ABSTRACT
The Sedation Law was enacted by the British to restrain the freedom fighters. It became a tool to suppress the liberal movement during the colonial era. But even after independence, it was still used as a weapon to curb voices against the government in place. Placing slogans like Pakistan zindabad and supporting Pakistan or any other country in sport or expressing opinions against government policies and ideology is seen as offensive to the home country? Currently, this law is used as a tool to restrict a person’s right to freedom of speech, expression, and expression of beliefs. After much controversy and an unending battle, now the constitutionality of the embargo law has been challenged and various interesting court rulings have been issued by the Indian judiciary. More interestingly, some governments have called for constitutional amendments to protect this outdated colonial legacy. However, the model has been changed now; The government recently prescribed an amendment to reduce the intensity of the sedation law. This research paper will give us an analysis of how it was used in the past and what the current scenario is and suggestions for improvement. This research paper is an attempt to closely analyze the story and examine whether it is needed in the present.
Keywords: Sedition, Freedom of Speech & Expression, Public Disorder, Section 124A.
INRODUCTION: India is a prime example of Unity in Diversity where large number of ethnic groups lives side by side with different thoughts and beliefs. India is the largest democracy in the whole world with lot of rights but law like Sedition law has always been a topic of controversy ever since its inception. Every individual has been given freedom to speak and express their views under Article 19(1) (a) of the Indian Constitution. But this fundamental right is not absolute and some reasonable restrictions have been imposed under Article 19(2). Sedition is an offence where speech and act of a person causes incitement and public disorder and is regarded as threatening to the state. The statute of Section 124A is extremely wide and it covers the act of defamation of the Government excluding any criticism in good faith of any particular measures or acts of administration. In Recently Supreme Court has suspended all the criminal trials pending of sedition and has told centre to reconsider the law.
Law of Sedition in Indian Penal Code.
Sedition law is a colonial law and was made so that no one can raise voice against the crown. Freedom fighter like Bal Gangadhar Tilak and Mahatama Gandhi were charged with Sedition for expressing their views in their editorials.
Section 124A[1]– Sedition
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 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.
Example of Sedition
A is a youtuber with a large number of follower and now he express his own opinion on a certain topic like Citizen Amendment Act bill against the State and after his videos there has been violence in the area as it was seditious and caused violence. This will be the case of Sedition.
More than 3300 farmers who were protesting during the new Farm bill Law were also charged with Sedition u/s 124A.
When new Citizen Amendment Act (CAA) 2019 was passed, all those who were protesting i.e. more than 3000 protesters were charged with this draconian law.
Punishment for Sedition
Sedition is punishable under Section 124A of the Indian Penal Code. It is not a punishable offence. The penalty under Section 124A can vary from a three-year imprisonment to a life sentence, plus a fine.
Origin of the Sedition Law
This law of Sedition was drafted by lord Macaulay in 1937 but was not added but later it was added in 1870 Penal Code which was introduced by Sir James Stephen.
It was basically brought into picture because of Wahabi/waliullah movement.
The British Administration was very concerned about Muslim preachers that they might start a jihad. It became an effective instrument for British which can easily curb the voices of Freedom Movements.
Later Queen Empress V. Bal Gangadhar Tilak[2] case was the 1st victim of this Sedition law where he in some of his speech referred to killing of two British officers. He was released in 1898 on a condition that he would do nothing by act or by speech or writing which incite hatred against the colonial government.
How Sedition Seems to curb the Fundamental Right of Freedom of Speech & Expression?
The essence of a democracy lies in its freedom of speech. A truly democratic country is one where the citizens have right to voice their choices and showcase their beliefs. The Freedom of Speech is the most essential feature of Democracy and Denying them their right to express would take away the essence of Democracy.
Just Merely being critical of the government or expressing contempt on the functioning of the government does not amount to sedition. An Act to become liable for sedition needs the intention to cause disorder/disturbance of the public peace or law by resort to violence, and must incite violence.
Every Right comes with Responsibility therefore people should think before speaking and even Article 19(2) states that Freedom of Speech and Expression is not absolute.
However the use of law of Sedition to curb the voices which many people including common man and parliamentarian also consider Sedition as an injury to the right of free speech and expression enshrined in the Constitution. The government has used the sedition statute as a weapon to bring down those who oppose its ideology.
It is a colonial era law and it should have been abolished as soon as India became Independent. It was meant by British administration to stop our freedom movements so that no one can speak up against the Queen’s law.
Criticism of this Colonial Era Sedition Law
- First very basic reason is that it is a colonial law which was made at that time to punish those who show hatred and disloyalty towards Queen’s rule.
- It was made to hinder the Freedom of speech and expression which is violation of Fundamental Rights.
- After independence it should have been abolished but still it continues and the way the government uses it as a weapon to curb the free speech is similar to colonial period.
- There are numerous pending criminal cases where people are in jail for a long period of time because of this law.
