Questioning The Constitutional Validity Of A Centuries Old Provision: Sedition, A Relook

Author: S.Sujitha Student, School of Excellence in Law, Chennai

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

― United Nations, Universal Declaration of Human Rights

The above words succinctly pinpoints that the essence of the right to Freedom of speech and expression served only when such right is present without any interference. In India, the Constitution guarantees Right to freedom of speech and expression to every citizen. Are they absolute? No. The right isn’t absolute rather restricted under certain grounds mentioned in the Constitution. Recently, the increasing number of sedition cases has reopened the Pandora’s Box of debates on section 124A of IPC, imposing unreasonable restrictions on right to freedom of speech and expression. Tracing the way back, the constitutionality of Sedition has been a hot potato since a long time in India. In this regard, a plethora of judgments have been pronounced in the Court dealing with various aspects of the Constitutional validity of this section. Let’s first know what constitutes the offence of Sedition.

What is Sedition? Section 124A of Indian Penal Code?

According to the Section 124A of I.P.C, 1860, any person who by words, spoken or written, attempts to bring into hatred or contempt, or excites disaffection towards the government established by law is held punishable. In the pre-Independence era, this section had been interpreted very broadly and any action exciting or attempting to incite bad feelings towards the government was held punishable whether or not it resulted in public disorder. [1] Obviously, the section in such a broad form could not be sustained under Art. 19 (2) of the Constitution. In Kedar Nath v. State of Bihar [2],   the Supreme Court upheld Sec. 124A by interpreting it restrictively—as rendering penal only such activities as would be intended, or have a tendency, to create public disorder.

Decoding the genesis of the provision

Many legal experts say that this provision is a relic of British colonial authority, designed to silence critical voices in the Indian independence struggle. The current version of Section 124A of the Indian Penal Code, 1860 was not included in the initial draught of Macaulay’s IPC in 1860, and was only inserted in 1870, sponsored by James Stephen. This version was further modified by the IPC (Amendment Act) of 1898, after which it has essentially remained unchanged. In the matter of Queen-Empress Vs. Jogendra Chunder Bose & Ors. [3], the editors of a Bengali journal were charged with sedition for their criticism of the British government’s policies, particularly the Age of Consent Act, 1891. The publishers contended that sedition only punishes the writing of seditious material, not the publication of it, and they also questioned the law’s very existence. They argued that punishing people for exercising their rights was contrary to the law’s original meaning. The court held that because only disaffection is punishable, sedition does not abridge people’s rights.

Our country’s freedom fighters against colonial authority are perhaps the most renowned examples of sedition in history. On two times, Bal Gangadhar Tilak, an ardent supporter of India’s independence, was charged with sedition. The first was given in 1897 for statements that reportedly incited others to violence, resulting in the deaths of two British policemen. In 1898, he was convicted and freed on bail, but in 1909, he was charged with seditious writing in his daily, Kesari. Section 124 (a) of the IPC was discovered and applied for the first time in 1897. In the view of the governing Privy Council, incitement to violence and insurgency had no bearing on the guilt of a person accused with sedition.

The Array of landmark cases

Romesh Thapar case

Section 124A of the Indian Penal Code was first considered after independence in the case of Romesh Thapar v. State of Madras [4]. The Supreme Court ruled that any regulation restricting freedom of speech and expression would not fall under the ambit of Article 19(2) of the Constitution unless it threatened the security of the state or tended to overthrow it.

Tara Singh Gopi Chand case

In Tara Singh Gopi Chand vs. the State [5], the Punjab High Court declared section 124A IPC unconstitutional because it violates the right to freedom of speech and expression guaranteed by Article 19(1) (a) of the Constitution, stating that “a law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has occurred.”

Ram Nandan case

The case of Ram Nandan v. State of Uttar Pradesh [6] also addressed the legality of Section 124-A. Sec.124-A of the IPC is extra vires, according to the Allahabad High Court, since it breaches Article 19(1) (a) of the Constitution. 124-A was alleged to limit freedom of speech and strike at the constitution’s basic foundations.

Kedarnath Das v. State of Bihar

In the case of Kedarnath Das v. State of Bihar, however, the decision in Ram Nandan v. State of Uttar Pradesh was overturned. This was the first case of sedition heard in an independent Indian court. In this case, the legality of the country’s sedition legislation was questioned for the first time, and the court defined the distinction between the country and the corresponding government while hearing the case. Kedar Nath Singh, a member of Bihar’s Forward Communist Party, was accused of giving a speech in which he denounced the administration and called for revolution. In this regard, the court decided that conduct containing the purpose or inclination to cause unrest, disturbance of law and order, or incitement to violence should be prohibited under this provision. This part, however, is in violation of Article 19 if it is applied arbitrarily.

Vinod dua case – Did the Supreme Court fail to seize the opportunity to amend the provision?

