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Decoding The History Of Sedition Law In India

What Is Sedition?

According to Section 124-A of the Indian Panel Code, 1860,
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 I - The expression disaffection includes disloyalty and all feelings of enmity.

Explanation II - Comments 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 their section.

Explanation III - Comments expressing disapprobation of the administrative or other action, do not constitute an offence under this section.

This means that the law punishes attempts to create hatred, contempt, or disaffection towards the Government as sedition.
The explanation to Section 124-A of the Indian Panel Code, 1860 explicitly excludes disapprobation of the measures or actions of the Government that does not excite or attempt to excite hatred, contempt or disaffection.

Siddharth Narrain in 'Disaffection and the Law; The Chilling Effect of Sedition Laws in India' wrote:
The law in its wording distinguished between bringing into hatred or contempt, or exciting or attempting to excite disaffection towards the Government established by law and what is termed in the explanation as expressing disapprobation against the State (which is permissible). Disaffection has been defined as a feeling that can exist only between the ruler and the ruled. The ruler must be accepted as a ruler, and disaffection, which is the opposite of that feeling, is the repudiation of that spirit of acceptance of a particular Government as ruler.

The Code of Criminal Procedure provides for imposing restrictions on the right to assemble peacefully without arms in the event of a threat to public order. Even free speech by individuals, organisations, associations or entities can be so restricted. However, the threshold for imposing restrictions must be such that there exists a clear and present danger to India’s sovereignty, security and integrity. It is in this sense that the 'law of sedition' is anathema to constitutional values and freedoms since the expressions used under it are in respect of acts that may have no relationship to a possible threat to the sovereignty and integrity of our nation.

India’s sedition law has an interesting past -- it was introduced by the British in 1870. The trepidations that drove the British Raj were well documented in the words of Herbert Hope Risley, while introducing the Press Bill of 1910 in the Council of the Governor General of India:
Every day the Press proclaims, openly or by suggestion or allusion, that the only cure for the ills of India is independence from foreign rule…

The 'sedition' was almost dropped from the Constitution in 1948 after discussions of the Constituent Assembly. In the Constituent Assembly, it goes to the credit of K. M. Munshi who moved an amendment to remove the word ‘sedition’ that was included in Article 13 (2) of the Draft Constitution. The word 'sedition' disappeared from the Constitution on November 26, 1949 and Article 19 (1)(a) gave absolute freedom of speech and expression. However, Section 124-A continued to stay in Indian Panel Code, 1860.

In 1951, Jawaharlal Nehru brought in the first amendment of the Constitution of India to limit the freedom under Article 19 (1)(a) and enacted Article 19 (2) to empower the State to put curbs in the form of reasonable restrictions on right to free speech. Consequently, the present Article 19 (2) of Constitution of India does not refer to 'sedition', but seeks to impose restrictions if the sovereignty and integrity of India or the security of the State is threatened. Section 124-A of the Indian Penal Code, 1860 seeks to prosecute persons for 'sedition' if their words, either spoken or written, or by any 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 other words, any manner of criticism, any form of protest, any words spoken or written that are harsh, contemptuous and attempt to excite disaffection towards the Government established by law are perceived to be seditious acts. The content of Section 124-A is ex facie violative of Article 19 (1)(a) & (b) since none of these acts as contemplated in the sedition law can even remotely threaten the sovereignty and integrity of India. Besides, Article 19 refers to the State while Section 124-A refers to the Government. It is time for the Supreme Court to clarify the law.

The 'law of sedition' has always been one of the most contentious topics of constitutional law jurisprudence in India, with views ranging from calls for the complete abolition of the provision from our statute books to those advocating for retaining the sedition clause in its entirety with a more vigorous implementation. While many others have called for retaining the provision but keeping its implementation within defined legal limits, to strike a balance between national security and fundamental rights.

The Public debate over this issue was reignited last week when a Three-Judge Bench of the Supreme Court in an order on May 31, 2021, in the case of [M/S Aamoda Broadcasting Company Pvt. Ltd. & Anr. Vs State of Andhra Pradesh & Ors., WP (Cr.) No. 217/2021] held that there is a need to define the limits of sedition.

Later in the week, a Two-Judge Bench of the Apex Court, in the case of [Vinod Dua Vs Union of India & Ors., WP (Cr.) No.154 of 2020] quashed First Information Report against the Petitioner, Journalist Vinod Dua, for the offence of sedition brought a year ago by Ajay Shyam, a BJP functionary from Himachal Pradesh, for Dua’s remarks on the Prime Minister Narendra Modi in his YouTube News Show, were struck down.

