On 15th July 2021, the Supreme Court of India, through a bench headed by Chief Justice NV Ramana, asked the Centre why, if it was repealing out-of-date laws, did not repeal the “colonial era penal law on sedition” as well. Responding to a plea filed by the Editor’s Guild which contested the validity of this provision, the Supreme Court expressed its grave concern over the “misuse of the law”. While harnessing a variety of analogies to reiterate the scope of misuse of the law, the Chief Justice (CJI) said that as a colonial law, its purpose was to stifle the movement for independence, and was used “by the British to silence Mahatma Gandhi, Tilak etc.”There seemed to be no reason, in the eyes of the Court why it should still prevail in independent India. The CJI said that this law was akin to a carpenter armed with an axe asked to make an item, who instead uses it to cut down a forest. In response, defending the provision, Attorney General KK Venugopal suggested that “some guidelines may be laid down” to prevent the misappropriation of this provision. While it did not blame any specific government, there were instances of misuse, and the Court did specify that the law is abused by “the executing agency and particularly the authorities” without any accountability. The CJI also signalled concern over the vastness and vagueness of the provision, which has further bolstered its exploitation by law-enforcement authorities. The bench also heard a fresh petition by Major-General (retd.) SG Vombatkere which alleged that criminalization on the basis of such vague definitions like “disaffection towards government” is “wholly unconstitutional”, is an unreasonable restriction on the fundamental right to free speech provided by Article 19(1)(a), and should be “unambiguously struck down” as it causes a “chilling effect on the freedom of press and free speech.” On 31st May 2021, the Court had declared that it was time now to reinterpret sections of the Indian Penal Code (IPC), and to “define the limits of sedition”. In June 2021, the Supreme Court also quashed charges of sedition against journalist Vinod Dua that were registered by Bharatiya Janata Party (BJP) leader from Himachal Pradesh, for allegedly expressing critical opinions against Narendra Modi and the Centre with regard to the mishandling of the Covid-19 pandemic and the ensuing migrant crisis. The Editors Guild of India welcomed this decision of the Court, and demanded the repeal of these “draconian and antiquated laws that find no space in any modern democracy.” On 1st May 2021, another Supreme Court bench headed by Justice Uday Umesh Lalit, Justice KM Joseph and Justice Indira Banerjee considered the writ petitions filed by journalists Kishorechandra Wangkhemcha and Kanhaiyalal Shukla, praying for “an appropriate writ, order or direction declaring Section 124A of the IPC as unconstitutional and void.” In the opinion of these petitioners, this provision is unnecessary to protect state security and public order because other existing laws replicate it; this provision is also “illegal” because it does not adhere to the international standards of ‘necessity’ which India is obligated to meet as a party to the International Covenant on Civil and Political Rights (ICCPR) as the ambiguous terms in the law are so deeply subjective, “uncertain and unascertainable”, that it allows misuse by the authorities. The petitioners also cautioned that this provision has already been scrapped in comparative post-colonial jurisdictions globally, and needed to be struck down in India too as it is “undemocratic, undesirable and unnecessary.” In response, the Supreme Court issued a notice seeking an answer by 12th July 2021 to the Union of India.
The purpose of this article is to scrutinize Section 124A of the Indian Penal Code (or the sedition law) as a democratic obscenity. First, it will examine the spirit of the sedition law through a summary of its historical instances of use in the years before independence and immediately afterwards. Second, it will reiterate the spirit of independent India, the independence movement and the Constitution as provided in the Preamble. Third, it will consider some statistics of misuse of this law by various governments, and understand the text of the law to comprehend how the State has employed it to treat citizens undemocratically. Fourth, it will compare the spirit of the sedition law against the spirit of the independence movement as contradictory to one another. Finally, it will summarize the opinions of scholars and critics to argue that the sedition law has no place in any democracy.
