Abstract
A 152 years old pre-colonial rule that is still in existence until now as an enacting law in the territory of India has become a rising issue in eyes of government for it to be existing in future. Sedition law from the day of being included under IPC in 1870s has received so many criticism not only from the revolutionist Indian Leaders, but from Indian government even after independence. The criticism that it has received, the reasons behind those criticism, arguments on same and remedies in form of suggestions have been covered under the paper.
The scholar would contribute in this research paper to interpret the Sedition law from more than one perspective on the basis of judgments decided in various case-laws related to the same provision. Also, this research paper is based to make an attempt to scrutinize both the facts, issues or arguments that are in favor of sedition and that make basis for repealing it .
It is considered by the Indian Government that this law having the origin of per-colonial isn’t in accordance with the current social milieu. Also, it’s a direct violation on freedom of liberty and restricts fundamental right under Article 19 which provides freedom of speech, expression and views. These are little insights of the revolutionary arguments against it’s provision that are included as main basis in this research paper for better understanding of implementation , analyzing the consequences along with it’s effects and check the legal validity of sedition law in order to validate either it’s further need of existence even after 75 years of independence or to repeal it permanently from the provisions of Indian Constitution.
Finally, this research paper is focused on the question if there is any need of this law to be in existence when it’s whole existence was based to get misused by the government against citizens or this law should just cease to exist.
Keywords
Sedition, pre-colonial rule, misuse, disaffection, restriction, incite violence, proximity, tendency, obnoxious, retain, repeal, public disorder.
Introduction
Sedition law was not mentioned in IPC when it was drafted by Thomas Macaulay in 1837 and was introduced in 1860.So, it was incorporated under section 124A in IPC in 1870 through an amendment by James Stephen[1] as he felt the need of this law in order to limit the voice of protest. Main purpose of Britishers behind enacting this law at that time was to suppress the voice of local Indians against them , to prevent them from uniting to revolt against their government or to raise their voices, express dissent, dissatisfaction against their work.
Any crime would be included as an offence under sedition and said to be committed against the government is defined under section 124A in IPC as, ” any person 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[2].” Wording of this offence clearly reveals the evil intention of Government of Britishers and have a gist that all the actions irrespective of being reasonable even if the cause of slight disaffection or hatred against the government would make them liable to get punishment.
Punishment is also assigned in this non-bailable offence that ranges from imprisonment upto 3 years to a life term, along with the addition of fine according to the intensity of acts which would be either by the government or by the judges of the court on basis of their capacity to interpret the case and it’s offence. Even the accused of this law is barred from holding any government posts.
It is considered that provision of crime included under this pre-colonial rule consists of offences that are against the government , not the country. This law acted as a shield for British Government to prevent them from nationalist movements or acts of revolutionary leaders fighting for their independence from them . Trials happened against great leaders like Mahatma Gandhi and Bal Gangadhar Tilak as a result of this law.
Research Methodology
This research paper is based on unbiased and descriptive nature. Research done to attempt this paper is based on secondary sources like newspapers, journals, articles and blogs written by renowned professors or researchers . Use of credible websites is also included in order to get deep analysis on implementation of article 124A and to get holistic view of the sedition law. Recent submission of 279th report by Law commission related to this law is also taken into consideration for effective understanding of it’s merits and demerits in order to interpret it from more than one perspective. Judgments of case-laws are included as well. All the research and facts included in this paper are verifiable, accurate and done in a systematic way.
Review of Literature
Basic gist of offences that are included under Sedition law has been described but, way of interpreting its main idea and implementing the same accordingly can be done in two different ways that would be more clear through two leading judgments of cases belonging to British Period . These cases have completely different view, nature, object and scope of the provisions under this law and has given their respective judgments based on the interpretation.
Case of ‘Queen Empress Vs. Bal Gangadhar Tilak[3]‘ in which Bal Gangadhar Tilak was convicted under charges of sedition in Bombay Court for writing some articles invoking Shivaji in ‘Kesari’, Marathi weekly. Judge Scratchy in this case interpreted the law as absence of intention to excite or attempt to excite hatred or disaffection against the government is also equivalent to offence under sedition if that act is invoking any other leader in oppose of government irrespective of having the intention.
