ABSTRACT
The origin of sedition law can be dated from the amendment of the Indian Penal Code in 1870. The British colonizers used it to suppress the Indian freedom struggle and rising voices of dissatisfaction. Until August 11, 2023 section 124 of the IPC provided the provisions for sedition and its punishments, now the new Bharatiya Nyaya Sanhita was introduced in the Lok Sabha which will repeal the Indian Penal Code,1860. Sedition under this bill is contained in section 150. The research paper dives into the history of sedition law in India from the British colonial era and further changes and interpretations given by courts. The paper also compares the new sedition provisions with the old ones to gain an understanding of the sedition law.
KEYWORDS
sedition law, history, provisions, interpretations, comparison
INTRODUCTION
Sedition according to Black’s Law Dictionary constitutes employment of any speeches or publications intending to disturb the tranquillity of a state. Sedition challenges the reforms and administrative functioning of the legitimate authority and incites among general public the feelings of disaffection, dissatisfaction, and contempt against the sovereign authority like the government or the constitution of a country, which in turn leads to public unrest and acts of violence. Actions that incite hatred and contempt towards the government are acts of sedition. Sedition is however different from the act of treason which is an outright action taken to topple the sovereign authority of a country by working with anti-national forces[1]. In India, the act of sedition is synonymous with the act of treason and both are covered under the same section and treated with similar penalties.
Sedition was previously provided for in section 124 A of the Indian Penal, 1860 which was first introduced in the year 1870 by English jurist James Stephen. On 11th August 2023, the new Bharatiya Nyaya Sanhita (bill) was introduced and the sedition provision is provided in section 150 of this new bill.
METHODOLOGY
The research methodology used is analytical and qualitative. The researcher referred to primary sources of statutes as well as secondary sources of newspaper and journal articles, research papers, and books to understand the subject better and analyze the topic. Relevant case laws and judgments have been referred to by the author in the course of writing this paper.
LITERATURE REVIEW
Sedition law in India has been much debated on its constitutionality and relevance in present times. The arguments stress the draconian and colonial nature of the law and section 124 A had been referred to a constitutional bench by the Apex court to deliberate upon its constitutionality. Recently a new bill was introduced to replace the Indian Penal Code called Bharatiya Nyaya Sanhita. The approach of this new bill to sedition differs from IPC. The Law Commission report, 2023[2] on Usage of the Law of Sedition gives a great insight into understanding the relevance of this law and possible changes that can negate the misuse of this law. The constitutional assembly debate proceedings in December 1948 also throw light on sedition as a reasonable restriction and reasons for its removal as a restriction in favor of ‘public order’. Case laws from British India and Independent India served in better interpretation and understanding of the loopholes of this law.
SECTION 124 A OF THE INDIAN PENAL CODE
Sedition as a penal offense was introduced in section 124 A of IPC[3]. According to this section elements of the offense are
- words, written or spoken, or any physical representations or signs communicated to the people.
- Such words or actions incite or attempt to incite disaffection, hatred, or contempt among the people.
- Such feelings of disaffection, hatred, or contempt towards the government established by law.
- This leads to public unrest and violence
Punishments
- Imprisonment for life
- Or imprisonment for life with a fine
- Imprisonment for 3 years
- Or imprisonment for to 3 years with a fine
Criticism
“The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself” (~N.V. Ramana)
This section has been criticized as it was introduced in the colonial era and has a negative impact on constructive criticism against the government. It restricts freedom of speech and expression guaranteed by Article 19(2) of the Constitution and for this reason, it is draconian. The landmark case of Kedarnath is a good example of how criticism against a political party in power at the Centre can be termed seditious inspite of the absence of the pernicious tendency of such criticism. The provision also gives a lot of discretion to law enforcement agencies to decide whether an act is seditious or not. This has been misused and former Chief Justice N.V. Ramana brings to attention that convictions under this section have been very low and most cases are filed misusing this provision.
