Sedition, in simple words, is a crime in attempting by way of speech, action or publication targeting the Sovereign, ministers, officers or judges by inciting hatreds or contempt in mass, to encourage discontent and disaffection among the State subjects, to even attempting to excite mass to disrupt or subvert the Constitution or even disturbing the peace and order of the Nation which is considered to be a high misdemeanour of where such information or an indictment will lie. No act shall be seditious unless its evil intentions are exposed over a considerable area or offer a bad example to a considerable number of persons. Seditious words in writing are known as Seditious libel. A person who does the act of sedition is known as a seditionist.
Sedition Law and Independence Movement :
British rulers used the sedition law to curb the Indian freedom movement and retain imperial power. The first reported use of Sedition law was against Jogendra Chandra Bose, editor of “Bangobasi”, in 1891 for his criticism of the “Age of Consent Bill”. He said that the bill was being forcefully imposed on Indians .
During freedom struggle, targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant . In the case of Queen Emperor v. Bal Gangadhar Tilak , the government claimed that some of his speeches that addressed to Shivaji killing Afzal Khan had instigated the murder of the Plague Commissioner Rand and another British officer, Lieutenant Ayherst. The two officers were killed as they were returning from a supper gathering at Government House, Pune, in the wake of praising the Diamond Jubilee of Queen Victoria’s rule. Tilak was convicted of the charge of sedition. In spite of, a spirited defence from Mohammad Ali Jinnah, who was amongst the most prominent faces of the Bombay Bar Association, the Judges convicted Tilak and sentenced him to a six years rigorous detainment with transportation.
Another famous decision was of Annie Besant v. Advocate General of Madras . The case dealt with Section 4(1) of the Indian Press Act, 1910, that was encircled like Section 124A of Indian Pinal Code. The relevant provision stated that any press used for printing or publishing newspapers, books or other documents containing words, signs or other visible representations that tended to incite scorn or hatred to government or any class of subjects would be liable to have its deposit forfeited. In this case, an attack was leveled against the British administration. The Privy Council ordered to seize the deposit of Annie Besant’s printing press.
Further in 1922, Mohandas Gandhi was also tried under Section 124A, along with Shankerlal Banker. They were charged with the writing and publication of three articles
“Tampering with Loyalty”, “The Puzzle and its Solution” and “Shaking the Manes”, which were published in the newspaper, Young India. According to Noorani, the trial failed to deflect Gandhi from the course he had decided upon. It succeeded only in highlighting his qualities – dignity and felicity of expression . Gandhi pled guilty and demanded that the judge give him the maximum punishment possible.
Constitution and Sedition Laws :
The effect of these laws threatens to undermine, and gradually destroy, the legitimate and constitutionally protected right to protest, dissent or criticize the government . As a result after the Constitution of India came into operation the Constitutional validity of Section 124-A of the Code was challenged as being violative of the fundamental right of freedom of speech and expression under Article 19(1) (a) of the Constitution of India which provides guarantee to every citizen freedom of speech and expression. That means every citizen of India can express their opinion freely. This right to freedom of speech and expression secures protection for severely censuring existing government structures, policies, actions and administrative schemes, coupled with protection for suggesting and recommending the required development of other systems. Freedom given under Article 19(1) (a) is not absolute one. Article 19(2) deals with the grounds of reasonable restrictions with regard to Article 19 (1) (a). Sedition has not been mentioned therein as one of the grounds justifying reasonable restrictions. Now the question comes whether Section 124-A of Indian Penal Code imposes reasonable restrictions on the freedom of speech and expression guaranteed under Article
However, this conflict between sedition and freedom of speech is not recent origin. The framers of the Constitution also have apprehended with the dilemma as to whether the word “sedition” should be used in Article 19(2) but finally they omitted it. It was witnessed that if they have the intention to insert it within Article 19 (2) they would have inserted it.
Although, they decided not to use the word “sedition” in clause (2) but used the more general words which cover sedition and everything else also.