It was held that act of convicted even though hasn’t attempted to excite violence or rebellion against the government would still be liable under the law. So, Tilak was held guilty under the final decision of Court.
Thus, this law was held as very draconian[4] law by the natives when decision of the case was upheld by the privy council. Leaders like Mahatma Gandhi and Jawahar Lal Nehru stated this law as obnoxious in nature. If it’s provision is interpreted through this point of view, then it’s completely hampering the liberty and curtailing the freedom of people to express themselves in the society.
Mahatma Gandhi claimed this colonial law to be repealed as soon as possible as it’s designed to suppress the liberty of Indians by stating that affection is an emotion that can’t be manufactured or instilled through any law but can only be generated in someone by themselves irrespective of use of any external force. One should be provided enough freedom to fully express their ideas, views and even disaffection.
But if we look at it’s application through another major case of ‘Niharendu Datt Majumdar and Ors. Vs. Emperor[5]‘ , Chief Justice , Sir Maurice Gwyer interpreted the gist of this law as public disorder or reasonable anticipation or likelihood of public disorder. Offence would be considered as committed only when it would incite violence or disorder. A mere imagination of accused might be having the tendency for exciting disaffection towards government can’t be the basis of making someone convicted under its provision. Hence, the accused was acquitted.
If analyzed deeply, sedition law was never introduced for any welfare or as a reasonable restriction and was only meant to destruction. It was prone to be misused but it still had space for reasonable interpretation and to use it as justifiable law , putting reasonable restrictions and have the utility to combat anti-national movements just like the leading judgment of Niharendu Datt Majumdar’s case.
Concerns related to Sedition law
As it has already been described how Sedition is interpreted through two perspectives and then was being tried to get implemented accordingly. Now, we see that there are many concerns or doubts about this law in minds of everyone while implementing it in the society like :
- Rampant Misuse : It’s a major concern that this law would get misused by the government just like the colonial times. Even in July 2021, N.V. Ramana , Chief Justice of India remarked this law as ,”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 [6].”
- Relevancy to Present Day : It is considered by many that this colonial law is not in the way of current social milieu. Also, it was excluded from the draft of Indian Constitution by Constituent Assembly earlier after arguments.
- International Perspectives : If this law has been revoked by foreign countries like USA, England etc and has lead to development as result, why are we holding on to something that’s whole existence is based to exploit our people’s rights.
- Violation of Article 19(1) : If we consider the judgment of Bal Gangadhar Tilak case cause of being upheld by Privy council, then it completely violates the provision of providing freedom to speech, expression and views in article 19. Sedition law and article 19 has always remained in conflict since its enactment . It’s also mindset of many that only one thing can remain in Indian Constitution and as it’s a democratic country, receiving criticism against a bad government is one of the factor of it. So, sedition law should not be in existence as it would only hamper their rights and would direct questions on democratic structure of our government.
Landmark Judgments of case-law ‘Maneka Gandhi Vs. Union of India[7]‘, claiming free debate and open discussion as set up of democratic structure forms the sole base for conflicts between both section 124A and Article 19(1).
Also, in case of Romesh Thappar Vs. State of Madras[8], restrictions on article 19(1) was challenged and it was not clear if section 124A hold any culpable restriction on expressed views, gestures or disaffection by people towards the government. Then, it was cleared through 1st amendment act in which 6 ‘reasonable restrictions’ was included in Article 19(2) on clause (1) of article 19 apart from two pre-amended restrictions.
But this assumption of being misused doesn’t form a strong basis for repealing section 124A. As this law can also prove to be a shield to stop any inciting separatist movements , violence regarding public disorder and divisive propagandas. Also, it has capacity to reduce the issue of ‘ever proliferating role of social media in propagating radicalisation[9]‘.
Relevant Case-laws
In case of Kedarnath Singh Vs. Union of India[10], five judge Bench in 1962 decided the constitutionality of sedition law and held it valid for two reasons. One of them was that this law is against the government, so it would be equivalent as against the state cause the government established by law is visible symbol of state. Subverting Government would only result in putting state in a condition of jeopardy.
