The history of sedition laws in
India can be traced with the clause 113 of the Draft Indian Penal Code (‘Draft
Penal Code'), drafted by Thomas Babington Macaulay in 1837, was the first
legislation in colonial India to address the crime of sedition. However, after
a 20-year period, the Indian Penal Code (‘IPC') was enforced in 1860, the
sedition section was mysteriously absent. The law of sedition was used to
suppress opposition during the Indian independence struggle from British rule,
and it was used against great nationalists like Annie Besant, Bal Gangadhar
Tilak, and Mahatma Gandhi. With such excesses in mind, Article 13 of the Draft
Constitution was created to protect freedom of speech and expression. This
amendment guaranteed this right in its original form, subject to limitations
enacted by federal law to protect native tribes and the poor, as well as to
maintain public protection and peace.
Historical References
The first recorded state trial for
sedition is that of Queen Empress v. Jogendra Chunder Bose (‘Jogendra Bose’).
The Court, in its much-debated judgment, laid down the distinction between
‘disaffection’ and ‘disapprobation.’ The use of spoken or written words to
establish a tendency in the minds of those to whom the words were addressed,
either not to follow or defy the government's lawful authority, was described
as disaffection. Queen Empress v. Jogendra Chunder Bose (‘Jogendra Bose'[1])
is the first known state trial for sedition.[2]
The Court described the terms "disaffection" and
"disapprobation" in its widely argued decision. Queen Empress v. Bal
Gangadhar Tilak was another important case that had a clear impact on the 1898
amendment.
“It is sufficient for the purposes
of the section that the words used are calculated to excite feelings of
ill-will against the Government, and to hold it up to the hatred and contempt
of the people, and that they were used with an intention to create such feeling.”[3]
The Infamous Trial of Balgangadhar Tilak
Bal Gangadhar Tilak was accused of
sedition for the first time when the magazine Kesari released extensive
accounts of the events at the Shivaji Coronation Festival, where many patriotic
lectures and speeches were given. In 1897, he faced Justice Strachey and a jury
in his first courtroom. The second trial for sedition took place in 1908 in
front of Justice D.D. Davar, his first trial's lawyers, and a jury of seven
Europeans and two Indians, all Parsis, who found him guilty. Tilak was
sentenced to six years in prison by Justice Davar.
Bal Gangadhar Tilak submitted this criminal revision in 1916, requesting that the court review the order of the District Magistrate of Poona rendered under Section 108 of the Criminal Procedure Code and other provisions of the Cr PC and IPC. Bal Gangadhar Tilak, who was ordered by the District Magistrate of Poona and was bound by section 108, has filed an appeal which was for delivery of lectures in Ahmednagar and Belgaum. These speeches were punished under the above-mentioned provision because they contained sections that were punishable under section 124A of the Indian Penal Code if published in writing or orally. The first lecture was held in Belgaum on May 1, 1916. The word ‘Swarajya' and its explanation were included in the speech. The role of morality and faith were mentioned in this address, but Swarajya was the focus. On June 1, 1916, in the same city, the third lecture took place. He went on to explain that the concept of Swarajya encompasses not only equality but also influence, female education, and food, among other things. It is worth noting that he included justifications for why the speeches were generic and not directed at the government.[4]
Primarily under section 108 of
Criminal Procedure code and Section 124 (A) of the Indian procedure code Tilak’s
trial was carried out. Section 108 mentions of
security for good behavior from persons disseminating seditious matters. When an Executive Magistrate receives
information that there is within his local jurisdiction any person who, within
or without such jurisdiction, either orally or in writing or in any other
manner, intentionally disseminates or attempts to disseminate or abets the
dissemination of, — (a) any matter the publication of which is punishable under
section 124A or section 153A or section 153B or section 295A of the Indian
Penal Code (45 of 1860),[5] or
(b) any matter concerning a Judge acting or purporting to act in the discharge
of his official duties which amounts to criminal intimidation or defamation
under the Indian Penal Code (45 of 1860).’[6]
Section 124 states that any person
who, by speech, whether spoken or written, signs, or visual representation, or
otherwise, incites or attempts to incite hate or contempt for the government
created by law in India." Sedition is a crime that cannot be punished by a
fine. The penalty under Section 124A will range from a three-year jail sentence
to a life sentence, with a fine imposed on top.[7]
Justice James Strachey's Remark
The trial's judge, James Strachey, expanded the reach of section 124A in the proceedings by equating "disaffection" with "disloyalty". He understood "feelings of disaffection" to include hate, enmity, disdain, anger, contempt, and every other kind of animosity toward the government. Tilak was charged with sedition as a result. Justice James Strachey further explained that disaffection can be sparked in a thousand different ways,” Strachey had warned. A poem, an allegory, a drama, a political or historical debate, or even overt attacks on the government may all be used to incite discontent. You must see beyond the structure and into the actual object: you must decide whether the form of a poem or a debate is authentic. or whether it has been adopted merely to disguise the real seditious intention of the writer.”[8]
Arguments by Defence Counsel Lead by M.A Jinah
The defense counsel lead by M.A Jinnah pinpointed that (Tilak) can be charged with inciting hate against the government's policies and laws, as well as the different conditions put on the citizens, but he cannot be charged with being agnostic towards the monarchy. There is no evidence that the speaker is inducing proposals to overthrow the government in an unlawful manner. He has clearly emphasized and praised the crown's service for the citizens of the world by its leadership. Furthermore, the court believes that it is the responsibility of a conscientious citizen of the country to inform the government of any minor voids that it has left unfilled. The defense counsel further laid down that Tilak may have claimed ‘SWARAJYA,' but it is clear from his words that he was more concerned with nativity, prosperity, and rights than with fighting the king of a specific area or leading a revolt against him.[9] Also, they (defense) cited the Sital Prasad v Emperor where it was determined that the pamphlets circulated had no overt material that could incite people against one another but aimed to foster a sense of camaraderie between the Hindu and Muslim communities, and therefore no sedition charges could be brought against their distributors. Also, speeches went harsher when got converted from Marathi to English. Therefore, they were not meant to initiate coup.
