Author: Deepak Jain, III year of BBA.,LL.B from Symbiosis Law School, Noida.
INTRODUCTION
Section 124A of the Indian Penal code provides for the definition of Sedition. The section has been in limelight and is part of many controversies because of battle with Article 19(1)(a) of the Constitution of India. The law of Sedition is originally a contribution of the British.
It was a tool for the British to suppress and curb any type of nationalist movement in their occupied colonies. Lord Macaulay’s original draft of the Indian Penal Code initially prepared in the year 1837 contained sedition as an offence under S113. In the year 1860 when the Indian Penal Code was enacted the part containing the offence of sedition was removed. In the year 1870, the increase in the activities of the Wahabi and due to the Wahabism in the subcontinent, the British brought sedition into the Indian Penal Code under sec 124A.
The structure of the section was incorporated from various sources; The Treason Felony Act, 1848, The Common Law of Seditious Libel and the English Law relating to Seditious Words. The section remained intact and unchanged for around 27 years till February 1898. In 1898 The Indian Penal Code (amendment) Act brought a change in the language of sedition, the section originally contained “exciting the feeling of disaffection towards the government”. The amendment changed the language to “bringing or attempting to bring hatred or contempt”.
PRE-INDEPENDENCE JUDICIARY AND SECTION 124A
The Hon’ble High Court of Calcutta for the first time in 1891 explained the scope of the section in Queen Empress v. Jogendra Chunder Bose. Justice Comer Petheram explained the meaning of the word disaffection given in the section of Sedition :-
“It is sufficient for the purpose of the section that the words used are calculated to excite feelings of ill-will against the Government and hold it up to the hatred and contempt of the people and that they were used with the intention to create such feeling”.
In the year 1898 Hon’ble Justice Strachey made his observation and gave an explanation of the law in the case of Queen Empress v. Balgangadhar Tilak:-
“It means hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government. ‘Disloyalty’ is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment... if a man excites or attempts to excite feelings of disaffection great or small, he is guilty under this section”.
POST-INDEPENDENCE JUDICIARY AND SECTION 124A
In the case of Tara Singh Gopichand v. State for the first time after independence the constitutional validity of Section 124A was questioned, and in the case, it was contended that it is constitutionally invalid in view of art 19(1)(a) of the Indian Constitution. The Hon’ble East Punjab Court declared the section ultra vires of the Constitution. The Hon’ble Court observed the new democratic India does not need such a section:-
“India is now a sovereign democratic state. Governments may go and be caused to go without the foundations of the state being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.”
After when the First Constitutional Amendment was made, a Constitutional bench in Kedar Nath v. State of Bihar found that the section 124A is constitutionality valid as it is covered under reasonable restrictions of Art 19(2) as is saved by the expression “in the interest of general public”. Hon’ble Sinha CJ observed: -
“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the section aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. The explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government act ion, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc., which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”
In Shreya Singhal v. Union of India the Hon’ble Supreme Court of India took the view that one must differentiate between “advocacy” and “incitement”, and that only “incitement” was punishable.
It is pertinent to note that the Judgments given by the English courts prior to independence have been inclined towards the suppression of disloyalty to the East India Company or even any criticism. The Interpretation of the Section of Sedition made by the English Courts have been to punish every person who speaks anything against the British throne irrespective of whether it causes incitement or not.
The Post-Independence Judgments by the Indian Courts have tried to reduce the scope of the section, and tried to bring them in balance with the fundamental rights of speech and expression. The Indian Courts have reiterated in the above judgments that the mere criticism of Government will have to be construed within the ambit of Article 19(1)(a) of the Indian Constitution and mere criticism is not inciting violence.
INDIANS CHARGED WITH SEDITION FOR MERE DISSENT AND OPINION
Aseem Trivedi
Aseem Trivedi is a cartoonist hailing from Kanpur. He was arrested in 2001 on charges of sedition for some cartoons that he produced. The charges of Sedition were dropped against him after a month.
S Kovan
In 2015 a folk singer and activist Mr Kovan released a song that where about the state and alcohol. The state slapped charges of Sedition among other charges for criticizing the government.
Hardik Patel
In 2015 the Gujarat Police filed sedition charges against Hardik Patel for allegedly provoking and inciting violence in the city through his rally.
TOOL TO PROTECT THE NATION OR TO CURB SPEECH AND EXPRESSION?
The law of sedition was originally brought by the British in India with the clear intention to quash any dissent or voices that were raised against the British and the throne. It acted as a tool to suppress any newspaper, or other medium through which the people could speak against the British. In many countries the law of sedition has become obsolete or has very few cases, England in the year 2009 have abolished the law of sedition citing in the democracy free speech is essential.
On the contrary in India there were 51 cases of Sedition in 2017 and only four were convicted of sedition. The people who brought in India the law of sedition have themselves abolished the law to assure free speech and expression, whereas the largest democracy in the world still uses the colonial era law of sedition.
