Sedition laws in India
Why are in the news
On May 11, 2022 in a historic judgment, the Supreme Court directed the Centre and states to keep in abeyance all pending trials, appeals, and proceedings to the charge framed under Section 124A of the Indian Penal Code (IPC), which deals with the offence of sedition, till the central government completes the promised exercise to reconsider and re-examine the provision.
This interim order was given by a three-judge bench comprising Chief Justice of India (CJI) N.V. Ramana, Justice Hima Kohli, and Justice Surya Kant. This order came in the petition filed by the Editors Guild of India and Major General (Retired) S.G. Vombatkere.
Background of the case
Þ The Supreme Court has agreed to hear a fresh challenge against the provision after a batch of petitions were filed by journalists, Kishore Chandra Wangkhemcha, Kanhaiya Lal Shukla; and Trinamool Congress MP Mahua Moitra, among others. This would involve a seven-judge bench considering whether the Kedar Nath ruling was correctly decided.
Þ The Apex court had first issued a notice to the Centre in July, 2021. Later, on April 27, 2022 the court fixed May 5, 2022 to the final hearing of the petition. But, on May 2, 2022 the Central Government sought one more day to file a reply stating its draft reply was ready but was awaiting approval from a “competent authority”.
Þ In the first two hearings, the central government tried to defend the law. But on the third one, on May 11, it told the apex court that it was reviewing it.
Þ The next hearing will take place in July now, while one of three judges listening to the case, CJI N.V. Ramanna, retires in August.
Central Government’s earlier view in this case
Þ In 1962, the Constitution Bench judgment of the Supreme Court upheld the validity of the sedition law. Constitutional Bench verdict “must be treated as a binding precedent” that has withstood the test of time. The verdict limited its applicability to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”. The Kedar Nath verdict is “good law” and needs no reconsideration.
Þ Instances of abuse of Section 124A did not justify reconsideration of a binding judgment upholding the sedition law. “The remedy would lie in preventing such abuse on a case-to-case basis rather than doubting a long-standing settled law declared by a constitution bench since about six decades,” the Centre contended.
Þ The government said the judgment settled the question of law and applicability of Section 124A and needed no further reference to a larger Bench now.
Þ Advocate for Petitioners (Mr. Kapil Sibal) had said the Kedar Nath judgment had only covered how sedition affected free speech and expression enshrined in Article 19(1) (a) and did not touch upon how the provision would snuff out the right to life (Article 21) and right to equal treatment (Article 14). But the government countered that a Constitution Bench considers a law, and in this case Section 124A, from all perspectives, including its impact on Articles 14, 19 and 21.
However, on May 11 the central government took U-tern to its previous view and agreed to review the law.
Sedition laws in India
Sedition laws can be found in the following laws altogether:
- Þ The Indian Penal Code, (IPC) 1860 (Section 124A),
- Þ The Code of Criminal Procedure, 1973 (Section 95),
- Þ The Seditious Meetings Act, 1911 and,
- Þ The Unlawful Activities (Prevention) Act (Section 2 (0) (iii)).
Section 124 of the IPC is basic sedition law. This section criminalises sedition.
Section 124A, IPC defines sedition as under:
“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.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
Merriam-Webster defines sedition as “incitement of resistance to or insurrection against lawful authority”.
In simple words, anyone who attempts to create hatred, contempt, or disaffection towards the government can be punished under the sedition law. Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.
Punishment under sedition law
As per section 124A, sedition is a non-bailable offence, punishable with imprisonment from three years up to life, along with a fine. The person charged under this law is also barred from a government job and their passport is seized by the government.
Difference between treason and sedition
The first one is an act done against the state while the latter is against the government of the day. Supporter of free speech says that criticising the government should not wepeonalised.
Attempt to change the law in past
In 2011, CPI MP D. Raja introduced a private member Bill in Rajya Sabha proposing that section 124A IPC should be omitted, but failed to pass. In 2015, Congress MP Shashi Tharoor introduced a private member Bill in Lok Sabha to amend section 124A of IPC to term only those actions/words that directly result in the use of violence or incitement to violence as ‘seditious’.