Evolution of Section 124A
Though this Section was originally a part of Thomas Babington Macaulay’s Penal Code drafted in 1837 as Section 113, it remained absent from the Code until 1870. When managing legal concerns of the colonial government in India, James Fitzjames Stephen called for the addition of this Section to the Penal Code under the title “Exciting disaffection”, presumably to counteract increasing Wahabi activities by Muslim preachers that threatened to destabilize the Indian subcontinent through religious conflict. This version was amended by the IPC Amendment Act of 1898, 1937 and 1948, and later in independent India in 1950 and 1951 by the Part B States (Law) Act, though it has remained largely unchanged from its colonial text. In 1891, in the case of Queen-Empress vs. Jogendra Chunder Bose & Ors., this Section was first utilized to charge the editors of Bongobasi newspaper for their criticism of the policies of the British Government, particularly the Age of Consent Act, 1891. When the defendants challenged the legality of the charge as it penalized individuals (in excess of the law) for expressing their rights, and challenged the Section itself; the Calcutta High Court held that even though the publishers had not written the seditious content and only distributed them, the presence of a large reading audience made the content seditious. It also held that this publication was an incidence of ‘disaffection’ not ‘disapprobation’ (legitimate criticism), where the latter was legal and the former was not. The case of Queen-Empress vs. Bal Gangadhar Tilak & Keshav Mahadev Bal transformed the implications of the Section. Tilak’s speeches on Afzal Khan’s murder by Shivaji which had triggered the murder of two British officers in Pune were held by Justice James Strachey of Bombay High Court, as seditious. Though the judge reiterated the distinction between disaffection and disapprobation, this case also led to the immense widening of the scope of the former term; with “feelings of disaffection” now interpreted as “disloyalty, hatred, dislike, hostility, contempt, and every form of ill will towards the government”. This judgement outlawed essentially all forms of criticism against the colonial government and emphasized that even with the absence of any material consequences; the intention of the offender is primary to the charge of sedition. Though Tilak was eventually released on Max Weber’ intervention, he was charged with sedition yet again in Emperor vs. Bal Gangadhar Tilak in 1917 for his article in the Kesari advocating for swarajya or self-rule. In 1922, when Mahatma Gandhi was charged with sedition for his essays in Young India, he denounced the Section as one “designed to suppress the liberty of the citizen.” This term was discussed and deliberated intensely in the Constituent Assembly Debates, especially on 29th April 1947 when instituting the Rights of Freedom. Vallabhai Patel’s assertion disallowing “seditious, obscene, blasphemous, slanderous, libellous or defamatory” language was opposed by Somnath Lahiri who reiterated that even in England, ‘seditious’ speeches were never illegal. Finally, an amendment was moved to remove the word as it could contravene the freedom of speech and expression. This invalidation of the provision due to its impinging upon free speech was reiterated in 1951 by the Punjab High Court in the case of Tara Singh Gopi Chand vs. The State. However, though the term was evicted from the Constitution, it remained in the Indian Penal Code, and was reintroduced in the first amendment in 1950 due to two Supreme Court judgements – one involving ‘objectionable material’ in the Rashtriya Swayamsevak Sangh’s Organizer where the editor was directed to publish provocative content only with the assent of a regulating authority; another involving Cross Roads which was eventually banned for criticizing the government. Though Prime Minister Jawaharlal Nehru did specify that these judgements did not validate the “highly objectionable and obnoxious” Section, it did remain in the IPC. Additionally, the Constitution (First Amendment Act) also added the grounds of “public order, relations with foreign states, and incitement to an offence” to the already existing reasonable restrictions to Article 19, that entailed that seditious acts were ‘against the interest of the State’ which allowed the government tremendous discretion in invoking it. In the case of Debi Soren & Ors. vs. The State in 1954, the Patna High Court upheld the disaffection-disapprobation distinction, and confirmed the constitutionality of the Section.