- The line between freedom of speech and seditious act is very thin and because of that people believe that government has been misusing the laws.
CONSTITUTIONALITY OF SEDITION LAW
The very nature of sedition is negative, it has always attracted controversy. It was very evident that before independence it was a weapon of colonial government but even after independence it was not revoked. The constitutionality of this law became a question in front of the Judiciary as soon as India got independence. Here are the few important case laws which ask the judiciary about its applicability in present time, even after 75 years of independence.
RAM NANDAN VS. STATE of UTTAR PRADESH (1958)[3]
The Allahabad High Court held that Law of Sedition is Void as it was ultra vires and was violating Article 19(1)(a) of the Constitution.
KEDAR NATH SINGH V. STATE OF BIHAR (1962)[4]The Supreme Court was again questioned about the constitutionality of section 124A. This case was mainly focused on the conflict between Section 124A with Article 19(1)(a) of the Constitution.
The Apex Court ruled that to establish a crime of Sedition there must be remarks having the potential to cause Public Disorder, thereby overruling the Allahabad High Court verdict. Disturbance or disruption of public order is the essential element to make someone liable for Sedition.
The Five-judge bench decision made very clear that “a citizen has a right to say 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 with the intention of creating public disorder.”
Courts were instructed to properly follow the principles laid down in this case.
MANEKA GANDHI V. UNION OF INDIA (1978)[5]
The Apex Court held that every individual has right to express their opinion even if it against the government policies and measures but it should not mean that a person can abuse its right and cause public disorder and injuring others. Freedom of speech is not absolute rights and it should be used properly because every right comes with some responsibility. Liberty of speech and expression should be used within limits.
KISHORECHANDRA WANGKHEMCHA V. UNION OF INDIA (2021)
Kishorechandra Wangkhemcha and kanhaiya Lal Shukla are two journalists who were charged with Sedition. Wangkhemcha was charged because he referred Chief Minister of Manipur as an “agent of the Prime Minister” on the post where he was criticizing the Manipur Government for mishandling a situation in University.
Whereas Kanhaiya was booked for posting cartoon on facebook depicting the fake encounter by Police force.
Both challenged the constitutionality of Section 124A and the matter is still pending in Apex Court.
This is the just the tip of iceberg there are several notable personalities who have been charged with Sedition u/s 124A. Cases like Vinod Dua V. Union of India (2021), Rajat Sharma V. Union of India (2021) comment on Article 370 , Toolkit case: Disha A. Ravi V. State (2021). All these cases questioned the constitutionality of this obsolete law.
POSITION OF SEDITION LAW IN OTHER COUNTRIES
Just like in India this law has always been a matter of debate. This contentious law was always been questioned by Civil liberties activists, human right lawyers and now even youth is also involved. People says that this law is long past its expiry date. Now we will overlook that what other countries has done with this law.
UNITED KINGDOM
This law of sedition has long past become obsolete there in 1960s but was finally repealed in 2009 however sedition by a person who is not a citizen of UK can still be charged with sedition.
SOUTH KOREA
Sedition law was abolished during democratic and legal reforms in 1988.
GHANA
Even countries like Ghana has already repealed sedition law way past in 2001 by unanimous vote in the parliament.
INDONESIA
Law of Sedition has been already declared Unconstitutional in Indonesia in 2007.
INDIA
On 11 may 2022, Supreme Court has put a hold on sedition law and has orders centre to reevaluate it.
REVIEW OF LITERATURE
Joydip Ghosal (2014)[6] in his journal “An Analysis of Law of Sedition and Its Impact on Freedom of Expression” he has stated the historical development of sedition law in India and how there were opinion difference on this topic by mentioning case laws like Kedarnath Singh v. State of Bihar and other cases and he even draws a comparative overviews with other countries. He concluded by mentioning International Covenant on Civil and Political Rights, 1979 and various law commission reports.
Narayan Aishwarya (2015)[7] in her research “A Theoretical Analysis of the Law on Sedition in India” she has talked about how Section 124A IPC has always been used to suppress the voice of people by colonial government and even in present time it is still used as a tool to harass. The Researcher has suggested amendment in Section 124A by devising Austin’s Speech Acts theory, Sorial’s exposition based on Austin’s theory.
Atul Dev (2016)[8] in his study “A History of the Infamous Section 124A” author has stated a series of case laws starting from Bangobasi case (1891), Bal Gangadhar Tilak case (1897) and many more to show that how it was an instrument for colonial Government to suppress the voices of our Freedom fighter and movement. Author has also mentioned Kanhaiya Kumar incident in JNU in 2016. This draconian law has been criticized in this article.
Shantanu Pachauri (2017)[9] in his research paper “An Analysis of Sedition Law in India” he has talked about how even after independence we are not able to abolish this colonial law. Case laws have been added to show how this law is so obsolete for present generation. Research has focused on constitutionality of the law as it hampers the free speech and expression and is not going well with democratic society.
