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A Comparative Study of Sedition Law as per IPC and Bharatiya Nyaya Sanhita

The Home Minister of India Mr. Amit Shah introduced a bill in the Parliament which is meant to replace the three codes that are the core of the criminal justice system in India: the Indian Penal Code (IPC), The Criminal Procedure Code (CrPC) and the Indian Evidence Act.

These three codes have been n existence in India since more than 160 years and though there have been changes introduced from time to time, it was felt that these were legacy of the colonial era and needed some radical changes. As many as 313 ammendments were proposed in the Bill to bring about these considerable changes. The IPC is now to be replaced by the Bharatiya Nyaya Sanhita, 2023, CrPC by the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Indian Evidence Act of 1872 by the Bharatiya Sakshya Bill, 2023.

The Bharatiya Nyaya Sanhita Bill, 2023 contains Section 150, that will completely repeal Sedition as an offence defined under Section 124A of the IPC. It is interesting to note that Section 150 does not use the word sedition, and instead describes it as "endangering sovereignty, unity and integrity of India."

This paper is an attempt to understand the origin and meaning of the offence of sedition and an analysis of the offence described in Section 150 in the new code including the loopholes present in it. Few important Supreme Court judgements have been analysed in this regard. Finally, a few suggestions have been made to take the way forward in making the criminal justice system fair and just at the same time protecting the fundamental rights of the citizens to express dissent.

Origin of sedition laws: The Sedition laws were enacted for the first time in England in the 17th century when it was believed that only good opinions of the people regarding the government should survive, because bad opinions were detrimental to the government and monarchy. Though originally drafted in 1837 by the British Historian and Politician Thomas Macaulay, it was erroneously omitted in 1860 when the Indian Penal Code (IPC) was enacted.

Later, in 1870, It was felt that a specific section was needed to deal with the offence and hence, the sedition law was borrowed from British laws and inserted into Section 124A of IPC in 1870, by an amendment introduced by Sir James Stephen.

In the colonial era, the sedition law was used by the British to suppress dissent by the Indian freedom fighters and crush any rebellion. Freedom fighters such as Mahatma Gandhi, Pandit Jawaharlal Nehru and Bal Gangadhar Tilak who criticised the policies of the colonial administration through their

"Seditious" speeches, writings and activities, were imprisoned under this law. The draconian law served the purposes of the British rule and supressed the voice of the people of India.

Drafting of the Constitution of India: Following Independence, when the constitution of India was being drafted, the founding fathers of the constitution spent a lot of time deliberating on several aspects of this colonial law. Finally, the Constituent Assembly did not agree to include sedition in the Constitution because they felt it would curtail freedom of speech and expression, a fundamental right of people of India. Their argument was that the law can be turned into an instrument to suppress the legitimate and constitutionally guaranteed right to protest guaranteed to the people of India.

One of the most vocal opponents of the sedition law was Mr. K.M.Munshi, who argued that such a harsh law will definitely pose a danger to democratic set up in India. According to him, the essence of democracy is criticism of Government wherever and whenever required and by killing dissent we would be killing democracy. It can be said that the great efforts of K.M.Munshi and also the persistence of the Sikh leader Bhupinder Singh Mann resulted in the word sedition being omitted from the Constitution of India.

The first constitutional amendment Act, 1951: Within one year of drafting of the constitution, there were a series of High court and Supreme court judgements, that had struck down provisions in laws meant for public safety and criminal justice, because they were deemed to be incompatible with the constitutional right to freedom of speech and expression.

To strike a balance, The First Constitutional Ammendment Act was passed in 1951 by the government headed by Jawaharlal Nehru, which amended articles 15, 19, 85, 87, 174, 176, 341, 342, 372 and 376 of the constitution. It not only reimposed the sedition law, but also substituted the original clause 2 of Article 19, which talks about reasonable restrictions to freedom of speech and expression.

The New Clause (2), added "two objectionable insertions" to the list of reasonable restrictions. These were restriction "in the interest of public order" and "in relation to incitement to an offence". The sedition law was further strengthened by adding two expressions- "friendly relations with foreign state" and "public order" as grounds for imposing "reasonable restrictions" on free speech.

Therefore, the sedition law, which was initially introduced by the British to suppress the Indian freedom struggle in 1870, after independence, became controversial because it was allegedly misused by various governments, mostly against political opponents, activists, journalists, and social media influencers in the 21st century. Kapil Sibal, senior leader of India's opposition Congress party and lawyer for the petitioners, told the Supreme Court that "there were over 800 cases of sedition pending across India and as many as 13,000 people were in jail. A majority of sedition cases filed against 405 Indians for criticising politicians and governments over the last decade were registered after 2014 when Prime Minister Narendra Modi took power"

Sedition as per IPC
Sedition is a crime under Section 124A of the Indian Penal Code (IPC).