Spirit of Section 124A
From these instances, it becomes evident that the spirit of the sedition law since its inception has been founded on the ideals of colonialism and the British Raj. Despite any differences espoused between disaffection and disapprobation, it is obvious that both of these words find their legitimacy in the enforced colonial suppression of the Indian public. That the spirit of this Section is undemocratic and illiberal is also emphasized by the fact that the Raj imposed it on its colonies, not in the British Parliament. In all cases where this Section was employed by the British government, its purpose was to clamp down on any dissent from the Indian subjects, and enforce obedience, subservience and compliance with the actions of the Crown and the colonial rule in its name. Commensurate with the general ideals of colonialism and repression, this Section did not recognize the Indians as possessing the rights of free speech and dissent, and treated them merely as subjects to the Raj bound in servility and subordination.
Spirit of the Constitution embodied in the Preamble
When the nation of India was formed after a long and painful history of colonialism and the victorious struggle for independence, its foundational principles were enshrined in the new Constitution. In the tradition of all social contracts, the Constitution was formed through the informed consent of all Indian people who reposed their sovereign authority in the new Indian State and employed the government – legislature, executive and judiciary – and the bureaucracy, as trustees of that authority. In essence, the Indian public agreed to vest their sovereignty in the democratic government they elected in their name on the condition that that government upholds the ideals of the independence struggle, of independent India and of the Constitution. The primary ideal is that the people of India – “We, the People of India” – are the sovereign authority who adopted, enacted and gave to themselves the Constitution on 26th November 1949 in order to “constitute India into a sovereign, socialist, secular, democratic republic.” These qualities of the new Indian State are fundamental to the Constitution as are the ideals of “justice, liberty, equality and fraternity. ”Thus, the government as a functionary appointed by the sovereign Indian people has the solemn constitutional responsibility to defend the ideals prescribed in the Preamble and throughout the Constitution, at the risk of losing the legitimacy that was bestowed upon them by the people. The most integral component of the spirit of the Preamble (though non-justiciable) and the Constitution therefore is that the nation of India – the imagined community of people sharing commonalities in history, beliefs and aims – is founded on the independence and sovereignty of the Indian public. They are the owners of the nation and are not secondary to any other power, be it foreign or be it the domestic State they elected to represent them and make decisions on their behalf.
How has Section 124A been used in India?
The history of how Section 124A has been operationalized in India does not seem to conform to this spirit of the Preamble. The most impactful and authoritative judgement regarding it was in the case of Kedar Nath Singh vs. State Of Bihar in 1962, when the Supreme Court’s constitutional bench defined the scope of the term ‘sedition’ and upheld the constitutional validity of Section 124A for the first time. Kedar Nath had been convicted for polemic speech against the Crime Investigation Department and the Congress Party, where he accused the latter of corruption, black-marketing and tyranny called for a revolution to “overthrow capitalists, zamindars and Congress leaders.” Though the Supreme Court upheld the penalty imposed by the High Court, it also clarified that the scope of the Section has to be limited. It upheld the judgement on Section 124A passed by the Federal Court that proposed that public disorder or its reasonable anticipation is the basis for the offence, while denying the judgement of the Privy Council that penalized any speech, irrespective of whether it leads to public disorder or not, as an offence. Though it seemed that this judgement was a favourable development limiting the scope of this Section, the fact that the judiciary acknowledged this Section as prima facie legal and constitutional meant that it could now be used as case-precedent in any judgments that followed. However limited the judiciary made its ambit, the term and its definition is still vague and easy to misappropriate. There was another concern that the judiciary asserted which further complicated and widened the ambit of the Section. It said that though “a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials” is outside the scope of Section 124A in its opinion, it is also vaguely that such speech or writing “might also come within the ambit of the penal section.” This provided, and continues to provide a murky space within which the government and law-enforcement can exploit the provision to the detriment of judicious and constructive criticism. Even so, the constructive influence of the Kedar Nath judgement is evident even today, as in the case of the Vinod Dua where the Supreme Court utilized the scope of the Section clarified in that judgement to assert that every journalist is entitled to protection of their right to free speech, even critical speech. Though the Court was consistent with the Kedar Nath judgement is maintaining the constitutional validity of the Section, it did specify that “dissent is not