Research ArticleConstitutional Law

Sedition In India: A Colonial Repression Enslaving Freedom of Speech and Expression

Sedition In India: A Colonial Repression Enslaving Freedom of Speech and Expression

Author(s): Shlaaghaa Prem, 4th year student at Presidency University, Bengaluru & Mohammed Raihan, 3rd year student at Christ University, Pune.

Abstract

The law of sedition under Section 124-A of the Indian Penal Code was introduced by the British to muffle the voices of Indian Freedom Fighters but the section found its way post independence. The Constitution of India provides the right to freedom of speech and expression but the section is in contravention to this right. Reasonable restriction allows for the survival of the provision and even though the courts in India have always encouraged a more constitutional interpretation of it, the government has used the section as a tool to constantly subdue dissent. The article attempts to bring about a comprehensive history on sedition law all while tackling the problems faced by Indian citizens due to the same. The numerous contrast judicial interventions provide for an in-depth timeline of sedition and its arbitrary charges on innocent individuals who are only hoping to question the actions of a government. All is to say that this article brings out different debates around sedition in order to answer the question of whether the law that has continually repressed freedom of speech should still be a part of Indian Jurisprudence?

Introduction

Sedition is covered under section 124-A of the IPC. It was first introduced in colonial India through Clause 113 of the Draft Indian Penal Code, proposed by Thomas Babington Macaulay in 1837. However, the section only gives a marginal note on the law of sedition. While it covers the crimes that come under the law, it doesn’t precisely characterize the term “sedition” itself. One of the dominant purposes behind section 124A was to strengthen colonial rule and suppress the voice of the Indian people. In contemporary India, while deciding the fate of a citizen in terms of freedom of speech, offence of sedition, and other related offenses plays a vital role. The harmony between the fundamental rights and the offense of sedition can incline towards a critical weakening of the right to free speech and expression. Such predominance by the state in arbitrary use of section 124A against the citizens prompts a defeat of ideas of constitutional framers. [1]

In law, the word sedition is overt conduct, such as speech and association, considered by the legal authority to incline toward insurgence against the established order. Sedition often includes disruption of a constitution and incitement of discontent (or resistance) from a lawful authority. Under Section 124, of the Indian Penal Code, sedition has been defined as “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempt to bring into contempt or hatred, or excites or attempt 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 upto three years, to which fine might be added, or with fine.” In addition to this law, the Parliament of India, by the Constitution (Fortieth Amendment) Act, incorporated the Prevention of Publication of Objectionable Matter Act, 1976 in the Ninth Schedule. [2]The Objectionable matter has been defined as that instigates disaffection towards the government authority or to commit any offense or to interfere with the creation and distribution of essential commodities or seduction of any member from Armed Forces, defamation of the President, Vice-President, Prime Minister, Speaker, or Governor of a State. The restriction imposed on any of these grounds could not be challenged on the ground of unreasonableness and furthermore with the incorporation of fundamental duties under article 51A.

The primary legislation criminalizing sedition in India is the Indian Penal Code, 1860. Segment 124A of the Code defines sedition and mentions the punishments related to the same. The main components of sedition are bringing or attempting to get contempt, hatred, or disaffection towards the government authority. Further, the clarifications to the section explain that mere disapprobation of measures or activities of government, intended to bring a constructive change by legal means, without emerging sensations of hatred, contempt, or dissatisfaction does not add up to sedition. Further, section 95 of the Code of Criminal Procedure, 1974 empowers the public authority to forfeit any publication in case it is inappropriate. Another Act is the Unlawful Activities (Prevention) Act, 1967 (UAPA), which criminalizes events or activities pointed against India’s sovereignty, unity, and integrity. There have been a series of amendments to the Act, which have added to its stringency, and extended the scope of state to restrict such activities. Further, there is the Prevention of Insults to National Honors Act, 1971, which controls the right to free speech and expression if it violates the dignity of the country. The Act likewise specifies draping of the national flag in any form, embroidery on the flag, cushioning of the flag, wearing tricolor, covering speaker’s desk area with tricolor, or even printing tricolor on a handkerchief as a disrespect of the national flag. The term flag includes any image, photo, or drawing of the national flag. The Act forces a maximum punishment of three years, or fine, or both.