Section 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.
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.

The need for Sedition law in Independent India
The constitution of India imposes reasonable restrictions, under Article 19(2), that can always be imposed on the fundamental right (Freedom of Speech and Expression) in order to ensure its responsible exercise of the right. Sedition law helps the government in maintaining Unity & Integrity by supressing anti-national, secessionist and terrorist activities. Besides, it helps in maintaining Stability of State by protecting the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State.

Problems with the sedition law:
The sedition law can be seen as a relic of Colonial Era. The colonial administrators used sedition to put behind bars those people who criticised the British policies. Several important leaders of the freedom movement such as Mahatma Gandhi, Bal Gangadhar Tilak, Jawaharlal Nehru, Bhagat Singh etc, were imprisoned for their "seditious" speeches, writings and activities under British rule. Thus, there was widespread use of the sedition law in the colonial era.

After Independence, The Constituent Assembly took a stand against it. The members did not agree to include sedition in the Constitution as they felt it would curtail freedom of speech and expression. They argued that the sedition law can be misused as a weapon to suppress the constitutionally guaranteed right to protest.

The main problem or issue with the Sedition Law is that it gives a very poor definition of sedition. The terms "bring into hatred or contempt" or "attempt to excite disaffection" might be interpreted in various ways, giving the government as well as the police the right to harass those who may be innocent.

The vague definition of sedition, which doesn't specify which actions are seditious and only gives a general description of what can be considered seditious, makes it easy for the police to accuse people unjustly. In the recent times, India is being described as an elected autocracy primarily because of the callous and calculated use of sedition law.

There are growing instances to show that this law has been used as a weapon against political rivals and to suppress dissent and free speech. For example, between 2016 and 2019, the number of cases filed under Section 124A rose by 160% even as the rate of conviction dropped to 3%.

Supreme Court Judgements in regard to sedition laws
Kedarnath v. State of Bihar, AIR 1962 SC 955
In this landmark case, the constitutional validity Section 124A of the IPC was challenged by the petitioner. The sedition law was contended to restrict the freedom of speech which is not in the interest of the public having contrary opinions with government.

Kedarnath, a revolutionary leader, criticized then ruling Congress Government. In a speech, a speech, while he criticized the government, he advocated for the Forward Communist Party. On the basis of the choice of words that he used in the speech, a case was filed against him on the grounds of Section 124A, Sedition and Section 505, Public Mischief. Based on the judgement, he was sentenced to rigorous imprisonment for one year.

The High Court of Patna dismissed the appeal. A further appeal before the Supreme Court of India was made by him whereby he claimed that his fundamental right of freedom of speech and expression (article 19(1)) was being infringed. He further contended that the provision for Sedition in IPC, Section 124A, is ultra vires of the Constitution of India.

Issues Involved in the case was basically Whether Sections 124A and 505 of the IPC are ultra vires in view of Article 19(1)(a) read along with Article 19(2) of the Constitution of India.

The Court observed first of all that the provision of sedition (section 124A), clearly restricts freedom of speech under Article 19(1) of the Constitution of India, 1950. However, the Supreme Court of India upheld the constitutional validity of the provisions of the Indian Penal Code that penalized sedition. The Court said that the protection of freedom of speech should be safeguarded to its full extent, but reasonable restrictions are necessary for the safety and integrity of the State.

Kedar Nath had given a speech in which he criticized the congress government and advocated for the Forward Communist Party.

The Court gave the following reasonings:
  • The penalization of sedition is a constitutionally valid restriction on the right to freedom of expression only when the words are intended to disturb public peace by violence.
  • The criticism of the "Government established by law" under section 124A, must be considered different from criticism of a specific party or person.
  • Seditious statements disturb the peace, stability, and public order which are primary functions of the State. The Court said that Section 124A must be construed to only penalize those statements that incite public disorder. The Court held that the offense of sedition is constituted only when the words spoken have the tendency or intention to create disorder or disturb public peace by resort to violence. This is a constitutionally valid restriction on the right to freedom of expression, because the State may restrict speech in the interest of protecting public order.
  • The Court also stated that the protection of freedom of speech should be safeguarded to its full extent, but reasonable restrictions are necessary for the safety and integrity of the State.
  • This is a constitutionally valid restriction on the right to freedom of expression, because the State may restrict speech in the interest of protecting public order.
  • For the same reason, the Court also held that Section 505 was constitutionally valid; it was a reasonable restriction on the right to freedom of expression in the interest of protecting public order.
Summarising, the Judgement, stated that the sedition statute should only be used in exceptional circumstances where the nation's security and sovereignty are at risk. The judgement advised application of sedition to "acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence".

