THE CONSTITUTIONAL VALIDITY OF SEDITION LAWS IN INDIA

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This article is written by Priyanka Shukla of 3rd Semester of Veer Bahadur Singh Purvanchal University, an intern under Legal Vidhiya

ABSTRACT

The sedition law in India, Section 124A of the Indian Penal Code (IPC), has a historical context dating back to its introduction in 1870 during British colonial rule. Originally, sedition was not a part of the IPC as drafted by Thomas Macaulay in 1860. However, it was later incorporated as Section 124A to suppress the rising Wahabi activities between 1860 and 1870. The British government believed that such a provision could help control the press.

Ironically, the sedition law, which was initially introduced to control specific activities, was eventually employed by the British colonial authorities to curb nationalist sentiment in India.

While many countries, especially Common Law nations, have provisions against sedition or laws criminalizing criticism of the ruling establishment, India’s sedition law has taken a unique path over the years. In other liberal democracies, the judiciary has often narrowed the definition of sedition, making these laws less attractive and rarely used. However, despite a 1962 Supreme Court judgment that read down the law in India, governments have continued to use it to suppress dissent. Many cases registered under sedition in India do not align with the original definition of sedition as given in the IPC or as interpreted by the Court.

Keywords:

Sedition laws, Section 124A, disturbance of public peace, Article 19(1)(a), threatening the security of the State

INTRODUCTION

The term “sedition” is derived from the Latin word “sedition,” which means “a going apart” or “a separation.” It historically referred to actions or speech that incited people to separate or rebel against established authority or the government. Whereas according to Section 124-A[1] of the Indian Panel Code, 1860, Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or engages in endeavors aimed at instigating hatred, contempt, or the incitement of disaffection towards the duly established Government of India shall be subject to severe consequences, including a sentence of life imprisonment. Which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

The British colonial administration historically employed the Sedition Law to suppress dissent and incarcerate prominent freedom fighters, including figures like Mahatma Gandhi and Bal Gangadhar Tilak, who vocally criticized colonial policies. Following India’s independence, the framers of the constitution dedicated substantial deliberation to assess various facets of this colonial-era legislation. Among the most vehement opponents of the Sedition Law was K.M. Munshi, who contended that such a draconian statute substantially threatened India’s democracy. He posited that “In essence, democracy thrives on government criticism.” Through the relentless efforts of individuals like K.M. Munshi and the persistent advocacy of Sikh leader Bhupinder Singh Mann, the term “sedition” was ultimately excluded from the Indian Constitution. Nevertheless, the reinstatement of this law came about through the contentious First Amendment, which was enacted during the tenure of India’s inaugural Prime Minister, Jawaharlal Nehru. When introducing the First Amendment to the Constitution in 1951, Nehru candidly expressed his stance on Section 124A of the Indian Penal Code (IPC), remarking, “As far as I am concerned, that particular Section (124A IPC) is highly objectionable and obnoxious, and it should have no place in any body of laws, be it for practical or historical reasons. Nevertheless, notwithstanding his reservations, the administration led by Jawaharlal Nehru not only reinstated the Sedition Law via the First Amendment of 1951 but also fortified its provisions by introducing two supplementary criteria, specifically “amicable relations with foreign nations” and “maintenance of public order,” as grounds for imposing “justifiable limitations” on the freedom of expression.

CONCEPT OF SEDITION UNDER CRIMINAL LAW

In India, the concept of sedition is outlined in Section 124A of the Indian Penal Code (IPC). This section defines and deals with the offense of sedition.

According to Section 124A of the Indian Penal Code (IPC) 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 5[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 first trial for sedition was held in Queen v. Jogendra Chandra Bose in the Bangabasi case (1891). For a long time, there was a lengthy dispute over the abuse of Section 124A and whether or not this clause should be ruled illegal.

Penalties for Sedition:

Sedition, as per Section 124A IPC, is a non-bailable offense. Punishments range from imprisonment for up to three years to a life sentence, along with the possibility of a fine. Individuals charged with sedition are ineligible for government employment and must appear in court as required.

HISTORICAL OVERVIEW OF SEDITION LAWS IN INDIA

Section 124(A) did not originally feature in the initial draft of the Indian Penal Code of 1860, which was crafted by Thomas Babington Macaulay. It was later incorporated into the code in 1870 by James Stephen during the British Raj. The introduction of this section was prompted by the growing activities of the Wahabi movement and concerns that Muslim preachers might incite religious conflicts in the Indian subcontinent. The British Raj faced rising disaffection among the common people, giving rise to a surge in anti-British sentiments. During this period, various political leaders emerged, and this law was implemented to curb their activities.