sedition.” However, recent governments have not conformed to the narrow scope of application set by this judgment as well as the decision of the Federal Court. The text of the law provides that any individual using spoken or written words or signs and other such visible representation who brings “into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India” would be charged with sedition – which is a non-bailable offence punishable with life imprisonment. Though the text does not specify acts involving intention or tendency to incite violence and public disorder as an integral component of the charge of sedition, the same was asserted by the Kedar Nath judgement as well as the case of Balwant Singh & Bhupinder Singh vs. State of Punjab (1985), which instituted the ‘tendency test’ imperative when alleging the charge of sedition. The same has been clarified in the Explanations to Section 124A as well that specifies that “comments expressing disapprobation of the measures of the government to obtain their alteration by lawful means” or those “expressing disapprobation of the administrative or other actions of the government” without the incitement of “hatred, contempt or disaffection” are not seditious offences. However, the statistics of how this Section has been utilized since 2010 illustrate that in most cases, this essential component was not found. Instead, since 2014, the sedition law has been used for other purposes: to suppress dissent and prevent any criticism against the government. The very charge of sedition is detrimental to the dignity and worth of the individual persecuted. Though according to the National Crime Records Bureau (NCRB) very few cases of sedition involved violence and even fewer saw convictions, the accused thus charged loses access to their passports, is disallowed from government employment and from leaving the country, and must spend exorbitant amounts on court and legal fees.
On 13th February 2021, Disha Ravi, a 21-year old student was arrested on the charge of sedition for sharing a ‘toolkit’ tweeted by climate activist Greta Thunberg during the farmers protest in India. Though these charges were quashed by the Court, they belong to a long anthalogy of such frivolous accusations of seditions by authorities or State officials that seek to undermine the right to free speech. In 2016, Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya were arrested for organizing an event criticising the government within Jawaharlal Nehru University. In 2020 in Bihar, Sharjeel Imam was charged with sedition for his speech criticising the CAA and the NRC in Aligarh Muslim University. In 2014, 57 Kashmiri students were charged in Uttar Pradesh for cheering for Pakistan during an India-Pakistan cricket match. Charges were also filed against Shashi Tharoor, Rajdeep Sardesai , Vinod Jose and three other senior journalists in 2020, for their tweets supporting the farmers’ protests. Article-14, a collaborative venture of lawyers, academic and journalists formulated a database of sedition in India where they asserted that there has been an enormous intensification in suppressive charges of sedition against students, authors, opposition politicians, academics and journalists since the BJP came to power in 2014. They found that in 96% of sedition cases filed against 405 individuals for criticism of BJP politicians and the government, individuals were accused of making “critical and/or derogatory comments” against Narendra Modi and Yogi Adityanath. Indeed, during Modi’s time in office, there has been a 28% increase in the number of sedition cases filed, especially because his Prime Ministerial terms have been wrought with protests movements which the administration has responded violently. During the protests against the CAA, 22 of 25 sedition cases which involved 3700 people; and after the Pulwama attacks, 26 of 27 sedition cases which involved 46 people – were registered in BJP-ruled states of Bihar, Uttar Pradesh, Karnataka and Jharkhand. In 2017, the NCRB also introduced a new category of crimes that have been charged as sedition. These included incidents of violence by “anti-national elements”, comprising of north-eastern insurgents, ‘jihadi’ terrorists, Naxalites and other terrorists.
Spirit of Section 124A compared to Spirit of Constitution
By their very nature, the spirit of Section 124A and the spirit of the Constitution are contradictory to and mutually exclusive of, one another. This is obvious because the former is an artefact of the centuries of colonialism, and the latter is an organic creation of an independent and sovereign India. The purpose of the former is to subjugate and repress the colonial subjects under the brutal regime of the Crown; the purpose of the latter is to empower the citizens of democratic India. One cannot exist alongside the other, because the very existence of one precludes the existence of the other. Either the Indian government is a colonial relic intent on enforcing silent acquiescence, docility and deference from the Indian people it has objectified; or it is a trustee of the sovereign people upholding the values of the independence movement and the Constitution that had formed it in the first place. As a country internationally vociferous of its democratic credentials, India would evidently like to espouse a perception of the country as concerning itself with the latter. In that case, it makes no sense legally or morally to continue to enforce a law that is contrary to the spirit of the country and is an obscene and offensive assault on the principles and values of liberty and democracy.