Supreme Court Stay on the controversial sedition law (May 2022 Judgement)

In May 2022, The Supreme Court of India, has put the controversial sedition law on hold that critics say is used to stifle dissent. In a historic judgement, the Supreme Court of India on May 11, 2022, recommended the Central Government to reconsider the provision of Section 124A (sedition) of theIPC. It is the first time in 162 years that the operation of a provision of sedition has been suspended.

The judges further asked the government to refrain from registering any new cases which invoke sedition until it finishes hearing petitions challenging it. The court also asked the law enforcement authorities to hold or pause all existing sedition trials. This was done in view of the fact that the government has been accused of using the law against critics, such as politicians, journalists and activists.

After the Supreme Court's judgement, the controversial Sedition law in India has been paused while the Central Government reviews it. The judgement has impacted hundreds charged under the colonial-era relic and those jailed for sedition can now approach courts for bail.

Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements. However, dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition.

The higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech. The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.

22nd Law Commission Report: says 'No' to repeal of sedition law

The 22nd Law Commission of India report was released in April 2023 and recommended that "Section 124A should be retained in the statute book with certain changes. In its report, the Law Commission said that Section 124A needs to be retained in the Indian Penal Code, though certain amendments, as suggested, may be introduced in it by incorporating the ratio decidendi of Kedar Nath Singh v. State of Bihar so as to bring about greater clarity regarding interpretation, understanding and the usage of the provision."

The commission said the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be amended to enhance the alternative punishment to seven years, calling for giving the courts greater room to award punishment in a case of sedition in accordance with the scale and gravity of the act.

Bharatiya Nyaya Sanhita Bill: Section 150: Acts endangering sovereignty unity and integrity of India
Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.

Secession essentially "refers to a situation where a state or states secede or withdraw from the Republic of India.

Armed rebellion is a term that was inserted in the Constitution through the 44th Amendment, which is considered to be a ground for declaring national emergency, internally.

"subversive activities" according to the 43rd report on Offences Against National Security, consists of activities that are classified as "unlawful" under the Unlawful Activities (Prevention) Act and an additional list of activities that are not covered under this act. Further, this section also aims to punish any excitement or attempts of excitement of separatist activities.

Differences between Section 124A IPC and the Bharatiya Nyaya Sanhita (Bill), 2023:
  1. Section 150 of the new Bill criminalises "acts endangering sovereignty unity and integrity of India".
  2. In section 124A IPC, a person convicted of sedition could get away with a fine. Section 150 of the bill prescribes imprisonment for life or imprisonment which may extend to seven years, in addition to the fine, as punishment. Thus, punishment has been made more severe.
  3. The name sedition law will be replaced by "Acts endangering sovereignty unity and integrity of India".
  4. Words "disaffection towards the Government established by law in India" have been removed from Section 124A of IPC.
  5. It directly targets secessionism, separatism, subversive activities and a call for armed rebellion � words like "contempt" or "hatred" against the Government of India has been removed.
  6. It also includes "electronic communication" and "use of financial means" as tools for perpetuating an act "endangering sovereignty unity and integrity of India."
  7. Section 124A IPC required very harsh words and some action (for example uprising against the country) to be qualified as sedition. Under Section 150, merely words by themselves will attract the charge of having participated in anti-national activities.
  8. Terrorism offences, organised crimes and criminal activities added in the new Act. Loopholes in New Act
Freedom of speech and expression is the hallmark of a democracy that is being compromised due to the sedition law. Section 150 by describing the offence as "endangering sovereignty, unity and integrity of India", not only continues with the major issue of the law but also, increases the vagueness and broadness in the definition of what act should specifically be categorized as seditious and what shouldn't.
  1. Instead of making "incitement to violence" or "disruption to public order" a condition precedent to invoke the charges as suggested by the Kedarnath Judgement, Section 150 continues to criminalise any act that "excites or attempts to excite" secessionist activities or "encourages feelings of separatist activities."
  2. Penalises a person who "indulges in or commits any such act", vesting with law enforcement agencies a greater discretion to decide what can be brought within the fold of an act "endangering sovereignty, unity and integrity of India" for the purposes of slapping the charges.
  3. Section 150 of the BNS seeks to criminalise 'Acts endangering sovereignty, unity and integrity of India' and punishes them with imprisonment for life or with imprisonment which may extend to seven years and fine. The minimum punishment for the offence has been increased from three years to seven years. The clause, it needs to be said, is in the same vein as s. 124A of the IPC. The provision may not be labelled 'sedition', but the spirit of that provision has been retained and potentially, covers a wider range of acts which themselves suffer from ambiguity and vagueness in their current form, creating implications for its constitutionality. A look at the journey and jurisprudence on sedition is a good place to reflect upon the implications for this clause. For instance, 'subversive activities', in the absence of a legal definition, indicates neither the type of activity that may be considered 'subversive' nor the degree of harm that must occur nor the object of such harm to qualify as a subversive activity.
  4. Section 150 takes in its purview almost everything, including a speech, a newspaper article, a book, a drama� everything that Section 124A of IPC currently penalises as sedition.
Case Law
Disha Ravi is a Bangalore based climate change activist and a founder of "Fridays for Future" India.

