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Sedition: Complicated History of Section 124-A

On 15th July 2021 Supreme Court bench led by CJI NV Ramana expressed their concern about the unbridled use of sedition law against the city which has again reignited the public debate over this issue. The sedition law has its roots in the colonial era. The enforcement of this law saw to it that the revolutionaries were subdued, and the voice of dissent was repressed. Thomas Babington Macaulay who is also known as the father of IPC had drafted the Sedition Act of 1870 which has been later included in IPC section 124A in the same year.

Let us have a look as the legislation prescribed briefly '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 the 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.'

Essential's elements of the sedition Act:
  1. Bringing or attempting to bring into hatred or contempt or excite disaffection towards the government of India.
  2. Such act or attempt may be done:
    1. By words either spoken or written or,
    2. Signs or,
    3. By visible representation

PRE-INDEPENDENCE PREDICAMENT
This law was used against many freedom fighters like Mahatma Gandhi, Bal Gangadhar Tilak, Annie Beasant to purge the freedom movement.

The first case on sedition law was recognized in the year 1892 Queen-Empress Vs Jogendra Chundar Bose & Ors[i] - in this case, CJ Petheram explained the difference between disaffection and disapprobation where he defined disaffection to mean as a feeling contrary to affection: in other words, dislike, or hatred. Whereas 'disapprobation' simply means disapproval.

Two trials of Tilak
Another notable case of sedition was Queen Empress Vs Bal Gangadhar Tilak (1897)[ii] Strachey, J., who agreed with the above ruling holding that a man should not try to incite or to make anybody feel enmity towards the government. And he also held that the amount and intensity of disaffection are immaterial except in dealing with the question of punishment.
In 1908, Tilak was again tried for his seditious articles that provoked Khudiram Bose to use an explosive device that killed two English women. Initially, M Jinnah appeared for Tilak, but his pleading was rejected by Justice Davar.

Tilak went on to plead his case where he failed to prove his innocence and was sentenced to six years of imprisonment.

Another significant case on sedition was of Annie Besant Vs Advocate General of Madras (1919)[iii] -another case of repressing the voice of dissent, Annie Besant who was the English Activist and was a great proponent of the Home Rule movement was tried for her seditious articles. Justice Strachey ordered to confiscate the deposit of Annie Besant's printing press. This case links to section 4(1) of the Indian Press Act 1910.

Post Independent Predicament

Kedar Nath Singh Vs State of Bihar (1962)[iv]:
It was the first landmark judgment by the constitutional bench of the Supreme Court post-independence on sedition law. The Supreme Court held the constitutional validity and laid down the guidelines to restrict its boundaries of operation.

Kedar Nath Singh was a member of the forward communist party from Bihar. In 1953, while addressing a huge rally he said - 'Today, the dogs, of CBI are loitering around Barauni (in Begusarai) 'many official dogs are sitting even in this meeting. The people of India drove out the British from the country and elected these Congress goondas to the gaddi. As we drove out the British, we shall strike and drive out these Congress goondas as well.

They have today established the rule of lathis, bullets in the country. we believe in the revolution which will come, and in the flame of which Capitalism, Zamindaris, and Congress leader will be reduced to ashes, and on their ashes will be established a government of the poor and downtrodden people of India. (Said the Kedarnath Singh)

His speech led to his conviction under section 124A and 505(b) and was sent to rigorous imprisonment for one year by the first-class Judicial Magistrate. Later, Kedar Nath Singh appealed in Patna High Court where his plea was rejected. Then in 1962, he appealed to the Supreme Court challenging the constitutional validity of section 124A stating that his Right to freedom of speech has been curtailed under Article 19(1)(a) of the Indian Constitution.

Court held that any act that had the 'effect of subverting the government' by violent means or creating public disorder would fall within the definition of sedition. The mere utterance of a word or constructive criticism on any policy matter would not attract the penal offences, until those words generate the feeling of enmity or disaffection towards the Government, and which subsequently results in public disorder by an act of violence.

Balwant Singh And the Anr Vs State of Punjab on (1995)[v]:
Balwant Singh who was working as an Assistant in the office of DIP Punjab in Chandigarh and Bhupendra Singh serving as a senior clerk in the Punjab School Education Board Chandigarh was charged under section 124A and 153A of IPC and was sent to a year of rigorous imprisonment and a fine of Rs 500 each. They were tried for their provocative slogan which they raised in the crowd in front of Neelam Cinema on 31st October 1984, the day Smt Indira Gandhi, the then Prime Minister of India was assassinated.

