One of the most important Fundamental Rights guaranteed by the Indian Constitution is the Freedom of Speech and Expression, which offers both- protection from encroachment by the State, as well as judicial remedies against administrative containment of these rights.[1] Arguably, Section 124A of the Indian Penal Code which deals with Sedition, is one oppressive and regressive law which allows the State to encroach upon this freedom, and protect itself from judicial scrutiny.[2]
Sedition is a cognizable, non-bailable, and non-compoundable offence; the elements of which are as follows-
- The act must be intentional;
- It must bring or attempt to bring hatred against the Government;
- It must excite or attempt to excite disaffection against the Government of India;
- Such act or attempt may be done by words, either spoken or written , or by signs or by visible representation [3]
The Lieutenant Governor of Calcutta, in 1898 declared that it was the Wahabi uprising, as well as open preaching of Jehad or religious war against the government that prompted the introduction of S124A through the Special Act XVII of 1870.[4] The law of Sedition was much stricter in India as compared to Britain, since it also included the attempt to bring about dissatisfaction against the government, and it was made very clear through subsequent legislations and amendments that the introduction of S124A was to curb the growing nationalistic upsurge in the country, to suppress the voices of those who wanted to overthrow British Rule in India, and to counter-attack the anti-colonial agendas of the Press. Disaffection was differentiated from disapprobation, but the definition of ‘dissatisfaction’ against the government was a very wide one which was often used by the Britishers to their advantage to punish anyone and everyone.
Lokmanya Tilak was one of the first people to be tried for Sedition, for his writings in his newspaper- Kesari and was sentenced to prison, as was Mahatma Gandhi for his writings in Young India.[5] Such cases reinforced the perception that this law was for muzzling freedom of speech and expression, and browbeating government’s critics and activists, and even though the government’s character changed in 1947, its propensity for recourse to this law remains unchanged.[6]
The newly formed government post-independence received threats from left and right wing extremists. Such factors along with the scarcity of food, the challenge of settling millions of Partition refugees, and the conflict with Pakistan over Kashmir were some of the factors that compelled the government to retain Section 124A.[7] It was the Romesh Thapar case[8], which involved the Madras government banning the left leaning magazine- Crossroads, and the Delhi Chief Commissioner issuing instructions to the RSS mouthpiece Organizer to submit all communal matter and material related to Pakistan for scrutiny, which prompted the Nehru government to insert the words ‘public order’, ‘relations with friendly states’ as well as the word ‘reasonable’ before ‘restrictions’ into Article 19(2) of the Constitution. [9]In 1967, the government enacted the Unlawful Activities Prevention Act (UAPA) which was meant to be a more specific law and intended to impose more reasonable restrictions on freedom of speech in the interests of the sovereignty and integrity of India.[10]
In the case of Ram Nandan v State of Uttar Pradesh, [11] it was held that sedition was encroaching on the Freedom of Speech, and hence should be ultra vires.[12] However, this judgement was overruled in the case of Kedar Nath v State of Bihar[13]. The Supreme Court, in this case held that Sedition, was in fact, constitutionally valid and that it was in the interest of public order. It was emphasized here, that incitement to violencewas an important element for sedition to have taken place. “…the freedom (of speech and expression) has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder.”[14]
In the case of Brij Bushan v. State of Delhi[15], the ground of ‘public order’ was joined with ‘security of the State’ where the insertion of the words ‘in the interest of’ before ‘public order’ in Article 19(2) was observed to have provided a wide magnitude of powers extended to the State to curb the Freedom of Free Speech. [16]
As was held in Bilal Ahmed Kaloo V. State of Andhra Pradesh[17] and in various other cases, that criticising the government for its policies would not amount to sedition, unless it came under the reasonable restrictions in Article 19(2) of the Constitution. The same must be decided from a reasonable person’s point of view.[18] It is important to note that a nexus must exist between the act as well as the potentiality to disrupt public order, as was upheld in the Shreya Singhal v. Union of India judgement.[19]
Part 2 of the Article discusses and analyses the arguments for and against the Section.
[1] Kaur P, “Sedition under Section 124-A of the Indian Penal Code: An Analysis” (2019) 2 International Journal of Law Management & Humanities
[2] ibid 1.
[3] Gaur KD, Commentary on the Indian Penal Code: as Amended by the Criminal Law (Amendment) Act, 2018 (Act No. 22 of 2018) (Central Law Publications 2019)
[4] Kaur P, “Sedition under Section 124-A of the Indian Penal Code: An Analysis” (2019) 2 International Journal of Law Management & Humanities
[5]Ramachandaran S, “Section 124A: The case Against the Much-Misused Sedition Law” [2020] Outlook<https://www.outlookindia.com/website/story/opinion-section-124a-the-case-against-the-much-misused-sedition-law/347936> accessed November 19, 2020
[6] ibid 5.
[7] Guha R, “When Mahatma Gandhi Called Sedition a ‘Rape of the word Law’” (The News Minute September 16, 2016) <https://www.thenewsminute.com/article/when-mahatma-gandhi-called-sedition-rape-word-law-49981> accessed November 19, 2020
[8] Romesh Thapar v State of Madras 1950 AIR 124
[9] Narain S, “‘Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India” (2011) XLVI Economic and Political Weekly
[10] Dantewadia P and Padmanabhan V, “Sedition Cases in India: What Data Says” (LivemintFebruary 25, 2020) <https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html> accessed November 19, 2020
[11] Ram Nandan v State of Uttar Pradesh AIR 1959 All 101
[12] Jangid T and Abraham ME, “Sedition Law in India” (Dhawal Srivastava edLexlife IndiaMay 27, 2020) <https://lexlife.in/2020/05/27/sedition-law-in-india/> accessed November 18, 2020
[13] Kedar Nath v State of Bihar AIR 1962 SC 955
[14] ibid 13.
[15] Brij Bushan v. State of Delhi 1950 AIR 129
[16] Jangid T and Abraham ME, “Sedition Law in India” (Dhawal Srivastava edLexlife IndiaMay 27, 2020) <https://lexlife.in/2020/05/27/sedition-law-in-india/> accessed November 18, 2020
[17] Bilal Ahmed Kaloo V. State of Andhra Pradesh (AIR 1997 SC 3483)
[18] S. Rangarajan v. P. Jagjivan Ram (AIR 1989 SCC 574)
[19] Shreya Singhal v. Union of India (2015) 5 SCC 1
Aishwarya Says:
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
Do follow me on Facebook, Twitter Youtube and Instagram.
The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.
If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com
We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.