The Constitution of India, 1950 grants us certain Fundamental Rights, which represent our basic human rights and liberties. One of these rights is the ‘Right to Freedom of Speech and Expression’, which has been granted in Article 19(1) A of Part III of the Indian Constitution. However, this right is not absolute, and certain reasonabl restrictions can be put on it in specific circumstances such as prevention of defamation of person,maintenance of public order and decency and protection of the sovereignty and integrity of the nation, etc. which are mentioned in Article 19(2). Hence, Article 19 (1) A and Article 19 (2) are read altogether.
There are many situations when this right has been misused by the people of nation .When a person does an act by his words, signs or representation which is held to be contemptuous towards the Government of India, then such an act is called sedition and the same is punishable under section 124-A of Indian Penal Code, 1860. Sedition is an offence that criminalizes speech that is regarded to be disloyal to or threatening to the state.
The National Crime Records Bureau (NCRB), has been collecting separate data on sedition cases since 2014. In 2014, there were 47 cases of sedition but that number increased to 70 in 2018.
Compared to other offences, sedition remains a rare crime (it accounts for less than 0.01% of all IPC crimes). But in recent times, there has been an increase in the instances in which sedition charges were pressed against intellectuals, human rights activists, filmmakers, university teachers, students, and journalists. Within India itself, some parts are emerging as sedition hotspots. Assam and Jharkhand, for instance, with 37 sedition cases each, account for 32% of all sedition cases between 2014-2018. In Jharkhand, the police have used sedition to charge different types of protesters. In January 2020, more than 3,000 protesters against the Citizenship Amendment Act (CAA) were charged with sedition while in 2019, more than 3,300 farmers were charged with sedition for protesting about land disputes.
Definition of Sedition
The term ‘Sedition’ means “conduct or speech which results in mutiny against the authority of the state”. It is considered as a reasonable restriction on freedom of speech and is defined under section 124A of IPC, 1860 . It was drafted by Thomas Macaulay and introduced in 1870.
The provision of Section 124A is very wide and it covers the act of defamation of the Government excluding any criticism in good faith of any particular measures or acts of administration.
The definition of Sedition under Section 124 A IPC, 1860 is as follows –
124A. Sedition.—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.
Explanation 1.— The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Punishment for the Offence of Sedition
Sedition is a non- bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.
A person charged under this law is barred from a government job. They have to live without their passport and must produce themselves in the court at all times as and when required.
History of Sedition Law in India
The history of sedition law is intertwined with the history of the Indian freedom movement. After the revolt of 1857, the British crown took the ruling powers of India, which then leads to the first-ever attempt to codify criminal law in India. The Indian Penal Code came into being in 1860, after the recommendations of the first law commission which was headed by Thomas Babington Macaulay. Initially, section 124A was not a part of the original IPC and was only inducted in 1870 in chapter IV of the IPC which deals with offenses against the state. It was inserted by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence. It was one of the many draconian laws enacted to stifle any voices of dissent at that time.
The induction of sedition law in IPC came in the context of the rising Wahhabi Movement which aimed to overthrow the British rule.
British government brought this provision to put restrictions on plays and artistic expressions which were critical of the state. The Dramatic performances Act of 1876 was introduced to “prevent performances of a seditious, defamatory or scandalous nature”, and it continued to survive in the post-Independence period and it was only repealed in 2017. But the essence of that archaic law remains which can be seen in the Bidar case.
The sedition law was used to stifle the voice of the Indian freedom movement during the colonial period by the all-powerful colonial state. So it was but natural that those who had suffered under the law would unequivocally call for its removal from the IPC and any word related to sedition. But what happened was on the contrary. Two of the most prominent members of the Constituent Assembly, namely Sardar Vallabhbhai Patel and C. Rajgopalchari, wanted restrictions of seditious speech while others wanted total removal of any such restrictions. But even though the Constituent Assembly vigorously debated on sedition and freedom of speech, the controversial section 124A of the IPC remains.
In the post-colonial period, the law has been used to stifle any dissent or political opposition right from the early years of the Republic. As sedition charges continued to be slapped against activists and political opponents one after another in the years after Independence, the high courts and the Supreme Court tried to make a balance between Freedom of Speech and Expression granted under Indian Constitution and offences against Indian State. The historic Kedar Nath Singh v. State of Bihar judgment is today the common law in cases related to sedition.
Cases Under Sedition Law in India
Though the law was inducted into the IPC in 1870, the first trial under it was conducted only in 1891, i.e. after 21 years in the backdrop of assertive Vernacular Press and rising Nationalism. The Bangobasi case as it came to be known as the first such case where the trail was done under sedition law. The publisher of the journal was booked for sedition for an article that allegedly aroused ‘disaffection’ against the colonial state. The two words ‘disaffection’ and ‘disapprobation’, which forms the core of the section 124A, has been at the centre of controversy over interpretation and application of this law.