Justice Deepak Mishra[4] stressed that sedition law is a powerful tool that is misused to stifle criticism and will turn India into a ‘Police state’
SEDITION IN THE BRITISH ERA
Sedition was not a part of the original Indian Penal Code, of 1860 drafted by Macauly, it was later introduced by an amendment in 1870. Section 124 A was aimed at restricting activities of the Indian freedom struggle. It was used as a weapon in the hands of the British colonizers to suppress and control raising voices of dissatisfaction among the Indian subjects. The section by origin was intended to curb the right to expression and speech of the citizens to further the British authority’s interests. This section was used to suppress many freedom fighters who criticized the British Government. Calcutta High Court in the notable case Queen Empress v Jogendra Chunder Bose[5] held that not only the author but also the publisher of the newspaper would be held liable for assisting in circulating and making the seditious article available to the masses. The high court also gave a distinction between legitimate criticism and disaffection, stating that since disaffection is only punished, it is not encroaching on the people’s rights
The second famous case related to sedition was Queen Empress v Bal Gangadhar Tilak and Keshav Mahadev Bal[6], The high court invalidated any type of legitimate criticism and further stated that the intent of the offender is important and can be understood after examining the content of his speech and audience.
The decision in the King Emperor v Sadashiv Narayan Bhalerao[7] case held that the action of sedition did not require any action of public unrest or violence and was maintained in all sedition cases until India’s independence. This decision overruled the previous judgment given in Niharendu Dutt Majumdar v King Emperor[8].
POST-INDEPENDENCE
Sedition was removed from the Constitution by the Constituent Assembly; it was also removed as a ground for reasonable restriction on people’s right to speech and expression. K.M. Munshi proposed these changes. He stated that criticism of government is the soul of democracy and sedition law bars it[9].
Public order as a reasonable restriction on freedom of speech and expression was added to the Constitution through the First Amendment in 1950. This amendment was made soon after the Punjab High Court invalidated section 124 as it was in contravention of fundamental rights in the case of Tara Singh Gopi Chand v The State[10]. So now if the speech or publication is against the interest of the security of the state and incites violence and disorder it is seditious. The term interest of the security of state being the basis for invoking the offense of sedition was wide in meaning and gave the state ample power to invoke the offense.
In the landmark case of Kedar Nath Singh v State of Bihar[11] a five-judge constitutional bench was appointed. Kedarnath Singh was charged with sedition for making insulting speeches against the National Congress government. The apex court held that any criticism given by the defendant did not lead to any public disorder or incitement of violence, so refereeing to the decision given in Niharendu Dutt Majumdar v King-Emperor[12] case by the federal court before independence such criticism is disapprobation or legitimate criticism and does not lead to disaffection inciting violence, hence Kedarnath’s speech is not seditious.
Further, the court stated that the criticism was directed toward the party and not the Indian State, and it did not incite violence and disturb public order.
Through this case, a distinction was established between criticizing a political party and inciting disaffection towards the Indian State. Public disorder and incitement of violence against the state was also stressed as deciding factor in sedition cases. The court batted in favor of public speech and expression by providing the distinction between disapprobation and disaffection previously mentioned in the Niharendu Majumdar case.
Sedition was removed from the Constitution by the Constituent Assembly; it was also removed as a ground for reasonable restriction on people’s right to speech and expression.
SECTION 150 OF BNS AND ITS PROVISIONS
Recently on 11th August the new bill the Bharatiya Nyaya Sanhita (bill) 2023 was introduced which provides for sedition in its section 150[13]. This bill penalizes acts endangering India’s sovereignty, integrity, and unity, it further changes some terminology used in section 124 (A) and brings a change in the punishment for the offense.
Provisions under the section 150[14]:
-words are either spoken or written, use of signs and visual representation, electronic communication, and any use of financial resources.
-the above incites or attempts to incite secession or armed rebellion or encourage feelings of separatist activities and endangers the sovereignty, unity, and integrity of India.
-the above constitutes the offense which will be punished with imprisonment for life, or imprisonment which may extend to 7 seven years with a fine.
By these provisions, Home Minister Amit Shah stated that the law will not aim at punishing but rather at providing justice. Section 124 A of IPC was introduced by the British intending to punish any criticism against them, the new Bharatiya Nyaya Sanhita will aim at serving justice and not suppression and punishment.
The bill however still gives great discretion to law enforcement to decide which act would be considered as endangering the sovereignty, unity, and integrity of India. This can be misused for malicious purposes.
It also does not include in its provisions the pernicious tendency discussed in the Kedarnath Singh case.
COMPARISON
Between the old section 124 and section 150 of BNS, the major difference is the severity of punishment. The punishment under section 150 includes imprisonment up to 7 years with a fine whereas under the previous section 124, the convicted could get away with a fine. The punishment has been made severe.