In its Judgment, the Supreme Court made an observation that every Journalist shall be protected from the charge of sedition taking into account the interpretation of the offence as propounded in the Supreme Court’s landmark Judgment in the case of [Kedar Nath Singh Vs State of Bihar, AIR 1962 SC 955].

Since the Supreme Court itself has recognized that there is a need to re-examine these laws, it is important to trace the jurisprudence by Indian Courts that have contributed to the present-day conception of the 'law of sedition'.

Genesis Of Section 124-A Of The Indian Penal Code, 1860 & Pre-Independence Jurisprudence

The sedition clause is a vestige of British Colonial Rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. Section 124-A of the Indian Penal Code, 1860, was absent from the original draft of Macaulay’s Indian Penal Code in 1860, and was only introduced in the year 1870, piloted by James Stephen.

This version went through further modification through the Indian Penal Code Amendment Act (IV of 1898). As a result of amendment, the single explanation to the section was replaced by three separate explanations as they stand now. The Section, as it now stands in its present form is the result of the several A. Os of 1937, 1948 and 1950 brought in because of consequences of the constitutional changes, by the Government of India Act, 1935, by the Independence Act of 1947 and by the Constitution of India, 1950.

The first notable case for the offence of sedition was reported in 1891, in the case of [Queen Empress Vs Jogendra Chunder Bose & Ors., (1892) ILR 19 Cal. 35], in which the Editors of a Bengali Magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891. The publishers argued that the offence of sedition only penalised writing of seditious content and not the publication thereof, and also challenged the existence of the sedition law itself. They contended that penalising people for exercising their rights went against the original intention of the law.

The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The High Court had also emphasised upon the distinction between the terms ‘disapprobation’ (that is, legitimate criticism) and ‘disaffection’ (which refers to ‘any feeling contrary to affection’. The court concluded that since only disaffection is penalised, the offence of sedition does not take people’s rights away.

The next landmark case on this matter was that of [Queen Empress Vs Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR Bom 112]. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a Single Judge Bench of the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling.

This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.

About two decades later, Tilak was again tried for sedition in the case of [Queen Empress Vs Bal Gangadhar Tilak, (1917) 19 Bom LR 211], for an article he wrote in which he advocated the attainment of swarajya (‘self-rule’) for Indians. In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticise the civil services, arguing in Court that the civil services and the British Government were two distinct entities.

The Division Bench of the Bombay High Court rejected Tilak’s contentions, holding that the civil services derived their authority from the State itself, and no such ground for such distinction existed. The High Court, however, clarified that only such criticism of the civil service that can be attributed to the State should be considered seditious.

The Court, in this case, took a relatively liberal stance, rejecting the interpretation of ‘disaffection’ given by the Single Judge Bench of the same Court in Queen-Empress V. Tilak & Bal, which came out with the broad definition of disaffection as anything contrary to affection. This Judgment had a positive impact on free speech, as the actual impact of the alleged seditious speech on the public was taken into account, while reading the intention of the accused.

Sedition Jurisprudence In Independent India

The case of [Tara Singh Gopi Chand Vs The State, 1951 Cri. L. J 449] was the first instance of a Court in independent India adjudicating on the constitutional validity of Section 124-A of the Indian Panel Code, 1860. Since India was now an independent republic, constitutional provisions assumed supremacy over British precedents. The then Punjab High Court, in this case, recognised that Section 124-A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Constitution of India.

Soon after, independent India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, among other things, sought to resolve the anomaly in the constitutionality of the sedition law as a result of the Tara Singh Gopi Chand Judgment. It did so by introducing new grounds on which the right to freedom of speech and expression could be reasonably restricted.

In the original Constitution, the only grounds for limiting free speech enumerated in Article 19 (2) of Constitution of India were the security of the State, defamation, Contempt of Courts, and decency and morality. The Amendment Act introduced the new grounds of public order, relations with foreign states, and incitement to an offence, for restricting the freedom of speech and expression.

Now, invocation of the offence of sedition was not confined merely to acts undermining the security of the State or tending to overthrow the State; it merely had to be ‘in the interest of the security of the State’. Such wide-meaning terms gave greater discretion to the State invoke the offence of sedition.

The amendment was put to test within two years in the case of [Debi Soren & Ors. Vs The State, 1954 Cri. L. J 758], in which the accused, an Adivasi leader, was booked for an inflammatory speech against the Government. In its Judgment, a Division Bench of the Patna High Court made a clear distinction between disapprobation and disaffection and held that only disaffection leads to public disorder. The High Court also confirmed the constitutionality of Section 124-A of the Indian Panel Code, 1860, ruling that it does not violate Article 19 of the Constitution of India.

