Sedition Law: An overview of its history and future in India

Sedition Law: An overview of its history and future in India

On May 11, 2022, the Supreme Court passed a historic order about the much-debated sedition law (Section 124 A) of the Indian Penal Code (IPC); effectively consigning this 150 years old law to a state of abeyance. It further ordered that all trials, proceedings, and appeals pertaining to this law should be kept in a state of suspension. Those already languishing in jails for being booked under section 124 A, may now approach appropriate courts to seek relief. The state, which had initially been defending this law, withdrew its objections and promised that the law would be reconsidered and a new revised version of the law shall be drafted. The court also instructed the central and state governments that till a reconsidered and revised version of the law is brought into being, they must refrain from lodging any new FIRs under the sedition law.  

  

The controversy around sedition law  

The controversy surrounding sedition law has to do with the question of free speech in a democratic society, as well as the nature of the relationship between citizens and the state. It is an old adage that free speech is nothing if it is not allowed to hit the state where it hurts the most. In an accountable and responsible form of government, the state should not have any business trying to direct and control the extent and manner in which citizens may criticize its action. However, the other side of the debate may point to such elements which misuse the institution of free speech not to advance the cause of democracy but to subvert it. What if elements which are interested in overthrowing democracy and free speech make use of these institutions to facilitate the coming of a new regime that does not believe in freedom of thought and expression? Should such autocratic and anti-democratic be allowed to make use of free speech in order to eventually supplant it with an authoritarian regime? The debate is endless and as old as the Indian Penal Code itself.  

  

History  

The Indian Penal Code was drafted by a Benthamite, Englishman Thomas Babington Macaulay. The code that was finally adopted for criminal trials in India in 1860 did not have the section about sedition law in it; though it is certain that Macaulay’s code consisted of it. The reason for this omission is not clear. However, a decade later, in 1870, through the Special Act XVII, sedition law was introduced as section 124 A of the Indian Penal Code; possibly to tackle the rising tide of nationalist opposition to the colonial regime. As soon as it was introduced, colonial courts began to apply it with zeal. Punishment for this offense could range from Kalapani (transportation away from India for a lifetime) to three years of incarceration, depending on the gravity of the crime. Post-independence, in 1955, the punishment of Kalapani was replaced by imprisonment for life. Since then, this law has remained unchanged.  

  

Meanwhile, in various other parts of the world, similar laws have been repealed as being unfit for modern societies. In the UK, the law had existed in the form of a Westminster statute since 1275. It was finally repealed by section 73 of the Coroners and Justice Act, 2009. Australia repealed its sedition law in the year 2010, and so did Singapore in the year 2021. In the USA, the first amendment forbids the state from curtailing free speech in any manner, therefore they never had a law of this nature in place.   

  

What makes this law ‘colonial’?  

Almost all major laws in India were drafted by the British during the colonial period. Could one then say that the entire legal system of India is ‘colonial, and hence unjust’? Such a conclusion would be erroneous because a great majority of these ‘colonial’ laws have continued to serve us well. Though with changing times and societal needs we have been modifying these laws, in most cases their skeleton has remained unchanged since the British period. Therefore, it would be bad methodology to conclude that a law is unjust merely because it was drafted before independence. The word ‘colonial’, with its pejorative connotations, is in general meant to convey the ability to exercise power in an arbitrary and unjust manner. Meaning that only such laws may be justifiably called colonial which equip the government of the day to go after its critics and detractors in a punitive and vengeful spirit. Put simply, a law may be called ‘colonial’ if it allows an elected politician to target his political enemies and opponents due to extra-legal/partisan reasons. Does sedition law qualify as a ‘colonial’ law? Let us examine it closely.  

  

Section 124 (A) IPC is as follows:   

“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 fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.”  

  

The key phrase in the bare law, as it exists at the moment is, ‘brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India’. What do we understand by hatred or contempt, or disaffection towards the government of the day? The bare law has three explanations attached to it that try to elucidate the scope of this law. Explanation 1 says that ‘disaffection’ includes disloyalty and all feelings of enmity towards the government. Explanations 2 and 3 clarify that it is not unlawful to make a reasoned criticism of the government measures and administrative actions, so long as it does not excite feelings of hatred, contempt or disaffection towards the government.   

