This article has been authored by Avani Maheshwari, a third-year student of NMIMS"S Kirit P. Mehta School of law.
Mahatma Gandhi once called section 124A as the ‘prince’ among other IPC section that suppressed citizens’ liberty. Section 124A of IPC relates to the offence of exciting “dissatisfaction” against the government. The provision has a larger ambit and covers almost all modes of expression which includes written or spoken words, signs as well as visible representations. The provision was amended and made more stringent by including the words ‘contempt’, ‘hatred’, and ‘disloyalty’ as the authorities were finding it difficult to prove dissatisfaction alone. The vagueness has allowed sedition to be misused specially to suppress the voices of minority. There is a huge difference between someone being anti-national and someone being anti-government or anti-establishment. The law has been used as a tool by the majoritarian government to silence any form of contrary opinion by curtailing the right to free speech and expression.
Developments in law post-independence
After India attained independence, the offence of sedition continued and remained in operation under the IPC. The constituent assembly expressly excluded sedition as a ground for the limitation to freedom of speech and expression. The constitutionality of the provision was challenged on three significant occasions. In Ramesh Thappar v. State of Madras, Ram Nandan v. State and Tara Singh v. State, section 124A was struck down as unconstitutional. The debates during the first amendment invited severe criticism to the then Prime Minister, Jawahar Lal Nehru for curbs being placed on freedom of speech and expression. The judgements accompanied by severe criticisms compelled the former Prime Minister to suggest an amendment to the constitution. Thus, additional grounds such as ‘Public order’ and ‘relations with friendly states’ were added to the list of permissible restrictions under article 19(2). The word ‘reasonable’ was added before ‘restrictions’ to limit the misuse and suppression by the ruling government.
Setbacks of Sedition law
The fundamental problem with the law is that the state by stifling dissent is not trying to maintain public order or safeguard state’s interest, rather it is trying to safeguard the interest of the majority, who are threatened by the minority voices. They will grab every opportunity to ensure that the voices of minority are not heard. This can be seen in most cases when people who are booked for the offence have not even committed such acts which would qualify for the ingredients mentioned under section 124A. When Aseem Trivedi got booked for drawing caricatures of the parliament or when protestors at KudanKulam project are booked for sedition even though the participants were unarmed and protestors were peaceful reflects how this law is just a weapon in the hands of the government against the dissenters. How is this in any way different from a totalitarian regime which aims to propel a single ideology and expect full tolerance as a compulsion?
Right to freedom of speech and expression under article 19 of the constitution should be given primacy over sedition law. Sedition can only be attracted when there is public disorder or incitement to violence. The constitutional validity of section 124A should be read in context with Article 19 of the Constitution. It should be accepted that Majoritarianism cannot be the law. In Kedar Nath v. State of Bihar, the Supreme Court held that the essential component which needs to be looked in cases of sedition is whether or not the symbols, impugned act, words, etc. incited violence against the government. The same guidelines have been disregarded by the police and law enforcement agencies. The lower courts are unwilling to acquit in cases of sedition which means that an innocent person can only walk free once the case goes to a higher court for an appeal. In the famous case, Texas vs Johnson, the Supreme Court of US held that the right to burn the US National flag falls within the ambit of free speech. Justice Anthony Kennedy said that “it is poignant but fundamental that the flag protects those who hold it in contempt”. In Navtej Singh Johar v. Union of India, Hon’ble Supreme Court decriminalised homosexual sex. The court stated that pre-constitutional legislation has no legal presumption of constitutionality. Therefore, pre-constitutional sedition law can also be scraped off by this logic. The Law Commission of India pointed out other lacunae that the law of sedition does not take into account dissatisfaction towards the Legislature, Constitution and administration of justice.
The Indian Sedition law is primarily a law of thought-crimes, where evidence of exciting dissatisfaction towards the government is located in the feelings and thoughts of the fellow citizens. This points out that Sedition law does not only target the content of the speech but the fact that it was expressed to influence other citizens in a public sphere.