Other criticisms of Section 124A
Thus, the most important reason that Section 124A is a democratic obscenity is because it violates the spirit of the Constitution. However, scholars have also provided other reasons why this Section abjures free speech and expression as well. The most succinct criticism of sedition as a punishable offence may be provided by then-Parliamentary Under Secretary of State at the Ministry of Justice, Claire Ward during the 2009 deliberations in the British Parliament that eventually concluded with the abolition of the charge of sedition and seditious libel through the Coroners and Justice Act. For Ward, these offences are remnants of an arcane “bygone era” where the freedom of speech as necessary to democracy was not considered a priority. She also specified that the abolition of these offences in the UK would allow it to challenge its misappropriation in other countries that have persisted with using it “as a justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.” In the opinion of Professor K Nageshwar, a veteran journalist and professor, there are several reasons why sedition and free speech do not go together. Firstly, the freedom of press cannot be balanced with sedition because the former is a fundamental right guaranteed by the Constitution; and though Article 19(2) does provide for ‘reasonable restrictions’ on that freedom, those restrictions must pass the “test of reasonableness” because the State’s right to reasonably restrict is secondary to the individual’s right to free expression. In most cases, sedition does not pass that test. Moreover, sedition is not a component of the reasonable restrictions under Article 19(2), which was a conscious decision taken after much deliberation in the Constituent Assembly. Secondly, several veteran judges and lawyers also emphasize that the logic for Section 124A no longer exists in independent India, which was further proven through the Allahabad High Court dismissing the Section as ultra vires to the Constitution in 1959. Third, scholars have also signalled alarm at the continued use of this Section in India when other mature and stable democracies globally (like USA, Canada, UK, Australia and New Zealand) have abolished it and condemned its illiberal credentials. Gradually, the international community is becoming of the opinion that the punishment of sedition is undemocratic, and only unstable democracies or authoritarian States are perpetuating its employment. Fourth, scholars of jurisprudence especially have criticized the vagueness of the terms used in the Section and have stressed that the purpose of law is to be precise and clear. If the law continues to use amorphous terms like ‘disaffection’ and ‘disloyalty’ where there exists no specific definition of either, the judicious rule of law is impossible. As the US Supreme Court found in the case of Grayned vs. Rockford that “vague laws may trap the innocent by not providing fair warning”, which is exactly what is occurring as students, professors, media and civil society representatives performing critical adversarial functions find themselves implicated with the vague charge of ‘disaffection’. Fifth, in the Balwant Singh judgment, the Court also prescribed a ‘test of proximity’ alongside that of tendency established by the Kedar Nath judgment in order to ensure that charges of sedition may only be levelled if it can be proved beyond reasonable doubt that there was “a clear and imminent danger”. In general however, where this Section has been used, the imperative of this test has also not been followed. The Supreme Court in the case of Romesh Thapar vs. State of Madras (1950) asserted that the State may inhibit free speech and expression only if an individual threatens (or attempts to threaten) “the foundations of the State”. Thus, the only condition under which this Section could be utilized is if an individual has threatened to overthrow the legitimate government. However, in most cases this is not so, and simple criticism is viewed as seditious.
In essence, the judiciary has, on various occasions restricted the misuse of Section 124A and has signalled caution over its exploitation. And yet, it has continued to uphold the constitutionality of this law. For analysts over the world, if a law exists that is so effortless to misappropriate, that requires the constant supervision of the judiciary and international community to prevent it from arbitrarily infringing the democratic rights of citizens – then that law has no place in modern democracies at all because it is contrary to the ideals of democracy in the first place.
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