The first documented case related to the offense of sedition occurred in 1891, in the case of “Queen Empress vs. Jogendra Chandra Bose & others”[1]. In this particular case, the editors of a Bengali magazine were charged with sedition for their criticism of British policies. The defendants argued that the sedition law only applied to the writing of seditious content, not its publication. However, the Calcutta High Court ruled that the defendants could not be acquitted simply because they did not write the seditious content themselves, as the circulation was intended for the target audience. The court also affirmed that sedition did not infringe upon the rights of the people.

The second notable case of this law was “Queen Empress vs. Bal Gangadhar Tilak & Keshav Mahadev Pal”[2]. In this case, Bal Gangadhar Tilak was tried for inciting actions that led to the deaths of two British police officers. The Bombay High Court emphasized that the offender’s intent held prime importance in cases involving seditious speech. It was also established that harboring discontent with the government constituted a criminal offense, regardless of the intensity of such negative sentiments. Twenty years later, a fresh sedition

charge was levied against Tilak for authoring an article advocating for “swaraj” in India and criticizing the civil services of the British Crown. This case acknowledged the positive impact of free speech by considering the influence of seditious speech on the public.

While sedition was initially introduced in the Draft Constitution of India, it was subsequently removed following discussions in the Constitutional Assembly in 1948. K.M. Munshi introduced an amendment to eliminate the term “SEDITION” from Article 13(2) of the constitution’s draft. On November 26, 1949, sedition was entirely removed from the Indian Constitution, and the freedom of speech and expression was safeguarded under Article 19(1)(a). Nevertheless, sedition continued to be a part of the Indian Penal Code of 1860. An amendment introduced by Jawaharlal Nehru in 1951, which brought forth Article 19(2), allowed for reasonable restrictions on the freedom of speech and expression granted by Article 19(1)(a). Article 19(2) did not explicitly equate to sedition but permitted the state to impose reasonable restrictions in circumstances where the sovereignty and territorial integrity of the nation were under threat.

The concept of sedition has consistently sparked contentious debates. Many individuals have advocated for its implementation in a manner that does not unduly curb individual liberty to speak and express oneself.

CONSTITUTIONAL VALIDITY OF SEDITION

The legal concept of sedition has frequently faced criticism due to its perceived encroachment on the fundamental right of “freedom of expression.” Questions have arisen about its compatibility with a secular and democratic nation. Nevertheless, in the landmark case of Kedar Nath v State of Bihar, it was established as constitutionally valid.

Subsequent clarifications have outlined that while criticism of public policies and strong opinions on government actions are permissible, they must be within reasonable bounds, respecting the essential right of freedom of speech and expression.

In another significant ruling by the Hon’ble Supreme Court in Balwant Singh and Anr. Vs. In the State of Punjab, actions related to slogans such as “Khalistan Zindabad” were deemed unsustainable. This decision was based on the absence of intent to incite or disrupt public order.

The question of whether Section 66-A of the Information Technology Act, of 2000, curtails the right to free speech and expression in the digital age has been a matter of debate. This issue was addressed in the case of Shreya Singhal vs. Union of India, where the court declared Section 66-A unconstitutional and established specific criteria for assessing the fairness of speech and expression limitations under Article 19(2) of India’s constitution. The court also determined that legislation conveying such restrictions is unconstitutional.

CASE LAWS RELATED TO SEDITION

Within the realm of sedition law, several significant cases have helped shape the jurisprudence in India:

1. Tara Singh Gopi Chand vs. The State, 1951[4]: This landmark case marked the initial steps toward societal improvement. It was the first instance where the constitutionality of India’s sedition law was challenged. The judges in this case referenced the essentials laid out in Romesh Thapar’s case, which include elements of public disorder, nuisance, and disaffection within the community to prove seditious offenses. The court’s ruling highlighted that even when the Constitution allows for reasonable restrictions on freedom of speech and expression, sedition curtails these rights.

2. Sabir Raza vs. State, 1955[5] :

This case clarified that speech should only be considered a threat to state security if it directly impairs the proper functioning of the state. Consequently, the sedition law was declared void in this case, as mere threats or expressions of hatred cannot be deemed threats to societal peace and harmony.

3. Ram Nandan vs. State of Uttar Pradesh, 1959[6] :

In this case, an agricultural activist faced charges of sedition. The court ruled that the sedition law was unconstitutional and exceeded the fundamental rights enshrined in the Indian constitution. It was emphasized that imposing restrictions on freedom of speech and expression solely based on the potential for public disruption is not constitutionally valid.

4. Kedar Nath vs. State of Bihar, 1962[8] :

This pivotal case overturned prior judgments on sedition law. A member of the Forward Communist Party made critical remarks against the Congress party, accusing them of exploiting laborers and fostering corruption. He faced charges of violating section 505 of the Indian Penal Code and sedition. The court’s ruling stressed that freedom of speech and expression is indispensable for the effective functioning of a democracy. In a democratic society, freedom of speech is necessary, albeit subject to reasonable restrictions, to maintain public order and national security. The court also emphasized that an act cannot be deemed seditious unless there is an intent to incite public disorder.

