COMPARATIVE ANALYSIS OF SEDITION UNDER INDIAN PENAL CODE AND BHARTIYA NYAYA SANHITA

ABSTRACT

Sedition has been one of the most debatable issues in the Indian legal framework since its inception. Section 124 of the Indian Penal Code, 1860 defines sedition along with the punishment misused earlier by the hands of the Colonial Government and then the Government of Independent India. Originally, sedition was brought in by the colonial government through IPC 1860, to suppress the voice of Indian masses to try to rebel and raise the voice against the British Government. The law continued to exist even after the independence however the misuse of the same didn’t stop and is widely criticized. 

However, recently the sedition under the IPC was struck down by the Supreme Court in 2022 stating that it gave unlimited powers to the government that sometimes led to infringement of individuals’ rights and freedoms. On the other hand, Bhartiya Nyaya Sanhita attempts to redefine sedition in better and wider terms thereby upholding democratic values.  

This research paper examines the origin of the Sedition Law in India. After that, it deals with what is sedition as per Indian Penal Code and Bhartiya Nyaya Sanhita along with their essentials, and also deals with the comprehensive comparative analysis of sedition under the 2 Criminal Codes. The research even deals with the implications of sedition on Fundamental rights and most importantly the right to freedom of speech and expression as mentioned under Article 19(1)(a).

KEYWORDS 

Sedition, IPC, BNS, RIGHT TO FREEDOM OF SPEECH AND EXPRESSION, DISSAFACTION TOWARDS GOVERNMENT, INCITEMENT, VOILENCE.

INTRODUCTION

The idea of codification of laws started in 1833 and thus the result of the same code for criminal offenses was introduced in 1860, the Indian Penal Code (IPC) which laid down multiple offences and their punishments. IPC continued to operate even after 75 years of independence and various laws of this code were framed in a way that eased the rule of the British over Indian subjects, due to this very fact various of these laws are considered to be draconian especially if seen in the context of a present scenario wherein an individual is to be guaranteed Fundamental Rights under Part III of the Constitution. Some of these draconian laws include sedition. Sedition can be understood as “an insurrectionary movement tending towards treason, but wanting an overt act, attempts made by meetings or speeches, or by publications, to disturb the tranquility of the state Sedition law was brought in by the colonists to suppress any kind of freedom struggle by the Indian Natives. 

However, even after the independence it is still used and at times misused by the Government against various media houses, journalists, and NGO’s who were in contrast with the idea of the government. Thus, this law has suffered a lot of backlash because it still holds the colonial mindset of being accused who ever going against the government, even if did not amount to sedition in real terms. Therefore, it became very much necessary to come up with a new law as mentioned in Bhartiya Nyaya Sanhita, 2023, which gives a wider scope to the sedition law and provides the clause of the necessity of intention to commit such a crime and there are many more such reasons which make it better than the previous law. Therefore, for an in-depth study of sedition law in India it is necessary to look into the clauses in both IPC and BNS the changes brought in the BNS, and the historical context from which the sedition law was brought in.

RESEARCH METHODOLOGY

This paper adopts a qualitative research method, engaging historical, doctrinal, and comparative analysis to explore the evolution, application, and impact of sedition laws in India. The primary sources used in this research are Legal Texts: Examination of the Indian Penal Code, particularly Section 124A, and the proposed Bhartiya Nyaya Sanhita, Section 150, Case Laws and Constitutional Provisions: Articles 19(1)(a) and 19(2) of the Indian Constitution. and uses secondary sources of data from sources on the internet, articles, blogs, and other legal materials. The author also compares the present legal frameworks to find probable answers to legal and social issues.

LITERATURE REVIEW

1. “The Origin and Validity of Sedition Laws in India” by Ankesh

 Qualitative research dealing with the origin and development of Sedition laws in India over the years along with case laws both from the Pre-Independent and Post-Independent Era. This research even looks upon the recent developments in Sedition laws and sheds a little light on the Sedition under the Bhartiya Nyaya Sanhita.

In this research paper, the idea of evolution of sedition has been taken apart from that, study has led us to various Case Laws that proved out to be examples that how the Sedition law was misused by Britishers.