The Landmark Kedar Nath Singh Judgment

Kedar Nath Singh, which is considered the most authoritative Judgement of the Supreme Court on the interpretation of the sedition law, a Five Judge Constitutional Bench of the Supreme Court upheld the constitutional validity of Section 124-A of Indian Panel Code, 1860 and went on to clarify the correct position of the sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress Government.

The Apex Court clarified that Section 124-A of Indian Panel Code, 1860 could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement to violence or would result in public disorder. Since Kedar Nath criticised the Congress party and not the Indian State, and the speech in question did not lead to any incitement to violence, therefore it did not amount to sedition.

The Supreme Court also noted that the presence of a pernicious tendency to incite violence is a pre-condition to invoke the sedition clause. The Court upheld the erstwhile Federal Court’s interpretation of Section 124-A of Indian Panel Code, 1860 in [Niharendu Dutt Majumdar Vs King Empror, (1942) FCR 38], in which its Judgment batted strongly in favour of legitimate criticism of the Government and against arbitrary restriction on the freedom of speech. The Federal Court had proffered that to constitute the offence of sedition, there needs to be a public disorder or at least a reasonable likelihood of public disorder.

Post-Kedar Nath Singh Developments

In another important decision, in the case of [Balwant Singh & Anr. Vs State of Punjab, 1995 (1) SCR 411], the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favour of an independent Sikh majority State in the wake of Indira Gandhi’s assassination. A Two Judge Bench of the Supreme Court ruled in favour of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.

Taking into consideration the phrase ‘pernicious tendency’ discussed in Kedar Nath Singh, the Supreme Court stressed that such tendency was to be ascertained by looking at the consequences of the impugned speech.

Courts, in recent times, have relied on the above interpretation in cases of sedition, with a few modifications. One such modification was observed about a decade back in the cases of [Arup Bhuyan Vs State of Assam, (2011) 3 SCC 380] and [Sri Indra Da Vs State of Assam, (2011) 3 SCC 380], both of which were decided by the same Two Judge Bench of the Supreme Court within seven days of each other. In both Judgments, the Supreme Court, adjudicating on charges of sedition and preventive detention, placed reliance on the ‘imminent lawless action’ test laid down by the U. S. Supreme Court Judgement in the case of [Brandenburg Vs Ohio, 395 U. S 444 (1969)]. As per this test, all speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action.

The Law Commission of India, in its Consultation Paper On Sedition, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.

According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under Section 124-A of the Indian Panel Code, 1860, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period. This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.

Legal Challenges In Interpretation of Section 124-A of Indian Panel Code

In a significant development the Supreme Court comprising Justice U. U. Lalit, Justice Indira Banerjee & Justice K. M. Joseph decided to examine the constitutional validity of offence of sedition under Section 124-A of Indian Panel Code which penalises the crime of 'sedition' in [Writ Petition (Criminal) No. 106/2021 titled Kishore Chandra Wangkhemcha & Anr. Vs Union of India]. The plea, filed by two Journalists - Kishorechandra Wangkhemcha & Kanhaiya Lal Shukla - working in Manipur & Chhattisgarh respectively, have urged the Supreme Court to declare Section 124-A of Indian Panel Code, 1860 as unconstitutional. The petition claimed that section 124-A infringes the fundamental right of freedom of speech and expression, guaranteed under Article 19 (1)(a) of the Constitution of India.

Conclusion
The way that Section 124-A of Indian Panel Code, 1860 is phrased appears so wide that it would douse any attempt at criticising the functioning of the Government of India. The wide interpretation of this Section and the punishments make this law draconian in nature. It also intervenes with the freedom of speech and expression under Article 19(1)(a) of the Constitution of India, making it unconstitutional in nature. This also interferes with the elements that characterize a democracy. Although India has progressed substantially through the years, this sedition law poses a threat to its growth. Therefore, there is a need for sedition law in India to be re-examined, as ruled by the Supreme Court recently.

While looking into the provision, India has to consider it from the point of the public in order to understand how the lacunas in the provision would impact the lives of people by crippling their freedom of speech.

Furthermore, it also needs to be considered that this law interferes with the rights and livelihood of journalists as well.

If the country decides to not altogether strike down sedition law but only partially hold the section to be unconstitutional, the scope of the Section must be altered in such a way that it cannot be widely interpreted and gives exact actions that would fall within the ambit of the Section. Individual definitions and scope of terms and punishments would also reduce the arbitrariness involved in 'sedition' law to a great extent, so much so that it does not curb the freedom of speech and expression but only imposes a reasonable restriction on it.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected] 

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