With thousands of its cases being slapped against the recent CAA protestors, today the term sedition has become common in every Indian household. What exactly is this sedition? Sedition is overt conduct, such as speech and organization, that tends toward insurrection against the established order. It is essentially conduct or speech inciting people to rebel or incite violence against the government.
Article 19 of the constitution guarantees each citizen the freedom of speech however, this freedom is not absolute and some reasonable restrictions have been imposed on it, one of such exceptions is sedition under section 124A of the Indian Penal Code.
What is Sedition under section 124A?
Section 124A IPC states: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
The explanation I to the Section defines the scope of disaffection and in Explanation II and III indicate what under the English Law is not considered seditious intention.
Thus by interpreting the bare provision, it is understood that this section requires two essentials to constitute sedition :
- Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards, the Government of India.
- Such act or attempt may be done (i) by words, either spoken or written or (ii) by signs, (iii) by visible representation.
In the case of Balwant Singh v. The State of Punjab, the Court held that criticism through raising slogans once or twice by individuals can not excite or attempt to excite hatred or disaffection towards the government.
History of the Provision
The history of sedition law is intertwined with the history of the Indian freedom movement.
The section related to sedition initially had its place in the code, as Section 113, when Thomas Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was omitted from the actual Code. It was finally added in 1870 on the suggestion of James Fitzjames Stephen, at the time handling legal issues in the colonial Government of Indian[iv].
This was done as a response to the rising radical Wahabi movement, led by Syed Ahmed Barelvi. Moreover, people were increasingly demanding more autonomy and independence for India. This was against the interests of the British government. Therefore, it sought to curb people’s speech and expression through this law.
Some of the most famous sedition cases during the colonial regime involved charges against the leaders of the Indian Independence Movement. The first such known case was that of the trail of newspaper editor Jogendra Chandra Bos[v]e in 1891 where there was an objection by the editor on English rulers raising the age of sexual intercourse by Indian girls from 10 to that of 12 years. The court defined disaffection as the absence of affection. Therefore, it means “hatred, enmity, dislike, hostility, contempt and every form of ill-will to the Government.” The court further added that no man should excite or attempt to excite this kind of disaffection; he should not make or attempt to make anyone feel any kind of enmity towards the Government.
After Independence, the Constitution (First Amendment) Act, 1951 added the term “public order” to Article 19(2), which meant that a citizen’s freedom of speech and expression could be put under legislative restrictions to maintain public order and stability too. Thus, sedition was recognised as a crime, though the then Prime Minister Jawaharlal Nehru was of the opinion that anti-sedition law held no place in free India. Since then, there have been numerous cases involving sedition where the courts have questioned its validity, but the Supreme Court in Kedar Nath Singh v. State of Bihar (1962) ruled in favour of this law.
The Supreme Court laid down that every citizen has a right to say or write about the government, by way of criticism or comment, as long as it does not “incite people to violence” against the government established by law or with the intention of creating public disorder. This continues to be the current stand of the court even today.
What are the activities that are Seditious in nature?
In India, what constitutes ‘Sedition’ is highly debated. As per the Indian Penal Code, for an act to be called “seditious”, it should have the following components:
- Any words, which can be either written or spoken or signs which include placards/posters (visible representation)
- Must bring hatred/contempt/disaffection against the Indian Government
- Must result in ‘imminent violence’ or public disorder.[i]
As per the interpretation of the Court on Section 124-A of the Indian Penal Code, 1860 the following acts have been considered as “seditious”
- Raising of slogans against the government – example – “Khalistan Zindabad” by groups. Raising of slogans by individuals casually once or twice was held not to be seditious.[ii]
- A speech made by a person must incite violence / public disorder for it to be considered as seditious [iii]. Subsequent cases have gone to further interpret it to include “incitement of imminent violence”.
- Any written work which incites violence and public disorder.
Punishment for the offence of Sedition
Sedition is a non-bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.
A person charged under this law is barred from a government job. They have to live without their passport and must produce themselves in the court at all times as and when required.
Conflict between Freedom of Speech and Sedition law
Freedom of speech and expression is one of the most important fundamental rights of a democracy. In India, this right has been enshrined under Article 19(1)(a) of the Constitution of India. However, the term ‘free’ is not absolute and reasonable restrictions are imposed on all fundamental rights. Every case of sedition has a common defence that the action was done in pursuance of Article 19(1)(a)
However, Sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence, are the reasonable restrictions imposed by the State to the right to freedom of speech and expression under Article 19(2).
Presently, the law of sedition under Section 124A has created a big conflict with the right to freedom of speech and expression.
The case of Kedar Nath v. the State of Bihar while deciding the constitutional validity of Section 124A in light of Article 19(1)(a), said that “incitement of violence” is an essential ingredient to constitute sedition. The apex court also referred to a pre-legislative history of India and opposition surrounding Article 19 in the Constituent Assembly debates. Sedition was not a valid restriction to freedom. However, out of the six grounds listed in Article 19(2), the court was of the view that ‘security of the State’ could be one of the grounds to uphold the constitutional validity of Section 124A. The apex court also observed that “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition. Further, the court observed that “citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” It was also made mandatory in the case of R.M.D. Chamarbaugwalla v. Union of India, that incitement of violence and disorder must also be there to constitute sedition.
Current Scenario and Criticism
In the last two months, we have come across several cases of sedition being slapped against a range of people across India. A single mother of an 11-year-old was charged with sedition after her daughter participated in a purportedly anti-CAA play in Bidar, Karnataka. One JNU student, Sharjeel Imam, was charged with sedition for a speech he gave during an anti-CAA protest. More than 50 people were booked for sedition in Mumbai for raising pro-Sharjeel Imam Slogans! These are some of the sedition cases which have grabbed headlines across the country in the last few months.
In August 2018, the Law Commission of India published a consultation paper recommending that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with sedition.
- In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
- In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which ‘disaffection’ should not be tolerated.
- In the recent consultation paper on the sedition, the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.
India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of any democracy. The expression or thought that is not in consonance with the policy of the government of the day should not be considered as sedition. The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. If the country is not open to positive criticism, there would be no difference between the pre- and post-Independence eras.
Of course, it is essential to protect national integrity. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon. However, the section should not be misused as a tool to curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.
[i]Indra Das v. State of Assam
[ii] Balwant Singh v. State of Punjab
[iii] Kedarnath Singh v. State of Bihar
[iv] Gaur, Krishna Deo (2009). Textbook on the Indian Penal Code
[v] Queen-Empress v. Bal Gangadhar Tilak (1897)
Student, Symbiosis Law School Pune
Rachita is Student at Symbiosis Law School, Pune. She is originally from Chennai and has completed secondary and higher secondary education at Indian High School, Dubai. She is an aspiring lawyer with an avid interest in Intellectual Property Law. For any clarifications, suggestions and feedback kindly find her at firstname.lastname@example.org