Law of Sedition in light of the Right To Freedom Of Speech And Expression (Article 19

Democratic principles imply allowing every voice, opinion, or statement to be heard and respected. With these underlying values and the freedom of speech of expression guaranteed in India, the law of Sedition needs to be analyzed and reviewed.

THE EXTENT OF ARTICLE 19

Article 19(1) (a) of the Indian Constitution guarantees all citizens the right to freedom of speech and expression. This is the foundation of all democratic organizations, without which the proper functioning of the government is not possible. This right has been upheld in the Universal Declaration of Human Rights, 1948 as well as in the International Covenant on Civil and Political Rights, 1966. This article has been defined as the right to express one’s convictions and opinions freely, by word of mouth, writing, printing, pictures, or any other mode.

However, clause 2 of the article creates a reasonable restriction on this freedom which intends to strike a proper balance between individual liberty guaranteed and social and public interest. This reasonableness is justified on the grounds that it exists in light of the interests of the public, of the security of the State and for the maintenance of law and order.

HISTORY OF SECTION 124A OF THE INDIAN PENAL CODE

This law was opposed from the start as this provision tends to demand allegiance to the Government in power and not the nation itself. It was used by the British rulers to curb any dissent among the Indian public. Many nationalist leaders such as Bal Gangadhar Tilak and Mahatma Gandhi were victims of the arbitrary application of this law. During the Constituent Assembly debates, KM Munshi opposed the inclusion of this law and demanded its deletion from the penal code. However, it made its way as a criminal offence under Section 124A of the Indian Penal Code. It reads as follows:

[124A. Sedition.—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 16[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.]

THE JUDICIAL INTERPRETATION OF SECTION 124A

In Romesh Thopar v. the State of Madras, the Supreme Court held that unless the freedom of speech and expression threatened the security of or tends to overthrow the State, any law which imposed a restriction on the same would not fall within the ambit of Article 19(2).

The 1950s saw the rise of the sedition controversy once again. In the case of Tara Singh Gopi Chand v. the State, the Punjab High Court declared that Section 124A was unconstitutional. As a consequence, the Constitutional First (Amendment) Act, 1951 included the terms ‘in the interest of justice’ and ‘public order’ in Article 19(2) to allow for legislative restrictions on this freedom. Similarly, Sabir Raza v. the State also held that Section 124A had become void once the Indian Constitution came into force. However, it was in the Ram Nandan case that the Allahabad High Court declared Section 124A to be void and unconstitutional. It was held that criticism and critique of the policies of the Government are required for the smooth working of a democratic system.

This judgment was overruled by the Supreme Court in the case of Kedarnath Singh v. the State of Bihar. Here, the constitutionality of the section was upheld and it was held that the ‘Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. The Government established by law is the visible symbol of the State. What is punishable under the s.124A is there, not a criticism of the Government in power, however strong it may be, but utterances which either intend or have a tendency to subvert the existing Government by means of violence.

Candid and honest discussion is permitted and the law will only interfere when the discussion passes the bounds of fair criticism. The test lies in the manner of the expression when the natural consequence of the accused’s conduct is to promote public disorder. and should not be remote, conjectural, or far-fetched.

Further, it was clarified that strong words to express disapprobation of the measures of the Government with a view to their lawful alteration would not come under this offence. Even disapprobation about the acts of the State without the intent to cause public disorder through violence does not follow under this Section. In Nazir Khan v. State of Delhi 2003, the Supreme Court said that it is the fundamental right of every citizen to propagate and cultivate his own political opinions as long as that is not done through any violent or forceful means.

These essential elements are of utmost importance as they have been laid down as safeguards against misuse of this law.

INSTANCES OF SEDITION IN INDIA

 In the case of Balwant Singh and Anr v. State of Punjab 1985, the issue of raising slogans like ‘Khalistan Zindabad’ in public after the assassination of PM Indira Gandhi was brought up. However, it was held that the accused did not mean an impact on the public and thus, Section 124A could not be held.

 In Sanskar Marathe v. the State of Maharashtra, Criminal PIL No. 3 of 2015, the case of political cartoonist Aseem Trivedi, who was involved in India Against Corruption movement and drew cartoons which were essentially political satire. There was no intention or tendency to create violence or public disorder.

 In 2012-2013, a huge number of 23,000 people were charged held for sedition because the protested against a nuclear power plant in Tamil Nadu.

 The JNU sedition row in 2016: where Kanhaiya Kumar and others were arrested for allegedly raising controversial slogans over an event that protested against the capital punishment verdict in the Afzal Guru case. Many political leaders, teachers, and students criticized the act as it was believed to be silencing political dissent.

CONCLUSION & RECOMMENDATIONS

It is seen that there is a gap as many arbitrary arrests are carried out and Section 124A is being misused by the people in power, based on a part and improper interpretation of the section. It is imperative to note that the United Kingdom, who introduced sedition to suppress Indians, have abolished it in their nation by Section 73 of the Coroners and Justice Act, 2009, as they did not want to be using “such draconian laws.”

Thus, we come to the conclusion that essential safeguards and systemic reforms must be added in order to provide a just, fair, and reasonable implementation of the law.

• The offence of sedition should be made into a bailable offence as this would decrease the harmful impact of any arbitrary and illegal action.
• As there is a lot of scope for subjective interpretation and misuse, these offences should be made non-cognizable so there is a judicial check on the police who might be carrying out orders from politically motivated leaders.
• A better-outlined interpretation and explanation of this law would lessen misuse and preserve the ethos of the Indian State.

The main intent of keeping this provision is to ensure the stability and sanctity of the State and to equip the Government to combat any anti-national, secessionists, and terrorist threats. However, to constitute good governance, it is imperative that citizens are not in a state of constant fear to voice their opinions and thoughts. In the case of sedition, the balance between individual fundamental freedoms and collective national interest must be strived for; otherwise, there will be an inherent misuse of the law.

[The author, Simran Anneka Lobo, is a 1st-year law student from Government Law College, Mumbai, and likes to test the interconnection between law, politics, and society. ]

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REFERENCES

1. Law Commission Of India, Consultation Paper on “SEDITION, (August 30, 2018) http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
2. ICF Team, Sedition and the Right to Freedom of Expression, INDIA CULTURAL FORUM (June 12, 2016), https://indianculturalforum.in/2016/06/12/sedition-and-the-right-to-freedom-of-expression/
3. Ananya Kuthiala, Sedition and the Right to Freedom of Speech and Expression, SCC ONLINE BLOG, (December 12, 2017), https://www.scconline.com/blog/post/2017/12/12/sedition-right-freedom-speech-expression/
4. Chitranshul Sinha, How “seditious speech” was dropped from draft Indian constitution but is still a crime, QUARTZ INDIA (August 30, 2019), https://qz.com/india/1699010/indian-constitution-doesnt-ban-seditious-speech-yet-its-a-crime/
5. Vibha Datta Makhija, Sedition And Free Speech: An Antithesis, BLOOMBERG QUINT ( January 1, 2017) https://www.bloombergquint.com/opinion/sedition-and-free-speech-an-antithesis