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A Roadmap for Sedition Law Reforms

Written by: Anas Yawar, Student, Galgotias University

Introduction

Sedition law is an heirloom of colonial legacy and not be convenient in a democratic country like India, since it is a curb on freedom of speech and expression.[1] The element sedition was in section 113, when Lord Thomas Babington Macaulay drafted the Penal Code in 1837. However, it was mysteriously omitted from the IPC 1860 and finally, the section sedition was inserted in the IPC in 1870 on the recommendation of James Fitz James Stephen (Architect of Indian Evidence Act, 1872), at the time of holding certain legal and complexed issues during the colonial period.[2] The Britishers recognized that if they gave freedom to the general public, it will outcome in bringing nationalist presentiment in the mind of Indians, which unfortunately affect their power and rule. And for this very motive sedition law was integrated in the Indian Penal Code, in result to criminalise the freedom of speech and expression. The substantial turn of events and the quickness within which they are conveyed out stunned and stranded the nation. The law was worn to prosecute Bal Gangadhar Tilak in 1897 and Annie Besant in 1919, as an instrument to curb criticisms. Gandhi, too, was later tried for this same section for his articles being printed in Young India, and famously called guilty. Sedition law is one of the many harsh laws enacted to limit freedom of speech of dissent at that time. The law of sedition is given in section 124A of IPC, 153A of IPC, Section 954 of the CrPC, Section 55 of the Seditious Meeting Act, 1911 and also in other statutes.[3]


Definition of Sedition Law

Section 124A of Indian Penal Code, 1860 defines the offence of sedition and authorize punishment for the same. The section sedition is given under the ‘Offences against the State’ in the Indian Penal Code, 1860. In the usual sense, sedition means defamation of the established power in a country.

The following are the essential ingredients of sedition –

1. Bringing or attempting to bring into hatred or

2. Exciting or attempting to excite disaffection against the Government of India

3. The above-mentioned acts done either by words, spoken or written, or by signs or by visible representation and

4. The act must be intentional.


In the landmark judgement, in Shreya Singhal v. Union of India[4], the verdict is given in order to protect the rights of the citizens, as it has escalated the scope of the rights obtainable to freedom of speech and expression. In this case, the Supreme Court drew a difference between ‘advocacy’ and ‘incitement’, announcing that the only latter may be punished. In Brandenburg v. Ohio[5], the US Supreme Court held that the ‘imminent lawless action’ test, which says that seditious speech which lawfully criticise the government is protected by the First Amendment to the United States Constitution. This modern American test was followed by Arup Bhuyan v. State of Assam[6] and Shreya Singhal case.


History of Sedition Law

Under the British government, there was a need to displace the illegal British position. The first step was to carry on with the educational propaganda in order to educate the general public and this was accomplished through speeches, articles, writing and newspapers, to come together on a single objective and launch a movement for independence. The Britishers soon recognized that bad belief against government and monarchy were dangerous. The increasing Wahhabi gesticulation and the distress that Muslims would inflame religious war in India; the section sedition was established. Today, sadly, Indians do face the same circumstance in their own democratic country.


The inceptive cases that beseech this law was the suit of Jogendra Chandra Bose (Bengabasi Case[7]) in 1891, for expressing against Age of Consent Bill by way of an article criticising the Bill, for posing a ultimatum to religion and for its coercive association with the people and inciting restlessness. The court laid down the differences between ‘disaffection’ and ‘disapprobation’. Disaffection, in the straightforward sense means not to heed the lawful command or to resist which produce incitement to violence and confusion whereas disapprobation means any bona fide remarks of the government measures with a perspective to obtain lawful modification by lawful means, without intoxicating or attempting to excite hatred or disaffection. The law was also used to summon Bal Gangadhar Tilak[8] in 1897, where it was stated that the amount or potency is absolutely material, if a man stimulates or attempts to stimulate feelings of rebellion great or small, he is liable under this law of sedition. After independence, twice in the constituent assembly, some endeavour to include sedition as a ground for limiting free speech. But this was powerfully and successfully opposed for fear that it would be used to squash political dissent[9]. The freedom of speech and expression was at first drafted in Article 13 of the Draft Constitution. The section was not detached because if the dissent goes far-off a certain point, it gets treacherous and need to be controlled. In Tara Singh v State of Punjab[10], section 124A was prod down as unconstitutional for being ultra vires to the constitution in as much as it violates the fundamental right of freedom of speech and expression given under Art. 19(1)(a) of Indian Constitution, since a diminution on a fundamental right shall fail in to. In Kedar Nath Singh v State of Bihar[11], it upheld the constitutionality of sedition but restricted its application. The Supreme Court of India stated that the law is valid but will lean down the interpretation of the sedition law, which means sedition and freedom of speech is not contemplated in the same breadth, which means unless there is an inducement of violence, it cannot be considered as seditious. Inducement to violence and chaos is the main element for the offence to add up to sedition.

