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Freedom Of Speech And Expression: A Case Study On Sedition Laws

Star Terms: Words either spoken or written, disaffection against govt, hatred and contempt.

Queen-Empress v. Jogendra Chunder Bose and Ors. (1891)
Facts :
In this case, Jogendra Chunder Bose was accused of inciting rebellion through an article he had written in his own Bengali magazine named 'Bangobasi'. In this article, he had criticised the Age of Consent Act, 1891 which raised the legal age for sexual intercourse for women from 10 to 12 years. He called it "forced Europeanisation", criticising the interference of the British government in Hindu customs.

While the Act itself was perhaps a boon for Indian society and was supported by reformers and women's rights groups, the question here was of sedition and inciting violence against the Government. "Disaffection" towards the Government was defined in this case by Chief Justice Petheram as "a feeling contrary to affection, in other words, dislike or hatred" and included disloyalty towards the Government.

Queen-Empress v. Bal Gangadhar Tilak (1897)
This was the first case in which Section 124A was defined and applied.

In this case, the advocate and prominent freedom fighter Bal Gangadhar Tilak was charged with sedition. He spoke against the Indian Civil Services Officer Rand, who was the Plague Commissioner in Pune. Rand's plague control methods were considered tyrannical by many, including Tilak. His revolutionary speeches encouraged other individuals to spread violence against the British, which ended with the death of two British officers.

The court defined disaffection as the absence of affection. Therefore, it means "hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government." The court further added that no man should excite or attempt to excite this kind of disaffection; he should not make or attempt to make anyone feel any kind of enmity towards the Government. With this in mind, the court convicted the freedom fighter of the crime of sedition and sentenced him to 18 months of rigorous imprisonment. However, he later received bail in 1898.

Kedarnath singh v. State of Bihar - Court: Supreme Court of India
Bench: Bhuvaneshwar Prasad Sinha, C.J., A.K. Sarkar, J.R. Mudholkar, N. Rajagopala Ayyangar and S.K. Das, JJ
Author of judgement: Chief Justice Bhuvaneshwar Prasad Sinha
Decided on: 20/01/1962

The issue of sedition has recently been in the spotlight, due to the continuous activities going on in the country which is somehow being linked to the offence of sedition. There is strong demand from the past to curb this law as it is supposed to be a law from the colonial period which is not relevant to the present condition of the country.

This issue got the pace from the last three to four years where raising an anti national slogan by the students of Jawaharlal Nehru University lead to the arrest of the student leader on the ground of sedition, this issue grabbed the attention of not only national but international media. The offence of sedition is being stated under section 124A of Indian Penal Code which states doing certain acts which would bring the Government established by law in India into hatred or contempt or create disaffection against it.

The validity of this section has been challenged in many of the cases, in case of Ram Nandan v. State of Uttar Pradesh, The Hon'ble High Court held that section 124-A imposed restrictions on the freedom of speech which are not in the interest of the general public and hence declared 124-A as ultra vires. but this decision was overruled in the landmark case of Kedarnath singh v. State of Bihar.

Facts Of The Case:
The case is related to use of wrong words for the party, Kedarnath singh he was the member of Forward Communist Party Bihar, he used the word dogs for C.I.D. officers and used the word goondas for the Indian National Congress party, he went on saying that he believe in revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India. He also targeted Vinobha Bhave's attempts to redistribute land.

On the basis of the words used and statement made, a case was filed against him on the ground of section 124A, sedition and section 505, public mischief, and on this basis he was sentenced to rigorous imprisonment for one year.

The matter went for appeal, a singe bench of Patna High Court where the conviction was upheld and the appeal was dismissed on the ground that:

the subject-matter of the charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious. It is not a speech criticising any particular policy of the Government or criticising any of its measures.

On further appeal the matter went before the division bench of Supreme court, as the issue was of constitutional validity of section 124A and section 505 of Indian Penal Code the matter was referred to the constitutional bench, on referring the judicial history of the same the Apex court was confronted with two conflicting judgements of the Federal Court in Niharendu Dutt Majumdar v. The King and The Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao.

While referring to both the judgements the Hon'ble Supreme Court was of the opinion that if the judgement and interpretation of the Federal Court are accepted then the impugned sections would come within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression.

On the other hand, if the judgement and interpretations of the Privy Council are accepted then the impugned sections are liable to be quashed as unconstitutional in view of Article 19(1)(a) read with Article 19(2). In this manner, the scope of the impugned sections was restricted and the Constitutional validity of both the impugned sections was upheld. Accordingly, the appeal was dismissed and appeal of other connected matters was remanded back to the concerned High Court.

  • Whether Sections 124A and 505 of the Indian Penal Code are ultra vires in view of Article 19(1)(a) read with Article 19(2) of the Constitution?
  • Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?

On the question of issue one the Supreme court held that for the security of the state, maintenance of law and order is the very basic consideration which should be taken care of and this involves punishing the offenders committing crime against the state.

In democratic nation the right to freedom of speech and expression should be fully protected but some restrictions are necessary for the safety and integrity of the state. Accordingly, the Supreme held that Section 124-A and Section 505 of the Indian Penal Code were intra vires of the Constitution of India considering Article 19(1)(a) read with Article 19(2).

On dealing with issue two the court held that both the decisions are conflicting one, if the interpretation of Privy Council that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoke which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make then unconstitutional in view of Art. 19(1)(a) read with clause (2).

Accordingly the interpretation of the Federal Court that that the gist of the offence of sedition is incitement to violence or the tendency or the intention to create public disorders by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State was accepted and the Section was given a restrictive interpretation.

Supreme court in its view clearly stated that the section 124A cannot be interpreted literally it needs to be interpreted by the judges, hence the two essential necessary to establish the crime of sedition is:

the acts complained of must be intended to have the effect of subverting the Government by violent means; and
the acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence.