Sahil ahamed (2021)[10]in his study “Sedition Law vis-à-vis The Right To Free Speech And Expression” the author has given his interpretation of Sedition law, its history and why this law is being criticized and current scenario in our country with relevant case laws and has given suggestions for revision of this draconian law like giving more emphasis on the Unlawful Activities prevention Act, 1967 and the Prevention of Insults to National Honor Act 1971.
Mitshu Patel (2021)[11] in his research paper “Analyzing the Law of Sedition in India” has pointed out issues like how Section 124A has been misused by the government in the name of national security. Researcher has evaluated the condition of sedition law in other countries like UK, Australia, and Malaysia etc. and has given suggestion like to dilute the power of this law so that it won’t violate the freedom of speech and expression
RESEARCH METHODOLOGY
This is a doctrinal research aimed to analyze the evolution of sedition in India from the period when colonial rule was there to present 2023. It also compares the current position of Sedition law in different countries across the globe. The study deals with alternative ways which can be used in place of this colonial law and has stated various case laws to check the journey post independence. This paper also talks about hypothesis that whether Section 124A IPC really curtail wholly or partly any provision of fundamental Rights of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution. To carry out this purpose we have used sources like journals, editorial of newspaper, articles and published research paper.
CONCLUSION AND SUGGESTIONS
It is very evident from above analysis that anything in excess is dangerous for the growth of country. If people are allowed to speak without any restriction then it will lead to a chaotic scenario. Similarly if the sedition law is given more power, then it has and will continue to violate the Freedom of Speech and expression. The abolishment of Section 124A would simply lead to citizen using extremely speech and expression and will incite hatred and public disorder therefore hampering the peace of country.
The author suggests that there must be balance between Section 124A and Article 19(1)(a) of Constitution. The power of act should be narrowed down a little so that powerful people cannot use it to curb the voices of people on legitimate issues where opinion of people is necessary for the benefit of society otherwise there will be illegitimate use of this law by authorities vested with power.
There is a very Low Conviction rate in Sedition case because the purpose of this law is believed to harass the person and make the critic silent who were expressing dissent of government policies and ideology.
The unlimited power of Police to arrest a person under Section 124A should be solely based on evidentiary assessment that whether that individual has actually violated the law or not.
The Author believes that there are other statutes that can be used like section 505 IPC which deals with public mischief, for those who damages the public property there is the Prevention of Damage to Public Property Act 1984. That’s why there is a scope for dilution of Section 124A. Finally the undeniable misuse of this law made Apex Court to revisit this draconian law.
Most of the countries like Ireland, Canada, Ghana, Australia, Nigeria, Uganda have either completely abolished or has diluted it in the recent past. Colonial administration United Kingdom from which he have taken most of constitution and laws has already abolished it by Coroners and Justice Act, 2009.
Thus, we can conclude that there is a need of amendment in sedition law as it should not violate fundamental right in any case otherwise the very essence of Democratic India will be seem as mirage. Scope is there for improvisation it must happen as soon as possible.
Arjun Singh Tamang
Law Centre 1, Faculty of Law
University of Delhi
[1] Indian Penal Code, Section 124A
[2] Emperor v. Bal Gangadhar Tilak, (1917) 19 BOMLR 211
[3] Ram Nandan vs State, AIR 1959 All 101, 1959 CriLJ 1
[4] Kedar Nath Singh vs State Of Bihar, AIR 955, 1962 SCR Supl. (2) 769
[5] Maneka Gandhi v. Union Of India, 1978 AIR 597, 1978 SCR (2) 621
[6] Ghosal, Joydip, An Analysis of Law of Sedition and Its Impact on Freedom of Expression (March 2014). JOURNAL OF LEGAL ANALYSIS AND RESEARCH, VOLUME 1, ISSUE 1, MARCH 2014, Available at SSRN: https://ssrn.com/abstract=3457494
[7] Aishwarya, N. (2021). A Theoretical Analysis of the Law on Sedition in India. Christ University Law Journal, 4(1), 87-101. https://doi.org/10.12728/culj.6.5
[8] Atul Dev, A history of the infamous Section 124A The Caravan (2016), https://caravanmagazine.in/vantage/section-124a-sedition-jnu-protests
[9] An analysis of sedition law in India – researchgate, https://www.researchgate.net/profile/Shantanu-Pachauri/publication/342503880_An_analysis_of_sedition_law_in_India/links/5ef7b381a6fdcc4ca4379dc8/An-analysis-of-sedition-law-in-India.pdf?origin=publication_detail
[10] Sedition law vis-À-vis the right to free speech and expression, BSK Legal (2021), http://www.bsklegal.org/blogs/sedition-law-vis-a-vis-the-right-to-free-speech-and-expression/
[11] Mitshu Patel , Analyzing the Law of Sedition in India, 4 (3) IJLMH Page 647 – 663 (2021), DOI: https://doij.org/10.10000/IJLMH.11525
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