2. “Old Sedition Law vs New Bhartiya Nyaya Sanhita (Bill), 2023 – What’s the difference?” by Chandni Chandel

It discusses a few differences in the sedition law under both codes. It even extends its study to answering the question of whether the new would be applied to old cases and also incorporates the view of the Indian Law Commission on Sedition Law.

The research paper compares the sedition law in BNS and IPC and the researcher over here has put emphasis on the analysis on the every contention of this comparison while putting into this research paper.

3. “Jurisprudence of Sedition Law in India: Weighing the Balance of Fundamental Rights and Administrative Control” By Rushali provides an analytical view of sedition in India from the perspective of other countries including the UK, New Zealand, USA, Ireland, Australia etc. Further, it discusses the role of the judiciary in the cases of sedition regarding fundamental rights by delving into the Pre-Independent and Post-Independent status of the law with the case laws.

HISTORICAL BACKGROUND 

For a very long period, India was under British colonial rule. Even after India gained independence in 1947 the elements of the British legal system persisted. The sedition law is one of the most well-known laws that has endured. The basic meaning of the word sedition is a deed, word, or any action that incites people to rebel against the authority or state. The concept of sedition was for the first time introduced by lord Macaulay in the draft of the Indian Penal Code 1837. The Indian penal code was officially established in 1860, however, the idea laid down by lord Thomas Macaulay concerning sedition was omitted at that time. It was later incorporated in IPC under section 124A which Criminalizes ‘disaffection towards the Government established by law, by the then law member of the governor-general council, James Fitzjames Stephen through amendments.

Between what was incorporated in section 124A of the IPC and what was described in the draft of 1837, there were numerous notable modifications. Among them are:

1. Earlier the attempt to incite the feeling of disaffection was only considered an offence but soon after the amendments, the feeling of hatred and contempt was also brought under the purview of punishment.
2. Under the new law, the object of punishment also included ‘Her Majesty’ under the realm of punishment, under the draft the concept of punishment was only restricted to the government. 
3. The old law falls under the name of ‘exciting disaffection’ but the new law falls under the name of ‘sedition’.

IMPORTANT CASE LAWS

1. Queen Empress v Jogendra Chunder Bose ,1891

In 1891, twenty years after the sedition statute went into force, India had its first sedition case. In this instance, the publisher, editor, and printer of the Bengali magazine Bangobasi faced a sedition lawsuit for their criticism of the British government and their publication of an article that raised the legal age of consent for sexual intercourse.  Even though the accused were cleared after they apologized, the administration at the time believed that this was causing discontent in the state where the trial was in place. This case was heard in Calcutta High Court.

2. Queen Empress v Bal Gangadhar Tilak 1897

One of the well-known leaders of the independence movement was Bal Gangadhar Tilak. He has twice been charged with sedition. Tilak was found guilty in 1897 of discussing the supposed murder of two important British officers during a speech he gave at the Shivaji Festival. He was presented before the Bombay High Court for trial. As a result, disloyalty to the government was included in the definition of disaffection towards it.

3. Queen Empress v Bal Gangadhar Tilak 1908

Bal Gangadhar Tilak was arrested again in 1908 under section 124A of IPC as he published two articles in his Marathi newspaper, ‘THE KESARI’ the first article was a response to the killing of two English women. he argued that the oppression done by British has given rise to a sense of revolt amongst the youngsters.

The second article acknowledged the government’s measures to suppress the freedom of speech of Indian citizens. Tilak stated that the rise of bomb attacks was not born out of hatred but rather because of the oppression imposed by the British on Indian people.

The true victims of this law were Indian leaders amongst them a few were Annie Besant, Maulana Azad, Gandhi, and Bal Gangadhar Tilak. They came to see the bad aspects of this rule and how the British had exploited it to repress Indians and their opinions. This resulted in a prominent change by KM MUNSHI who removed the word sedition from article 13(2) from the draft of the Indian constitution before turning it into article 19(2) in the final draft of the constitution. It was again brought back as a law in the case of RAMESH THAPPAR V STATE OF MADRAS. However, the sedition law has been a contentious issue ever since. The case of DEBI SOREN V STATE OF BIHAR¹⁵ challenged the constitutional validity of section 124A.