So, this law is in interest of public order and section 124 A only distinct ‘ government established by law’ from person engaged in forming the government. Court also held that only those offence having tendency to implicit the idea of subverting government established by law through violent means resulting in public disorder would be punished by this law.
It was also concluded in the same case that disloyalty towards government established by law and commenting or criticizing the acts of government are two different aspects. So, section 124A doesn’t violate Article 19(1) but only applies a reasonable restriction on it .
Tendency test was also applied in it that would be under hands of police to decide the intensity of tendency of an act with respect to incite violence or causing public hindrance.
But if we compare this case law with judgment of Tilak Case, there are minor to no difference as tendency was sole purpose for making him guilty in that case . But only thing that differ both of them is the presence of causing violence against government established by law and leading to direct public disorder in the latter Kedarnath case. This decision was helpful in striking down the misuse of the law and to make balance between fundamental rights and interest of public order.
Judicial Interpretation of provisions under section 124A in case of ‘Superintendent of Police Vs. Ram Manohar Lohia [11]‘ added safeguards to it’s application by narrowing down the definition. Court applied the ‘ proximity test ‘ in it in lieu of tendency test, by holding that limitation under this law is going to be considered as reasonable restriction only when there is presence of proximate connection or relation(nexus) with public order rather than any assumption or hypothetical imagination of attaching relation with public disorder.
Tendency Vs Proximity
Tendency as applied in Kedarnath judgment is a much wider concept while proximity as defined in Lohia’s case is more precise to interpret and then implement sedition accordingly. It can be understand through words of GD Khosla,’ Anything may have tendency for almost anything[12]‘. Even a lamppost may be taken as a symbol of either nationalism or revolution, a source of light, evidence for independence or civilization. Implementing Sedition on basis of proximity should be validated as tendency puts it in situation of conflict with other articles curtailing freedom in various aspects and even dilute the essence of some fundamental rights.
For an example , a local leader being an ideal of many people in a society talks about a better future by emphasizing a ray of light on oppression-free society ,having peace and happiness among people. But by misinterpreting his speech, riots start to take place resulting violence and public disorder. So, it is shown that there is no proximal connection between oppressive society and violence happened due to riots. But some can still take it as a presence of tendency in him to cause the effects that happened. Hence, attaching sedition with proximate connection with the outcome of the action suppress it’s extraordinary exploitation.
Supreme Court of India by taking into consideration of different consequences of adopting both Tendency and proximity in different judgments has given proximate connection or nexus more preference and adopted it for giving judgments of further cases like, Arup Bhuyan Vs. State of Assam[13], Shreya Singhal Vs. Union of India[14] and Sanskar Marathe Vs. The State of Maharashtra[15]. In the last case , it was held that cartoons made by Sanskar Marathe as Mr. Trivedi for satirising corruption has no nexus with public disorder. Also, comments expressing criticism of government having demands to retain laws are not seditious offences under section 124A.
Sedition to be Revised or Retained?
Law commission has submitted its 279th report for retaining sedition law rather than repealing it. It has claimed that although foreign powers have abolished this law from their constitution, our nation still require it as we have diversity of culture that gives rise to chances of various separatist movements that can be filled with rage, violence and lead to hindrance to government established by law.
In their report, they have suggested to change the wordings of the section 124A under IPC and make it more strict by increasing the punishment for offences coming under the same from 3 years to 7 years. Commission wants the wording to be paraphrased through amendments in order to make it align with the current social milieu 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 attempts to excite disaffection towards, the Government established by law in India, with a tendency to incite violence or cause public disorder shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years , to which fine may be added, or with fine[16] .”
It’s been claimed under report that by changing the essence of law, it can be remain in existence by implementing it on basis of Kedarnath judgment. Now, the question has arised if the sedition law should be retained or repealed permanently from our constitution. Government has given it’s orders to re-examine the law to which there are no deadlines set for the same. Also, until the provision is revised , the cases coming under the respective section has been put on hold and their cases are directed it’s on the wisdom of the Trial Court and High Court to decide if the contention of case is also lying in any other provisions of law and impart justice through it without making any discrimination to the rights of accused.