The High Court, in complete
accordance with the precedents cited above, issued a bold and definitive
judgement on all the questions. Even considering the well-known case of Reg v
Burns, in which the judge handled the case "with a free and liberal
spirit" rather than "through narrow eyes of disapproval." Tilak
was attempting to persuade people to support the Home Rule Movement, but not in
an illegal or rebellious way. As a result, Tilak cannot be charged under
Section 108 of the Criminal Procedure Code and Section 124 of the Indian Penal
Code. As a result, the court ordered that all the applicant's former complaints
be dismissed. Finally in the third and final trial for sedition in 1916, M.A.
Jinnah successfully defended him.
He had been ordered to post a bond
of Rs.20,000 "for good conduct" for "disseminating seditious
matter." Justices Batchelor and Shah reversed the order.[10]
Conclusion
Now after this the validity and constitutionality of section 124 A remains a debate till date. The IPC's Section 124A is used to fight anti-national, secessionist, and extremist elements. It safeguards the elected government from efforts to overthrow it by intimidation or unlawful means. The presence of a legally constituted government is a prerequisite for the state's stability. A Maoist insurgency has erupted in several districts in many states, and rebel groups are effectively running a parallel government. These organizations openly call for anarchy to replace the state government. Considering this, repealing Section 124A will be ill-advised simply because it has been incorrectly invoked in a few high-profile situations.
Contrary to this opinion, Section 124A is an imperial remnant that has no place in a democracy. It restricts the lawful exercise of constitutionally protected freedoms of speech and expression. In a healthy democracy, dissent and critique of the government are necessary ingredients for a lively democratic discourse. They should not be designed to incite dissent. The British, who first used sedition to suppress Indians, have now repealed the statute in their own land. There is no explanation why India should keep this part. The words used in Section 124A, such as "disaffection," are ambiguous and open to varying interpretations depending on the investigating officers' whims and desires. These are the vantage points which one can consider while an act of discontent over the state of affairs cannot be considered as sedition," the Law Commission correctly said. There will be no distinction between the pre- and post-Independence periods if the country is not open to constructive critique. Protecting national reputation is, of course, critical. Section 124A is impossible to be repealed too soon, given the legal opinion and the government's support for it. The clause cannot, however, be used to stifle free expression.
Table of Cases
- Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.
- Queen-Empress vs Jogendra Chunder Bose and Ors (1892) ILR 19 Cal 35[i]
Bibliography
- Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle in Nationalism And Social Reform In A Colonial Situation 54 (2005)
- Ganachari, supra note 10, 60; See also Siddharth Narrain, “Disaffection” and the Law: The Chilling Effect of Sedition Laws in India, XLVI (8) EPW 34 (2011)
- Constitutional Assembly Debates, December 7, 1948, speech by Damodar Swarup Seth 17 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf) under constituent assembly.
- Nivedita Saksena & Siddhartha Srivastava, ‘AN ANALYSIS OF THE MODERN OFFENCE OF SEDITION’ (Nivedita Saksena & Siddhartha Srivastava, 2014) http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-2F6909F3CF11.pdfaccessed 27 April
[1] Queen-Empress
vs Jogendra Chunder Bose and Ors (1892)
ILR 19 Cal 35
[2] Ibid
[3] CA Deb 7 December 1948
[4] Emperor v. Bal
Gangadhar Tilak (1917) 19 BOMLR 211
[5] The Code Of
Criminal Procedure, 1973(S) 108 (1) (a)
[6] The code of criminal procedure, 1973(S) 108 (1) (b)
[7] Indian Penal Code, 1860 (S) 124 (1) (A)
[8] Emperor (n 4)
[9] Nivedita Saksena & Siddhartha Srivastava, ‘AN ANALYSIS OF THE MODERN OFFENCE OF SEDITION’ (Nivedita Saksena & Siddhartha Srivastava, 2014) http://docs.manupatra.in/newsline/articles/Upload/37E592F0-BE2A-475F-AF99-2F6909F3CF11.pdfaccessed 27 April
[10] Emperor (n 8)
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