Vishal Garg Narwana, Advocate
B.A. LL.B. (Army Institute of Law, Mohali)
Email Id : email@example.com
Date : 29/04/2022
Location : House No. 2024, Sector 21-C, Chandigarh
SeditionSECTION 124A IPC : The Most Politically Powerful Section? Sedition law was evolved during the British times to suppress and subdue the voice and also imprison the freedom fighters who were criticizing the policies of the British Empire. The law of sedition was first introduced in clause 113 of Thomas Babington Macaulay's Draft of the Indian Penal Code in 1837. However, when the Indian Penal Code was finally enacted in 1860, the section pertaining to sedition was mysteriously omitted. ENGLAND The offence of sedition can be traced back to the statute of Westminster, 1275 that is, when the king was considered as the holder of divine rights. During the era of Queen Elizabeth i.e. from 1590 onwards, Sedition Act, 1661 was passed by the parliament of England, which stated that, any act, speech or publication either made orally or in writing, and made with an intent to dethrone the crown, take down the government or create a feeling of disaffection towards the Crown would be charged under the offence of sedition. Sedition was devised as a tool in 13th century by Britain to suppress the freedom of the printing press and its ability to criticize the King. The Sedition Act, 1661, imposed punishment on anyone who wrote, printed or preached any words against the King. It evolved to mean slander and libel against the reputation or actions of government officials and judges. The goal was to protect the faith that the common man had in the government and also to avoid breach of peace in society. Sedition was defined by Fitzgerald J. in R v. Sullivan (1868) 11 Cox C.C. 44 at p. 45, as "sedition in itself is a comprehensive term and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the Empire". By the 18th century, the law started receiving so much criticism in United Kingdom and finally in 2009, this law of the bygone era was deleted by Section 73 of the Coroners and Justice Act, 2009. UNITED STATES In 1798, the Sedition Act was passed under the presidency of John Adams, to criminalize the making of false statements against the federal government. This Act was repealed in 1820. The mention of the Sedition Act was again seen during World War I to protect the American interests. Section 3 of The Sedition Act, 1918 was drafted to punish anyone making false statements that interfered with the U.S. war efforts. This included insulting the U.S. government, flag, Constitution or military. In case of Schenck v. United States 249 U.S. 47 (1919), the court while adjudging the validity of Sedition Act 1918, laid down the "Clear and Present danger" test for restricting freedom of expression. The Supreme Court in Abrams v. United States, 250 U.S. 616 1919 held that distribution of circulars appealing for strike in factories to stop manufacturing of machineries that were used to crush Russian revolutionaries could not be protected under the First Amendment. Justice Holmes' dissenting opinion, however, championed the wide ambit of free speech liberty in United States. He remarked "It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned". The most prominent case in this regard is Re Debs v. United States, 158 U.S 564 (1895) In this ruling, the Court examined several statements that Debs had made regarding the war. While he had tempered his speeches in an attempt to comply with the Espionage Act, the Court found he had shown the "intention and effect of obstructing the draft and recruitment for the war." Among other things, the Court cited Debs' praise for those imprisoned for obstructing the draft. In the opinion of Justice Oliver Wendell Holmes, the Debs' case was essentially the same as Schenck v. United States 249 U.S. 47 (1919), in which the Court upheld a similar conviction. Hence the Supreme Court decided against Debs, and maintained the power of the Espionage Act. Debs' was sentenced to ten years imprisonment and loss of citizenship was upheld. AUSTRALIA The first comprehensive legislation that contained sedition offence was the Crime Act, 1920. The provisions on sedition in this Act were broader than the common law definition as subjective intention and incitement to violence or public disturbance were not the sine qua non for conviction under these provisions. The Hope Commission constituted in 1984 recommended that the Australian definition of sedition should be aligned with the Commonwealth definition. Subsequently, the sedition provisions were again reviewed by the Gibbs Committee in 1991.The Australian Law Reform Commission reviewed whether the use of the term sedition was appropriate to define the offences mentioned under the 2005 amendment. After this amendment, the majority senate committee report into the bill, delivered on 28 November 2005, recommended amongst 52 proposed changes that the sedition provisions be removed from the bill until after a review, claiming that they were poorly drafted and undermined free speech, and also that the existing law negated any urgency for their introduction. After a detailed study, the ALRC Report suggested that, the Australian Government should remove the term sedition from "federal criminal law" and the recommendations of the ALRC was implemented in the National Security Legislation Amendment Act, 2010 wherein the term sedition was removed and replaced with references to urging violence offences. INDIA The law of sedition was first introduced in clause 113 of Lord Macaulay's Draft of IPC in 1837. However, when the