  

It is apparent from even a causal reading of the bare act that it is framed in a manner that renders its ambit wide and interpretation vague. There is no simple formula to judge what kind of speech could evoke hatred, contempt, or disaffection towards the government. Therefore, more often than not, administrators and bureaucrats are able to press charges based on their personal whims and preferences. Such a state of affairs also facilitates state actors to target particular persons they want to harass, as virtually any speech or write-up critical of the government could be shown to excite hatred, contempt, or disaffection. During the freedom struggle, this law was the state’s weapon of choice to put anti-colonial agitators behind the bars.  

  

In the course of constituent assembly debates, some members argued that the word ‘sedition’ ought to be placed in the constitution as an exception to the fundamental right to free speech and expression. However, by the time the final draft was prepared, a consensus was reached that while it was alright to place some ‘reasonable restrictions on free speech, the word sedition need not appear in the constitution.  

  

Following the departure of the British in 1947 and the setting up of a free sovereign Indian state, hopes were aroused that this hated colonial law would be assigned to the dustbin of history. A challenge to its constitutionality was posed as early as 1950 in Romesh Thappar v State of Madras. In this case, Patanjali Shastri J underlined the significance of the fact that the constituent assembly had preferred to keep the word ‘sedition’, out of the text of the constitution. He observed, “criticism of the government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tends to overthrow the state.”   

  

The following year, Punjab and Haryana High Court in Tara Singh Gopi Chand v The State (1951) struck down this law as unconstitutional. Carrying forward this trend, in 1959 Allahabad high court too declared this law to be in violation of citizens’ fundamental rights (Ram Nandan V State of UP 1959).  

A reversal came with Kedar Nath Singh v State of Bihar (1962). In this case, a five-member constitutional bench of the Supreme Court declared that the law cannot be construed to be unconstitutional. This judgment observed that article 19 (2) of the constitution permits the government to impose reasonable restrictions upon the freedom of speech and expression in the interests of public order. Unlike the US constitution, our constitution does not give citizens absolute and unmitigated freedom of expression. If the words spoken and written display a pernicious resolve to create public disorder or disturbance of law and order, then the government is well within its right to prevent them. However, the court was also appreciative of the fact that an overzealous application of this law could have a chilling effect on free speech. Therefore, it laid down some criteria for differentiating between free speech and sedition. The constitution bench laid down that a speech cannot be labeled seditious unless accompanied by incitement or call for violence. It must pose a direct threat to ‘public order’ to invite the provisions of section 124 A.   

  

Since Kedar Nath, incitement of ‘public disorder’ or insurrection and violence has been considered a necessary ingredient of 124 A.  In recent times the media has been quick to label incendiary sloganeering as ‘sedition’. However, the verdict in Balwant Singh v. State of Punjab (1995), does not support this interpretation of section 124 A. In this case, the accused had raised slogans of ‘Khalistan zindabad, and ‘independence for Punjab’ in a public place. Other slogans conveyed that Hindus would be forced to leave and Punjab would become a Sikh homeland.’ Upholding the guidelines of Kedar Nath, the court ruled that ‘casual raining of slogans by one or two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government.  

  

In recent times the number of people booked for sedition has increased manifolds. There is a general sentiment among citizens that challenging the government of the day in a public forum could invite the wrath of the state in the form of a sedition case. In some instances, vindictive government servants and bureaucrats have displayed a tendency to weaponize this law to muzzle opposition and dissent. The real matter for concern is that there does not seem to be a reliable standard for distinguishing a legitimate speech from a seditious one. As a result, citizens are left guessing as to what might invite the slapping of the dreaded 124 A.  

  

The latest challenge to this section has come from a group of journalists and politicians who have borne the brunt of punitive executive action. It has been argued that since such stringent laws like UAPA are already in place, and more than capable of tackling hardened terrorists, there is no need for a law like 124 (A) to torment political activists and journalists who take a great deal of personal risk in standing up to the state.  

  

Though the government has agreed to look into and present a revised version, it remains to be seen whether it would do mere lip service or really address the issue.