In Romesh Thappar v. State of Madras . within 4 months of the Constitution of India coming into force, the newly established Supreme Court of India ruled on the issue of sedition. The petitioner was printer, editor, and publisher of a weekly journal in English called “Cross Road”. The Government of Madras, in exercise of their power under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 issued an order prohibiting the circulation of the journal in the state. The Court held that restriction on freedom of speech and expression can only be imposed on grounds mentioned in Article 19(2) of the Constitution. A law which authorizes imposition of restriction on grounds of ‘public safety’ or ‘the maintenance of public order’ falls outside the scope of authorized restrictions and therefore, a Constitution Bench of the Apex Court held by a majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violated the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution.
In Brij Bhusan v. State of Delhi , the validity of censorship previous to the publication of an English Weekly of Delhi was questioned. The Court struck down the Section 7 of the East Punjab Safety Act, 1949, on the ground that it was a restriction on the liberty of the press. Similarly, prohibiting newspaper from publishing its own views or views of correspondents about a topic has been held to be a serious encroachment on the freedom of speech and expression.
The law of sedition though necessary during the foreign rule has become inappropriate and obsolete by the very nature of the change which has come about. As a result to avert the constitutional difficulty from above mentioned the Supreme Court decision, ‘in the interest of’ and ‘Public order’ were inserted in the constitution by Constitution Act, 1951.
Further in the case of Ram Nandan v. State of U.P. the Hon’ble High Court held that section 124A imposed restriction on the freedom of speech which is not in the interest of the general public and hence declared 124-A as ultra virus to the constitution as it cannot be saved by the expression ‘in the interest of public order’.
Whereas the Supreme Court of India in Kedar Nath Singh v. State of Bihar has held that Sedition under Section 124A of the Indian Penal Code is Constitutional in nature. While upholding the validity of Section 124A Supreme Court observed that:
Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right. There is a conflict on the question of the ambit of Section 124A between decision of the federal Court and of the Privy Council. The Federal Court has held that words, deeds or writings constituted an offence under Section 124A only when they had the intention or tendency to disturb public tranquility, to create public disturbance or to promote disorder, whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition under Section124A that the words etc., should be intended to or be likely to incite public disorder. Either view can be taken and supported on good reasons. If the view taken by the Federal Court was accepted Section 124A would be use constitutional but if the view of the Privy Council was accepted it would be unconstitutional. It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render the unconstitutional, the Court would lean in favour of the former construction. By application of harmonious construction, keeping in mind the reasons for the introduction of Section 124 A and the history of sedition the section must so construed as to limit its application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence.
The Court further held that
Any spoken or written words or signs or visible representations, etc., which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law has to be distinguished from the person’s for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the government established by law is subverted. Hence, the continued existence of the government established by law is an essential condition of the stability of the State. That is why ‘sedition’, as the offence in Section 124A has been characterized, comes under Chapter VI relating to offences against the State. Hence, any acts within the meaning of Section 124A which have the effect of subverting the government by bringing that government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. However, the Section has taken care to indicate clearly that strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to government established by law is not the same thing as commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.
Thus, the Supreme Court upheld the constitutionality of the sedition law, but at the same time curtailed its meaning and limited its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition were to be given a wider interpretation, it would not survive the test of constitutionality . Explanation to the section makes it clear that criticism of public measures or comment on governmental action, however strongly worded, within reasonable limits under Article 19(2) and consistent with the fundamental rights of Article 19(1) (a) is not affected. It is only when the words have the pernicious tendency or intention of creating public disorder or disturbance of law and order then the law of sedition steps in. The Supreme Court in subsequent cases has upheld this interpretation . Lastly, it has also been emphasized that the courts must take into consideration the growing awareness and maturity of its citizen while determining which speech would be sufficient to incite them to attempt to overthrow the government through the use of violence. How the words and acts would endanger society that differ from time to time and depends on the stability of that society. Thus, meetings and processions that would have been considered seditious 150 years ago would not qualify as sedition today. This is because times have changed and society is stronger than before . This consideration becomes crucial in determining the threshold of incitement required to justify a restriction on speech. In Maneka Gandhi v. Union of India , the Supreme Court held that criticizing and drawing general opinion against policies and governmental measures so long as they do not abuse that power to the injury of others including the state is consistent with freedom of speech and expression. Liberty is given to all to express their opinions within a reasonable limit. The law of sedition offends the fundamental principle of freedom of speech and expression which are now universally recognized. In S. Rangarajan v. P. Jagjivan Ram , the Court held that the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It gives an indication of what sort of acts might be considered seditious, when it observes that the film in question did not threaten to overthrow the government by unlawful or unconstitutional means, secession or attempts to impair the integrity of the country.
