The law of sedition is unconstitutional

Context

  • In Vinod Dua’s case (2021), the Supreme Court of India has reaffirmed the law of sedition laid down in Kedar Nath Singh (1962) and directed governments to adhere to it.

  • Laws are the by-products of socio-political stages of development. Marx held them to be a part of the superstructure of the system of which economic relations constitute the basic structure. The executive, legislature and judiciary are all closely interrelated, and linked to the basic structure. The direction of governance, law-making and its execution at every point of history are decisively influenced by the aforesaid factors. The much-debated Section 124A of the Indian Penal Code (IPC) should be analysed in this background.

The Law of Sedition

  • The Kedar Nath judgment upheld the constitutional validity of sedition as defined in Section 124A of the Indian Penal Code.
    • The Court read down the provision by holding that only writings or speeches which incite people to violence against the Government will come within the mischief of sedition.
    • So, as per this judgment, unless speeches or writings tend to cause violence or disorder, there is no sedition.

      law of sedition
      Source: Economic Times

  • The Supreme Court’s assertion in Kedar Nath that there is sedition only when writing or speech can lead to violence or disorder has consistently been ignored by governments all these years, and citizens of all ages have been charged with sedition for merely criticising the authorities. 
    • The Lakshadweep case is the latest example.

Issue of ‘disaffection’

  • Section 124A of the IPC, which contains the law of sedition, categorises four sources of seditious acts.
  • They are, spoken words, written words, signs or visible representations.
    • The gist of the offence is: bringing or attempting to bring the government into contempt or hatred, or exciting or attempting to excite disaffection towards the government.
  • There are three explanations attached to this section.
    • The first explanation says that ‘disaffection’ includes disloyalty and all feelings of enmity.
    • The second and third explanations say that one can comment on the measures of the government or other actions of the government without bringing or attempting to bring it into contempt or hatred or exciting or attempting to excite disaffection towards the government.

Section 124A of the Indian Penal Code (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 attempt 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”.

Mahatma Gandhi termed Section 124A as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.

Section 124A has been misused multiple times and challenged in court for instance:

  • The Kedar Nath case in 1962 and Kanhaiya Kumar case in 2015.
  • It was widely used to curtail dissent during the anti CAA-NRC agitations. Students, human rights activists, journalists, intellectuals have been targeted.
  • The most recent case is of Aisha Sultana, a young filmmaker from Lakshadweep, who is facing sedition charges for questioning the actions of the administrator of the Union Territory.

Why Kedarnath judgment needs a review?

  • The Supreme Court’s view in Kedar Nath is consistently being ignored.
    • Citizens of all ages have been charged with sedition for criticizing government authorities.
    • For instance, the recent Lakshadweep case.
  • Section 124A of the IPC clearly violates Article 19(1)(a) of the Constitution. Further Kedarnath judgment opens the door for misuse by making it conditional.
    • It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder’ the law steps in.
    • So, if a policeman thinks that a cartoon has the pernicious tendency to create public disorder, he will arrest that cartoonist.
    • It is the policeman and law enforcement machinery who would decide whether a person’s behaviour was seditious.
  • Section 124 A is not a reasonable restriction.
    • Accused under this section does not get protection under Article 19(2) on the ground of reasonable restriction.
    • Sedition as a reasonable restriction was included in the draft constitution but was deleted during the adoption of the Constitution.
  • This law was enacted by the British colonial government with the sole objective of suppressing all voices of Indians.
    • In the Bangobasi case in 1891, Bal Gangadhar Tilak’s case in 1897 and 1908, and Mahatma Gandhi’s case in 1922, it was held that a mere comment has the potential to cause disaffection towards the government.
    • Justice Arthur Strachey in Tilak’s case had made it absolutely clear that even attempts to cause disaffection would attract the provision.
    • These arguments do not stand valid after the adoption of the constitution.
    • However, SC adopted the reasoning given by the Federal Court in Niharendu Dutta Majumdar vs Emperor in 1942. In which it was held that the gist of the offense of sedition is a public disorder or a reasonable apprehension of public disorder.
  • This law should be removed for being unconstitutional, but the SC judgment has softened it.
    • The Supreme Court emphasized the words ‘public order’ used in Article 19(2) and this made the offense of sedition constitutionally valid.
    • The Kedar Nath judgment makes it possible for the law enforcement machinery to easily take away the fundamental right of citizens.

Conclusion

  • In a democracy, people have the inalienable right to change the government they do not like. People will display disaffection towards a government which has failed them.
  • The law of sedition which penalises them for hating a government which does not serve them cannot exist because it violates Article 19(1)(a) and is not protected by Article 19(2). Therefore, an urgent review of the Kedar Nath judgement by a larger Bench has become necessary.
  • India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of 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.

Back to Basics

What is Sedition Law?

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.

Origin of sedition law in modern India

  • The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but was inexplicably omitted when the IPC was enacted in 1860.
  • Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence. It was one of the many draconian laws enacted to stifle any voices of dissent at that time.

Arguments in support of Section 124A:

  • Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements
  • It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State
  • If contempt of court invites penal action, contempt of government should also attract punishment
  • Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution
  • Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases

Arguments against Section 124A:

  • Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
  • Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition. Right to question, criticize and change rulers is very fundamental to the idea of democracy.
  • The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. There is no reason, why should not India abolish this section.
  • The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
  1. IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. There is no need for Section 124A.
  2. The sedition law is being misused as a tool to persecute political dissent. A wide and concentrated executive discretion is inbuilt into it which permits the blatant abuse.
  3. In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.

The disutility of the sedition law:

  • The data released by the National Crime Records Bureau for the year between 2014 and 2016 reflect the disutility of the law for the criminal justice system.
  • Under the title ‘offences against the State’ the report shows a total of 179 arrests for sedition. However, no charge sheets were filed by the police in over 70% of the cases, and only two convictions during this time period. This data belie the claim for retaining the Section 124A of IPC.

What is the viewpoint of the Law Commission of India?

  • 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.

Sedition laws in international jurisdiction

  • The United Kingdom deleted the seditious libel through the Coroners and Justice Act, 2009.
  • In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed and replaced with references to ‘urging violence offenses’.

Source: TH, IE, India Today


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