4. Kedar Nath Singh V State of Bihar 1962

In a five-judge bench decision, the constitutionality of section 124A of the IPC was maintained. The court contended that although the criminalization of sedition restricted free speech by Article 19(1)(a), it also provided a legitimate justification for maintaining Article 19(2). 

The principle laid down in this case:

• The SC laid down the distinction between the term government formed based on law and the people administering it for the time being. 
• Any action done that undermines the government into contempt or disaffection will be constituted under the realm of punishment.
• Any words or action that is inappropriate and clearly expresses dissent towards government action but does excite anything against it shall not be concluded under the ambit of punishment. 
• The right to freedom of speech also lays down the right to criticize the government till the time it is not inciting any violence against the government. 

These changes marked the importance of this case.

In 1891, twenty years after the sedition statute went into force, India had its first sedition case. In this instance, the publisher, editor, and printer of the Bengali magazine Bangobasi faced a sedition lawsuit for their criticism of the British government and their publication of an article that raised the legal age of consent for sexual intercourse.  Even though the accused were cleared after they apologized, the administration at the time believed that this was causing discontent in the state where the trial was place. This case was heard in Calcutta high court.

LEGAL DEFINITIONS OF SEDITION 

The term Sedition is defined under IPC SECTION 124A  as 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 attempt to excite disaffection towards, the government established by law in, shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may be extended to three years, to which fine may be added, or with fine.

The key elements or the essence of this definition are:

1. Actions that are considered sedition include 

• Words (spoken or written)
• signs
• visible representation
• or by any other means 

2. intention 

• bringing or attempting to bring hatred or contempt toward the government
• exciting or attempting to excite disaffection towards the government

3. a consequence of the action caused

• imprisonment for life (with or without a fine)
• imprisonment for up to 3 years (with or without a fine)
• fine 

The main essence of this section is to penalize any action that causes discontent, dishonour, disloyalty, or hostility towards the government. The main idea is to analyse actions that have the potential enough to disrupt public order and undermine the authority or state. 

Any action that constitutes causing dissent towards the government but does not incite any violence as such, does not constitute an offence under this section. One of the major exceptions from the offence of sedition is if a person exercises his right to freedom of speech and expression through Article 19(1) constituted under the constitution of India.

According to the BHARTIYA NYAYA SANHITA (BNS), the term sedition is defined under article 150 as:

Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication, or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine. 

The key elements or the essence of this definition are:

1. action must be intentional: the act must be done purposely or knowingly
2. actions that are considered as sedition includes:

• words (either spoken or written)
• signs
• visible representation
• electronic communication 
• financial means
• or by any other means 

3. The acts that are prohibited under this section:

• Inciting or attempting to incite secession or armed rebellion 
• Engaging in subversive activities 
• Encouraging feelings of separatism 
• Endangering the sovereignty unity or integrity of India.

4. Consequences of the action or punishment 

• Imprisonment for life 
• Imprisonment which may extend up to 7 years
• Fine 

This section criminalizes intentional acts that incite rebellion, secession, subversive activities, or separatism thereby endangering the sovereignty and integrity of the nation. It includes a broad range of actions that constitutes to endanger the national security of the nation. The penalties are strict marking the seriousness of the offence.

COMPARATIVE ANALYSIS OF SEDITION UNDER IPC AND BNS

The major key difference between the elements of sedition under IPC section 124A and the proposed Bhartiya Nyaya Sanhita section 150 is that under IPC section 124A, sedition focuses on inciting hatred, contempt, or disaffection towards the government through words, signs, and visible representation. The penalties for such include imprisonment for life, up to 3 years, or a fine. 

Whereas the BNS section 150 has a broader aspect, addressing not just the incitement or disaffection towards the government but also secession, armed rebellion, subversive activities, and separatism. It includes a wider range of actions that cause sedition as compared to that under IPC, words, signs, visual representation, electronic communication, and financial means. The criteria for punishment under BNS are more intense as it includes imprisonment for life, or up to 7 years or fine. 

The modifications in the definition of sedition under BNS reflect the more stringent approach to protecting national interest and unity. Moreover, the BNS aims for a comprehensive framework to address the threat. Whereas in IPC the focus was narrower as it was centered on the concept of disaffection towards the government. BNS also includes crimes related to mob lynching and hate crimes under sedition law. 