IPC was finally enacted after a long delay in 1860, the section of sedition was omitted. According to a study, the necessity of introducing the law of sedition was first recognized by the British Empire after the revolt of 1857 in the light of increased Wahabi activities along with the incidents of mutiny against the British up until 1870. As a result, the law of sedition was incorporated under Section 124A of the IPC on November 25, 1870. The IPC (Amendment) Act, 1898 amended Section 124A, making the effort of bringing or attempting to bring hatred or contempt (besides disaffection) towards the established government punishable. Since then, it has largely retained in the same form. After Independence, "sedition" was dropped from the Constitution in 1948 after discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word "sedition" that was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression. The word "sedition" thus disappeared from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in the IPC. In 1950, two Supreme Court decisions prompted the government to enact the infamous first amendment to the constitution of India in 1951. The first case involved objectionable material in `Organizer', a magazine published by the RSS, and the second was filed against a magazine called `Crossroads', for opposing the government. In both these cases, the Apex court ruled against the government, stating that public order is not an enumerated exception to the right to free speech. It was held that freedom of speech and expression can only be curtailed if it is solely directed at undermining the state's security. In light of these decisions, while condemning the law of sedition, Jawaharlal Nehru introduced the first amendment, empowering the state to impose "reasonable restrictions" on free speech. However, it was only in 1973 that section 124A became a cognizable offence for the first time in Indian history by the Indira Gandhi administration under the new Code of Criminal Procedure. It authorized the police to make arrests without a warrant under Section 124A. Sedition has been defined under Section 124A of the IPC as "any speech or writing, or form of visible representation, which brings the government either into contempt or hatred or may excite disaffection towards the government or attempts to do so". The punishment for sedition varies from fine, imprisonment up to three years or life term, or both. It defines disaffection as "disloyalty and feelings of enmity". However, it also states that expressing disapproval of government measures or actions or to have them changed through lawful means, without promoting hatred, disaffection, or contempt for the government, shall not fall under this section. The first notable case for the offence of sedition was reported in 1891, in the case of "Queen-Empress v. Jogendra Chunder Bose & Ors.", (1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their criticism of the British Government's policies, specifically regarding the Age of Consent Act, 1891. The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The court concluded that since only disaffection is penalized, the offence of sedition does not take people's rights away. The next landmark case on this matter was that of "Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal", (1897) ILR 22 Bom 112". In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of the Bombay High Court agreed with the definition of `disaffection' propounded in Jogendra Chunder Bose case and opined that any `bad feeling' towards the government is criminal, irrespective of the level of bad feeling. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech. About two decades later, Tilak was again tried for sedition in the case of `Emperor v. Bal Gangadhar Tilak', (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of Swarajya(`self-rule') for Indians. In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticize the civil services, arguing in court that the civil services and the British government were two distinct entities. In the landmark judgment of Kedar Nath Singh - 1962 (1962 AIR 955, 1962 SCR), a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress Government. The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement of violence or would result in public disorder. Since Kedar Nath criticized the Congress party and not the Indian State, and the speech in question did not lead to any incitement of violence, therefore, it did not amount to sedition. In another important decision, in the case of "Balwant Singh & Anr. v. State of Punjab 1995 (1) SCR 411" the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favor of an independent Sikh majority state in the wake of Indira Gandhi's assassination. A two-judge division bench of the Supreme Court ruled in favor of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh's actions, therefore, did not amount to sedition. One such modification was observed about a decade back in the cases of `Arup Bhuyan v. the State of Assam', (2011) 3 SCC 377 and `Sri Indra Das v. State of Assam', (2011) 3 SCC 380, both of which were decided by the same two-judge division bench of the Supreme Court within seven days of each other. In both judgments, the court, adjudicating on charges of sedition and preventive detention, placed reliance on the `imminent lawless action' test laid down by the U.S. Supreme Court judgment in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). As per this test, every speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action, which is similar to Kedar Nath case. The dominant