Supreme Court’s view on this law in previous cases
Þ Though in the Kedar Nath case, 1962 the Supreme Court upheld the constitutionality of section 124A of IPC. However, the court observed that the sedition law was supposed to be applied in rare instances where the security and sovereignty of the country were threatened, this has little bearing on applications of sedition charges by state authorities particularly the police.
Þ Following the Kedar Nath verdict, “public disorder” has been considered a necessary ingredient for the commission of sedition. The court has held that mere sloganeering unaccompanied by any threat to public order would not qualify as sedition.
Þ This ruling in Balwant Singh v. State of Punjab (1995), reiterated that the real intent of the speech must be taken into account before labelling it seditious. The petitioners were accused of sedition for raising slogans of “Khalistan Zindabad, Raj Karega Khalsa, Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Kar” (Hindus will leave Punjab and we will rule) etc. in a public space.
Þ In subsequent rulings — Dr. Vinayak Sen v. State of Chhattisgarh (2011), —the court also held that a person can be convicted for sedition even if he is not the author of the seditious speech but has merely circulated it.
Þ In 2016, in Arun Jaitley v State of Uttar Pradesh, the Allahabad High Court held that criticism of the judiciary or a court ruling — former Union minister Arun Jaitley in a blog post had criticised the Supreme Court’s 2016 ruling declaring the National Judicial Appointments Commission unconstitutional — would not amount to sedition.
Þ In 2021, in Vinod Dua v Union of India, the Supreme Court quashed FIRs with charges of sedition against the journalist for criticising Prime Minister Narendra Modi’s handling of the Covid-19 crisis and cautioned against unlawful application of the provision.
Law Commission’s opinion of this law
Þ In an earlier report in 1968, the Law Commission had rejected the idea of repealing the section.
Þ Later in 1971, the panel wanted the scope of the section to be expanded.
Þ It called for covering the Constitution, the legislature and the Judiciary under the ambit of the law, in addition to only ‘government’. Because disaffection against all these institutions should not be tolerated.
Þ The only dilution the commission wanted was to modify the wide gap between the two jail terms prescribed (either 3 years or of life). It called for fixing the maximum sanction at 7 years’ rigorous imprisonment with a fine.
Þ In August 2018, the Law Commission of India published a consultation paper suggesting that it is time to re-think or repeal Section 124A of the Indian Penal Code that deals with sedition. However, the Report was not recommended to scrap section 124A. Instead, it opined that 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.
Number of cases under section 124A, IPC
As per the 2020 National Crime Records Bureau (NCRB) report, in 2018, 70 sedition cases were filed; however, not a single person was convicted. Similarly, in 2019, 93 cases were filed, while only two were convicted. Similarly in 2020, 73 cases were filed and no one was convicted of sedition.
Manipur filed the highest number of sedition cases (15) in 2020, followed by Assam (12), Karnataka (9), Uttar Pradesh (7), Haryana (6) and Delhi (5).
During 2010-2020, 168 cases were filed by Bihar police, followed by Tamil Nadu (139), Uttar Pradesh (115), and Jharkhand (62), Karnataka (50), and Odisha (30).
There are 800 cases of sedition currently being heard in India and 13,000 people are in jail because of it.
Some recent controversial seditious cases, which grab wide attention
Þ Around 10 years ago Maharashtra police arrested 24 years old cartoonist Aseem Trivedi. He had tried to highlight corruption through his cartoons. The sedition case went on for several years being struck down by the Bombay High Court in 2015. The case was gone, but the stigma stayed. So Trivedi quit the profession forever.
Þ In 2016, a group of students from Jawaharlal Nehru University (JNU) held a poetry session to mark the third anniversary of the hanging of the 2001 Parliament attack case convict Afzal Guru. The Delhi Police later charged the students with sedition.
Þ A 21-year-old Bengaluru-based environment activist, Disha Ravi, was arrested by the Delhi Police on February 14, 2021, for allegedly sharing a ‘toolkit’ for a global online campaign supporting the farmers’ protest.
Þ Six prominent journalists including Rajdeep Sardesai, Mrinal Pande, and Shashi Tharoor, a member of Parliament, were booked for “posting tweets and purposefully circulating fake news” during the farmers’ protests in Delhi in 2021.