History of Sedition Law

Section 124A of the IPC, the most prominently used piece of legislation with respect to sedition law in India, was added to the IPC by the British colonial government in 1870. It has been inferred that absence of the law of sedition came to be keenly felt because of the expanded activities of Wahabis somewhere between 1863 and 1870, whose agents moved freely among the established Muslim population of Bengal and Bombay and furthermore in light of the ‘mutiny’ of 1857.[3]

The sedition law was utilized later on to detain freedom fighters and political dissidents like Mahatma Gandhi and Bal Gangadhar Tilak, who criticized the strategies of the colonial administration. Gandhi describes Sec.124A as the “prince among the political areas of the Indian Penal Code intended to suppress the freedom of the citizen”. After Independence, the constitution designers had dedicated significant opportunities to look into the different parts of this colonial law. Perhaps one of the most vehement critics of the sedition law was by K.M. Munshi, who contended that such a draconian law is a threat to a democratic system of India. He contended that “indeed, as the matter of fact, the essence of democracy is criticism of Government.” Due to the efforts and the perseverance of the Sikh chief Bhupinder Singh Mann, the word sedition was omitted from the Constitution.

However, this law was reimposed by a very controversial First Amendment that was passed by the government headed by the first Prime Minister Jawaharlal Nehru.[4] While introducing the first amendment to the Constitution in 1951, Nehru had stated that, “Now so far as I am concerned that Section 124A IPC is highly objectionable and disagreeable and it ought to have no place both for practical and historical reasons, if you like, in any body of laws that we may pass. The sooner we dispose of it, the better.” Many constituent members protested this and reminded the assembly that Indians had endured significantly through the abuse of sedition laws. T. T. Krishnamachari contended that the word sedition was an anathema to Indians, given their experience of it. He proposed that the only instance where it was legitimate was the point at which the whole state itself is tried to be overthrown or undermined by force or otherwise, prompting public disorder. However, Nehru dithered on this as his administration not just reimposed the sedition law through the first amendment in 1951 but also strengthened it by adding two expressions. agreeable relations with an foreign state and public order as justification for imposing reasonable restrictions on free speech.

Problems Faced Due to Sedition Law

According to the Kedar Nath judgment in 1962, the sedition law should be applied in rare cases where the security and sovereignty of the nation is threatened[5]. However, there are growing instances to show that this law has been weaponized as a helpful device against political rivals, to suppress dissent and free speech. According to the most recent information introduced by Article 14, aa many as 25 sedition cases were recorded after the hostile to Citizenship Amendment Act protest, 22 after Hathras rape, and 27 after the Pulwama attack. On the whole, 96% of the sedition cases documented against 405 Indians over the last decade were enlisted after 2014.

Legitimately talking, one of the primary issues with the sedition law is that it is poorly defined. The term bring into contempt or hatred or attempt to excite disaffection can be interpreted in many ways and this enables the police and government to harass the innocent citizens who are across the fence from them. Because of its poor definition, sedition law can be used spuriously by the police to falsely accuse people as it doesn’t obviously state which acts are seditious and gives an expansive layout of what can be delegated seditious. This issue was recently featured by Justice D.Y. Chandrachud while restraining the Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124A (sedition) of the Indian Penal Code (IPC). Justice Chandrachud commented, “Everything can’t be seditious. It is time we define what is seditious and what isn’t.” In another significant case PIL documented against Farooq Abdullah[6], the previous Chief Minister of Jammu and Kashmir), Justice Chandrachud stated that, “expression of views which contradicts and different from the opinion of the government authority can’t be named seditious.” Similarly, Delhi High Court’s decision in the Disha Ravi case clearly expressed that the government can’t put citizens “behind the bars simply because they choose to disagree with the policies” and “the offense of sedition cannot be invoked to minister to the wounded vanity of the government .” These decisions by the judiciary clearly separate from the understanding of the sedition law by the executives and show how the law is being abused by them.