pattern of the reports published by Article 14, Ministry of Home Affairs and National Crime Records Bureau reveal a rapid increase in sedition cases since 2014. According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3% for the same period. This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor. In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016. The same constitutes a 165% increase. Of these 93 cases, charge sheets were filed in a mere 17% of cases and even worse, the conviction rate was an abysmally low 3.3 %. National Crime Records Bureau reports show that in 2019, 21 cases of sedition were closed on account of no evidence, two were closed being false cases and six cases held to be civil disputes. The Law Commission of India, in its Consultation Paper on "Sedition", published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech. The Law Commission further requested that the laws under Section 124A should be reconsidered. It has been noted that Britain, the creator of the law of sedition along with New Zealand, Australia, Indonesia, South Korea etc. have scrapped their respective sedition laws. It has been questioned several times whether a law enacted by the British Empire to repress the independence movement should still be valid in India. Merely being critical of the government or expressing contempt on the functioning of the government does not amount to sedition. For an act to constitute sedition, it must be done with an intention to cause disorder/disturbance of the public peace or law by resort to violence, and must incite violence. Article 19(a) of the Indian Constitution provides for freedom of speech and expression. It is a fundamental right and cannot be taken away. However, it is not absolute and is subject to reasonable restrictions under Article 19(2) in the interests of the 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. One of the most important characteristics of a democracy is freedom of speech. A democratic country is one where the citizens have a choice, and the right to voice their choices. Denying them their right to express would take away the essence of democracy. However, while all citizens have the right to speak freely and express their views and opinions, it must be kept in mind that with those rights, they also have certain duties to perform as citizens of India. A democracy can function in its best possible way only when the State and the citizens perform their own duties, and think first on national level, and then on an individual level. But, the recent trend of increasing cases of law of sedition has led to the infringement of the Fundamental Right to Speech and Expression as every voice raised by the public is converted into the matter of pride for the government leading to injustice at large. The growing number of cases is nothing but a call for help to put an end to such arbitrariness of the government. Some recent trend of cases can be seen where the apex court has decided to investigate the constitutional validity of the offence of sedition. In the case of Kishore Chandra Wangkhemcha & Kanhaiya Lal Shukla v. Union of India, Imphal-based journalist Wangkhem was arrested on charges of sedition for criticizing Prime Minister Narendra Modi, the Rashtriya Swayamsevak Sangh (RSS) and State Chief Minister N. Biren Singh on social media in 2018. In May 2021, a three-judge bench of the Supreme Court ruled in the case of "Aamoda Broadcasting Company & Anr v. State of Andhra Pradesh" that there is a need to define the limits of sedition under Section 124A of the IPC. The two news channels were booked with sedition for broadcasting `offending speeches' made by a YSR Congress lawmaker. On 16th July 2021 - Chief Justice of India, has dubbed the misuse of sedition laws as a "serious breach of functioning of institutions" and asked the Centre to explain why it still retained the colonial-era law in the statute books when it had done away with so many other archaic laws. He further states that, "There is no dispute that it is a colonial law. It was used to suppress the freedom movement used to silence Gandhi, Tilak. Is it still necessary after 75 years of Independence?" On January 14 2022 on the topic "Constitutional underpinnings of the rule of law" at the inauguration of Mumbai's DM Harish School of Law. Justice Rohinton Nariman has said that it is "important for the court" to strike down Section 124A (sedition) of the Indian Penal Code (IPC) which criminalises sedition. He called the UAPA a "draconian legislation" and said the law requires it to be scrutinised by the top court. His remark laid focus on several incidents of communal crimes that are being reported across the country. The retired judge drew a comparison between the use of the sedition law on student leaders and stand-up comedians with the inaction against those making hate speeches. "Unfortunately of late, we have had in this country young persons, students, stand-up comedians all being booked unnecessarily for freely criticizing the government of the day which are really colonial in nature," The Law of Sedition roots back to old times when 'The Britishers' aimed to suppress the Indians to rule over them and successfully did so for more than 100 years. Today even after 75 years of Independent India if we are not able to come out of the shackles of Britishers and continue to suppress our own people in the name of sedition, then it is a disgrace to call ourselves democratic. While it is essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions.
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