The Laws for Sedition in India: An analysis
"It is far more ignominious to die by justice than by an unjust sedition." -Blaise Pascal
In recent times, the concept of sedition in India has become a contemporary topic for debate under Law. In simple words, sedition is an illegal act that involves conduct or speech inciting people to rebel against the authority of a state or monarch. Sedition includes any words, either spoken or written, or by signs, or by visible representation, that could bring or attempt to bring either hatred, or contempt, or excite or bring to excite any disaffection towards the Government set-up by law. From the historical backdrop of sedition laws, these laws are certainly a piece of a larger framework of colonial laws. The sedition law was initially drafted in 1837 by Thomas Babington Macaulay, the British historian-politician official, but was mysteriously excluded when the Indian Penal Code (IPC) was established in 1860.
The sedition law was then amended and was first included in IPC in 1870 to allow the government to deal more efficiently with seditious activities in response to the Wahabi movement of the 19th century which was an Islamic revivalist movement, whose focus was to condemn and protest against any change into the original Islam and return to its true spirit[i]. With the raising of the 1857 revolt, this movement transformed into outfitted obstruction against the British. Therefore, with the increase in incidents of mutinous activities against the British, the need to make sedition a substantive offense was widely acknowledged, and the offense of sedition was incorporated under Section 124A of the IPC on November 25, 1870, by Sir James Stephen and continued without any amendments till February 18, 1898[ii].
The provision covers under Section 124A covers almost any form of expression: words, ‘either spoken or written’, signs, as well as ‘visible representation’. In 1898, the provision was further made more stringent and got amended to include ‘contempt’, ‘hatred’, and ‘disloyalty’ within the ambit of disaffection. As compared to other offenses in IPC, the punishment for seditious offenses is known and considered to be especially harsh[iii]. So, the offense of sedition in Indian law is a cognizable, non-bailable, and non-compoundable offense that can be tried by the court of session[iv] and carries a sentence of up to life imprisonment to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
LEGAL INTERPRETATION AND DEVELOPMENT OF SEDITION LAWS IN INDIA
The judicial interpretation of seditions laws in India can be traced back to the colonial era. As per Webster's Dictionary sedition incorporates all the acts and practices that excite discontent or disappointment towards the Constitution, or the administration or the government to make public conflict and turmoil[v]. In other words, sedition is conduct or speech actuating individuals to oppose the state. In the case of Niharendu Dutt Majumdar v. The King Emperor[vi], the Federal Court of India held that violent words by themselves did not make a speech or written document seditious in nature but to constitute sedition, the acts or words complained of must either prompt to disorder or should be, for example, to fulfill common reasonable men that is their goal or tendency of the same.
However, the King Emperor v. Sadashiv Narayan Bhalerao [vii] case overruled Niharendu Dutt Majumdar’s case in which the Privy Council held that the offense consisted in exciting or attempting to excite bad feelings towards the government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great; or small. In India, the sedition laws were applied in several cases. The first among them was the trial of Jogendra Chandra Bose, 1891in which Bose who was the editor of the paper Bangobasi, composed an article censuring the period of Consent Bill for posing a danger to the religion and for its coercive relationship with Indians[viii]. In 1897, the law was first used to prosecute Bal Gangadhar Tilak.
In the case of Annie Besant v. Advocate General of Madras[ix], the Privy Council encircled section 124A of IPC stating that any press used for printing or publishing newspapers, books, or other documents containing words, signs, or other visible representations that would in general prompt disdain or contempt to the government or any class of subjects would be at risk to have its deposit forfeited. In 1922, Mahatma Gandhi along with Shankerlal Banker, the proprietor of Young India was also charged for the offense of sedition. One of the recent cases which drew the attention of the sedition laws in India is the arrest of 3,000 people for protesting against the Citizenship Amendment Act in Jharkhand’s Dhanbad city wherein the protestors were charged under 11 sections of the Indian Penal Code, including Section 124-A, which relates to sedition[x]. As a result of this, the Jharkhand Chief Minister announced that the state administration has recommended dropping the sedition charges as according to him the laws are not made to frighten and silence the people but to instill a feeling of safety in public.
RELEVANT PROVISIONS OF SEDITION LAWS IN INDIA
Under the Indian Penal Code, Section 124A defines the offense of sedition which says that whoever brings or attempts to bring hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India shall be punished which may involve imprisonment of 3 years to a life term, to which a fine may be added; or, with fine[xi]. Under the Criminal Procedure Code, 1973, Section 95 gives the government the right to forfeit material punishable under Section 124A on stating grounds[xii].
Under the Prevention of Seditious Meetings Act, 1911 Section 5 of the Act empowers a District Magistrate or Commissioner of Police to prohibit a public meeting in a proclaimed area if, in his opinion, such meeting is likely to promote sedition or disaffection towards the government or to cause a disturbance of the public tranquillity[xiii]. Under the Unlawful Activities (Prevention) Act, 1967, Section 2(o) of the said Act, supporting claims of secession, questioning territorial integrity, and causing or intending to cause disaffection against India to fall within the ambit of unlawful activity[xiv].
CONSTITUTIONAL VALIDITY OF SECTION 124A OF IPC
The constitutional validity of Section 124A of IPC has been challenged in various cases as being violative of the fundamental right of freedom of speech and expression under Article 19(1) (a) of the Constitution of India. Article 19(1) (a) provides a guarantee to every citizen freedom of speech and expression which means that every citizen of India can express their opinion freely[xv]. The freedom given under Article 19(1) (a) is not an absolute one. Article 19(2) deals with the grounds of reasonable restrictions under Article 19 (1) (a)[xvi]. Sedition has not been mentioned therein as one of the grounds justifying reasonable restrictions.
