SEDITION LAW: ANALYSIS OF THE RATIONALE BEHIND SC’S RECENT ORDER By: Aadithya R Chandran And Disha Kar

SEDITION LAW: ANALYSIS OF THE RATIONALE BEHIND SC’S RECENT ORDER

Authored By: Aadithya R Chandran And Disha Kar

 

 

 

ABSTRACT

In recent years, there has been growing debate over the Sedition law in India, which is frequently used to stifle dissent and government criticism. In 2022, the Supreme Court of India ruled on the Sedition law in the case of S.G. Vombatkere v. Union of India[1]. The decision was praised as a step towards safeguarding free speech and curbing the misuse of sedition charges. 

 

This article examines the reasoning behind the Supreme Court's most recent decision regarding India's sedition law. It looks at the history of the sedition law, whether it is constitutional, and the court's interpretation of the law in recent years. 

 

The article argues that the recent Supreme Court decision on the Sedition law is a welcome step towards safeguarding free speech and curbing the misuse of sedition charges. The court's decision makes the law's limited application clear and emphasises the value of safeguarding dissenting views and government criticisms. The article's conclusion is that the Supreme Court's decision represents a positive advancement in India's sedition legislation jurisprudence and offers hope to individuals whom its abuse has wronged.

Keyword: Constitutionality, Freedom of speech, Public riot

INTRODUCTION

Section 124A, as has been characterised aptly by the Father of the Nation, Mahatma Gandhi, as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”, has a long legal history, which originated from English Law.

 

In India, A person will be prosecuted with sedition under Section 124A of the Indian Penal Code(Herein referred as IPC) if they use words, signs, or any visible representation to "bring into hate or contempt, or incite or attempt to excite disaffection towards the Government established by law in India."[2]

 

The word ‘sedition’ finds no place in our constitution which was adopted in 1950. The constitution brought about a change in the legal standing as Article 19[3] of the Indian Constitution guarantees free speech to one and all. The decision that sedition would not be included in Article 19(1)(a)[4], which guaranteed everyone the right to freedom of speech and expression made by the Constituent Assembly. As a result, shortly after independence, a series of judicial decisions were made defending the right to free speech as guaranteed by Article 19. The government took swift action to control such free speech. Thus, Article 19(2), which imposed reasonable limitations on free speech and expression, was added as the first amendment to the constitution in 1951. This was comprehensible because physical threats and obscene or strongly communal comments can hardly be tolerated. This amendment allowed Section 124A of the IPC to remain undefeated.

 

For the first time, in Kedar Nath v. State of Bihar [5], the Supreme Court considered a challenge to the constitutionality of the sedition legislation. The court supported the law on the grounds that the state needed this power as an ability to defend itself. It also included the crucial caveat that "a person could only be charged with sedition if his activities generated incitement to violence or desire or inclination to cause public unrest or cause any disturbance of public peace."

Hereafter, on various occasions, the Court had to deal with the nuances of Section 124A and in many of these circumstances the conditions wherein slanderous speech can be considered to be seditious has been laid down. 

 

According to the “National Crime Records Bureau (NCRB)[6] data, 475 cases of sedition had been reported in the country between 2014 and 2021. According to the portal Article 14[7], 22[8] cases linked to the reportage of the Hathras gang-rape event and 27 cases related to the Pulwama incident and two dozen cases under sedition had been filed against prominent protesters against the Citizenship Amendment Act (CAA). However, simply holding up signs or chanting anti-government slogans are not considered seditious acts, nor are posting private messages on social media. 

 

Those accused of sedition must live without a passport, are prohibited from holding public office, government jobs, and must appear in court when and as necessary- only if they have been granted bail, that is. The accused faces a great deal of anxiety, loss of effort, time, and high expenses due to the prolonged legal process. In the majority of cases, the charges rarely stick, but the procedure itself becomes the punishment.