This controversy and debate over the sedition law became most evident in one of the most famous cases of sedition in the history of India, the case of Bal Gangadhar Tilak, who was booked under this law for three times. His cases lead to several changes in the language of sedition law, where officers tried to make a balance between sedition and freedom to criticize the state. In all these cases at the core of the debate were a few articles which were written and speeches which were delivered.
In the early phase of the Indian freedom movement, those who were accused of sedition tried to challenge their cases in courts and pleaded non-guilty. This law is basically about how accused people are dealt with in courts of law. But in the heydays of the Indian freedom movement, after the entry of Mahatma Gandhi, those accused of sedition like Mahatma Gandhi, Jawaharlal Nehru and Maulana Azad pleaded guilty to charges of sedition without trials. They did not pay heed to being proven non-guilty.
Mahatma Gandhi in response to charges on him said, “affection cannot be measured 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”.
The famous cases of sedition are explained hereunder –
1. The Queen-Empress V. Bal Gangadhar Tilak (1897)
This is the first case in which section 124A of IPC was identified and applied. It is considered as one of the most famous cases of sedition in the Indian history in which our freedom fighter Bal Gangadhar Tilak was charged with sedition on two occasions. He was first charged in 1897 for making speeches that incited the peoples violent behavior and two British officers died due to this incident. He was released on bail in 1898, and again in 1909 prosecuted for seditious writing in his newspaper Kesari.
2. Kedar Nath Singh V. State of Bihar (1962)
This is the first case in which sedition was tried in the court of Independent India. In this case, Kedar Singh, a member of the Forward Communist Party in Bihar was charged for making an extreme speech which condemned the ruling government of the time and called for a revolution. The Supreme Court narrowly interpreted the concept of sedition and held that only those cases matters that had the intention or tendency to incite public disorder or violence . It clearly differentiated between disloyalty to the country’s government and commenting on the measures of the government without inciting public disorder by the acts of violene.
3. Dr. Binayak V. State of Chattisgarh (2007)
In this case , Binayak Sen, a human –rights activist was charged for sedition, for allegedly aiding naxalities. He was accused of helping insurgents who were active in the region of Raipur. He has also criticized the killings committed by a vigilante group supported by state government and his criticism became the reason for his arrest and subsequent accusations. Dr. Binayak was charged under two internal security laws and was sentenced to life imprisonment but his arrest was criticized internationally.
4. Aseem Trivedi V. State of Maharashtra (2012)
Political cartoonist and activist, Aseem Trivedi is best known for his anti-corruption campaign, he draws cartoons against corruption . He was arrested on charges of sedition, in 2010. The complaint, filed by Amit Katarnayea who is a legal advisor for a Mumbai-based NGO, condemned Trivedi’s sketches as derogatory that depicted the Parliament as a commode and the National Emblem in a negative manner having replaced the lions with rabid wolves, during an Anna Hazare protest against corruption, as well as posting them on social networking sites. Trivedi’s case seriously questioned freedom of speech and expression in the country because a young man got arrested for lampooning evident corruption in the country. It’s acceptable that some may find his cartoon offensive and in bad taste, but sentencing a person to life in prison for such an act is considered too extreme.
5. Shreya Singhal V. Union of India (2012-2015)
This case has a great value in Indian Jurisprudence as its judgement took down Section 66A of the Information Technology Act, 2000. Section 66A was sought to be in violation of Article 19(1) of the Indian Constitution which guarantees the right to freedom of speech and expression to all citizens. In this case , Shreya Singhal , a law student at that time filed a petition in 2012 seeking an amendment in the provisions of section 66A. This case took its reason from a facebook post that was critical of the shutdown of the city after the death of the Shiv Sena leader Bal Thackeray. Two young girls in Mumbai were charged for sedition merely on the ground that one of them commented on the post, and the other ‘liked’ it. What’s critical about this judgement is the court’s ruling that a person could not be tried for sedition unless their speech, however “unpopular,” offensive or inappropriate, had an established connection with any provocation to violence or disruption in public order.The Supreme Court distinguished between “advocacy” and “incitement”, stating that only the latter is punishable by law. The Supreme Court judgement came after three years of the petition’s filing in 2015 and took down Section 66A of the IT Act.
Sedition Law in the International Jurisdiction
The United Kingdom deleted the seditious libel through the Coroners and Justice Act, 2009.
In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed and replaced with references to ‘urging violence offenses’.
Globally, sedition is increasingly viewed as a draconian law and has been revoked in many countries. In India itself, there have been two attempts, via private member bills, in the last decade to revoke it – but both efforts were thwarted by governments. More recently in 2018, the 21st Law Commission of India issued a consultation paper asking for views on revoking sedition as an offence but the commission’s term ended before it could deliver its recommendations.
India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. The thoughts and expression which are against the government should not be considered as seditious act.
The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. If the country is not open to positive criticism, there would be no difference between the pre- and post-Independence eras.
To protect the national integrity and order , it is also necessary to check upon anti-national activities. If someone does the acts which come under the purview of this law. He must be tried without giving the defense of right to free speech and expression.
Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon. However, the section should not be misused as a tool to curb free speech.