Therefore, the question that arose was whether Section 124A of the Indian Penal Code imposes reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1) (a). Thus, various debates were going on which alleged that the sedition law clashes with the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. It is not even part of the ‘reasonable restrictions’ on free speech under Article 19(2). So, many cases were witnessed in the 1950s concerning Sedition laws.
The first case which came within 4 months of the Constitution of India coming into force was Romesh Thappar v. State of Madras[xvii], in which the newly established Supreme Court of India ruled on the issue of sedition. In this case, the petitioner was a printer, editor, and publisher of a weekly journal in English called Cross Road. The Government of Madras, in its capacity under Section 9 (1-A) of the Madras Maintenance of Public Order Act, 1949 issued an order restricting the dissemination of the journal in the state. The Court held that restriction on the right of freedom and expression can only be imposed on grounds referenced in Article 19(2) of the Constitution.
A law which authorizes the imposition of restriction on grounds of ‘public safety’ or ‘the maintenance of public order’ falls outside the scope of authorized restrictions. In the case of Ram Nandan v. States[xviii], the Allahabad High Court decided the constitutional validity of Section 124A of the IPC. The High Court declaring Section 124A of the IPC void held that the ministers who formed a part of the Government, were men who frame important questions of policy and need a strong opposition in Parliament. The Court also remarked that the Government apart from the opposition is also subject to popular approval or disapproval. Then came the landmark case of Kedar Nath Singh vs. State of Bihar [xix] which overruled the above judgment of the Allahabad High Court and upheld the constitutionality of Section 124A of the IPC and differentiated between disloyalty to the Government and commenting upon the measures of the Government without inciting public disorder through acts of violence. The Supreme Court held that the expression 'Government set up by law' was considered as the noticeable symbol of the State, which was not the same as an individual who was occupied in carrying out administration.
The Court additionally saw that any act falling within the ambit of Section 124A which could have the impact of undercutting the Government would be a crime as the feeling of traitorousness towards the Government established by law would import the possibility of the public disorder by the utilization of actual violence. In this manner, any words which intend to undercut the Government by violence implies an offense. In the case of Balwant Singh and Ors v. State of Punjab[xx], the Supreme Court acquitted persons from charges of sedition for shouting slogans such as ‘Khalistan Zindabad’ after Indira Gandhi’s assassination and further held that mere sloganeering which evoked no public response did not amount to sedition.
ARGUMENTS AGAINST SECTION 124A OF IPC
There are many arguments and criticism against Section 124A as to whether the sedition act should be abolished or not. There are various views regarding abolishing Section 124A. Some of the reasons behind this are that Sedition is not mentioned in the Constitution so it was opined by India’s Constituent Assembly that the minorities should have an association and free speech so that they can make their voices felt by the Government.
The second reason is given by the Law Commission of India which says that the definition of sedition does not take into consideration disaffection towards (a) the Constitution, (b) the legislatures, and (c) administration of justice, all of which would be as disastrous to the security of the State as disaffection towards the executive Government[xxi]. Thirdly, it is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression. On the other hand, there are various views regarding not abolishing Section 124A. One of the reasons behind this is that the Government needs to retain the provision to effectively combat anti-national, secessionist, and terrorist elements. In 1962, the Supreme Court upheld the sedition law in the case of Kedar Nath Singh v. State of Bihar on the basis that this power was required by the state to protect itself. So, in the 1968 report, the Law Commission rejected the idea of repealing the section.
India being a democratic country, it is very essential to protect national integrity and also the right to freedom of speech and expression. From the above analysis, it can be concluded that certain essential elements are required for a statement, words, cartoons, etc. to be considered as seditious, without which an offense of sedition cannot be made out. It is clear through the judicial interpretation over the past 50 years that Section 124A of the IPC is constitutional and is required to ensure the stability of the State and give the Government the tools to effectively combat anti-national and secessionist terrorist elements. However, the word ‘sedition’ is extremely nuanced and subtle and needs to be applied with caution.
[i] R. Samaddar, Emergence Of The Political Subject 45 (2010), Narahari Kaviraj, Wahabi and Farazi Rebels of Bengal 72 (1982).
[ii] Section 124-A, The Indian Penal Code, 1898 [iii] Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a colonial situation, February 12, 2010 [iv] The Code of Criminal Procedure, 1973, Schedule I [v] Webster’s Third New International Dictionary, G.C Merriam Co., USA. 1976, 652 [vi] Niharendu Dutt Majumdar v. The King Emperor AIR. 1942, FC 22 [vii] King Emperor v. Sadashiv Narayan Bhalerao 1947 L.R. I.A. 1947; 74:89 [viii] Aravind Ganachari. Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response in Engaging Terror: A Critical and Interdisciplinary Approach, Brown Walker Press, Florida. 2009, 98-99
[ix] Annie Besant v. Advocate General of Madras 1919 46 IA 176
[xi] Section 124A, The Indian Penal Code [xii] Section 95, The Code of Criminal Procedure, 1973 [xiii] Section 5, The Prevention of Seditious Meetings Act, 1911 [xiv] Section 2(o), Unlawful Activities (Prevention Act), 1967 [xv] Article 19(1)(a), The Constitution of India [xvi] Article 19(2), The Constitution of India [xvii] Romesh Thappar v. State of Madras AIR 1950 SC 124 [xviii] Ram Nandan v. States AIR 1959 All 101 [xix] Kedar Nath Singh v. State of Bihar 1962 AIR 955 [xx] Balwant Singh and Ors v. State of Punjab (1995) 3 SCC 214 [xxi] 42nd Report(1971) by Law Commission titled ‘Indian Penal Code’ ABOUT THE AUTHOR
This blog has been authored by Tulika Banerjee, who is a Final Year B.Tech., LL.B. (Hons.) student at University of Petroleum & Energy Studies, Dehradun.
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