 

BACKGROUND OF SEDITION LAW IN INDIA

The sedition provision was originally enacted as a remnant of the British Colonial Rule to silence dissenting voices coming from the Indian freedom movement. Section 124-A of the IPC, 1860, wasn't included in the 1860 draught of Macaulay's Indian Penal Code and wasn't included until 1870 under James Stephen's leadership. 

 

The Indian Penal Code Amendment Act underwent further amendments to this edition (IV of 1898). The single explanation for the section was changed to three distinct explanations as a result of the alteration. The present form of this section is a result of numerous A.Os of 1937,1948 and 1950 brought in as a consequence of constitutional changes, by the Government of India Act 1935, by the Independence Act of 1947 and by the Constitution of 1950. 

 

In the case of Queen's Empress v. Jogendra Chunder Bose[9], which was reported in 1891, the first significant case of sedition was documented. In this instance, the editor of a Magazine was accused of sedition for objecting to several policies of the then British government, particularly to the Age of Consent Act of 1881. In addition to disputing the legality of the sedition laws themselves, the publishers argued that the act of sedition only punished the production of any discriminating content, not its dissemination. They argued that punishing the common people for using their basic rights against the law went against its initial objective.

 

The Calcutta High Court ruled that because the publishers circulated the magazine with the intention of it being read by the target audience, they could not be exonerated of legal responsibility merely because they had not written the seditious content. The High Court further emphasised the difference between the phrases "disaffection" and "disapprobation," which refer to "any sentiment opposite to attachment" and justified criticism, respectively. The court reached the conclusion that the crime of sedition does not violate people's rights because only disaffection is punished.

 

Bal Gangadhar Tilak was tried for sedition in the subsequent historic case of Queen's Government vs. Bal Gangadhar Tilak & Keshav Mahadev Bal[10] for alleged inciting through speech that resulted in the deaths of two of the British officials. In reference to the Jogendra Chunder Bose case, the Bombay High Court's single-judge bench agreed with the notion of "disaffection" and expressed the opinion that any "negative sentiment" toward the government should be regarded as criminal, regardless of its intensity. In this regard, the Supreme Court virtually disregarded all legitimate complaints. Additionally, it was said that the act of sedition need not have any tangible consequences at all. The offender's intention, which can be inferred from the seditious speech's substance, audience, and context, is said to be the court's main factor in sedition proceedings.

 

Bal Gangadhar Tilak was tried for sedition again almost 20 years later in the case of Queen Empress Vs. Bal Gangadhar Tilak[11], because of an article he had published in which he had pushed for Indians to obtain swarajya ('self-rule').

 

Tilak wrote a poem in which he freely declared his allegiance to the British Monarch. Still, he also attacked the civil services, maintaining in court that they were two distinct entities from the British Government.

 

Tilak's claims were outright rejected by the Bombay High Court's Division Bench. The Court had formed the opinion that since the civil services received their authority directly from the State, there was no reason for such a separation. On the contrary, it was cleared out that only criticism referring to the civil service that is ascribable to the State should be regarded as seditious in this case by the Court.

 

When it came to this issue, the Court took a very liberal stance, rejecting the broad definition of "disaffection" offered by the Single Judge Bench in the landmark case of Queen-Empress V. Tilak & Bal, which came out with anything adverse to attachment. The fact that the court considered both the accused's intention and the actual impact of the allegedly seditious words on the public helped free speech.[12]

 

Sedition Jurisprudence in Independent India

The constitutional validity of the Section 124-A of the Indian Penal Code was  first challenged in the landmark case of  Tara Singh Gopi Chand Vs The State[13] in independent India. Now that India is a sovereign republic, its constitutional provisions superseded over the British precedents in the same matter. In this case Tara Singh Gopi Chand was the editor of a Punjabi newspaper named “Milap” which was critical of the government’s policies towards Sikhs. One of the newspaper article allegedly made derogatory remarks against INC and its leader, which were considered seditious by the government. Following her detention, Tara Singh Gopi Chand was charged with sedition in accordance with the provisions of Section 124A of the Indian Penal Code. Tara Singh Gopi Chand contended throughout the trial that the piece was not seditious and was merely a criticism of the government's treatment of the Sikhs. But the judge found him guilty of sedition and gave him a three-year prison term.