The right to speak freely is the hallmark of a Democratic government that is being compromised because of the sedition law. A democracy expects citizens to actively take part in discussions and express their valuable reactions to government policies. However, the sedition laws have engaged the executive branch of the government authority to utilize the ambiguously defined provisions as an instrument to manage public opinions and indiscriminate use of power. The sedition law has become a device to impart a feeling of consistency towards government policies for the citizen. There have been numerous occurrences where the government authority has utilized the sedition law to suppress fighting voices to ensure its inclinations. The arrest of the NDTV writer Vinod Dua for criticizing the government authority’s reaction to COVID-19 and the 22-year-old Disha Ravi in the Greta Thunberg toolkit case for tweeting in solidarity with the farmer’s agitation in India has brought up numerous issues about the right to freedom of speech and expression in India. At the point when journalists are censored through the sedition law, it impacts democracy. The sedition laws reduce government responsibility as the government can disregard its critics and accuse them of sedition. It’s extremely difficult for a person to get bail once arrested for sedition charges.

Judicial Interpretation of Sedition Law

In the case of Queen Empress vs. Bal Gangadhar Tilak[7], the defendant was charged with sedition on the claims that the death of two British officers were prompted by his speech on the killing of Afzal Khan by Shivaji and he was subsequently imprisoned. Every form of negative emotion towards the government was henceforth interpreted to fall under ‘feelings of disaffection’ and thereby became an unstoppable tool in the hands of the government.[8]

In the case of Annie Besant vs. Advocate General of Madras[9], the court followed suit of the previous interpretations of sedition in dealing with Section 4(1) of the Indian Press Act, 1910 and Annie Besant’s printing press materials which were alleged to be seditious were confiscated. The aforementioned was met with heavy backlash and criticism.[10]

The Federal Courts in India and the Privy Council in England had different interpretations of the sedition law. The Federal Court, in the case of Niharendu Dutt Majumdar vs. King Emperor[11] held that the incitement to disorder must be prevalent in the acts or words complained of or must be such that a reasonable man may be convinced of their intention. Therefore, a speech or a written document enshrined by mere violent words does not constitute to be seditious. However, the Privy Council overruled the Majumdar decision and expressed a contrast view in the case of King Emperor vs. Sadashiv Narayan,[12] wherein it was held that inciting or attempting to incite bad feelings towards the government would constitute an offence of sedition. Further added that incitement to violence as a result of mutiny or rebellion, or any sort of actual disturbance, great or small, was not a component of the offence.[13]

The constitutional validity of the sedition law was questioned post independence in the case of Romesh Thappar vs. State of Madras,[14] wherein the Communist Party was declared illegal by the Madras Government and subsequently the magazine, namely Crossroads was banned.[15]

In the case of Ram Nandan vs. State,[16] the constitutional validity of Section 124-A was questioned again whereby the Supreme Court in suite with the Majumdar decision, interpreted the section in a manner that is followed till date. The Court held that in order for an act or written document to be considered seditious, intention to incite violence should be an element. Therefore, the section is to be interpreted not as a crime against the state but as a crime against public repose.[17]

The Supreme Court in the case of S. Rangarajan vs. P. Jagjivan Ram[18] was aware of the fact that in the process of labeling an act as seditious, the audience is also an integral factor to be considered. The court emphasized that words should be judged in accordance with the standard of reasonable, strong-minded, firm and courageous men and not from the view of weak and dithering men or who sense peril in the midst of an opposite point of view. It was further added that plain reading of the words of a speech or straightforward interpretation of the sedition law is not sufficient in a society of continuously evolving minds.[19]

Forward Communist Party member, Kedar Nath Singh[20] was charged with sedition and public nuisance under sections 124-A and 505(b) of IPC and was convicted for using coarse language against the CID officers and the Indian National Congress wherein he referred to them as ‘dogs’ and ‘goondas’ respectively. The constitutionality of Sections 124-A and 505(b) of IPC was questioned and thereby the Supreme Court kept in mind the history of the section when deliberating. The court upheld the constitutional validity of Section 124-A of IPC which makes sedition an offence. It was further added that the restrictions imposed on freedom of speech and expression by way of this section falls well within the ambit of permissible legislative interference with the fundamental right and that these restrictions are necessary to maintain public order and tranquility. The Court recognized the conflict of opinions wherein, on one hand the Federal Court held that a speech or a written document enshrined by mere violent words does not constitute to be seditious. While on the other hand, the Privy Council held that inciting or attempting to incite bad feelings towards the government would constitute an offence of sedition and did not include incitement of violence as an essential ingredient of the offence. If the former was accepted then Section 124-A would be constitutional but if the latter was accepted then the use of Section 124-A would be unconstitutional, hence the court was of the opinion that in a conflict, the interpretation closest to be consistent with the Constitution is accepted. However, considering the object of Section 124-A and its history, the court stated that the contested provision be only confined to actions including intention or tendency to commit hatred by disrupting public disorder.[21]

