Abstract: The article analyses the validity of provisions related to sedition in India (Section 124A of IPC), in the light of the constitution of India.

Section 124A of the IPC infringes the Fundamental Right of speech and expression enshrined under article 19(1)(a) of the Constitution of India which guarantees that “all citizens shall have the right to freedom of speech and expression”.

“Sedition is the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen” -MAHATMA GANDHI

The Provision reads as follows-

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.[1]

LEGAL FLAWS AND SPURIOUS INTERPRETATIONS

Sedition law is poorly defined. From a simple reading of the provision, it can be seen that there is no exact meaning of the term ‘attempt to excite disaffection. It can be comprehended in many ways. Also, the other elements of the offenses are unclear as they fail to give clear instructions regarding what kind of behavior is prohibited and are subject to different interpretations by the people, law enforcement officials as well as the Courts.

The Supreme Court has further held in Shreya Singhal v. Union of India (2015), that: “Where no reasonable standards are laid down to define guilt in a Section which creates an offense, and where no clear guidance is given to either law-abiding citizens or to authorities and courts, a Section which creates an offense, and which is vague must be struck down as being arbitrary and unreasonable”.[2]

SEDITION LAW USED TO CURB POLITICAL DISSENT

Sedition has been used many times to stem any sort of political dissent in the country and any alternate political philosophy which goes against the ruling party’s mindset.[3] Gross misuse of this provision attacks the very foundation of freedom of speech and expression enshrined in the Indian constitution. The law should not be used in a manner that has chilling effects on the `freedom of speech and expression’.[4]

The expression of a view that is dissent from a decision taken by the Central Government itself cannot be said to be seditious[5] Citizens are conscience keepers of government in any democratic nation and cannot be put behind the bars simply because they choose to disagree with the State policies.[6] In the present times, it is required to ensure that people are not living in a constant terror to encounter dreadful outcomes for speaking out their thoughts which may be inconsistent with the popular belief.

The offense of sedition cannot be invoked to minister to the wounded vanity of the governments[7]

COLONIAL RELIC AND UNSUITABLE FOR PRESENT TIMES

The British Government used this law to oppress the view, speech, and criticism against the British rule. But the law is still being used in independent India, despite having specialized laws to deal with the internal and external threats to destabilize the nation.[8]

As per accepted constitutional principles, in considering the reasonableness of laws imposing restrictions on a fundamental rights, a court should consider various factors, these are: the nature of the right alleged to have been infringed; the purpose of the restrictions imposed; the extent and urgency of the evil sought to be remedied thereby; the disproportion of the imposition; and the prevailing conditions at the time [9]

In the unforgettable words of Charles Bradlaugh: ―Better a thousand-fold abuse of free speech than denial of free speech. The abuse dies in a day, but the denial slays the life of the people and entombs the hopes of the race.[10]

CRITICISM NOT AMOUNTING TO SEDITION

Supreme court has been categorical in expressing that every criticism does not amount to sedition and the real intent of the speech must be considered before imputing seditious intent to an act[11], the intention with which the language of the seditious statement is made has to be looked at holistically and fairly without focusing on isolated passages.[12]

The court distinguished between strong criticism and disloyalty observing: Disloyalty to the 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 feeling of enmity or disloyalty which imply excitement to public disorder or the use of violence.[13]

Difference of opinion, disagreement, divergence, dissent, and even disapprobation, is recognized as legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry is indisputably a sign of a healthy and vibrant democracy.[14]

FREE FLOW OF OPINIONS AND IDEAS ESSENTIAL

Freedom of expression is the “cornerstone of democracy”[15].  change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government[16].

Even though the constitutional freedom of speech and expression is not absolute, we must lay stress on the need to tolerate unpopular views in the socio-cultural space This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry.[17]While determining the impact of the words uttered, the standards of reasonable, strong-minded, firm, and courageous men are to be applied and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.[18]

CONCLUSION

The essence of democracy is criticism of the Government [19], those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind[20]

Also, it has been held in the case Javed Habib vs State (NCT of Delhi) that while considering an offense under Section 124A, the court has to look to the real intention and spirit. It has to see whether the general tendency of the article is such that the article is intended to excite the feelings of a section of the society or the article was severe criticism of the acts of the government.

Holding an opinion against the Prime Minister or his actions or criticism of the actions of the government cannot be considered as sedition under Section 124A of the IPC. The criticism of the government is the hallmark of democracy. The democratic system which necessarily involves the advocacy of the replacement of one government by another gives the right to the people to criticize the government.[21]

Section 124A clearly indicates 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 be penal. The prosecution of a person for the offenses punishable under Sections 124A of the IPC would be unjust. Any prosecution in respect thereof would be violative of the rights of the petitioner guaranteed under Article 19(1)(a).

[1] The Indian Penal Code, 1860 (Act 45 of 1860).

[2] Shreya Singhal v. Union of India, (2015) 5 SCC 1 

[3] law commission of India, Consultation Paper on “SEDITION” (30 August 2018)

[4] S. Khushboo v. Kanniammal (2010) 5 SCC 600 

[5] Rajat Sharma v. Union of India, (2021) 5 SCC 585 

[6] State v. Disha A. Ravi, Bail Application No. 420/2021, FIR No. 49/2021

[7] Niharendu Dutt Mazumdar v. King Emperor, (1942) SCC Online FC 5                                     

[8] Supra note 3

[9] State of Madras v. V. G. Row, (1952) SCR 597 

[10] David duke, Freedom of Speech and My Book Jewish Supremacism (12 November 2004) <http://davidduke.com/freedom-of-speech>

[11] Supra note 3

[12] Pankaj Butalia v. Central Board of Film Certification, 2015 SCC Online Del 9694                              

[13] Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769

[15] UNESCO (Freedom of expression: A fundamental human right underpinning all civil liberties) < https://en.unesco.org/70years/freedom_of_expression> accessed 4 February 2022

[16] Indirect Tax Practitioners Assn v. R.K. Jain (2010) 8 SCC 281

[17] Supra note4

[18] Ramesh v. Union of India AIR 1988 SC 775

[19] Javed Habib vs State (NCT of Delhi), (2007) SCC Online Del 891             

[20] R. Rajagopal v. State of T.N. (1994) 6 SCC 632

[21] Ibid 19


About the Author: This post is prepared by Barkha Tandon, Law Student at Vivekananda Institute of Professional Studies. She can be reached at barkhatandon09@gmail.com 

 

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