Mr. Vinod Dua was arrested under section 124A IPC for the offence of Sedition for making baseless claims in his YouTube show. Only acts that are intended or have a potential to cause unrest or disturbance of public peace by resorting to violence, are punishable according to the Court. The Court stated that this action can best be described as an expression of dissatisfaction of measures taken by the government and its officials in order for the current issue to be solved swiftly and effectively. They were not created with the intention of inciting others or demonstrating a proclivity for causing disruption or disturbing public peace through the use of violence. As a result, Dua’s prosecution for the crimes listed in Sections 124A and 505 (1) (b) of the IPC3 would be unfair. Those offences are not made out at all, based on the claims in the FIR and other circumstances, and any prosecution would be a violation of the petitioner’s rights protected by Article 19(1) (a) of the Constitution.[7]

The preceding judicial judgments have been reviewed in order to have a better understanding of what constitutes seditious actions. In light of this, it may be said that the conduct would not fall within the purview of section 124-A of the IPC unless the words or acts in issue do not endanger the state’s or the people’s security; or cause any type of serious public disorder.

Law Commission report

The 42nd Law Commission report offered three key proposals to be inserted into section 124A, IPC in the year 1971 titled “Indian Penal Code.” They are

  1. Mens rea should be incorporated into the section

  2. The section’s scope be widened to include the Indian Constitution, legislatures, and the administration of justice, as well as the executive government, against whom dissension would not be tolerated

  3. Need to bridge the strange gap between life imprisonment and three years of jail or a fine by setting the maximum penalty for sedition at seven years of severe imprisonment and a fine.

In 2018, the Law Commission, which is the Centre’s highest legal advisory body and is led by former Supreme Court judge Justice B.S. Chauhan, released a consultation paper proposing that the provision of sedition be re-thought or even repealed from the Indian Penal Code. The Commission listed numerous topics to consider, including how far Section 124 of the IPC should be preserved. Significantly, the Commission has sought input on whether or not disrespect for the government is punishable under the law. The Commission has asked for input from all stakeholders, so that a public-friendly revision can be developed. [8]

Question of Constitutionality

Freedom of speech and expression enables a person to express oneself by words, articles, printings, signs, or any other methods, as well as to promote the ideas of others. Citizens’ basic right to freedom of speech and expression extends beyond freedom of the press to political discourse. This is where it differs from section 124A of the Indian Penal Code, which forbids writing, speech, or visual display that fosters hate, contempt or discontent with authority. So, can freedom of expression be put on hold or neglected in the sake of power protection? Isn’t this a betrayal of democratic values?

The concerned legitimacy, usefulness, and relevancy of the provision are still questioned. It is seen as a weapon in the government’s arsenal, which it employs to irritate its opponents. This appears to be true to some extent, given the administration has been harshly rebuked by the judiciary in the past.

After the keen examination of almost every spheres of the issue, it can be said that this Anti-sedition law being added to IPC in 1870 by the British with the aim to suppress resistance from Indians against government, is vague giving the chance of different interpretation by different individual as per their interests, thereby resulting in the abuse of the provision. It is noteworthy to mention that this section proves to be inconsistent with the International Covenant on Civil and political Rights which set forth the international standards for Freedom of Speech and Expression. Considering through the prism of public disorder and Incitement to violence, there exist sufficient provisions in Indian penal code inter alia, section 121 A and 153 A and the Unlawful Activities (Prevention) Act, 1967 to prevent the Sovereignty and security of the State and to maintain public order. Consequently, the question rests on the hands of the judiciary to take an appropriate measure in this regard.

Conclusion

Rewinding back the events in the past decade, there has been a plenty of discussion over the dire need to revamp the Indian penal code in accordance with the changing social needs. Sedition is one such classic example which adds on pressure to revise the penal code. In addition to this, the number of sedition cases reported has increased significantly recently, owing to which there has been a sudden limelight brought on this. Does the increase in cases indicate the abuse of the provision? The answer remains unknown. Most importantly, as a consequence of the misuse of this section, the individual’s fundamental right is at stake. Keeping in mind the relevant provisions of IPC ensuring public order and the probability of the section 124A of IPC to be misused, thereby restricting the fundamental rights of an individual unreasonably, there arises an urgent need to either amend the section incorporating changes proposed by the Law Commission or to declare the section as unconstitutional. Without a doubt, the solution lies in the hands of the judiciary to safeguard the very nature of the democracy and to protect the harmony of the country.

Reference

[1] PSA PILLAI, CRIMINAL LAW, 1131 (K.I. Vibhute eds., 2009)

[2] Kedar Nath v. State of Bihar, 1962 AIR 955

[3] Queen-Empress v. Jogendra Chunder Bose & Ors.(1892) ILR 19 Cal 35

[4] Romesh Thapar v. State of Madras, AIR 1950 SC 124

[5] Tara Singh Gopi Chand vs. the State, AIR 1951 Punj 27 (Z6)

[6] Ram Nandan v. State of Uttar Pradesh, AIR 1959 All 101

[7]Vinod Dua v. Union of India, 2021 SCC OnLine SC 414

[8]Law Commission’s Consultation Paper on Sedition (30 August 2018), https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf  – accessed on 14 July 2021

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