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Sedition: A Lawful Misconception

Sedition is one of the most debated provisions in India. The British who first administered Sedition law has themselves abolished this law in their territory. The object of this enactment is to forestall ill will or contempt against the Government established by law.

Yet, as a general rule, it is abused by the administration in power, even though the apex court decided on numerous occurrences that mere criticism won't draw in 124A of IPC. In most instances across various periods of time, a debate among mediocre people arises about this rule's constitutional validity, whether it affects fundamental right guaranteed under part III or the basic structure of the Indian Constitution.

History:
The expression Sedition was first noted in the history in 1590, during the Elizabethan Era, in England, the law passed to protect the crown and the Government from any possible revolts. But the law was criticized and debated over its existence during various periods. Subsequently, in 1977, the British law commission recommended abolishing Sedition law in their country.[1]

Consequently, the then British Secretary of the State repealed Sedition through the Coroners and Justice Act, 2009. During the enactment of this act, she had stated that:
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 Freedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticize the state is crucial to maintaining freedom.

This law found its origin in India during the British era, through the First law commission report chaired by Thomas Macaulay in 1834 as Section 113 of Macaulay's Draft Penal code of 1837. But Sedition was not the part of IPC when the law got enacted in 1860; instead, it was inserted into IPC as Section 124A by the IPC amendment act, 1870.

The need for this Section emerged due to the Wahabi Movement; this was an Islamic revivalist Movement led by Syed Ahmed Barlvi. This movement was active since the 1830s, but after the Great Revolt of 1857, it turned into armed resistance. As a result, the British introduced Section 124A into the IPC and declared the Wahabis as traitors and carried out an extensive military operation against them.

Sedition-Meaning:

Sedition prohibits any speech, publication, acts, or writings against the Government with seditious intent. This intent previously described as:
encouraging the violent overthrow of a democratic institution. [2] The term Sedition was later defined as:
exciting or attempting to excite feelings of disaffection to the Government established by law

It was well elaborated in Reg v. Burns,[3] where the court stated that:
Sedition is a crime against the society, nearly allied to that of treason and it frequently precedes treason by a short interval. The object of Sedition generally is to induce discontent and insurrection and to stir up opposition to the Government and bring the administration of justice into contempt and the very tendency of Sedition if to incite the people into insurrection and rebellion.

Subsequently in Reg v. Aldred,[4] where Justice Coleridge stated that the word Sedition in its ordinary natural significance denotes a tumult, an insurrection, popular commotion or an uproar but it implies violence or lawlessness in some form.' While delving into the definition of Sedition, the five specific heads of Sedition may be enumerated according to the object of the accused. This may be either:
1. To excite disaffection against the King, Government or Constitution, or Parliament or the administration of justice.
2. To promote, by unlawful means, any alteration in church or States.
3. To incite a disturbance of the peace.
4. To raise discontent among the king's subjects.
5. To excite class hatred. [5]

Position of Sedition in India:

In India, the term Sedition located initially in Section 113 of Macaulay's Draft Penal code of 1837; the provision read as follows:
Whoever, by word, either spoken or intended to be read, attempts to excite feelings of disaffection to the Government established by law in the territories of the East India Company, among any class of people who live under the Government shall be punished with imprisonment for life or for any term to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added, or with fine

But later when this provision was inserted as Section 124A in IPC, the provision had minor change which added transportation for life as also a punishment. Similarly, even after its incorporation, the provision had some changes by IPC amendment act of 1898, after some inconsequential modification made by the Adoption of laws order issued in 1937, 1948 and 1950 and by the Part B states (Law) Act, 1951, hence the present Section 124A reads as under:
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 toward 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.

On the comparing both past and the current provision it establishes that in the former the offence consisted in exciting or attempting to excite a feeling of disaffection to the Government established by law but in the latter bringing or trying to bring into hatred or contempt towards the Government established by law is also made punishable.

