always needed and are important to ensure that when one exercises his/her free speech that freedom does not hinder or affects other’s freedom. But that does not mean to completely block ‘free speech’ with various laws.
The rationale, of continuing Section 124A, has already been fulfilled by Article 19(2) which is sufficient. We don’t need any more limitations over our free speech. Therefore, free speech – constitutional freedom which must get primacy over sedition laws.
So, the million-dollar question stands, “Is Sedition Law in conflict with Free Speech?”
Definitely Yes! It is, unquestionably in conflict with “Freedom of Speech” under Article 19(1)(a) of the Constitution of India, Act, 1950 which is one of the basic pillars of the Democratic Nation.
“I want my independence in Free Speech. I don’t want to be judged by the Government or their Authorities over my speech. I don’t want to be charged under sedition law for my speech. I am under constant surveillance and I want independence from that as well.”
By Sanchita Bera, 2nd Year LL.M, Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara.
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