 

The Lahore High Court exonerated Tara Singh Gopi Chand” after an appeal, which reversed the conviction. According to the court, the essay did not promote violence or produce a commotion, hence it did not qualify as sedition. The court stated that criticism of the government and its policies is not seditious unless it incites violence or public disruption, even if it is harsh or disagreeable. Asserting that "criticism of Government is the sheet-anchor of Democracy," the court further stressed the value of freedom of speech and expression in a democratic society.

 

The Tara Singh Gopi Chand case is important because it established the idea that criticism of the government and its policies is not always seditious unless it incites violence or public unrest. In addition, the case stressed the value of free speech and expression in democracies, which has since been confirmed in judgements pertaining to sedition in India. 

 

The Constitution (First Amendment) Act, 1951, which was soon after passed by independent India's first Parliament, intended to address the anomaly in the validity of the sedition statute as a result of the Tara Singh Gopi Chand Judgment, among other things. It accomplished this by presenting fresh justifications for putting reasonable limitations on the freedom of speech and expression.

The only justifications for limiting free expression in the original Constitution's Article 19(2)[14] were the State's security, libel, contempt of court, and decency and morality. The Amendment Act added new justifications for limiting free speech and expression, including public order, relations with other countries, and incitement to criminal activity.

 

The conduct just needed to be "in the interest of the security of the State" in order to qualify as sedition, not just acts that compromised state security or had the potential to topple the government. Such general wording provided the State more leeway when invoking the crime of sedition.”

 

Within two years, the amendment was put to the test in the case of Debi Soren & Ors. Vs The State[15], in which an adivasi leader was charged with making a derogatory speech about the government. In its ruling, a division of the Patna High Court made a clear distinction between disapproval and disaffection and came to the conclusion that only disaffection leads to public unrest. The High Court confirmed the constitutionality of the Section 124-A of the Indian Penal Code in this case which also ruled that it did not violate in any sense the Article 19 of the Constitution of India. 

 

The landmark Kedhar Nath Singh Judgement 

In the case of Kedar Nath Singh[16], which can be regarded as the Supreme Court's most commanding ruling on the interpretation of the sedition law, a five-judge bench upheld the constitutional validity of Section 124-A, IPC, 1860 and then further broke down the proper meaning and position of the sedition law pertaining to India. In this landmark case, Kedar Nath Singh, who was a member of the Bihar-based Forward Communist Party, was charged with sedition for denigrating the Indian National Congress government.

 

The Apex Court declared that the IPC, 1860's Section 124-A could only be put into effect if it could be shown that the offending seditious comment had incited violence or would result in public disorder. It was made plain that free speech could not be restricted using this clause. Given that Kedar Nath targeted the Congress party and that his statement did not incite violence, he did not engage in acts of sedition. His actions were not targeted against the Indian Government per say.

The Supreme Court further stated that in order to employ the sedition provision, there must be a pernicious propensity to encourage violence. In Niharendu Dutt Majumdar Vs. King Empror[17], the Court interpreted Section 124-A, IPC, 1860, and the Court affirmed that decision, which strongly favoured lawful criticism of the government and opposed arbitrary speech restrictions. According to the Federal Court, there has to be a public disorder or at the very least a plausible likelihood of any public riot in order for sedition to be considered an offence.

 

Post Kedar Nath Singh Development 

In another significant judgment, Balwant Singh & Anr. v. State of Punjab[18], the accused in the case had been tried for the crime of sedition because, in the wake of Indira Gandhi's murder, he had taken a vital part in the sloganeering in favour of one of the independent Sikh majority States. A two-judge panel of the Supreme Court gave the judgement in the case that Balwant Singh's acts did not constitute sedition because the speech in question did not cause any disruption to the public order as has been deemed necessary in a case of sedition and was also not of a nature to encourage any  violence in the minds of the intended public in question. Hence the ruling was in favour of the accused in the case.