The Essence of Section 124A:

The essential ingredients of Section 124A are that:
  1. there should be words, Signs, Visible representation or otherwise,
  2. Brings or attempt to bring into hatred or contempt,
  3. Excite disaffection, towards the Government established by law

The words or signs or visible representation or other means exercised which brings or attempt to cause hatred against the Government established by law is a direct form of Sedition and an offence under Section124A, the term words' and signs' explain themselves but whereas the term visible representation has no definite explanation. It includes all the media, movies, concert; it just means any form of communication which is visible to the eyes.

The next word or otherwise indicate the universality of how the offence committed. For example, the Supreme Court, in the case of Raghubir Singh v. The State of Bihar,[6] held that distribution or circulation of seditious materials will also constitute the offence. And similarly, the law is not concerned with just mere feelings of hatred or contempt, which may lie in the hearts of the persons. The code cannot fathom the innermost feelings of any person and punish them for the same. However, the law steps in, when this inner feeling of hatred or contempt excites disaffection against the state.

The term disaffection, which is the most debated word in this entire provision it has been a subject matter of controversy in courts; moreover, explanation 1 to this provision states that disaffection includes disloyalty and all feelings of enmity. The constitutional bench entirely explained in Kedar Nath v. The State of Bihar,[7] where the bench relied upon the words of the then Chief Justice of Calcutta High Court, Sir Comer Petheram, who decided the first Sedition case in India, he interpreted the term disaffection plainly as absence of affection. It means hatred, enmity dislike, hostility, contempt, and every form of ill-will to the Government.

If a person uses either spoken or written words, calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so intending to create such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the Section though no disturbance is brought about by his words or any feeling of disaffection produced by them.

It is sufficient for the Section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.

In order to understand this provision in detail, one has to understand the difference between a Government formed by a particular ruling party or the bureaucracy running the Government from the term Government established by law.' The term Government as defined in Section 17 of IPC, which defines Government as the Central Government' or the Government of the State,' cannot be equated with the term Government established by law.

The Government established by law has to be distinguished from the persons for the time being engaged in carrying the administration. A citizen encompasses a right to mention or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or to create public disorder. For instance, it is common in India that comments passed on political parties even against the ruling parties, but the criticism or comments against the ruling parties cannot consider as disaffection against the Government established by law.

The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambits of a citizen's fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, the security of the State and public order. Hence, we can say that to be prosecuted for the crime of Sedition a person must have some intention to overthrow the Government by violent means.[8]

Article 19 and Sedition: Harmony or Conflict?

As law evolves with time and circumstances prevailing in the country, there may transpire preponderate disparities between differing provisions of the acts enacted by the legislature. Article 19(1)(a) induces freedom of speech and expression to the people and section 124-A IPC is contemplated as conflicting the freedom that Article 19 seeks to confer. Not only section 124-A is sighted at speech and expression of denizens that are concentrated in engendering detest among the public, it has a wider ambit. Maneuvers of individuals that would result in waging war against the state, Collecting arms for the purpose of waging war,

Assaulting the president or governor would constitute sedition. Stimulation of religious insults is an integrant of sedition. In a diversified country like India, the existence of sedition laws is incumbent to obviate any form of unrest in communal. The exigency for sedition laws is imperative to obliterate anti-national and terrorist elements, wherein this may cause unrest in communal.

For Article 19 and section 124-A to administer in a harmonious manner, the inference and applicability of 124-A have to be obliterated which would also corroborate the communal to employ their freedom endowed under Article 19 without ambiguity. In Ram Nandan v. State of U.P.,[9]

Constitutionality of 124-A was held to be ultra vires Article 19(1) as the said proviso was identified to be unreasonable failing to be classified under reasonable restrictions as bestowed upon Article 19(2). As a result, the Allahabad High Court held 124-A to be unconstitutional and ultra vires Article 19(1) of the constitution. This ruling of the High court identified and resulted in the infliction of conflict between Article 19(1) and Section 124-A of IPC.

