SEDITION LAW IN INDIA: WHY AND WHY NOT?

This article has been authored by Maria Binny Palamattom, a second year student of Law at School of Law, CHRIST(Deemed to be University), Bengaluru.

“Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designated to suppress the liberty of the citizens.”- Mahatma Gandhi

Introduction

Sedition Law in India has been subjected to criticisms since time immemorial due to many reasons. The demand to scrap the law in its very essence has been raised ever since the pre independence era. The misuse and exploitation of Section 124A of Indian Penal Code, 1860 raises serious concerns in a democracy like India where individual dissents, criticisms and opposition are to be considered with great priority. Does sedition law in India suffice the purpose of its existence or is it a mere legislation that empowers the Government to infringe civil liberty?

When there are rising number of instances in the form of charges and arrests imposed on Cartoonists, Artists, Democrats, Historians and other individuals only on the grounds of their expression of dissent and fair criticisms in most of the cases, i.e. with respect to the conviction rates under the charge, the very existence of the provision is questioned with suspicion. Mahatma Gandhi, himself had identified the potential of the provision to label individuals as anti nationals and had stated, on being charged for under sedition for his publication, ‘Young India’, the provision as the prince among the political sections of the Indian Penal Code.

Origin and development

The origin of sedition law dates back to 1833 when it was drafted by Thomas Babington Macaulay, in Macaulay’s Draft Penal Code (Section 113) and precisely the law was meant to suppress the nationalist uprisings irrespective of being non violent or not. Several nationalists including Mahatma Gandhi himself, Bal Gangadhar Tilak and constituent assembly member Seth Govind Das were charged under the charge of sedition. This was under the amended section 124A which had added the incitements against the Government creating hatred or contempt as a major part of it.

However, the scope of the law kept on changing with reference to changing cases before the Privy Council. Later, the legislation on seditious libel was given an enhanced notion after the introduction of the constitution. The reasonability was thence justified as against the misuse of Right to Freedom of speech and expression which is duly interpreted as one among those rights sought to have reasonable restrictions. Though the constitutionality of the provision remains dubious in nature, it has not undergone notable changes in its enforcement.

Kedar Nath Singh v. The State of Bihar (1962)

The Supreme Court, to an extent managed to resolve the existent judicial controversy on sedition law as a whole. In this case it was held that the appellant’s actions resulting in creation of hatred and incitement against public order was particularly observed and hence was identified to be a fair enough reason for the person to be convicted. However, the case left out a number of questions unanswered with respect to the extent to which an individual’s liberty enshrined under Article 19(1) (a) can be restricted in versatile cases in accordance to Article 19(2). Thence, the case law prevails to suffice on the legal validity and constitutionality of Section 124 A.

Questions on Constitutionality

A major contention raised against Section 124A is its unconstitutional nature and it’s British Colonial Legacy. It was neither amended nor repealed and it continues to rule over the Right to Freedom of Speech and Expression and continues to be used actively in independent India. On the contrary, Britain has already abolished the offences of sedition and seditious acts in early 2010 due to its obsolescence and the last completed trial under a seditious libel had taken place in 1947.

The major understanding that can be drawn from the decision of the British Government is the realization of the arbitrariness of the law as a whole and thereby the difficulty identifying constructive disaffection and thereby political dissent suppressions. Being a legislation that can captivate extensive control over civil liberty, the question of constitutionality of the law becomes notably reasonable.

Reasonable Restrictions

The seditious libel considered as one among the offences against the State is also highlighted by Article 19(2), where the State has been provided with the authority, by operation of an existing law or making any law such that reasonable restrictions can be imposed in the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or with reference to other offences inclusive of defamation, contempt of Court, or even an incitement of an offence. This therefore is often referred to as the base of its constitutionality.

Conviction Rates and legal validity

Sedition charge under Section 124A of IPC is one among the actively operated legal instruments that control Article 19(1)(a) along with Unlawful Assembly Prevention Act, 1967 in India.Any person, by words spoken or written or by signs or by visible representations or otherwise, brings or attempts to bring in hatred or contempt or excites or attempts to excite disaffection towards the Government established by Law shall be punished with life imprisonment with added fine or up to 3 years with fine. More than the gravity of the punishment, the lifelong label as an anti national creates a bigger impact in the lives of the people so accused and later convicted for disagreement against the Government.

There arise bigger concerns regarding the interpretation of this section. What are the possible criticisms that can fall under causes of disaffection? Are they specifically laid down? Can a dissent opinion against a legislation passed by the majority formed Government be categorized as a catalyst to disaffection towards the Government? One among the possible ways to check the effectiveness of the provision is the rate of conviction under the charge. This provides an understanding on whether mere prima facie inferences about serious offences like sedition and their misuse if any.

The need for the provision however often highlighted the effective combating of anti-national secessionist and terrorist elements. However, this justification is back lashed with reference to the anti terror legislation Unlawful Assembly Prevention Act, which after the 2019 amendment also has acquired the authority to label individuals as terrorists. Therefore, the notable contention against Section124 A is its sanctity and arbitrariness when the majority of the arrests on the charge is made for the Anti-State slogans and seditious libel.

NCRB convictions rates

The National Crime Records Bureau recorded that among 191 cases under seditious charge since 2015, out of which 43 cases have completed the trials only 4 have ended up in convictions. This is irrespective of the fact that the number of cases under sedition charges has doubled between 2015 and 2018, the number of convictions remains very less with respect to the number of accused, and it remains to be an indicator of the legal validity of the provision.

Enforcement of S.124A

The number of individuals charged under Sedition Law in India has notably increased. This includes the arrest of cartoonist Asem Trivedi during anti-corruption protests by Anna Hazare, JNU Students Union Leader Kanhaiya Kumar for raising Anti-India Slogans, Activist Shehla Rashid followed by her accusations against Indian Army in Jammu & Kashmir, arrests of Anti-CAA protestors under seditious charges and the list goes on. The question of law and validity revolves around the intent behind the creation of legislation in the British Raj India and the misuse of the same to suppress popular dissent. Moreover, unless in the presence of violence or incitement to cause violence, how can mere disaffection amount to sedition is one among many contentions raised with respect to the existent scenario. The validity and the importance of S.124A are in question when there is an existent anti terror law, UAPA, which has undergone numerous checks and adherence to the existent laws. The Terrorist and Disruptive Acts (TADA), 1985 later lapsed in 1995 and Prevention of Terrorism Act (POTA), 2002 with the intention to counter terrorism is in place to curb anti-nationals. The question that how different and effective can sedition law be from these anti-terror laws, continues to prevail.

Conclusion

The draconian and flawed acts that prevailed with the intent to counter terror had been duly repealed on the grounds of their uncontrollable misuse. The series of arrests that are made even when fair expression of dissent against the propaganda of Governments and their legislations create intense concerns on civil liberty. Inability to recognize the difference between free speech and hate speech and thereby negative focus on criticism are identified and are proven to be extremely harmful for a healthy democracy. Sedition being an extremely serious offense and tags as anti nationals are getting interrelated to a greater extent, which shall even result in a numb population in the absence of fair criticisms and opinions.