Þ Against activists Umar Khalid, Sharjeel Imam, Devangana Kalita, Natasha Narwal, Asif Iqbal Tanha, Gulfisha Khatoon, Ishrat Jahan, Safoora Zargar and Meeran Haider, for alleged inflammatory remarks at anti-CAA meetings and ‘premeditated conspiracy’ to create riots in Delhi in February 2020. Approximately two-dozen sedition cases were filed on key figures of the Citizenship Amendment Act (CAA) protests.
Þ Against journalist Siddique Kapan, for proceeding towards Hathras, where a 19-year-old Dalit woman was gang-raped and alleged links with Popular Front of India (PFI). A total of 22 cases were filed related to the coverage of the Hathras gang-rape incident.
Þ Activists Sudha Bharadwaj, Vernon Gonsalves, Varavara Rao, Hany Babu, Anand Teltumbde, Shoma Sen, Gautam Navlakha, Surendra Gadling, late Father Stan Swamy, Arun Ferreira, Rona Wilson, Mahesh Raut and Sudhir Dhawale, for speeches at an Elgaar Parishad meeting ahead of the violence in Bhima Koregaon on the occasion of the bicentennial anniversary of the 1818 battle.
Þ 27 cases were filed related to the Pulwama incident.
Þ Three Kashmiri students were charged in Agra for allegedly sharing celebratory messages on social media after Pakistan’s victory over India in a T-20 match.
Arguments in favour of the law
Þ Maintaining Unity & Integrity: Sedition law helps the government in combating anti-national, secessionist and terrorist elements. The law keeps a check on anti-national, secessionist and terrorist elements that can hamper the public order and incite violence and induce enmity. It would be very dangerous to abolish the section due to the insurgency by Maoists and other rebel groups. These groups openly advocate the overthrow of the state government through armed revolution.
Þ Maintaining Stability of State: It helps in protecting 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. It helps in the stability of the elected government which could otherwise be attempted to be thrown out using illegal and violent means. It is an alignment with contempt of court. The elected Government is an important part of the executive. Hence, contempt for the government can be checked.
Þ To check misuse of free speech: The primary reason behind the continuation of the Sedition Act after independence was to prevent the misuse of free speech (reasonable restriction) that would be aimed at inciting hatred and violence. These restrictions are also included in section fundamental right under Article 19 of the Constitution.
Arguments against this law
Þ Colonial-era legacy: The law of sedition was enacted by the British government to deal with any harsh criticisms of the colonial government and prevent any offences against the colonial state. The sedition law that is curbing the free speech and fundamental rights in post-independence India was extensively used against the freedom fighters.
Þ Against the Constituent Assembly’s opinion: After India achieved freedom in 1947, the Constituent Assembly spent a considerable amount of time debating the relevance of the sedition law. After a rousing debate, the Constituent Assembly decided to omit the term sedition (while retaining Section 124-A of IPC) from the constitution. However, the controversial law was brought into force in the very controversial First Amendment and widened later on.
Þ Misuse of the law: experience shows that all governments (centre or state) generally misused this law suppressing dissent opinion to them. Seditious acts range from simply showing placards to raising anti-government slogans and personal communications on social media.
Þ The steep rise of such cases: As per the data compiled by the National Crime Records Bureau (NCRB), cases under section 124-A have witnessed a steep rise in recent years. For instance, 65 per cent of nearly 11,000 individuals in 816 sedition cases since 2010 were implicated after 2014. Nearly 163 per cent jump in cases between 2014 to 2020, while the conviction rate is as low as 3.3 per cent. As per the NCRB data, the number of cases filed under section 124A of the IPC increased by 160 per cent between 2016 and 2019, while the conviction rate fell from 33.3 per cent to 3.3 per cent during the same period. This shows that the State has been abusing this provision by filing frivolous or unsubstantiated lawsuits.
Þ Antithetical to democracy: Free speech is an inextricable part of democracy, and any legislation that restricts free speech beyond what is acceptable goes against the democratic principle.
Þ Example from other countries: Most former British-ruled territories including the United States, Australia, and New Zealand have abolished the seditious provisions. Even the British government scrapped the seditious provisions under the Coroners and Justice Act in 2010.
Þ Against the judicial views: Several recent judgments by the Supreme Court and several high courts have vividly brought these aspects of misuse out to the public, albeit with little or no deterring effects on police and other state institutions.