Homogenous Provisions in the law
A close examination of IPC demonstrates that there are other provisions which seek to eradicate offences against public tranquillity rendering section 124A obsolete. It includes rioting, assaulting or obstructing a public servant, joining an unlawful assembly or promoting enmity between different groups of religion on the basis of caste, colour, language, religion, etc. The crime of affray covers minor skirmishes for disturbing the public peace by fighting in public places. Therefore, any act that is ‘prejudicial to the maintenance of harmony’ would be punishable. Sedition only serves the purpose of suppressing and undermining the opinion of the public against the government and its policies.
Has Sedition law become obsolete?
The conflict between the citizens right to free speech and the laws or norms curbing it in the name of larger interest of the society has been a perennial issue since the advent of primitive democracies and social structures. Recently there have been a lot of cases where the law enforcement agencies have slapped the charge of sedition even when the people had no intention to incite violence or hatred against the government. In a landmark judgement, (Shreya Singhal vs Union of India), the Supreme Court struck down section 66A of the Information Technology Act. The Supreme court here examined the contents of Article 19(1) (a) minutely and the extent of restriction that could fetter this invaluable right. Justice Nariman in the judgement expressed the view that advocacy and discussion are the inherent constituents of right to free speech and expression. It is only when such advocacy or discussion leads to hatred and incitement, the restriction in 19(2) kicks in. Therefore, it is clear that discussing or advocating any new cause however uncomfortable or unpopular it is, should be permitted. The need to repel this law is also supported by the fact that the rationale behind the introduction of the law was to effectively deal with the Wahabis. Thus, the law was never really based on a foundation of strong harm to individuals or society which it sought to address. Sedition becomes completely superfluous when one juxtaposes the harm which it is supposed to address to the already existing provisions in the IPC and in other legislations dealing with that harm. Cases under sedition law are the perfect example of the criminal process itself becoming the punishment for an accused. The social repercussions are triggered as soon as the person is charged with sedition. Not only does the law of sedition undermine the values enshrined in our Constitution, but also hampers the legal obligation under the UDHR and the ICCPR. The calls for repelling sedition are not something unique or unknown to India, but in fact is being echoed in other nations as well which continue to compromise the rights and liberties of its citizens as a result of its enforcement. Its high time to question the need to still have a law like sedition that seeks to send shivers down the spines of citizens for freely expressing their opinions or protesting peacefully. In 2009, England abolished its sedition law to ensure freedom of speech and expression. In Schenck v. United States,the “bad tendency test” was established. It laid down the required proximity between the utterance of speech and incitement of hatred and violence. In India such linear demarcation does not exist as laid down in Arup Bhuyan v. State of Assam. The Supreme court held that such tests are not possible in India since there is no fixed applicability.
India is a democratic and powerful nation. The citizens should therefore be allowed to criticise the government. Criticism of government by itself cannot amount to sedition. The judiciary is not above criticism and if judges of the superior court were to take account of all the contemptuous communication received by them then there would only be contempt proceedings and no other work. Where there is criticism, there is scope for improvement and introspection. The right to free speech and expression is inviolable and courts must zealously limit the restriction to this right. Its high time India initiate the process of abolishing and repealing the law of sedition to set an example on the global front for other liberal democracies still trapped in the mire of this draconian law. In the words of Mark twain: “Loyalty to the country always; loyalty to the government, when it deserves it.” Thus, India should alter its sedition laws in accordance with the changes in the society.
 Romesh Thappar v. State of Madras, AIR 1950 SC 124  Ram Nandan v. State, AIR 1959 All 101  Tara Singh v. State, AIR 1951 SC 441.  AIR 1962 SC 955.  491 U.S. 397 (1989)  W. P. (Crl.) No. 76 of 2016.  (2013) 12 S.C.C. 73.  Law Commission of India, Consultation Paper on “Sedition” (2018).  1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).  (2015) 12 SCC 702.