Freedom of speech and expression is one of the most important fundamental rights of a democracy. In India, this right has been enshrined under Article 19(1)(a) of the Constitution of India. Free speech allows an individual to express his or her aspirations, ideas and opinions and plays an instrumental role in achieving self-fulfillment. However, the term ‘free’ is not absolute and reasonable restrictions are imposed on all fundamental rights. 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, are the reasonable restrictions imposed by the State to the right to freedom of speech and expression under Article 19(2).
Presently, the law of sedition under Section 124A has created big conflict with the right to freedom of speech and expression in the Constitutional jurisprudence of India. Sedition, as the Indian Penal Code defines, is an attempt to bring hatred or contempt, or disaffection against the Government established by law in India. This can be done by words, signs or any kind of visible representation. Thus, if any person promotes hatred or contempt towards the State is committing sedition. In Romesh Thapper v. State, it was held that the limits set out under Article 19(2) are very narrow and stringent. In Tara Singh v. State, the East Punjab High Court held that section 124-A has no place in a new democratic setup and it curtailed the freedom of speech and expression. By virtue of the Constitution (First Amendment) Act, 1951 two major changes were made to the freedom of speech and expression. First, more grounds were added as restrictions to free speech and secondly, it imposed that restrictions must be reasonable.
The question now arises whether Article 19(2) and Section 124-A are compatible or contradictory to each other. There are three arguments that can be made:
1. Section 124A ultra-vires the Constitution since it infringes article 19(1)(a) and is not saved by the expression ‘in the interest of public order.’
2. Section 124A is not void because the expression ‘in the interest of public order’ has a wider amplitude and is not only confined to ‘violence’. It must undermine the authority of the government by bringing in hatred or contempt or disaffection towards it.
3. In Indramani Singh v. State of Manipur, it was held that Section 124A is partly void and partly valid. Exciting mere disaffection or attempting to cause disaffection is ultra vires, but the restriction under Article 19(2) to excite hatred or contempt against the Government established by law in India, is valid.
The case of Kedar Nath v. State of Bihar lays down the essential ingredients of the modern law of sedition. The apex court while deciding the constitutional validity of Section 124A in light of Article 19(1)(a), said that “incitement of violence” is an essential ingredient to constitute sedition. The apex court also referred to a pre-legislative history of India and opposition surrounding Article 19 in the Constituent Assembly debates. Sedition was not a valid restriction to freedom. However, out of the six grounds listed in Article 19(2), the court was of the view that ‘security of the State’ could be one of the grounds to uphold the constitutional validity of Section 124A. The apex court also observed that “strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means” is not sedition. Further, the court observed that “citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” It was also made mandatory in the case of R.M.D. Chamarbaugwalla v. Union of India, that incitement of violence and disorder must also be there to constitute sedition.
There have been innumerable cases of sedition in India, both during pre-Independence times and post-Independence times. Many of these cases have sparked political controversy and led to protest marches against the detention of the perpetrators. In recent times, the most controversial sedition case was against Mr Kanhaiya Kumar. It was held that he was raising ‘anti-India’ slogans in a student rally on the campus of Jawaharlal Nehru University, Delhi. He did this in protest towards the execution of Afzal Guru, the man behind the 2001 Indian Parliament attack. Kumar was arrested on March 2, 2016, by the Delhi Police but videos were doctored and he was subsequently released after spending three weeks in jail at the discretion of the Delhi High Court. Another controversial sedition case was of a cartoonist and a political activist, Mr Aseem Trivedi, who was alleged to have displayed ‘insulting and derogatory’ sketches that depicted Parliament as a commode and the National Emblem in a negative light. Shreya Singhal v. Union of India was a monumental case since it struck down Section 66A of the IT Act, which was held contrary to the freedom of speech and expression. This was a landmark case relating to free speech in India. The court also held that the restriction of ‘public order’ under Article 19(2) would only apply to ‘incitement’ and not ‘advocacy.’ In the words of the SC, “The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views.” Thus online speech without any arbitrary restrictions was the main outcome of this case.
The NCRB data tell us that a total of 179 people were arrested for sedition under Section 124A of the IPC during 2014-16. However, by the end of 2016, the charge sheet was not filed for almost 80% of the cases and 90% sedition cases are lying pending in the court. In 2016, a trial was completed for only 3 out of 34 cases, with one conviction and two acquittals. In 2015, none were convicted and 11 were acquitted out of 38 against whom charges were framed. The question now arises as to why is the conviction rate so low. Mostly, it is because of political appeasement. Politicians let off people accused in the violence, largely keeping in mind the vote-bank politics.
In the case of A.K. Gopalan v. State of Madras91, the
Supreme Court observed: man, as a rational being, desires to do many things, but in civil―society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals… Liberty has, therefore to be limited in order to be effectively possessed.
The Supreme Court has in many judgements outlined as to what does not constitute sedition –
In the case of Balwant Singh v. the State of Punjab, it held that raising some lonesome slogans ( Khalistan Zindabad) a couple of times by two individuals did not give rise to hatred or contempt towards the Government established by law in India nor did it give rise to feelings of enmity or hatred among different communities.
Similarly, criticising the government or the Prime Minister does not amount to sedition, as held in Javed Habib v. the State of Delhi.
In the case of Sanskar Marathe v. State of Maharashtra & Ors. The court differentiated between strong criticism and feeling of disloyalty towards India. The court observed –
“… disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”
The Indian Penal Code (Amendment) Bill, 2011 suggested that only those actions/words that directly led to ‘violence’ or ‘incited violence’ could only be labelled as seditious.
The law of sedition is controversial and since it is an offence against the State, higher standards of proof must be applied for conviction. The Law Commission of India has suggested that Section 124-A must be read in consonance with Article 19(2) of the Constitution each case must be scrutinised on the basis of facts and circumstances. The law of sedition is a weapon to identify anyone who raises their voice against India and it must be constantly updated according to the global context. Every freedom comes with restrictions and being disloyal to your own nation and stirring violence in the name of our own country is an act that is seditious in nature.
Advocatekhoj. Law Library: Indian Penal Code, 1860. Retrieved from http://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20Penal%20Code,%201860
Hussain, S. (2016, February 18). Homegrown. 5 Landmark Cases That Changed The Way We Look At India's Sedition Law. Retrieved from https://homegrown.co.in/article/47919/5-landmark-cases-that-changed-the-way-we-look-at-indias-sedition-law
Kuthilya, A. (2017, December 12). SCC Online. Sedition and the Right to Freedom of Speech and Expression. Retrieved from https://www.scconline.com/blog/post/2017/12/12/sedition-right-freedom-speech-expression/
LAW OF SEDITION IN INDIA. ESSAYS OF INDIAN PENAL CODE, 281-291. Retrieved from http://220.127.116.11:8080/jspui/bitstream/123456789/742/20/Law of Sedition in India.pdf
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SEDITION-LAW COMMISSION OF INDIA (2018, August 30). Retrieved from http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
Thapa, S. (2019, January 25). Ipleaders blog. Law of sedition in India - Sec 124A of the Indian Penal Code. Retrieved from https://blog.ipleaders.in/law-of-sedition/
Tiwary, D. (2019, January 18).Indian Express. Sedition case reality check: Only two convictions in three years. Retrieved from https://indianexpress.com/article/india/sedition-case-punishment-convictions-kanhaiya-kumar-jnu-5543891/
Image credits: SCC Online
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