Crossing the Limits of Tolerance.

The division, classification and classification of the offences in the IPC can be serious renovated. Since the habitat is dynamic, new changes have to be embraced and out-dated chapters have to be removed. Disagreement and criticism against the government are the important elements of robust public debate in a spirited democracy. The Law Commission, headed by Supreme Court Judge, Justice B.S. Chauhan, published a deliberation paper recommending to the reevaluate the reality of sedition from IPC[12]. An utterance of frustration over the state of event cannot be treated as sedition unless that encourage violence and attempts to inflame any type of violence. The Law Commission has recommended that this section can be invoked only to criminalise acts carried-out involving intention to inflame violence, disorder or disturbance of law. Already, there are sufficient laws and other provisions in IPC and Unlawful Activities Prevention Act that punishes those who disrupt public order and to protect the national integrity. These laws are being called on against protestors and dissenters so that the others fall in line. In most of the cases filed would not end up in judgement nor is the government interested in convictions. Rather it can be used as a strong tool in the hands of local policemen who can file the case invoking this section. They can charge sedition allegations or preventive detention laws against the objectors. After the case is charged and the due procedure is carried on, the ultimate motive is done even if there is a true conviction or not, because it led to a circumstance where the process itself is the punishment and proof for others. The issue is not with the sedition alone but with its misuse. So, the problem is that this section, controlled by the police level, can be abused against anybody when their voices wanted to be quelled.


Leaving aside the deadening irony that a law instituted by the colonial masters who wished to punishes activities and speeches when tried to depose their power, is now used by the police to subdue the freedom of speech and expression. Looking at the current chain of events, including FIR filed against eminent persons, university students, common people, for doing absolutely what every citizen ought to do in a democratic country – raise questions, disagree, challenge the laws and issues that face the nation. Also, in the Bidar case, the disturbing agonies experienced by the children in the school are not only contravene the fundamental rights of a child but also have a bang on their mental health. Now it’s the time to respond, we common people have to oppose against these absurd abominations.

Conclusion

The elucidation of sedition law clearly express that the activities or statement should be against the Constitution of India or state, not against the government or political amendments. A exquisite line should be drawn, where lawful censure and criticism is acceptable since it is an essential component in a democratic country. The protector of our Constitution, judiciary, with all its powers, have the duty to guarantee that our legal aid system and allegation of crimes are just and fair not as robust as it should be. One of the suggestions put forward to tackle this problem is that, it is the time for the judiciary to set up search committee in every state and the judge has to suo moto check each sedition case being filed. And if it is understood that the case is meaningless, the judge has the power to quash it.

The crime of sedition is now a contentious relevance section 124A obsolete. Most of the crimes covered under sedition law are not potentially labelled. The section itself has certain insufficiency in how the law is currently used. It is the duty of the legislature and judiciary to re-examine the existing provisions of sedition law in statute books, as these sections remain as vestiges of colonial autocratic regime.


References

[1] Indian Constitution, 1949 art. 19, cl. 1, cl. a. [2] GAUR KRISHNA DEO, THE INDIAN PENAL CODE 226-227, (4th ed. 2009). [3] Press (Emergency) Powers Act, 1931 and Defence of India Regulation, 1914, rule 34(6). [4] Shreya Singhal v. Union of India, (2013) 12 SCC 73 (India). [5] Brandenburg v. Ohio, 395 U.S. 444 (1969). [6] Arup Bhuyan v. State of Assam, (2011) 3 SCC 377. [7] Q.E. v. Jogendra Chandra Bose, (1892) ILR 19 Cal. 35 (India). [8] Q.E. v Bal Gangadhar Tilak, (1898) ILR 22 Bom. 112 (India). [9] Ajit Prakash Shah, Criticism Is Not Sedition, THE HINDU, Oct. 7, 2019, at A3. [10] Tara Singh v State of Punjab, A.I.R. 1950 S.C. 124. [11] Kedar Nath Singh v State of Bihar, A.I.R. 1962 S.C. 955. [12] Krishnadas Rajagopal, Law Commission Calls For Rethink Clause, THE HINDU (Aug. 31, 2018, 01:04 IST) http://www.thehindu.com/news/national/law-commission-dissent-in-a-democracy/article24822850.ece.

Opinions expressed in the blogs are the sole responsibility of the author(s) and do not necessarily reflect the views of The L Word Blog.

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