Suggestions and Conclusion
Sedition is an alien law brought by Britishers but, even after 75 years of independence, its still an ongoing provision. By report of NCRB ( National Crime Reports Bureau) , almost 475[17] cases are confirmed to be reported under Section 124A of IPC in which most cases were belonged to Assam followed by Haryana, Jharkhand etc. Even there is a marginal increase of cases from 73 in 2020 to 76 registered in 2021. This report shows the need of sedition or presence of a related law till today. It can be concluded that this section of law (if used with certain provisions having reasonable justifications by keeping track of not violating any legal right of citizen) has capacity to be a protector against terrorist elements and secessionist movements.
For solving issues related to such separatist , extremist movements or violence causing public disorder, we require an effective legal law or framework that can penalize these offences rather than the utmost necessity of sedition on which government should work to introduce one such provision. But until that, sedition should not be repealed completely but it’s indeed time to modify it after revising the same. It’s definition should be more clearly stated so that it can be implemented precisely by not becoming an offence under fundamental rights or hampering public liberty instead until it’s in existence. There should be a separate committee formed by the government in order to check the reasonable validity of this law in the judgments decided in further cases come as a trial under sedition law even after being revised. It’s the duty of government to retain a pre-colonial law having obnoxious character to transform into a reasonable justified law in accordance with Indian Constitution to prevent having it’s arbitrary use.
Author : Chanchal Garg
College name : Institute of Legal Research and Studies, GLA University , Mathura
The Amikus Quriae
[1] Sedition Law, Drishti IAS, (May 4, 2022, 7 min. read), https://www.drishtiias.com/daily-updates/daily-news-analysis/sedition-law-6
[2] Indian Penal Code, 1860, § 124A, No. 45, Acts of Parliament, 1960 (India)
[3] Queen Empress Vs. Bal Gangadhar Tilak, (1917) 19 BOMLR 211
[4] Achary P.D.T, Sedition- illogical equation of government with state, T.Hindu, June 8, 2023, pp. 10, https://www.thehindu.com/opinion/lead/sedition-illogical-equation-of-government-with-state/article66942872.ece#:~:text=Sedition%20is%20an%20offence%20against,the%20government%20established%20by%20law.
[5] Niharendu Datt Majumdar & Ors. Vs. Emperor AIR 1939 Cal 703
[6] Singhvi A.M, Sedition Law: It is time India discontinues the mistakes of its former colonial masters, ET, (June 11, 2023) ,https://m.economictimes.com/opinion/et-commentary/sedition-law-it-is-time-india-discontinues-the-mistakes-of-its-former-colonial-masters/articleshow/91549371.cms#:~:text=Chief%20Justice%20of%20India%20N%20V,cut%20the%20entire%20forest%20itself. (Last updated : May 13, 2022, 11:39 PM IST)
[7] 1978 AIR 597
[8] 1950 AIR 124
[9] Editorial, End the Debate : The Retention of sedition goes against the grain of current thinking, T. Hindu, June 8, 2023, pp. 10., https://www.thehindu.com/opinion/editorial/end-the-debate-the-hindu-editorial-on-the-law-commissions-recommendation-on-sedition/article66942289.ece
[10] 1962 AIR 955
[11] 1960 AIR 633
[12] Singh C., Sedition challenege- kedarnath Judgment,Bar and Bench ( May 19, 2022, 3:03 PM) https://www.barandbench.com/columns/sedition-challenge-what-is-the-kedar-nath-singh-judgment
[13] 41(2011) 3 SCC 377
[14] (1982) 2 SCR 272
[15] (1998) 4 LLN 205
[16]Editorial, Law Commission: Recommends Retention of Sedition Laws,T.Hindu, June 8, 2023,pp.10 https://www.hindustantimes.com/india-news/law-commission-recommends-retention-of-sedition-law-in-india-proposes-changes-101685681464225.html (Last modified: June 8, 2023, 12:20 am)
[17] Drishti IAS, supranote 1.