December 2, 2020

Sedition Law in India : A Critical Analysis

INTRODUCTION

A society can be truly free, if human expression in any form is not subverted. expression is an integral part of human development. However, what happens when this free expression is misused? how does the state keep the check whether free expression is not undermining the rights of others? Here the sedition law comes into picture. Through this article the researcher will explain in detail the meaning, history and constitutional validity of sedition law in India. Every citizen is entitled to fundamental rights provided in part III of the constitution. Moreover, these rights have supremacy over other rights. Right to freedom of speech and expression provided under article 19(1)(a) of the Indian constitution is one of the most important fundamental rights. However, it has reasonable restrictions in article 19(2).

The debate over the constitutional validity of section 124 A IPC keep coming up whenever the discourse of fundamental rights comes up. The freedom of speech and expression is the first and foremost human right, the first condition of liberty, mother of all liberties, as it makes the life meaningful. This freedom is termed as an essence of free society.[1] However, this freedom has to be guarded against a weapon of vilification and condemnation of the government[2] therefore, reasonable restrictions can always be imposed on this right in order to ensure its responsible exercise and to ensure that it is equally available to all citizens.[3]

SEDITION LAW IN INDIA

Section 124 A IPC defines sedition as 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.[4]

HISTORY OF SEDITION LAW

To subdue the Anti- British agenda of Indian press, the British law makers introduced sedition law.[5] It was originally drafted by Thomas Macaulay in 1837, but was omitted when IPC was enacted in 1860. However, section 124 A was inserted in IPC in 1870 by an amendment introduced by Sir James Stephen.[6] Consequently, sedition was included as an offence under section 124A IPC through special ActXVII of 1870.[7]The law of sedition also found place in Press (Emergency Powers) Act, 1931 and Defence of India Rules, all of which stands repealed now.[8] Some famous sedition trials in 19th and 20th century involved Indian nationalist leaders. The first trial was of jogendra Chandra bose 1891 who was the editor of newspaper, Bangobasi. Further, trial of bal gangadhar tilak in 1909 and mahatma Gandhi in 1922 are two important cases in history so far. Gandhi was charged along with shankerlal banker, proprietor of young india for three articles published in the weekly.[9]

CONSTITUTIONAL VALIDITY OF SEDITION LAW

The debate regarding the constitutionality of sedition law in India i.e, section 124 IPC 1860 revolves around it’s contravention with article 19(1) when argued against and in accordance with article 19(2) when argues in favor. The basic requisite of validity of law with reference to Article 19 is that it should not be arbitrary and the restrictions or limitations imposed on the rights under Article 19(1)(a) must comply with the reasonable restrictions mentioned in Article 19(2).[10] Let’s see both the aspects in detail.

Violative of fundamental right to freedom of speech and expression

Free speech is one of the most significant principles of democracy. All members of society should be able to form their own beliefs and communicate them freely to others.[11] The purpose of this freedom is to allow an individual to attain self fulfilment, assist in discovery of truth, strengthen the capacity of a person to take decisions and facilitate a balance between stability and social change.[12] The sedition law by subverting these functions violates it. The Supreme Court in S khushboo v. kanniamal and ANR opined that free flow of the ideas in a society makes its citizen well informed, which in turn results into the good governance. For the same, it is necessary that people be not in a constant fear to face the dire consequences for voicing out their ideas.[13] Sedition law creates the fear of facing criminal prosecution in the minds of the people restricts them from completely exercising their freedom, hampering the discovery of truth which is the primary function of free speech[14] thereby defeating the purpose of freedom of speech. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change, which has come about.[15] It contravenes with article 19(1)(a) and is therefore unconstitutional.[16]

Not violative of right to freedom of speech and expression

Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression to all citizens.[17] However, this freedom is subjected to certain restrictions provided under article 19(2) namely, 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.[18] Section 124A being in accordance with the restriction of sovereignty of state and public order is not violative of article 19(1)(a) which was also affirmed in the case of Sanskar Marathe v. state of Maharashtra and Anr, the court held that the actions which does not excite the feelings of enmity and disloyalty which imply excitement to public disorder and use of violence are not penal.[19] Hence, covering actions that have a tendency to disrupt public order which is one of the reasonable restrictions under 19(2).[20] Public disorder, or the reasonable anticipation, or likelihood of public disorder, is thus the gist of the offence.[21] Further, in Indra Das v. State of Assam, the Supreme Court clearly made the case that only such speech that can be considered “incitement to imminent lawless action” can be criminalized.[22]

Moreover, Supreme Court upheld the validity of section 124A in kedar nath singh v. state of Bihar where the court held that the very existence of the State will be in jeopardy if the Government established by law is subverted.[23]

Conclusion

In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing the same, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the Government Expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious. Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means.

[1] Consultation paper on sedition, Law commission of india, 30/08/18, file:///C:/Users/LG/Downloads/CP-on-Sedition.pdf.

[2] Kedar nath singh V. state of bihar AIR 1962 SC 955.

[3] William T. Mayton, ―Seditious Libel and the Lost Guarantee of a Freedom of Speech‖ 84 Colum.

L. Rev. 91 (1984).

[4] Indian penal code 1860, §124A.

[5] Seven Bishops case, 1688, 12 St T 183.

[6] Use and misuse of sedition law: section 124 A of IPC, India today (27/03/20: 7:45 pm), https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09.

[7] Dr. Hari Singh Gour, Penal Law of India, vol. 2, 11th edn., Law Publishers (India) Pvt. Ltd., Allahabad, 2011.

[8] Akshay Anurag and Dibya Prakash Behera, Section 124-A IPC — Where to draw the line,SCC Online(27/03/20 : 7:36 pm), https://www.scconline.com/blog/post/2017/10/03/section-124-a-ipc-where-to-draw-the-line/.

[9] Use and misuse of sedition law: section 124 A of IPC, India today (27/03/20: 7:45 pm), https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09.

[10] Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224; Chintaman Rao v. State of M.P., 1950 SCR 759.

[11] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294, Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : AIR 1986 SC 515.

[12] Indian express newspaper (Bombay)(P) Ltd. v. Union of India, AIR 1986 SC 515.

[13] S khushboo V. kanniamal and ANR air 2010 SC 3196.

[14] Tata press ltd v. mahanagar telephone nigam ltd and ors, AIR 1995 SC 2348.

[15] Tara Singh v. State, 1950 SCC OnLine P&H 113 : 1951 Cri LJ 449, 451.

[16] Tara singh gopi v. the state AIR 1950 SC 134.

[17] Constitution of India, part III, article 19(1)(a).

[18] Constitution of india, part III, article 19(2).

[19] Sanskar mararthe v. state of Maharashtra and anr, 2015, cri LJ 3561.

[20] Shreya singhal v. uni AIR 2015 SC 1523.

[21] Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : AIR 1942 FC 22.

[22] (2011) 3 SCC 380.

[23] Kedar nath singh v. tha state of bihar AIR 1962 SC 955.

Author Details: Anushka Awasthi (Maharashtra National Law University, Nagpur)

The views of the author are personal only. (if any)

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