Outcomes Of The Decision:
Section 124 A intra vires
In this decision it was observed by the supreme court that for the stability of the state it is essential to recognise the activities against the state as an offence because the visible symbol of the state is the Government established by the law. The very existence of the state will be in danger if the Government established by law is destabilized.

Hence any acts within the meaning of section 124 A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.

The court clarifies that it does not take away the fundamental right of right to speech and expression but is just a reasonable restriction which is essential for the security and sovereignty of the state.

Reasonable restriction:
The court is considered as the guarantor of fundamental rights of the citizens and has the responsibility to strike down any law which has the effect of taking away the fundamental right of the citizen. The court has the duty to point out what is fundamental right and where the legislature has power to impose reasonable restriction, on that basis statement by the accused was not considered as seditious and held that section 124A is intra vires to the constitution in view of article 19(2), such restriction is necessary for the integrity and security of the state.

After Effect Of Judgement:
The judgement is one of the most popular and widely used precedent by the court and also helped a lot in judicial development, as the judgement has highlighted the importance of free speech, and hesitating to trust the state with too much power, have insisted on a close and clear link between the suppressed speech and the feared public disorder.

In 2011, while deciding a case under now-defunct Terrorist and Disruptive Activities (Prevention) Act (Tada), the court held that a member of a terrorist organization could not be convicted for mere membership, unless he had been involved in inciting people to lawless action. Also, in the famous Shreya Singhal case, the court distinguished between advocacy" and incitement", and held that only the latter could be punished consistent with Article 19(2).

In Shreya Singhal's landmark judgement, section 66A of Information Technology Act was struck down as it was considered as unconstitutional and vague, the court held that the section is so vague that neither the accused know what the offence is nor the authorities are clear on what the charges should be.

In another judgement of Dr. Binayak Sen v. State of Chhattisgarh he was accused of sedition against Chhattisgarh Government, as he was alleged to have supported the Naxalites thereby violating the provision of Chhattisgarh Special Public Security Act 2005.

The provision is being blatantly used by the government to stifle the voice of anybody who tries to dissent.

The judgement is one of the most crystal clear judgement which clearly states two condition if they are fulfilled it would constitute the crime otherwise not but again and again this is being misused just to curb the voice of the citizens who are giving their critical views against the government, which is directly or indirectly infringing the fundamental rights o the citizens which are guaranteed to them by the constitution of India.

Arguments in favour of Section 124A
Preserves national integrity: The Anti-Sedition law is essential to protect and preserve the stability of the Government and to prevent speech and expression that aims to cause public disorder. All this is necessary to ensure that national integrity and security remains intact.

Punishment for hostile activities: There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists. They cause violence and attempt to establish parallel administrations in the areas. They openly advocate the overthrow of the government for their personal interests. These groups must be strictly punished.

The Government of India is an official authority provided for in the Constitution and established by law. Therefore, there must be restrictions on expressing unnecessary contempt or ridiculing the Government beyond certain limits. If contempt of court invites penal action, then contempt of the Government should too.

Arguments against Section 124A
Colonial tool for suppression: The Anti-Sedition Law was first added to the Indian Penal Code in 1870 by the British. It is no surprise that the provision aimed at suppressing the resistance of the Indian masses towards foreign rule. Many freedom fighters were charged under this law, including Bal Gangadhar Tilak and Mahatma Gandhi. The Mahatma, in fact, described this law as the "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".

Vague law: The law is vague, because it contains terms like "disaffection". It is not clear what can or cannot be classified as disaffection in various situations. This means that the law can be interpreted differently as per the whims and interests of the authorities involved. In recent years, the law has sometimes been used to persecute political dissent.

Some of the most recent examples include the arrest of a Manipur student activist for a social media post on the Citizenship Amendment Act, 2019, the arrest of 14 students of Aligarh Muslim University for raising "anti-national" slogans, and the charge of sedition on four Kashmiri students in Rajasthan over social media posts about a recent terror attack in Jammu and Kashmir.

Inconsistent with International Commitments: India has signed various international treaties and covenants, including the International Covenant on Civil and Political Rights (ICCPR) in 1979. It sets forth international standards for the protection of freedom of expression in the world. However, misuse of sedition and arbitrary charges in India are inconsistent with such types of international commitments.

Unnecessary provision: There are other provisions in the Indian Penal Code and the Unlawful Activities (Prevention) Act, 1967 that criminalise disrupting the public order or "overthrowing the government with violence and illegal means". One example is Section 121A, which penalises conspiracy to wage war against the Government. Therefore, as there are other provisions which criminalise actual tangible threats to the Government, Section 124A is not required.

Law Commission view:
  1. 2018, Consultation paper suggested rethinking on sedition of law.
  2. 39th Law Report, rejected idea of repealing the section
  3. 42nd Report, Disaffection not to be tolerated.
  4. Recent report: suggested to decriminalize

JNU Controversy
  1. Freedom of Speech and Expression
  2. Solitary confinement

Toolkit (Disha Ravi)
  1. Online document for protest (toolkit)
  2. Bail order of Delhi Session Court
  3. Freedom of Speech and Expression
  4. Whatsapp chat

Akhil Gogoi (Anti-Caa Protest)
  1. Sec. 153B, 120B, 124A IPC
  2. UAPA
  3. Violence important factor in determining the contribution in Protest.
  4. Rejection of Bail Application

Dr. Kafil Lal
  1. Speech at Aligarh Muslim University
  2. Preventive Detention measure
  3. Under Art. 19(2), Public order restriction

Sachin Pilot
  1. Instance of Using Sedition
Written By: Shashwata Sahu, Advocate, LL.M., KIIT School of Law

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