The term ‘disaffection’ against the government mentioned in section 124 has been removed in the new bill.
Even the terms contempt and hatred have been removed. While the repealed section 124 included words written and spoken and signs and visible representation, the new bill goes a step further and includes electronic communication and financial means as means to endanger the sovereignty, unity, and integrity of India.
This is a good step as it is clear that legitimate criticism of the government or political parties will not be constituted as sedition. The mention of the state of India in the provision removes this misconception that criticizing the government is an insult to the nation.
CONCLUSION The research paper has explored the history of how sedition law evolved in India. Originating as a draconian law aimed at suppressing free speech and expression it was carried on even after the colonial era. Interpretations and decisions given by courts in landmark judgments further shaped it into section 124 A. The judgments and interpretations helped in understanding the essence of sedition which is any action that incites violence and hatred towards the sovereign authority in a nation. A further difference between state and government was crucial in preventing misuse of the section. However, it can be noticed that in both Section 124 A of IPC and Section 150 of BNS, the law enforcement agencies have been given great discretion in deciding whether an act is seditious or not based on security or danger to sovereignty, unity, and integrity of the country. This power can be misused by law enforcement. In the new section, no provision for pernicious tendency and public violence against the government was given which makes invoking the offense very easy. A suggestion would be to add a provision including incitement of public disorder and violence as a necessary element of sedition.
The law of sedition may be draconian by origin, but it should not be dismissed for simply being colonial, sedition law is important to keep in check anti-national movements. In India, the acts of sedition and treason are treated similarly, and treason is the greatest and worst crime anyone can commit and should be punished severely to deter it from repeating in the future. Supreme Court to test the section’s constitutional validity of the section Supreme Court has referred it to a constitutional bench of not more than 5 judges. The demand was to repeal it but as the law commission report, 2023 states the section should be retained with amendments clarifying the provisions keeping important precedents in mind.
Author:
Tanvitha Reddy. K
Osmania University College of Law.
[1] Samridhi Sharma, Treason law: A Challenge to Democracy, LEGAL SERVICES INDIA E-JOURNAL, (Sep. 11, 2023), https://www.legalserviceindia.com/legal/article-8421-treason-law-a-challenge-for-democracy.html#:~:text=In%20Section%20124%20A%20of,a%20revolt%20against%20the%20government.
[2] Usage of the Law of Sedition, LAW COMMISSION OF INDIA, (Sep, 11, 2023, 6:15 PM) https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/06/2023060150.pdf.
[3] Indian Penal Code, 1860, § 124 A, No. 45, Acts of Parliament, 1860 (India).
[4] Deepak Gupta, Law of Sedition Needs to be Toned Down if Not Abolished, THE WIRE, (Sep, 17, 2023, 8: 30 PM)https://thewire.in/law/justice-deepak-gupta-supreme-court-sedition.
[5] Queen Empress v Jogendra Chunder Bose., (1892) ILR 19 Cal. 32.
[6] Queen Empress v Bal Gangadhar Tilak and Keshav Mahadev Bal (1897) ILR Bom 112.
[7] King-Emperor vs Sadashiv Narayan Bhalerao, null(1947)).
[8] Niharendu Dutt Majumdar And Ors. vs Emperor, AIR 1939 Cal 703(1939)).
[9] Constituent Assembly of India Debates (Proceedings) Part I Vol. VII,DIGITAL SANSAD,(Dec. 1, 1948),https://loksabha.nic.in/writereaddata/cadebatefiles/C01121948.html.
[10] Tara Singh Gopi Chand vs The State, 1951 CriLJ 449(1950)).
[11] Kedar Nath Singh vs State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769(1962)).
[12] Supra 7 Niharendu Dutt Majumdar And Ors. vs Emperor, AIR 1939 Cal 703(1939).
[13] Ashish Vashishta, What is section 150 of New Bharatiya Nyaya Sanhita 2023 which will repeal sedition law Explained, ENGLISH JAGRAN, (Sep. 12, 2023, 8:30 PM), https://english.jagran.com/india/what-is-section-150-of-new-bharatiya-nyaya-sanhita-2023-which-will-repeal-sedition-law-explained-10093163.
[14] Bharatiya Nyaya Sanhita (bill), 2023, § 150, No. 121, 2023 (India).
The best part the complete article … Citations…?
The best part of the complete article are the Citations…?