Þ Suppress constructive criticism: It has an ill effect on constructive criticism. As noted by the Supreme Court, views that are different from the governments don’t mean seditious. Therefore, sedition laws can demotivate legal and lawful criticism.
Þ No need for section 124A to maintain public order: To penalize the offender for disrupting public order, the IPC and Unlawful Activities Prevention Act 2019 have provisions that can take care of the punishments.
Þ Against the international law: India’s ratification of the International Covenant on Civil and Political Rights (ICCPR) in 1979 should be seen as a right step towards acknowledging freedom of expression. Misuse of sedition law under Section 124A and the arbitrary imposing of charges are inconsistent with the ICCPR.
Þ Overbroad definition: definition of “sedition” under section 124A is too broad. This may include any criticism of the government as sedition. Therefore, forwarding messages on social media, shouting the slogan, stand-up comedy, cartoons exposing corruption etc. can be charged as seditious acts.
Creation and amendments in section 124A
Þ 1870– Sedition was included as an offence under section 124A of IPC through the Special Act XVII by the British government. But it was Thomas Babington Macaulay who had introduced the law while drafting the penal codes in 1837. Colonial government in the 1870s felt the need for a specific law under IPC to deal with increasing Wahabi movement activities between 1863 and 1870. Its purpose was to stop Indian colonial subjects from expressing dissent against Britain’s rule. Prominent freedom fighters, like Mahatma Gandhi, Lokmanya Tilak, Jogendra Chandra Bose etc. were tried under this law for their comments on the British rule.
Þ However, independent India did not add it to the original IPC. The original constitution that was adopted in 1950 did not recognise the sedition law and gave the right to free speech complete protection under fundamental rights. But the first amendment brought in 1951 introduced restrictions that validated the sedition law. Nehru government re-imposing this law strengthened the colonial law by adding two expressions– “friendly relations with a foreign state” and “public order”– as grounds for imposing “reasonable restrictions” on free speech under Article 19 (2).
Þ It was under the Indira Gandhi’s administration in 1973 that section 124-A became a cognizable offence under a new Code of Criminal Procedure. This empowered the police to arrest persons without issuing a warrant.
January 1962– in the Kedar Nath case, SC upholds the validity of the law but says that unless accompanied by a call for violence, the criticism of the govt. cannot be construed as sedition.
July 15, 2021– CJI N.V. Ramanna-led bench issues notice to Centre on pleas challenging the validity of the provision.
April 27, 2022– SC issues notice to Centre on other pleas, grants time to Solicitor General to file a response.
May 5, 2022- SC says it would hear arguments on May 10 on legal questions if pleas challenging sedition law to be referred to a larger bench.
May 7, 2022- Solicitor General (SG) defends sedition law and the 1962 verdict of a constitution bench upholding its validity.
May 9, 2022– central government reiterated its view in an affidavit filed in Court and urges Court not to invest time in examining the validity of sedition law.
May 10, 2022– Solicitor General (SG) defends sedition law and the 1962 verdict of a constitution bench upholding its validity.
May 11, 2022– government agree to review section 124A and Supreme Court stays this section in its interim order.
Flaws are section 124A
1. This section is poorly defined. The terms “bring into hatred or contempt” or “attempt to excite disaffection” can be interpreted in many ways and this empowers the police and government to harass innocent citizens who are across the fence from them.
2. This section is very wide in its applicability. In the word of Justice Chandrachud, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.”
3. What is more concerning is that once arrested under the sedition law, it is extremely difficult to get bails as the trial process can be stretched for a long. This leads to harassment of innocent people and induces a fear in others to speak against the government.
Importance of verdict
The court’s intervention is crucial because in case it strikes down the provision, it will have to overrule the Kedar Nath ruling and uphold the earlier rulings that were liberal on free speech. However, if the government decides to review the law, either by diluting the language or repealing it, it could still bring back the provision in a different form.
Conclusion
Þ Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements. However, dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition.
Þ The higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech.
Þ The definition of sedition should be narrowed down, to include only the issues of the territorial integrity of India as well as the sovereignty of the country.
Þ Civil society must take the lead to raise awareness about the arbitrary use of Sedition law.