 

The Supreme Court also emphasised that the basis of inclination of such a case would be determined by looking at the impact of the disputed remark, taking into account the term "pernicious tendency" mentioned in Kedar Nath Singh.

 

Courts have lately made decisions in sedition cases using the aforementioned logic, with a few modifications. The landmark judgments of Arup Bhuyan v. State of Assam[19] as well as Sri Indra Da v. State of Assam[20], are two instances of the same modification. Both the cases had been decided back to back by the same two judge panel in the Supreme Court, also within a time span of one week. The criteria for "imminent lawless behaviour," which the Supreme Court utilised in both opinions to decide whether to uphold sedition charges and preventive detention, were set by the Brandenburg v. Ohio decision[21]. So, all communication is protected by the First Amendment of the United States Constitution unless it encourages impending criminal activity.[22]

 

The Law Commission of India noted in its August 30, 2018, Consultation Paper on Sedition that while the crime of sedition must continue to exist to protect national integrity, it should not be used as a tool to censor free speech.

 

According to the report given by National Crime Records Bureau[23], there was a whopping 160% increase in the total number of cases which have been filed under the Section 124-A of the IPC, 1860 However, to the contrary for such high number of cases, the conviction rate for such charges has seen a dramatic fall from 33.3% to 3.3% calculated over the same time frame.

 

SUPREME COURT ON THE CONSTITUTIONALITY OF PROVISION OF SEDITION

 

S.G. Vombatkere v. Union of India[24]

Sedition has been a non-bailable offence under the IPC, 1860. This has been changed by the of the Supreme Court in the landmark case of S.G. Vombatkere v. Union of India. The Supreme Court decided to halt all ongoing trials, appeals, and other proceedings involving the charge established under Section 124-A IPC in response to many petitions disputing the legality of that section of the IPC relating to the crime of sedition. According to the order given by Justice NV Ramana, the Supreme Court has also expressly forbidden the police from registering any further first information reports since in that case in discussion, and that the people who had been wronged had  the right to seek desired redressal by going to the relevant courts. While Section 124A is being reviewed by the Union, anyone who have new cases brought against them may apply for bail utilizing the Supreme Court's order. After that, the bench stated that the "rigours of Section 124A (sedition) of the IPC is not in step with the current societal context," and it allowed the provision to be reconsidered. "We anticipate that it will be prudent not to continue the use of the aforementioned legal provision by the Governments until the re-examination of the provision is complete," it had stated. Any impacted party is free to approach the relevant courts, which are asked to review the proposed relief while at the same time taking into account the current decision, the highest court had also stated.

Although the courts ultimately throw out the majority of sedition cases, the legal process itself becomes the most cumbersome punishment. Another drawback of the sedition law is that it can be very difficult to get released on a bail after being jailed under the law because the trial process may take a very long period and may drag on considerably. As a result, unwary individuals are persecuted and others start to fear criticizing the executive branch(administration) or even the national government.

 

THE NEED FOR AMENDMENT IN

 SEDITION LAW IN INDIA

 

A BREAK FROM BRITAIN’S BRASH LEGACY-

The harsh laws left over from British rule in India are used to crush any resistance to that control. The most notorious of these is sedition, which the British used to lock up Indian nationalists like Mohandas Gandhi and Bal Gangadhar Tilak. Almost 75 years after India's independence, the government continues to utilise this law as a potent instrument to criminalise dissent and imprison peaceful opponents of the ruling party. 

 

Although the courts ultimately dismiss most sedition prosecutions, the procedure itself becomes the punishment. For instance, three Muslim students from Kashmir were imprisoned for about six months after reportedly celebrating Pakistan's victory over India in a cricket match in October 2021. The punishment outlined in this section seems somewhat irrational, considering that those found guilty under this part may get a life sentence. Its effectiveness in the contemporary democratic system is called into question as a result. There is constant discussion about the necessity and applicability of this clause in a democratic and independent India. There have been examples of the law of sedition being misused both before and after independence, which has raised major questions about whether such a legislation is necessary today.