Earlier the words that were causing action for the sedition act were very harsh and required some major Action but under BNS the mere words themselves will be constituted under sedition law for having participated in anti-national activities. Section 150 of the new bill criminalizes “act endangering the sovereignty and integrity or the unity of the nation”. New BNS 2023 there is no provision mentioning the offence of sedition or the new law avoids the use of the word sedition but a similar nature offence can be found in section 150 of new BNS 2023.

ANALYSIS BETWEEN SEDITION AND FREEDOM OF SPEECH AND EXPRESSION 

The balance between sedition and freedom of speech and expression often results in controversies and debates. India as a nation strives to maintain democracy in the country while also keeping in check public law and order and national security and integrity. The major interplay is between Article 19(1)(a) which guarantees the right to freedom of speech and expression under the constitution of India and section 124A of the IPC which criminalizes sedition.

LEGAL FRAMEWORK: 

Article 19(1)(a) of the Indian constitution guarantees every citizen the right to freedom of speech and expression. This fundamental right is the most essential one as it enables people to express their opinions without any fear, it enables them to engage in open discussions, criticize government policies, and express contrasting viewpoints. However, it is not an absolute right, article 19(2) imposes a reasonable restriction on the grounds of nations’ integrity and sovereignty. 

However, article 19(1)(a) is an exception to sedition law. The constitutionality of sedition law has been in debate for a long time. The argument was that it violates the fundamental rights and hence ultra vires the constitution.  In the KEDAR NATH CASE, this issue was settled and the Supreme Court held that section 124A is not unconstitutional. 

One of the major pillars of democracy in our nation is the right to freedom of speech and expression, although it is always under the threat of sedition legislation. Sedition laws are the tools for establishing a sense of cooperation with government policies within the people.

One of the famous theories that enshrines the idea of freedom of speech is:

HARM PRINCIPLE AND FREE SPEECH

A Legal jurist John Stuart Mill explained the term ‘harm principle’ as “an expression of the idea that the right to self-determination is not unlimited. An action which results in harming another is not only wrong but wrong enough that the state can intervene to prevent that harm from occurring”. 

The basic idea of this principle is that it permits the government to restrict individuals’ freedom by imposing some measures to maintain peace and prevent harm in society. It allows the state to enact laws that are beneficial for the people and for the development of society. This defense might apply to the offences against the state. 

According to constitutional law, speech cannot be restricted because of its content, regardless of what the alleged harm might be. “This rule, to which will be referred here as the “cardinal rule” of free speech, means that if a restriction turns on what is said or expressed, or on characteristics of an expression, then it is presumptively invalid”.

Mills’ argument was based on the following contentions:

1. The value of truth and a realistic impression is immeasurable, and individuals should be supported to derive an accurate conclusion about the world.
2. Silencing or altering the expressions prevents people from knowing the real truth about the world’s happenings. However, freedom of speech and expression enables people to understand the actual and real meaning of a situation.

The above-mentioned points are the very basis of Mill’s analysis of the damage principle and freedom of speech. Additionally, he also mentioned that the advancement of society depends on the freedom to express your opinions.

Another prominent theory related to the freedom of speech is:

OFFENCE PRINCIPLE AND FREE SPEECH

The offence principle focuses on the moral sentiments and the feelings of society and demands.

A justification for criminalizing certain activities. The rationale behind this is criminal prohibition successfully protects people from consequential wrongdoings. The basic idea behind this principle is that the punishment for harming an individual should be more intense as that compared to just offending them with mere words. 

According to the jurist Joel Feinberg, the harm principle sets an unreasonable obstacle. He further argues that the offence principle governs public criticism which is acceptable to restrict some offensive speeches.

The concept of offence principle is majorly applied in modern democracies to penalize a variety of actions including speech. Feinberg suggests taking into account various factors such as offence intensity, the number of people offended, and the motive behind saying such things before deciding if speech can be constituted under the offence principle. 

The debate over free speech is ongoing in many countries, influenced by various theories and demonstrating that free speech is not an absolute right.