RECENT DEVELOPMENTS ABOUT SEDITION

On May 11, 2022, the Supreme Court made a momentous decision to revisit the sedition law, issuing a directive to both the central government and all state authorities to refrain from lodging new FIRs (First Information Reports) that include sedition charges. Furthermore, the court ruled that individuals incarcerated and convicted in cases invoking sedition charges can approach the court for bail. This bail would remain in effect until the Supreme Court reaches a final decision on the matter. The Supreme Court underscored that this law, originally enacted during India’s colonial rule, no longer aligns with the current state of affairs. Notably, this marks the first time in the history of the law that the Supreme Court has suspended it indefinitely. It is worth mentioning that former Chief Justice of India N.V. Ramana, in July 2021, highlighted that this law was used to convict Mahatma Gandhi.

This development raises pertinent questions regarding the necessity of this law in contemporary India. Many scholars in the country frequently critique the law, contending that in a democracy like India, such legislation is unnecessary. Democracy, after all, embodies the principles of “government of the people, by the people, and for the people,” and the utilization of laws that curtail individuals’ rights to freedom of speech and expression seems to contradict this democratic ideal.

In the case of Kedar Nath vs. the State of Bihar, it was established that only those actions can be categorized as seditious offenses when there is a genuine risk of public disorder or the incitement of disaffection toward the government as a result of the offender’s speech or actions. However, the stark reality emerges when we examine the statistics: over the past 13 years, an alarming thirteen thousand cases in India have been registered for acts deemed seditious. Among these, a majority have originated in five states, namely Bihar, Uttar Pradesh, Karnataka, Tamil Nadu, and Jharkhand. Between 2014 and 2019, a staggering 517 sedition cases were registered in these states. What is particularly surprising is not the high number of case registrations, but the fact that out of these 517 cases, guilt was established in only one hundred ten cases. This raises concerns about the excessive use and misapplication of the sedition law.

The Union Home Minister recently introduced a bill in the Lok Sabha seeking to comprehensively reform the Indian penal code. If passed, this bill will replace the over 160-year-old Indian Penal Code, repealing the contentious sedition provision that has been part of India’s statutory framework since the colonial era. As per the proposed legislation, the term ‘Sedition’ will be replaced with ‘Subversive Activities’. Section XYZ outlines the substituted provisions, stating that any individual who knowingly engages in actions through spoken, written, symbolic, electronic or financial means, or otherwise, to incite secession, armed rebellion, subversive conduct or promote separatist sentiments jeopardizing India’s sovereignty, unity and integrity shall be liable for penalties including life imprisonment or imprisonment up to 7 years along with fines.

SIGNIFICANCE AND CONCERNS SURROUNDING THE SEDITION LAW:

Significance:

1. Reasonable Restrictions: The Indian Constitution permits reasonable restrictions (under Article 19(2)) on the right to Freedom of Speech and Expression. These restrictions ensure the responsible exercise of this right and make it equally available to all citizens.

2. Maintaining Unity and Integrity: Sedition laws assist the government in addressing anti-national, secessionist, and terrorist elements

3. Ensuring State Stability: The law plays a crucial role in safeguarding the elected government from attempts to overthrow it through violence and illegal means, thus preserving the stability of the state.

Concerns:

1. Colonial Relic: Sedition laws were previously used by colonial administrators to suppress individuals critical of British policies. Notable freedom fighters, including Mahatma Gandhi and Jawaharlal Nehru, were convicted under these laws.

2. Constituent Assembly Stand: The Constituent Assembly declined to include sedition in the Constitution due to concerns that it would limit freedom of speech and expression. Members believed that it could be misused to suppress legitimate protests.

3. Disregarding Supreme Court’s Ruling: The Supreme Court, in the Kedar Nath Singh vs. State of Bihar case (1962), restricted the application of sedition to acts involving an intention or tendency to create disorder, incitement to violence, or disturbance of law and order. Yet, sedition charges are increasingly levied against academics, lawyers, activists, and students.

4. Repression of Democratic Values: The arbitrary use of the sedition law has led to criticism of India as an elected autocracy, undermining democratic values.

THE WAY FORWARD

To strike a balance between security and democratic values, it is imperative to narrow the definition of sedition, focusing on issues related to the territorial integrity and sovereignty of the country.

Civil society should take the lead in raising awareness about the potential misuse of sedition laws, and the higher judiciary must play a role in sensitizing magistrates and law enforcement agencies to constitutional provisions protecting free speech.

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