 

Sedition laws were eliminated in the UK in 2009, but usage is increasing in India. Sedition laws from the colonial era have previously been found to infringe the right to freedom of expression by courts in numerous former British territories. Sedition laws from the colonial era have previously been found to infringe the right to freedom of expression by courts in numerous former British territories. The sedition laws were deemed "unnecessary" in the UK and had a chilling impact on free speech. It was believed that maintaining such a legislation would send the "wrong signals" to other nations that utilize sedition offenses to restrict political discourse.

 VIOLATION OF FREEDOM OF SPEECH AND EXPRESSION-

In a free civil society, the freedom of speech and expression is seen as one of the most significant of all the existing liberties and has been deemed to be of utmost importance. Article 19[25] of the 1948 Universal Declaration of Human Rights recognized freedom of speech and expression as a fundamental human right. The same authority has been provided by the esteemed International Covenant on Civil and Political Rights, 1966. As a signatory to the aforementioned agreements, India has made major efforts to safeguard the right of its citizens to free speech and expression, particularly through the hands of the Indian judiciary.

 

The democratic form of administration places a strong emphasis on the active participation of the public. People in such a system enjoy the freedom of speech as well as the right to information about the government, current affairs, and all facets of the social, legal, and cultural affairs of the nation. In such a system, the people are the sole source of accountability for the government. Those who are informed and intelligent are better able to assess the policies and actions of the government and cast their votes during elections accordingly. Public opinion is given the utmost weight under a democratic society since the government is chosen by and serves the people.

 

The sedition act puts at risk the freedom of speech that is the cornerstone of a democracy. A democracy cannot function without citizens actively participating in debates and voicing their constructive criticism of government actions. Owing to the existing sedition laws, the executive arm of the government has been able to use the ambiguously worded clause to manipulate the opinion of the public at large and also exercise authority in an arbitrary manner. To persuade people to abide with government regulations, sedition laws are being deployed. In order to further its own goals, the administration has regularly used the sedition act to intimidate dissenters.

 

However, this freedom of speech is not an absolute right as has been stated in Article 19(2)[26] of the Indian Constitution. This right has been specified to be subject to reasonable restrictions as mentioned in the Constitution itself. Any law restricting free expression for any reason other than those listed in Article 19(2) is outside the scope of the legislative authority of the Parliament and is subject to legal challenge as being unconstitutional and being overturned. In the landamrk case of Kedarnath Singh v State of Bihar, the Court upheld the validity of the provision of sedition. It was held that in a democracy, the freedom of speech and expression is unalienable, but there must be reasonable restrictions, as outlined in Section 19(2), in order to protect national security, public safety, integrity, friendly relations with other governments, public order, morality, or to prevent contempt of court. As a result, the Supreme Court decided that Section 124A of the IPC is legal under the Constitution and in conformity with A.19(1)(a)[27] read together with A.19(2)[28]. The Court held that sedition law would apply only when there is a public disorder or an ‘incitement to violence’.

 

In light of this provision, sedition under Section 124A criminalises any act of contempt or hatred or inciting violence against any established government authority by curbing the freedom of speech and expression.

 

Sedition laws have been aggressively employed in India to restrict the right to free speech despite a growing consensus internationally that they are oppressive. Young activists by the name of Kanhaiya Kumar, Umar Khalid, and the likes of Anirban Bhattacharya were under scanner and held by the Delhi Police in January of 2019 for yelling "anti-national chants" at a protest at the esteemed Jawaharlal Nehru University in New Delhi in the year 2016. They were found guilty in accordance with the Indian Penal Code, 1860's now-famous Section 124A.

Unfortunately, the distinction between "nation" and "government" has become so blurred that any criticism of how the government is run, no matter how justified, is seen as being anti-national, disloyal, and dishonest to the motherland.

