The Law of Sedition and the Crucifixion of Free Speech

“Section 124A, under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law.” – Mahatma Gandhi

Indian Constitution and the liberty of Indian people is the outcome of a very long struggle against injustice, discrimination, and mass exploitation during colonial rule. Indian people fought against the repressive British Raj for their basic rights and patiently continued their struggle until they got freedom from the clutches of the colonialists. And post-independence, they strived to draft such a Constitution which primarily would protect their fundamental rights for which they had struggled so long.

Therefore, keeping in view, the framers of the Indian Constitution strongly promulgated such provisions in the Indian Constitution which tends to protect their rights, particularly freedom of speech and expression to raise voices against undue curtailment of the fundamental, constitutional and legal rights at any juncture. However, various regimes have, time and again, tried to curtail the rights of its people for the sake of their unscrupulous political interests, for which they make use of the law itself as a weapon, particularly the law of Sedition which is embodied under Section 124A of the Indian Penal Code, 1860 (hereinafter as ‘IPC’).

Tracing The History of Section 124A, IPC

After the revolt of 1857, the British government have had apprehension about any revolt or mutiny against their repressive government. They started stifling all such voices which were being raised against their tyrannical policies. Meanwhile the time came for unification of criminal laws and finally Indian Penal Code came into effect in 1860 with a set of penal provisions. Interestingly, the provision of Sedition, which was in the draft given by Thomas Macaulay, was not primarily included in the IPC 1860. But later on it was added through an amendment in 1870 which provides that “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…”

The word of the provision itself expresses its purpose which is to suppress anti-colonial voices of freedom movement and for that, the penal law was used against various nationalist leaders who consistently fought for their freedom. Most notably among them were Bal Gangadhar Tilak and Mahatma Gandhi.

The Constituent Assembly, while drafting a very dramatic balance between the right to freedom of speech and expression and its restrictions, took Sedition law into account very seriously. At the outset, the drafted Constitution included ‘Sedition’ as a restriction to the freedom of speech. But, in the final draft, it was removed from the list of restriction under Article 19(2) and remained as a vicious penal provision.

Sedition Law Into the Sphere of Independent India

The law of sedition has been blatantly misused by the post-independence governments. The weapon which was used against the freedom fighters of this country, after achieving independence, ashamedly, started being misused more fluently and frequently by the Indian Governments elected by the Indian people. It is to be noted here that after the insertion of Sedition provision in IPC, it took 22 years for the very first case/complaint of sedition was registered.

After the commencement of Indian Constitution, the very first time, in the case of Tara Singh Gopichand v. State the constitutional validity of Section 124A of IPC was questioned in the East Punjab High Court, wherein the High Court declared Section 124A of IPC as ultra vires to the Constitution holding that it curtailed the freedom of speech and expression in a manner not permitted by the Constitution and had no place in the democratic pattern of policy adopted by India. However, subsequently, two new words of wide amplitude were added under Article 19(2) of the Constitution namely, ‘In the interest of the security of the State’ and ‘Public Order’ through its very first Amendment.

Nevertheless, the Allahabad High Court, notwithstanding any changes brought in Article 19(2), in the case of Ram Nandan v. State of Uttar Pradesh held that the restrictions imposed by Section 124A of IPC is not in the interest of general public therefore it infringes the fundamental right of speech and expression.

In the air of confusion, finally, the Supreme Court marked its stamp on Sedition and held Section 124A constitutionally valid in the landmark judgment of Kedar Nath v. State of Bihar.

The SC found section 124A of the IPC under the wide circle of Public Order under Article 19(2). It was held that:

“Government established by law is the visible symbol of the State and its existence will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State…. Any act within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.”

But taking consideration of Explanation 2 and 3 of Section 124A, in the same case, the SC drew a boundary to prevent the misuse of this penal law by the Government and held:

…the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.

The SC flagged green signal to Section 124A and restricted the elevated scope of Freedom of Speech and Expression. However, it gave some hope to celebrate the freedom in the name of lawful criticism.

Misuse of Sedition

After the defined ruling of the SC, the governments of all the times have, ironically, misused the provision of sedition. They have systematically abused it for their political interests and agendas against those who dared to exercise their freedom of speech, and against those who raised their critique against the controversial policies and political standings of the government. Whether be it the voice of journalists and reporters, students and social activists, political personalities or be it ordinary people, whosoever expressed or protested against the government, have been prone to be labelled with the charge of Sedition. It clearly shows the government’s highhandedness in dealing with critics. 

Talking about the recent impact of sedition, the NCRB (National Crime Record Bureau) data released in 2019 shows that 93 sedition cases were filed in 2019, up from 70 in 2018 and 51 in 2017. While the conviction rate falls rapidly at 3.3% being lowest of all time. And this is a big drop from the 33.3% conviction rate in 2016, 16.7% in 2017, and 15.4% in 2018.

The statistics show how fervently sedition has been charged by the government with such a low conviction rate. And in recent years, the government had raised up false seditious charges as much as it got criticism against its laws, policies and governance. There is catena of incidents where sedition has been charged in recent times. In 2020, hundreds of peacefully protesting women against CAA & NRC were charged with sedition. A girl in Bengaluru, on a public stage chanted ‘Pakistan Zindabad’ in the sight of International peace, but was charged with sedition though having a clear ruling of the Apex Court not to charge it merely because of shouting slogans, (such as Khalistan Zindabad’). Many journalists and social activists were booked under this law for reporting the grand Farmers protest. And most recently, a filmmaker was charged with sedition for calling the Lakshadweep Union Territory’s administrator, Praful K Patel, “a ‘bio-weapon’ being used by the Centre on the island’s people” over controversial reforms in Lakshadweep and so on.

Conclusion

It is a universal fact that the main purpose of law is to protect the rights of the people and to maintain peace and harmony in the society. And only because of this reason people entered into social contract that ultimately led to the existing system which we have today. But if a law has such a nature that curtails people’s freedom and suppresses their voices then such draconian law should be scrapped. It should have no place in a democratic country where people have guaranteed freedom of expression. They have fundamental right to raise their voice when they feel necessary but if that voice is curtailed by such laws like sedition, then people can never raise their voices and it is not a good sign for a vibrant and a transparent society.

It is quite unimaginative for a democratic country to have laws which fight against its own citizens by suppressing their voices. If such draconian laws still remain into existence, then what difference does it make for people between colonial period and freedom era? Before independence this law was used by British government to suppress freedom movement and ironically the same draconian law is being misused by the government against its people. Recently the similar question has been asked to the government by Chief Justice of India N.V. Ramana “is it still necessary to continue sedition law, which was used by British to suppress our freedom movement, even after 75 years of independence?”

Therefore, again, after 58 years, SC is showing its concern about the misuse and unaccountability of this harsh law and intends to re-examine it.

About Shamshad Siddiqui

Shamshad Siddiqui is a IVth year student of B.A. LL.B. (Hons.) at the Faculty of Law, Aligarh Muslim University. His areas of interest include Constitutional Law, Criminal Law and Human Rights.

Disclaimer

The views expressed in this article are the author's own.

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