A few hours after the assassination of Indira Gandhi, few individuals including the appellant were charged with sedition for shouting slogans of ‘Khalista Zindabaad, Raj Karega Khalsa’ among many others outside a cinema hall in Chandighar.[22] The Court held that the charge under Section 124-A or Section 153A IPC was not warranted in this case since raising some slogans which did not evoke a reaction or response from the public does not constitute sedition. Further added that arresting individuals for mere chanting of slogans shows that sensitivity overrode maturity on the part of the police force. The case established the situations in which the section is appropriate to be invoked but frivolous sedition cases against individuals who are merely expressing their views are only in the rise.[23]

In the case of Shreya Singhal vs. Union of India,[24] two girls Mumbai were detained and charged with sedition for one criticized the city wide shut down following the death of Bal Thackery, while the other liked the comment. Subsequently a petition was filed by Shreya Singhal seeking an amendment to Section 66A of the Information Technology Act, 2000 as it was in contravention to Section 19(1) of the Constitution under which the right to freedom of speech and expression is granted. The Court made an important distinction between advocacy and incitement, wherein it held that incitement is the only ground on which an individual can be criminally punished. Further added that unless an individual’s speech incites or provokes violence that resulted in public disorder, that speech no matter how unpopular, offensive, or unacceptable cannot be considered seditious.[25]

Aseem Trivedi, a political cartoonist was arrested and charged for sedition in 2012 for insulting the National Emblems Act. The Court was plagued with the question of how it could prevent the misuse of section 124A. The Bombay High Court held that mere speeches, signs or representations that are against politicians or public officials do not constitute sedition.[26] Unless, the appellant had any intention or tendency to create public disorder by the way of incitement of violence, the cartoons were in the nature of political satire. It was further added that any lawful means of bringing about change to the government does not amount to sedition as these changes come about in the way of disapproval and criticism. Mere vulgarity and obscenity will not fall under the ambit of the section either. Certain guidelines in the form of preconditions for prosecutions under section 124-A were issued to the police in this case.[27]

Lawyers have requested Courts to lay down guidelines or standards for arrest, like in the case of Common Cause vs. Union of India[28] requesting mandatory involvement of authorities like the Director General of Police or Magistrate to certify acts of sedition to prevent unwarranted arrests. Despite such requests, there has been no indication so far of any change in the way the colonial era law is going to be dealt with.[29]

Similarly, in Javed Habib v. State of Delhi[30], it was held that holding an opinion against the Prime Minister or his actions or criticism of the actions of government or drawing inference from the speeches and actions of the leader of the government that the leader was against a particular community and was in league with certain other political leaders, cannot be considered as sedition under Section 124A of the IPC. The criticism of the government is the hallmark of democracy. As a matter of fact the essence of democracy is criticism of the Government.[31]

Conclusion

The law, time and time again instead of being used constructively, is being misused by the authorities against their critics. It really is high time that the section be removed as at this juncture it is mostly used as a tool to oppress. Over the years, the courts have been very clear about the circumstances in which section 124-A can be invoked and on numerous occasions thrown out petitions that criticize the government.[32] But the continuous harassment and trauma that individuals have had to endure due to trial and gross human rights violations have not subsided. No individual who lives in a democratic country run by the likes of a Constitution should ever face such baseless charges but yet in the name of protection of the sovereignty of the country and to maintain public order, Section 124-A still remains unhinged. Based on the history of Section 124-A, the object of introduction is rarely upheld; instead the voices raised against the injustices of the establishment are subsequently muffled. The law was introduced pre independence to make sure the subjects of the crown were obligated to pledge allegiance. It is rather ironic that the originators of this law have since repealed the law in their homeland but India is still holding on to a draconian law that threatens individuals who strive to hold the government accountable in a democracy. A country where citizens cannot voice the criticism of that government’s actions, demand accountability, raise questions and point at wrongdoings cannot be a functional democracy.[33]


References

[1] SiddharthNarrain, Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, (Feb. 19, 2011), http://jmi.ac.in/upload/menuupload/16_ccmg_epwsedition.pdf.