The scope of applicability of sedition laws has been bounded by the Supreme Court in the case of Kedar Nath v. State of Bihar.[10] Incitement of Violence was regarded as an imperative ingredient for the actions of individuals through their speech and expression to constitute sedition. As a result, S.C. constitutionalised 124-A by including it under Reasonable Restrictions endowed under Article 19(2).

This inclusion suggests that a mere criticism or an opinion that is drafted or rendered by any citizen does not by itself compute sedition unless such speech or expression is directed towards the promotion of hate or violence among the general public to turn them against the government. If there arises conflict or disparities between two or more provisions of the same act or that of any different acts, the courts should seek to harmoniously interpret the provisions to protect the integrity and the purpose of the conflicting provisions.

The apex body has reduced the scope and applicability of 124-A whereby restricting its implications to validate its constitutionality and also established harmony between Article 19 and Section 124-A. The essential ingredients laid down by S.C. have tremendously paved the way for both the provisions to exist and operate in a harmonious manner without conflicting each other.

Exploitation Of Sedition Laws By The Government:

Sedition and its associated laws cushion the interests of the government and not the country. The government fluctuates with differing ruling parties and as a result, the interests and functioning of the government change and synchronize with the ruling party. In India, it is a customary practice to protect the party's interests than to shelter the general interest of the public. As a result, major means resorted by the communal that causes disinterest to the government's policies or interests are classified to be an act of sedition. The degree of such abuse is greater in significance which reflects the clear misuse of power of the government.

Speeches or actions meager in essence whose repercussion dissatisfies the government is often coined and termed to be of seditious nature. Occurrences, where a citizen intimating his views or rather exercising his free speech, is prosecuted for the execution of such offence. Although the National Crimes Records Bureau showcases fewer conviction rates for sedition, the end means of charging without genuine ground is prevalent. Communal face discrimination and ill-treatment in the semblance of sedition just by uttering a slogan that displeases the government. The government, shadowed by the ruling party, manipulates the non-bailable crime to secure its own personal agendas preventing the denizens from raising their voice against its own maneuvers.

International Standpoint On Laws Of Sedition:

India is a signatory as well as had ratified the International Covenant on Civil and Political Rights (ICCPR). As law prescribes a binding status to our country for ratifying treaties, the three organs of our country along with the people have a legal responsibility and duty flowing through our constitution to duly follow and abide by the articles and provisions of the ratified treaties.

With the absence of domestic laws, Indian courts have often resorted to international conventions as held in Vishaka v. State of Rajasthan [11] for the purpose of framing a domestic law. Different countries have varied and differed outlooks when it comes to domestic laws. The International standpoint on sedition laws of foreign countries:

United Kingdom:

The notion of Seditious libel was prominent in the king's era during the 17th century wherein the kings had sovereign powers. Seditious libel revolved around any form of communication or exertion made to defame or criticize the government, and the state had hegemony through contriving it.

The De Libellis Famosis[12] case identified the indictable complexion of this bigoted law wherein a person was bound for sentence even if found performing fair and truth endeavor. Modern democracy paved the way for the enactment of refined seditious libel in the UK wherein any act that resulted in violence and public disorder was penalized. Section 73 of the Coroners and Justice Act, 2009 expunged sedition and it was annulled in the UK as a result.

The United States of America:

Laws that infringe freedom of expression of the denizens were not advised to be enacted by the first enactment. However, it was debated that the first enactment sought to prevent the enactment of sedition laws. Such arguments ended in futile as the implementation of the Sedition Act, 1798 discerned sedition as a transgression. The plausibility of the act was defied in Schenck v. United States[13] wherein sedition was adjudged justifiable by applying the clear and present danger test. A series of judgments, in the later years, narrowed the scope and applicability of seditious libel to comfort freedom of speech and expression.