SIGNIFICANT IMPACT OF SEDITION LAWS ON ARTICLE 19(1)(A)

• Due to the very nature of sedition laws, it imposes several restrictions on the right to free speech and expression, as a fear of being punished/charged can cause people to self-censor, suppress people to exchange ideas and criticize government policies.
• Dissenting viewpoints may be silenced by the sedition law, individuals may refrain from engaging in political discussions or campaigning for reforms. The democratic function of the society is undermined due to this intimidation of dissent.
• The freedom of the press and journalists might also be suppressed by the sedition laws. The independent working of the press is undoubtedly the fourth pillar of democratic India, the imposition of seditious laws restricts them from providing fair and real sources to the public. Due to the harsh and severe punishment of the sedition law people might refrain from exercising their right to speech. In a democratic society, the concepts of fairness and proportionality are undermined by disproportionate punishment.
• A strong democracy requires vigorous debates, discussions, and the capacity to challenge and question governmental actions. When such speech is prohibited by sedition laws, it hinders the growth and advancement of democratic nations.

RELEVANT CASE LAWS 

1. KEDARNATH SINGH V STATE OF BIHAR

This landmark judgment by the Supreme Court provided a clear interpretation of the term sedition. The court held that an act can be constituted under sedition only if it incites violence or a direct threat to public order.

2. BALWANT SINGH V STATE OF PUNJAB

In this case, the Supreme Court held that one of the essentials for sedition law is the “intention” to incite violence or disrupt public order. The court also emphasized on striking balance between Article 19(1) and sedition law. 

3. ARUP BHAYAN V STATE OF ASSAM

In this case, the Supreme Court concluded that the mere raising of slogans that might disrupt society does not constitute sedition. 

4. COMMON CAUSE V UNION OF INDIA

The Supreme Court held that the sedition law must be interpreted narrowly and should not be used to suppress dissenting views and criticism of government policies. The main aim of the court was to protect the fundamental right to freedom of speech and expression. 

5. KISHORE CHANDRA WANGKHEM V UNION OF INDIA

In 2018, in Manipur, a journalist Kishore Chandra Wangkhem was charged under the sedition law. He was taken into custody for making negative remarks about the government on social media. This case highlighted the vulnerability and weak position of journalists and the press. 

6. DISHA A V NCT OF DELHI

This case is commonly known as the toolkit case. The plaintiff was an environmental activist, charged under sedition law for editing or disseminating the content of a farmer’s protest. This case further sparked various debates about online activism, misuse, or inappropriate use of sedition law.

In India, sedition law has always been a topic of debate and discussions that sparks the discussions regarding the validity and consequence of this law. Critics argue that sedition laws often exploit the right to freedom of speech and expression to suppress dissenting opinions and criticism of government policies. Sedition is a crime that is both cognizable and non-bailable in India, which means that police have the power to detain anyone they suspect of being a seditionist without a warrant. This has led to numerous instances where section 124A of the IPC was misused by the authority. 

In the landmark case in 2022, the Supreme Court of India struck down section 124A of IPC, by declaring it as unconstitutional. This step was marked as significant in strengthening the democratic values of our nation by limiting state power. The court’s judgment underscored the importance of protecting individual rights and freedoms, emphasizing that dissent and criticism are vital components of a healthy democracy. By invalidating the sedition law, the Supreme Court aimed to ensure that the power of the state is not misused to stifle legitimate expression and political opposition.

CONCLUSION 

The mere fact that the laws and legislation from the British colonial era are still prevalent in the Indian judicial system is quite alarming. The notion regarding the sedition law is highly influenced by colonial principles. It is widely acknowledged that the sedition laws are used to silence any kind of criticism towards the administration, compared to urging acts of violence against the government.

The history and evolution of sedition law highlights its controversial nature and its significant impact on the right to freedom of speech and expression. It was originally introduced by the colonial government to stifle dissenting opinions, section 124A of the IPC has undergone various modifications and legal challenges throughout the time. The recent Bhartiya Nyaya Sanhita (BNS) proposes a wider more comprehensive and rigid framework reflecting present notions and concerns about national security and integrity. 

However, sedition law has been condemned for stifling democratic discussions, self-censorship, and targeting journalists and activists. This changing legal environment emphasizes how important it is to strike a balance between conserving democratic values, especially the freedom of speech and expression, and protecting national security. The current discussion highlights how crucial it is to regularly review legislation to ensure that it is consistent with democratic ideals and human rights. 

NITYA VYAS 

 Vivekananda institute of professional studies (VIPS TC)