[2] Law Commission of India, 42nd Report on the Indian Penal Code 1860, (June, 1971) https://lawcommissionofindia.nic.in/1-50/report42.pdf.

[3] Ratanlal & dhirajlal ,The indian penal code 534, (Justice  Y.V. Chandrachud & V.R. Manohar eds., 31st ed. 2006)

[4] Law commission of India, sedition, (Aug. 30, 2018) https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf.

[5] India today web desk, Use and misuse of Sedition law: Section 124A of IPC, (Oct. 9, 2019) https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09.

[6] Samanwaya Rautray, ET Bureau, Supreme Court junks PIL against Farooq Abdullah, fines litigants, (Mar. 03, 2021) https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-junks-pil-against-farooq-abdullah-fines-litigants/articleshow/81315329.cms.

[7] Queen Empress vs. Bal Gangadhar Tilak, (1898) 22 Bom 112.

[8] Shah J. et al., An Analysis of Sedition Law in India, 1 Scholars Paradise, 3-5 (2017).

[9] Annie Besant vs. Advocate General of Madras, (1919) PC 31.

[10] Aqib Aslam, Sedition: Complicated History of Section 124-A, Legal Services (Jul. 21, 2021), https://www.legalserviceindia.com/legal/article-6469-sedition-complicated-history-of-section-124-a.html.

[11] Niharendu Dutt Majumdar vs. King Emperor, (1942) FC 22.

[12] King Emperor vs. Sadashiv Narayan, (1947) L.R 74 I.A 89.

[13] Supra Note 2.

[14] Romesh Thappar vs. State of Madras, (1950) SC 124.

[15] What India’s Supreme Court Said in 1950, on Sedition And Freedom of Expression, Times of India (Mar. 11, 2021), https://timesofindia.indiatimes.com/blogs/toi-edit-page/what-indias-supreme-court-said-in-1950-on-sedition-and-freedom-of-expression-romesh-thappar-v-state-of-madras/.

[16] Ram Nandan vs. State, (1959) AII 101.

[17] Supra Note 2.

[18] S. Rangarajan vs. P. Jagjivan Ram, (1989) 2 SCC 574.

[19] Lawrence Liang, Sedition and the Right to Freedom of Expression, The Wire (Jun. 12, 2016), https://thewire.in/law/interview-sedition-and-the-right-to-freedom-of-expression.

[20] Kedar Nath Singh vs. State of Bihar, (1962) SC 955.

[21] Kaur P, Sedition Under Section 124-A Of The Indian Penal Code: An Analysis, 2 IJLMH, 11-13 (2019).

[22] Balwant Singh & Another vs. State of Punjab, (1995) 1 SCC 411.

[23] Siddharth Narrain, Free Speech and the Law on Sedition, The Centre for Internet and Society (Feb. 16, 2016), https://cis-india.org/internet-governance/blog/free-speech-and-the-law-on-sedition.

[24] Shreya Singhal vs. Union of India, (2015) SC 1523.

[25] Saba, Sedition and the Rights to Freedom of Speech and Expression, SCC Online (2018), https://www.google.com/amp/s/www.scconline.com/post/2017/12/12/sedition-right-freedom-speech-expression/%3famp.

[26] Sanskar Marathe vs. State of Maharashtra & Ors, (2015) Bom 587.

[27] Rachit Garg, Free Speech and Sedition: The Stained Relationship in Light of Disha Ravi’s Case, IPleaders (2020), https://blog.ipleaders.in/free-speech-sedition-stained-relationship-light-disha-ravis-case/amp/.

[28] Common Cause vs. Union of India, (2016) 15 SCC 269.

[29] Supra Note 19.

[30] Javed Habib v. State of Delhi, (2007) 96 DRJ 693.

[31] Supra Note 4.

[32] Supra Note 14.

[33] Supra Note 2.

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