Australia:

Sedition was reckoned as a transgression with the execution of the Crime Act, 1920 which encompassed provisions that concluded a strict and broader sense to the term Sedition. There was a deprivation as to what would comprise and amount to sedition as the applicability of the offence was in a broader sense and there was no boundary to contain it. The Hope Commission governed the definition of sedition and fabricated a circumference for it to operate in a legal sense.

With the intervention of the Gibbs Committee, the scope and pertinence of sedition were rudimentary to those acts that incited violence consisting of a motive of suppressing and overthrowing the government. The term Sedition was replaced and re-coined with Treason in federal criminal law by the Australian Law Reform Commission due to the 2005 amendment to the Anti -Terrorism Act.

Canada:

The offence of sedition was inserted into the Criminal Code of Canada from the English common law. Section 59(1) to (3) of part II of the Criminal Code extends the essence of this crime to those activities or instances that contain a seditious intent. Section 61 of the Code dictates the punishment for seditious libel with imprisonment not exceeding fourteen years. Since Canada is a monarchy turned democratic country, the offence of sedition is viewed against Her majesty's, her heirs and also against the government of democratic Canada. Sedition is charged against persons in three stages.

The first stage involves the uttering of words or speech, the second stage involves Seditious libel in such speech and the final stage involves such words to give rise to seditious conspiracy'. In cases of sedition, the burden of proof lies on the crown and must be proved beyond a reasonable doubt. Even though the offence of sedition contains severe implications, no citizen has been prosecuted for sedition since 1951 with the landmark judgment in the case of Boucher v. The King.[14]

Malaysia:

The British colonial era paved the way for the foundation of seditious laws in Malaysia. The British enacted the Seditious First Act in 1948 where it was aimed to silence dissent against colonialism and British rule and the British perceived it as a legal restriction to prevent the citizens from erupting against their rule. The major ingredient of any crime lies with the mens rea and actus rea which are also the deciding factors upon the commitment of a crime.

Seditious laws in Malaysia are not concerned with the intention of the accused or rather the mens rea is omitted to be acknowledged upon the rendering of sedition. The law prescribes seditious tendency as a vital constituent to be taken into account while evaluating the crime of sedition.

Conclusion: A Democratic Execution
The true essence of democracy lies in the transparency of its government and in the way where its populace is able to speak freely without any hindrance. The implementation and existence of sedition laws are paramount but the execution of such laws requires clarity and justice.

The thin line of distinction between hate speech and sedition must be recognized to elude disparities and unrest. The laws invite careful interpretation that adjudges the legislative intent behind invoking sedition laws in the Penal Code.

The scope and ambit of sedition laws are wider in nature as a result of which the misuse of the laws. A reduction in the scope and application of sedition laws would reduce the misuse by the government. Laws are made for the communal and any government suffers from an obligation to protect and safeguard the interests of the public, sedition must also be viewed in this approach.

References:
  1. Codification of the Criminal law- Treason, Sedition and Allied Offences published on 10/05/1977
  2. R v. Chief Metropolitan Stipendiary (Ex Parte Choudhury), [1991] 1 Q.B. 429.
  3. (1873) 16 Cox's Criminal case 355.
  4. (1909) 22 Cox's Criminal case 1.
  5. Stephen, commentaries on the Law of England, vol IV
  6. A.I.R. 1987 S.C. 149
  7. 1967 A.I.R. 955
  8. Indra Das v. State of Assam, (2011) 3 S.C.C. 380; Arup Bhuyan v. State of Assam, A.I.R. 2011 S.C. 957.
  9. AIR 1959 All
  10. Supra at 7.
  11. Air 1997 SC 3011.
  12. 77 Eng. Rep. 250 (K.B. 1606) (Coke).
  13. 249 U.S. 47 (1919).
  14. [1951] S.C.R. 265

Written By:
  1. Gautham K, II year, B.com.LL.B (Hons.), SASTRA Deemed to be University, Thirumalaisamudram, Thanjavur
  2. Rabi Anandh R S, II year, B.com.LL.B (Hons.), SASTRA Deemed to be University, Thirumalaisamudram, Thanjavur

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