Sedition Law in India: History | Constitutionality | Famous Cases

 

Why is there hue and cry over Sedition Law?

On February 13, 2021, A 22-year-old climate activist Disha Ravi who was booked u/s 124A/153/153A/120B of the Indian Penal Code, 1860 (IPC) for being an accomplice in “global conspiracy” to commit violence using ‘Toolkit’ on Republic Day (January 26, 2021).

The Hon’ble Additional Sessions Judge (ASJ) Dharmender Rana of Patiala House Court Complex observed while going through the content of the ‘toolkit’, “The perusal of the said 'Toolkit' reveals that any call for any kind of violence is conspicuously absent.” Further while granting bail the Hon’ble ASJ stated, “Considering the scanty and sketchy evidence available on record, I do not find any palpable reasons to breach the general rule of ‘Bail’ against a 22 years old young lady, with absolutely blemish free criminal antecedents and having firm roots in the society, and send her to jail.”

There has been catena of cases such as the Arundhati Roy case, Hardik Patel case, Kanhiya Kumar case etc., where the government has used ‘Sedition Law’ as a weapon to restrict or subvert ‘Freedom of Speech and Expression’ of the citizen of India. According to the Crime data 2017-2019, released recently by the government-owned, National Crime Records Bureau (NCRB), Cases booked under Sedition Law increased to 165% (93 cases) in 2019 from 35 cases in 2016 while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.

Moreover, in 2018, The Law Commission, which is the Centre’s topmost advisory body on laws, headed by former Supreme Court judge, Justice B.S. Chauhan published a consultation paper recommending that it is time to re-think or even repeal the provision of sedition (Section 124A) from the Indian Penal Code.

Some people are demanding to strike down sec 124A of the IPC {Sedition Law}. Because it is hampering them to enjoy their fundamental rights conferred by the Supreme Law of the land i.e., Constitution of India, 1950. But on the other hand, some people are saying such a law is necessary to tackle or control anti-national activities.

To make you have the correct understanding of the current issue, this article will apprise you of the following:

• History of Sedition Law in India
• Definition of Sedition
• Constitutional validity
• Can a law be repealed solely on the ground of being abused?
• Status of Sedition Law in the UK

History of Sedition Law in India

The section corresponding to sec. 124A was originally sec. 113 of Macaulay's Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code as enacted is not clear, but perhaps the legislative body did not feel sure about its authority to enact such a provision in the Code.

The ‘Wahabi Movement’ was a revivalist movement. In India, the movement was led by Syed Ahmed Barelvi. The objectives of this movement were the purification of Islam and to establish Islamic rule. But in the wake of the Revolt of 1857, the objective of the movement became Jihad against the British i.e., to fight against Britishers. Due to the rise of the ‘Wahabi Movement’ in India, Britishers through Amendment act, 1870 penalised Sedition under sec 124A of IPC.  So, Britishers by introducing ‘Sedition’ in IPC outlawed Speeches that excite disaffection towards the government. Thus, begins the chapter on the Sedition Law in India.

The Bangobasi case 1891 (Queen-Empress v. Jogendra Chunder Bose I.L.R. (1892) was the 1^st case to be instituted under Sedition Law or sec 124A of the IPC.

Definition of Sedition

Sec. 124A of the Indian Penal Code, 1860 defines Sedition as, Whoever brings or attempts to bring -                                                                                                            

1.     Hatred or

2.     Contempt or

3.     Excite or attempts to excite disaffection

against government established by law through –

1.     Words, either written or spoken, or

2.     Signs or

3.     Visible Representative or

4.     Otherwise

Shall be punishable with -

1.     Imprisonment for life, or

2.     Imprisonment may extend up to 3 years, or

3.     Fine, or

4.     Both i.e., Imprisonment (as given in point 1 or 2) + Fine.

Explanation 1 of sec 124A states that ‘Disaffection’ includes disloyalty and all feelings of enmity. In the case of the Bangobasi case 1891, the court held, “Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval.”

Explanation 2 of sec 124A states that strong protest against government measures to cancel or alter it, shall not attract provisions of the said section unless such protest against the government does not instigate hatred, contempt and excite or attempt to excite disaffection against government established by law.

Explanation 3 of sec 124A states that strong disapprobation of any act of administration or government will not come under said section unless such strong disapprobation does not instigate hatred, contempt and excite or attempt to excite disaffection against government established by law.

The Sedition is a Cognizable, non-bailable and non-compoundable offence.

 The Freedom Fighters such as Bal Gangadhar Tilak who was convicted twice for committing Sedition and The Father of The Nation Mahatma Gandhi was also convicted for committing sedition. Mahatma Gandhi had published ‘Political sensitive’ articles in the weekly Journal named Young India (1919-1932) and after which he was convicted and sent to Jail for 6 years.

Constitutionality of Sedition Law

In the case of the Kedar Nath Singh v. State of Bihar (1962) (Kedar Nath case), the Supreme Court held that the sec 124A of IPC is constitutionally valid.

Let see how in the above-stated case the Supreme Court held sec 124A constitutionally valid.

While deciding the aforementioned case, Supreme Court referred to the Federal Court judgement of the Niharendu Dutt Majumdar v. The King Emperor (1942) and several judgements of Judicial Committee of the Privy Council i.e., King-Emperor v. Sadashiv Narayan Bhalerao (1947), Wallace-Johnson v. The King (1940) etc.

In the case of the Niharendu Dutt Majumdar v. The King Emperor (1942), Federal Court held that “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.” In other words, if A (random person) used words to spread disaffection against the State and this disaffection has a tendency to cause public disorder i.e., mutiny, rebellion; then such person shall be charged for sedition, as per this definition. But if A’s words did not tend to cause Public disorder then he shall not be liable for Sedition.