Supreme Court held that no matter how provocative a slogan may be it will not attract the penal offences under section 124A unless those provocative slogans result in public disorder.

Vinod Dua Vs Union of India (2021)[vi]- In this case, Apex Court upheld its oldest judgment which was almost obsolete, and quashed the sedition FIR registered against journalist Vinod Dua in Shimla Himachal Pradesh. Supreme Court held that 'every citizen has the right to criticize or comment upon the measures undertaken by Government'.

Dua was charged under section 124A (sedition),268 (public nuisance), 501(printing matter known to be defamatory), and 505 (statements conducive to public mischief) based on his alleged YouTube video of 5 minutes and 9 seconds where he accused Prime Minister Narendra Modi that he uses death and terror attacks to garner votes, which turned out to be controversial and later on he was slapped with an FIR.

The Division Bench consisting of Justice UU Lalit, and Justice Vineet Saran shielded the entire journalist guild under Article 19(1)(a) and upheld their Right to Freedom of Speech and Expression. Court also stated that activities that would be intended or tend to cause public nuisance would only fall within the meaning of sedition. Hence, the prosecution of Dua was held to be dismissed.

Sedition Statistics In Brief

According to the National Crime Records Bureau (NCRB), the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) grew by 160% between 2016 and 2019, while the percentage of convictions declined to 3.3% in 2019 from 33.3 % in 2016.

Would The Abolition Of Sedition Damage The Country?

Article 19(1) (A)- The Nature Of The Right Violated

The 'cornerstone of democracy' is usually regarded as freedom of expression. Democracy is impossible to achieve without freedom of expression. Apex Court in Indirect Tax Practitioners Assn. v. R. K. Jain (2010)[vii] expressed that 'change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government.' It was held that freedom of expression is not only politically useful 'but that it is indispensable to the operation of a democratic system'.

Freedom of expression is necessary for democracy to function and for citizens to participate in decision-making. Citizens cannot effectively exercise their right to vote or participate in public decision-making unless they have unfettered access to information and ideas and are allowed to openly voice their opinions. Individual dignity, as well as participation, responsibility, and democracy, are all dependent on freedom of expression. A democratic society's soul is freedom of expression. It serves as the foundation for all individual rights as well as the safeguarding of the democratic regime and social order.

This fundamental right is plain of great importance in a democratic society due to its nature. We do not deny that the Supreme Court recognized the fundamental character of this right when it stated in Kedar Nath's case that:
Freedom of expression is the sine qua non of democracy.

The right is and has always been, of fundamental importance. As a result, the situation regarding the nature of this fundamental right has remained unchanged, except for the expectation that India's democracy has evolved in the last sixty years, requiring this right to be guarded even more vigorously now. As the keeper and guarantor of people's fundamental rights, the Supreme Court has the responsibility of overturning any law that obstructs the freedom of speech and expression.

People in India have the freedom to criticize the government, and this right must be vigorously protected if India is to maintain its democratic status.

The Restriction's Purpose - Security Of The State And Public Order

The goal of the section when it was first added to the IPC was to protect the British colonial power from any demonstrations of disdain or hostility or dissatisfaction; it was widely used to silence political opposition to stifle India's nationalist feelings. However, after independence, the core goals of Section 124-A, Article 19(1)(a) restrictions are widely acknowledged as prohibiting 'public violence' and 'public disorder.'

Reading down the passage in Kedar Nath's case, the Supreme Court found these to be valid reasons, falling under the interests of 'state security' and 'public order,' two of the justifications stated under article 19(2) of the Constitution.

We do not disagree with the value or necessity of preventing public violence and disturbance in any manner. State security and public order are undeniably essential interests that deserve to be safeguarded. The necessity and proportionality of using Section 124-A are what concern us the most.

Declaring Section 124-A unlawful will put an end to prosecutions of anyone who wants to express their legitimate (but potentially contentious) opinions, start debates, write articles, or make films about sensitive topics, or own books on diverse ideologies. These are not terrorists, but rather well-thinking Indian citizens who want their democratic and constitutional right to free speech and expression curtailed.

Preventing the prosecution of terrorists or others who pose genuine security threats is not a goal, and it will not be the result. Other Indian laws can adequately deal with security issues without requiring the use of section 124-A. If sedition is abolished, terrorists will not be free.

When an action results in violence or public disorder, India's criminal law sufficiently 'covers the field.' In addition to actual violence and public disorder, incitement to violence and aiding and abetting an infraction are already punishable under Indian law.