There lies a thin line between exciting hatred against the government and expressing dissent against the government. Expressing dissent against the government is a right of the people, but who will decide the line of difference. In many cases the mere criticism of the Government has been construed as attempt to incite violence and sedition charges are slapped on people. It has been said the language used in Section 124A of IPC is vague and capable of interpreting by ruling political party as a tool to suppress the freedom of speech and expression that goes against them.
The law being of wide scope gives the Government an option of immediate arrest of the person because the offence being a cognisable offence. The law being a colonial craft is worded widely and is prone to be misused. Despite the interpretation of Courts, the charges of sedition are pressed on citizens and they have to suffer the atrocities, and the Courts are then burdened with the responsibility to quash the charges in most cases due insufficiency of evidences.
When the line of difference between incitement and dissent fades away it starts acting as a tool to suppress the free speech of expression of the people be it dissent or seditious libel, there remains no difference. With the same law in force it will help any government or the future governments to come, weaken the essence of democracy everyday bit by bit.
The Hon’ble Supreme Court in interpreting the section 124A stated that there is a difference between against the State and against the government. A person can speak against the government, a political figure, but when he speaks against India as a nation only then Sedition comes into play.
The Constitution of India through article 19 has given the right to free speech and expression to all the citizens of India and with it provides for the reasons to curtail such freedom. Article 19(2) of the constitution restricts the freedom of expression of speech for “interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
It does not restrict the citizen to give a dissenting opinion against the policies or the governance of the Government. The language of section of Sedition must also include the restrictions mentioned in Article 19(2). Otherwise the very nature of language of the Section provides the state to file a case against anyone who even speaks of any dissenting opinion. In a democracy the citizens have the freedom to free speech and expression. If the Legislature passes any law that the people disapprove, or is against the interest of the public the citizens have the right to demonstrate dissent and protest in a lawful manner. After the Citizen Amendment Act, 2019 many protests were witnessed across the country. In Jharkhand around 3000 people were charged by police for sedition for protesting against Citizen Amendment Act.
The explanation 3 of section 124A clearly says;
“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.”
The explanation in the provision clearly states that “without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. The protest by the people against a law is a means to showcase their disapproval in public spirit but charging them with sedition is totally abrupt and misuse of the sedition. On the contrary, Citizens of Canada enjoy a free and liberal speech and the laws of sedition are rarely imposed on the people.
CONCLUSION
The sedition laws were made with an intention to suppress any voice against the rulers. The British who brought the law of sedition to India have themselves abolished the sedition laws to allow free speech and expression. India being the largest democracy must eradicate the law of sedition completely, or narrow it down to fit preciously into the restrictions of Article 19(2) of the Indian Constitution. Dissent is symbol of a vibrant democracy. Democracy is insignificant without any freedom and the use and abuse of sedition law by the governments is repudiation to such freedoms.
In the 42nd report of Law Commission of India on Indian Penal Code, the reports suggested that the definition of sedition does not expressly provide disaffection towards (a) Constitution (b) the Legislature (c) administration of Justice. Also, Sedition is a cognizable offence wherein the arrest is possible without Courts warrant, the offence of Sedition must be non-cognizable and the Court of Law must decide whether the accused has committed an act of sedition or not.
The prosecution must produce relevant evidence before the Hon’ble Court and when the Judge is satisfied only then the accused should be arrested with a warrant. Otherwise, it is very convenient for anyone to file a FIR and harass the person by invoking the procedure.
India is a liberal democracy and the country’s growth within a span of 7 decades has been an example for the rest of the world. The country after independence granted adult franchise to all the citizens.
This was an indication that the country is ready to accept all norms of the modern world and a liberal world. But sadly, the laws of sedition in the country are a blot that pulls India back from the track of development and modern growth. If we want to step up and want to walk with the modern world, the freedom of speech must be improved so that the people can give a qualitative critique of the Government fearlessly and enhance the Governmental governance in the country.
The constitution makers wanted to remove sedition as it hindered free speech but still it remained in the IPC. In the year 1951 while introducing the first amendment Mr. Jawaharlal Nehru said “Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” It is pertinent to note that the Prime Minister of the country himself felt the need to eradicate such a law 69 years earlier.
Despite the fact that the first PM of independent India wanted to do away with the law the provision still exists and is still invoked numerous times.
The laws of sedition must be struck off and India must move towards becoming a country with free speech and expression to citizens that allows equal participation of the citizens to express opinions over policies and laws. Sedition charges should be pressed against the person or any group of persons only either when the act done is against the Nationality sentiment of the Country or when due to such act an actual incitement of violence takes place.
The section must not be invoked against people who merely exercise their right to free speech or citizens who speak against the policies or laws of the Government. Free speech, expression and dissenting opinions are the basis of a strong base of the Modern Democracy.
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