 

THE WAY FORWARD

Modifications to the sedition statute were suggested by a panel of experts the Ministry of Home Affairs (MHA) assembled to make recommendations for changes to the Indian Criminal Code (IPC), which dates from the colonial era. The Committee for Reforms in Criminal Laws[29]—which the MHA had constituted in 2020—submitted a thorough report that, among other IPC parts, also looked at Section 124-A IPC, or sedition. According to the official, there are two schools of thought: either entirely repeal the law or modify the relevant portion.

A few of the changes to be added in an amendment might be:

• Addition of a disclaimer stating that actions not constituting sedition do not convey disapproval of governmental actions or administrative decisions.
• Clarifying that sedition only applies when it directly leads to the inciting of violence and the commission of a crime subject to a specific punishment
• Clarifying the definition of "disaffection" as it pertains to this clause.
• Adding a clarification on lawful demonstrations.
• Adding procedural safeguards via policy guidelines to Section 124A, of the Indian Penal Code

 

It is obvious that notwithstanding Kedarnath v. State of Bihar's unequivocal directives, the police and state agencies continue to abuse Section 124A of the IPC, making any improvements unlikely to be practical. It might also be argued that changing Section 124A's language alone would not appreciably improve the issue in the absence of any institutional adjustments. To address these, it is essential to raise awareness of the modified section among the general public, law enforcement, the executive branch, and the lower judiciary. In addition to the reform, advocacy work is required to educate different segments of society on the importance of this provision. 

 

The nation may gain from eliminating or revising the sedition act in the future for dissent and free speech. The legal changes will significantly affect whether someone feels confident expressing opinions that differ from those of the government. One can only hope that the changes will protect peoples' freedom of speech and dissent while taking the needs of the country and security into account. 

 

 

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[1] S.G. Vombatkere v. Union of India WRIT PETITION(C) No.682 OF 2021.

[2] Indian Penal Code,1860, Sec.124-A, No.45, Acts of Parliament, 1860 (India).

[3] India Const. art. 19.

[4] India Const. art. 19, § 1, cl.a.

[5] Kedar Nath v. State of Bihar1962 AIR 955, 1962 SCR Supl. (2) 769.

[6] https://ncrb.gov.in/en

[7] India Const. art. 14.

[8] India Const. art. 22.

[9] Queen's Empress v. Jogendra Chunder Bose (1892) ILR 19 Cal 35.

[10] Queen's Government vs. Bal Gangadhar Tilak & Keshav Mahadev Bal (1897) ILR Bom 11.

[11] Queen Empress Vs. Bal Gangadhar Tilak (1917) 19 Bom LR 211.

[12] NARRAIN, S. (2011). “Disaffection” and the Law: The Chilling Effect of Sedition Laws in India. Economic and Political Weekly, 46(8), 33–37.

[13] Tara Singh Gopi Chand Vs The State 1951 Cri. L. J 449.

[14] India Const. art. 19, § 2.

[15] Debi Soren & Ors. Vs The State 1954 Cri. L. J 758.

[16] supra note 5 at 2.

[17] Niharendu Dutt Majumdar Vs. King Empror, (1942) FCR 38.

[18] Balwant Singh & Anr. v. State of Punjab, 1995 (1) SCR 411.

[19] Arup Bhuyan v. State of Assam, 2011 3 SCC 377.

[20] Sri Indra Da v. State of Assam, (2011) 3 SCC 380.

[21] Brandenburg v. Ohio decision 395 U. S 444 (1969).

[22] Misra, R. K. (1966). FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA. Journal of the Indian Law Institute, 8(1), 117–131.

[23] Supra Note 6 at 3

[24] Supra note 1 at 1.

[25] Universal Declaration of Human Rights Art. 19, § 1.

[26] INDIA CONST.art.19,cl.2.

[27] India Const. art. 19, § 1, cl.a.

[28] Supra note 22 at 13.

[29] https://criminallawreforms.in/