Sections 121, 121A, and 122 of the Indian Penal Code will be used to punish anyone who waged, attempted to fight, or conspired to wage war against the Indian government.
As a result, sedition is not required to safeguard national security or public order. Other penal provisions cover all the overt acts that Section 124-A intends to punish.

When someone is found guilty of waging war against the government or terrorism, he is typically found guilty of sedition as well. Sedition is a less serious offence than treason, yet most people who commit the more serious crime are also seditious. Given the significance of security in India, this situation appears to be unproblematic and does not appear to offend anyone's sense of justice. On the other side, a troublesome scenario develops when a person makes a contentious speech on the radio, just owns communist literature, speaks out against police brutality, or makes a film about India's problems.

We are not talking about people who are threatening India's integrity or security in any way, but rather people who are simply exercising their democratic right to freedom of expression. These individuals might face life in jail if charged with sedition.

If a person is afraid of getting jailed, they will not speak openly about public topics, which will stifle public discourse on vital matters.

Apex Court in S. Khushboo v. Kanniammal (2010)[viii] Observed that 'The law should not be used in a manner that has chilling effects on the freedom of speech and expression.'

Legislations Passed Subsequently

The Unlawful Activities (Prevention) Act (ACT NO.37 of 1969) was enacted in 1969 to make it easier to prevent certain unlawful activities. : Unlawful activity' is very broadly defined as:
Any action including acts, words, either spoken or written, signs or any visible representation which is intended, or supports any claim to bring about on any ground whatsoever the cession or succession of any part of India or which incites any individual or group of individuals to bring about such cession or succession or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India.' The amendments to this Act in 2004 (Act No. 29 OF 2004) and 2008 (Act No. 35 OF 2008) enlarged its scope to include terrorism. The definition of unlawful activity was expanded to encompass any activity that causes or is intended to cause dissatisfaction with India.

As can be seen, several activities that would be considered sedition, such as producing or inciting public unrest or violence, would be covered by this Act at the same time.
In 1980, the Central government passed the National Security Act (Act No. 6 of 1978). Section 8 (1) empowers the Central Government or State Governments to detain individuals if they believe it is necessary to prevent them from:
acting in any manner prejudicial to India's defence or the security of India' (Section 3 (1)(a)), or to:
prevent him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of Public order' (Section 3 (2)). This law would undoubtedly encompass the same material offences as section 124A of the Penal Code.

These Acts, along with a slew of state-level safety and security legislation, we believe, now 'cover the field' in dealing with public order and violence. True terrorists and security risks would certainly not go unpunished if sedition were abolished.

Over the previous, activity of nearly sixty years, a slew of new laws has been enacted that deal directly with safety and security, public unrest, and terrorism. The Unlawful Activities Act, the Public Safety Act, and the National Security Act are among the most important of these laws. Several portions of these Acts address the overt conduct that sedition aims to criminalize - inciting violence and public disorder.

Extent And Importance Of The Evil Sought Public Violence And Disorder Have Been Remedied

The existence of alternative laws that punishes the wrongdoing has an impact on the 'extent and urgency of the evil sought to be remedied' by the limitation. Alternative legislation eliminates the necessity to utilize Section 124-A to deal with public disorder and violence, and it cannot be maintained that the use of sedition is a reasonable restriction based on the mischief's urgency.

Countries That Repealed Sedition Law
  • United Kingdom
  • New Zealand
  • Ghana
  • Uganda
  • Nigeria

Conclusion
The egregious misuse and abuse of the sedition statute to silence criticism can no longer be mitigated by reading it down, providing instructions, or contacting the police. It was an unconstitutional law at the time, and it remains so today. It is anti-democratic and restricts freedom of opinion and speech. It is being utilized to violate people's rights to life and liberty. It is past time to toss it out.

The Parliament will not do this because the ruling political party gains too much from it, and even opposition parties use it when they have the chance. As a result, the Supreme Court should take a stand and consign the clause to the dustbin of history.
 
End Notes:
  1. Queen Empress vs. Jogendra Chundar Bose - 1892 ILR 19 CAL 35
  2. Queen Empress vs. Bal Gangadhar Tilak - 1897 ILR 22 BOM 112
  3. Annie Besant vs. Advocate General of Madras - 21 BOM LR 867
  4. Kedar Nath Singh vs. State of Bihar 1962 AIR 955, 1962 SCR Supl (2) 769
  5. (1995) 3 SCC 214: 1995 SCC (cri) 432
  6. SSC Online SC 414
  7. Indirect Tax Practitioners Assn. vs. R. K. Jain (2010) 8 SCC 281)
  8. (S. Khushboo vs. Kanniammal (2010) 5 SCC 600 at Para 47)

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