Incidents of use of sedition law:
• The law was first used to prosecute Bal Gangadhar Tilak in 1897.
• In 1929, Mahatma Gandhi wrote a stirring editorial in Young India calling for a countrywide agitation demanding the repeal of Section 124A. The section said Gandhi, constituted ‘rape of the word “law”’; it ‘hung over our heads’ whether ‘we are feasting or fasting’.
• In the year 2014, some of the Kashmiri students were charged with sedition for supporting Pakistan in a cricket match between India and Pakistan.
• Kanhaiya Kumar, Patidar leader Hardik Patel and many others have been slapped with sedition charges.
Scope of improvement:
In democratic India, the citizen must be given liberty to express their affection towards the Nation in own way which may be in the form of debates, exposure of the loopholes in the policy of the government, constructive criticisms etc. Section 124A, the law of sedition must only be carefully be applied in cases where the intention of such actions lies with the purpose to disrupt the public order or overthrow the government by way of illegal or extremist means of violence. This sedition law is misused to bully and terrorise citizen wherein the Bidar case, the Principal of the school was charged with sedition for staging a play describing the events of CAA. A clear distinction between free speech and expression concerning Sedition could be reviewed in the Courts of law as the concept of sedition is a very specific and serious offence and when used upon to silence and terrorise an ordinary citizen, raising a concern/ grievance, it is terrorism imposed by the State. Moreover, in the events of the protest, the law enforcement can be easily bullied by a local leader into a registering a case under sedition giving rise to many numbers of case lagging in the Court to be cleared of.
The duty lies upon the Courts of Law to safeguard constitutional Article 19, 21 and to ensure the distinction of such right enshrined in the constitution with seditious charge accused of an ordinary citizen. A harsh law of Sedition which is very specific of its applicability is subject to misuse. Sedition law either must be redefined specifically with restriction to be imposed when the issues arise of Freedom of Speech and Expression or struck down to ensure a democratic mechanism of a country.
The courts have also been unable to give a clear direction to the law. While the final position on the law in India was laid down as early as 1960, the law of sedition is characterised by its incorrect application and use as a tool for harassment. Thus, some of the reasons for which people have been booked under the provision (and often incarcerated) include liking a Facebook page, criticising a popular yoga expert, cheering for the Pakistani team during a cricket match versus India, asking a question about whether the stone-pelters in Jammu and Kashmir were the real heroes in a university exam, making cartoons that allegedly incite violence and making a speech at a conference highlighting the various atrocities committed by the armed forces.
An analysis of the judgment of the Supreme Court in Kedar Nath itself demonstrates certain deficiencies in how the law is currently understood. There has been a shift in how we understand ‘security of the state’ as a ground for limiting the freedom of speech and expression. Further, a change in the nature of the government and the susceptibility of the common people to be incited to violence by an inflammatory speech has also reduced considerably. Even the maintenance of ‘public order’ cannot be used as a ground to justify these laws as it is intended to address local law and order issues rather than actions affecting the very basis of the State itself.
Drawing inspiration from the repeal of the law of sedition in England, it may also be argued that the law of sedition is now obsolete. Various other statutes govern the maintenance of public order and may be invoked to ensure public peace and tranquillity. In light of the above observations, it is time that the Indian legislature and judiciary reconsider the existence of provisions related to sedition in the statute books. These provisions remain as vestiges of colonial oppression and may prove to undermine the rights of the citizens to dissent, protest against or criticise the government in a democracy.