Her arrest on 13 February 2021 on charges of Sedition, for an alleged involvement with an online toolkit related to Greta Thunberg and the Indian Farmers Protest 2020-21 gained international attention.

The Indian government alleged that the toolkit, a standard document to achieve social justice, provided a list of ways to support the farmers' protests. This led to unrest and amounted to a form of sedition.

A toolkit is a kind of document which provides online resources to give knowledge about the cause of a particular protest and its achievement. This digital toolkit is equivalent to the offline street protests where one holds pamphlets and hoardings. In the current scenario, social media has become a significant platform to express opinions and views. Various activists get together through a toolkit to explain what the protests are about and how the people can support them.

The arrest was widely criticized both within India, and internationally.

Facts of the case:
On 4 February 2021, climate activist Greta Thunberg tweeted in support of Indian farmers. In a subsequent tweet she linked an updated toolkit, titled "by people on the ground in India." The toolkit was a routine document used by social justice campaigners to raise awareness about issues and suggest strategies to proceed for those who want to support the campaign.

On 13 February 2021, Disha was picked up for questioning from her home in Bengaluru, by a team from the Delhi Police for allegedly disseminating a social media toolkit related to the farmer's protest.

She was sent to 5-day police custody. According to Police, the toolkit included links of pro Khalistani websites, "Poetic Justice Foundation"

The police filed a case of sedition and criminal conspiracy against Disha and said her arrest was related to an investigation into farmers involvement in violence in the Red Fort on January 26, 2021

According to police, the main aim of the 'toolkit' was to create misinformation and disaffection against the lawfully enacted government. Further, the police said Disha had shared the document with Thunberg amounting to 'conspiracy' behind violence on Jan. 26 2021 due to social media campaigns.

Disha denied being part of a conspiracy and said that she was just supporting farmers. Disha also denied creating the toolkit and stated she had just made two edits to an already prepared toolkit.

On February 18, Disha filed a case in court stating that she was arrested illegally, and specifically that "The police did not obtain any transit remand", which is the legal permission required before moving an accused to another location, "nor did they permit the petitioner to consult with a lawyer", adding "Surprisingly, there was significant media coverage of the petitioner's remand hearing and the media seemed to have more knowledge about the time and venue of the petitioner's production than her lawyers."

On February 19, Disha was detained in a three-day judicial custody, on the day her five-day police custody would have ended. On February 20, the court reserved its decision on Disha's bail application until February 23.

On 23 February 2021, the sessions court granted bail to Disha. Due to the lack of any strong evidence on the part of Disha Ravi, the court set her free and made certain observations regarding the applicability of the law of sedition in India. The court upheld that dissent and divergence of thoughts was a sign of healthy democracy as the fundamental right to free speech is protected under the Indian Constitution. The court also stated that the right to seek a global audience was a part of freedom of speech and expression.

The arrest of Disha Ravi was unjust on the following three grounds:
  • It violated Supreme Court guidelines on the use of the sedition law in the 1962 Kedar Nath Vs State of Bihar case. In this case, the Court made it clear that the sedition law could only be used when there was "incitement to violence" or if there was "intention to create disorder."
  • By not obtaining a "transit remand" after producing her before a judge and not giving her access to her lawyer, the Delhi police ignored a 2020 Delhi High Court division bench ruling on inter-state arrests.
  • The manner of her arrest and the response of the Delhi judge who remanded her to five days police custody violated the "spirit of the law".
Section 150 of BNS is far wider than what was recommended in the Law Report which was to strengthen the provision by adding procedural safeguards and enhancing jail term. The Commission had also recommended adding the words "with a tendency to incite violence or cause public disorder." Section 150 of the Bharatiya Nyaya Sanhita Bill, 2023 provides with nothing new but only helps in increasing the vagueness of the Sedition Law and extends the punishment of the unjust law. Currently, sedition draws a punishment of life imprisonment or with a jail term which may extend to three years. The new provision changes the three-year imprisonment to 7 years.

Way Forward & Suggestions:
It is imperative for the government and the lawmakers to understand the importance and graveness of Sedition Law. Sedition laws and the increasing abuse of them by governments are a serious topic of concern.

Hallmarks of a vibrant functioning democracy are personal liberty and the right to freedom of speech and expression and sedition laws and their misuse attack the very basis of these liberties enshrined in the Constitution of India. The need of the hour requires the government to specifically define the term "Sedition" in order to prevent the draconian use of this law by the governments of all colours.

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