But Judicial committee of the Privy Council overruled the above statement in the case of the King-Emperor v. Sadashiv Narayan Bhalerao (1947) (Sadashiv case) and reaffirmed the view expressed in Tilak’s case to the effect that “the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.” In other words, if A (random person) used words to spread disaffection against the State and this disaffection did not have a tendency to cause public disorder i.e., mutiny, rebellion; then such person shall be liable for sedition. unlike as per the decision in the Niharendu Dutt case (Supra).

According to the Niharendu Dutt case (Supra), there shall be a threat to the security of the State as well as Public order to constitute ‘Sedition’. But according to the Sadashiv case (Supra), there may be a threat only to the security of state to constitute ‘Sedition’.

Now, you must be wondering what is the difference between ‘Security of State’ and ‘Public order’?

Here is your answer.

There is a public place in society. At that public place, few boys harass and eve-tease every girl who passes by that public place. Due to this, harassment and eve-teasing, girls of that society started to fear and avoid to pass by that public place. In this case, Public Order is harmed but the security of the state is not harmed.

On the other hand, there is a massive clash between two religious groups. In this case, security of the state and public order, both, are threatened.

So, there can be cases where only public order is under threat. But cases where there is a threat to security of the state, there will be also a threat to Public Order. In the landmark case of Kedarnath v. State of Bihar (1962), the court held that “the feeling of disloyalty to the Government established by law or enmity to it imports the idea of a tendency to public disorder by the use of actual violence or incitement to violence.”

In the landmark case of Shreya Singhal v. Union of India (2015), the Supreme Court cited the case of Dr. Ram Manohar Lohia v. State of Bihar and Ors. MANU/SC/0054/1965: (1966) 1 S.C.R. 709, in which the court held that it will be just to comprehend threat affecting to "public order" is of less gravity than those affecting "security of State". And further held that in two concentric circles, the outer circle is "Public Order" and the inner circle is "Security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.

I am sure that you must have got a satisfactory answer to the difference between Security of State and Public order.

Let’s continue with the constitutionality of Sedition Law in India.

The Supreme Court, in the Kedar Nath case (Supra), was perplexed while deciding which court judgement it should consider in defining sedition. After going through a lot of cases, the apex court deduced that if they choose to consider definition from the Niharendu Dutt case (Supra), the definition of Sedition is outside the limit of the constitution if we read the definition only with art. 19(1) of the Constitution of India, 1950. Art 19 (1) gives ‘Freedom of Speech and Expression’ to the citizen of India. But If we read the definition of Sedition with Art. 19 (1) and Art. 19 (2), it is within the constitutional limit. Because Art. 19 (2) gives power to the legislature to put reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

But on the other side, if they consider the definition of Sedition according to the Niharendu Dutt case (Supra), If such definition is read with art. 19 (1) and 19 (2) of the Constitution of India, 1950, then it is within beyond the constitutional limit and which make it unconstitutional.

The Supreme Court, in the Kedar Nath case (Supra), in order to decide which case decision, it referred to R.M.D. Chamarbaugwalla v. The Union of India (1957), in which the court after analysing its previous judgement, as also of the Courts in America and Australia, held that “if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question.”

Thus, the Supreme Court, in the Kedar Nath case (Supra), opted for the decision of the Federal Court in the Sadashiv case (Supra). Further while summing up, it held, “It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress.”

Hence, the Supreme Court, in the Kedar Nath case (Supra), held sec 124 A of IPC or Sedition Law in India constitutional.

While deciding the landmark case of Balwant Singh and Ors. vs. State of Punjab (1995), the Supreme Court held, “The casual raising of the slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India.”

Can a Law be repealed solely on the ground of being abused?

In the landmark judgement on the Freedom of Speech and Expression of Shreya Singhal vs. Union of India (2015), the Supreme Court referred to the judgement of Collector of Customs, Madras v. Nathella Sampathu Chetty and Anr. (1962), in which Supreme Court stated, “the possibility of the abuse of the powers under the provisions contained in any statute is no ground for declaring the provision to be unreasonable or void.”

The apex court, in the aforementioned case, further stated that the constitutional validity of the statute would have to be determined based on its provisions and the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, the possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements.

Status of Sedition Law in the United Kingdom (UK)

In 2009, the British government passed the Coroners and Justice Act 2009 which abolished Sedition and Sedition Libel as an offence. This came into effect from January 12, 2010. The Parliamentary Under-Secretary of State at the Ministry of Justice, Claire Ward, was quoted stating, “Sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today… The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom… Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech.”

New Zealand, Indonesia, South Korea and Japan have declared Sedition Law as unconstitutional in their respective countries.

Author views:

There is no need for Sec 124A of the IPC (Sedition Law) in India. There are already plenty of laws, such as the Unlawful Activities Prevention Act, 1967 (UAPA) etc., which are sufficient to tackle any urgent situation. Sec 2 (o) of the UAPA defines ‘Unlawful Activities’ which comprises of all the ingredients which are necessary to constitute offence of Sedition.

Moreover, UK from where this law originated itself had abolished and declared such law as arcane and called it as an instrument that was used by Britishers to suppress Freedom of Speech and Expression. And apart from UK countries like New Zealand, Indonesia, South Korea and Japan have already declared this law unconstitutional in their respective countries. So, now India should also take a step to abolish this draconian law.

The Central Government as well as State Government use such law to suppress Freedom of Speech and Expression. As, Sedition is a Cognizable, non-bailable and non-compoundable offence that makes a poor innocent person more vulnerable.

Author: Satwik Sharma