PublicationsConstitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law

September 28, 20205
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Introduction to Sedition

Sedition can be defined as any conduct or language inciting rebellion against a lawful government.1  In India, sedition is defined through Section 124-A of the IPC, wherein the law penalises bringing or attempting to bring hatred or contempt towards the government, and inciting or attempting to incite disaffection towards the government as established by law.2 The punishment is severe and extends from imprisonment for three years to life to which a fine may be added.

India’s criminal law works to maintain the security of the society and the liberties and rights of individuals as they are some of the prime concerns of the constitution of India. According to Article 19 of the Constitution, citizens are granted freedom of speech and expression. However, this freedom is reasonably restricted by the Laws of Sedition which were originally enacted by the colonial government with the objective to suppress the Indian citizens to continue their tyranny. Hence, sedition laws have continually been a contentious issue, owing to the conflict between the rights guaranteed by the constitution and the pre-constitution laws still in force. This conflict places importance on the practice of regularly scrutinizing judicial interpretation of such laws due to the constantly evolving socioeconomic conditions.

It is for this reason that we find sedition law to be draconian in modern times, wherein true freedom of expression is the hallmark of a successful democracy. Thus, we contend that the law on sedition must be amended to reflect the same. This paper emphasizes the aforementioned through a historical analysis of the law on sedition, evaluating the interpretation and evolution of sedition law by the judiciary, studying international perspectives, and considering the misuse of sedition law.

The Roots of Sedition in India

The Law of Sedition was rooted in India as early as 1837 in one of the clauses of Macaulay’s draft of Indian Penal Code. Yet, due to its contentious nature, it was not adapted into the IPC until 1870.3 This addition was initiated by the colonist regime of the British in an attempt to curb the nationalist fervour that was stirring in India at the time, as a tool of oppression. This can be showcased in the famous case of Queen-Empress v. Bal Gangadhar Tilak.4 In this draconian judgment, the scope of sedition was enhanced: the judge was quoted saying “the intensity of the disaffection is absolutely immaterial… if a man excites or attempts to excite feelings of disaffection, great or small,  he is guilty under the section”5,  conveying that any disloyalty towards the British was capable of being held culpable under sedation. This gives rise to the contention that sedition law in India finds root in dubious circumstances, largely as a weapon for the suppressive colonist regime, rather than a bulwark to support the current democratic structure of India. Additionally, Mahatma Gandhi, on being charged under sedition, said:

“§124 A… the prince among the political sections of the IPC is designed to suppress the liberty of the citizens. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection.”6

Yet, even after India gained independence, sedition remained as a crime against the state. This was not due to a lack of debate on the same. The fundamental rights sub-committee of the constituent assembly, headed by Sardar Vallabhai Patel, drafted an interim report on fundamental rights and presented it before the assembly on April 29, 19477. Initially, the drafting committee included ‘sedition’ as a limitation to the right to speech entailed in Article 138 of the first draft of the constitution.

Somnath Lahiri, from the Communist Party, raised concerns on how sedition was used as a restriction on the liberty of the press by an ‘alien and autocratic government’. He brought to light his objections by stating the importance of the political opposition’s freedom to express its views for democracy to develop in its true spirit. C Rajgopalachari had an opposing view as he favoured an amendment that would make restrictions on sedition laws more stringent. However, Lahiri’s opposition proved to be effective: the word ‘seditious’ was deleted from the proviso, granting liberty for the exercise of freedom of speech. After parliamentary debates, the draft of the constitution was tabled on February 21, 1948. As decided, Article 13(1)(A) guaranteed citizens the right to freedom of speech and expression.

However, under the provision of 13(2), the freedom to speech and expression would not affect any existing law and did not bar the state from making any laws related to matters like sedition, which offends or undermines the authority or foundation of the state. To this, KM Munshi advocated for an amendment to substitute the word ‘sedition’ with ‘undermines the authority or foundation of the State’9. He further referred to the judgement of the Niharendu Dutt Majumdar10 to highlight the importance of criticism of the government in a democracy. Additionally, Thakur Das Bhargava suggested adding the word ‘reasonable’ in Article 13 for the judiciary to interpret and ascertain the reasonableness of the facts on a case to case basis. This was done to limit the overreach of powers by the executive and legislative organs of the government to ensure the ruling government does not abuse §124A.

The Inherent Conflict Between 124-A and Article 19(2)

Mr. Justice P.N Bhagwati emphasized the significance of freedom of speech and expression in the landmark judgement of Maneka Gandhi v. Union of India11  by claiming ‘Democracy is based on free debate and open discussion, for that, is the only corrective of government action in a democratic set up’12. Such judgements and concepts gave rise to the conflict between  §124-A  and  Article-19(1).  This is showcased in Romesh Thappar v. State of Madras13where the scope of the reasonable restrictions to freedom of expression laid out by Article-19(2) was challenged. The unclear wording of the reasonable restrictions left many wondering if sedition, under 124-A, can hold culpable people trying to express views and disaffection towards the state. This was finally resolved by the First Amendment to the Constitution in 1951, which amended Article-19(2) to clarify the scope of the reasonable restrictions. In this regard, six grounds were listed in Article-19(2) as ‘reasonable restrictions’ in contrast to the two grounds that existed pre-amendment.

However, the matter of the constitutional validity of sedition as per §124-A was still unsettled. Certain courts such as East Punjab and Haryana High Courts held that sedition was violative of Article-19(1)(a). In fact, the court when deciding on Tara Singh v. State of Punjab14 very aptly said, ‘India is now a sovereign democratic State. A law of sedition though necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.’15 This view was supported in the case of Ram Nandan v. State16, which said ‘§124-A must be invalidated because it restricts freedom of speech in disregard of whether the interest of public order or the security of the State is involved, and is capable of striking at the very root of the  Constitution  which  is  free speech.’17 However, the view of the Apex Court was starkly different from the aforementioned. In the landmark case of Kedarnath18, the Supreme Court upheld the constitutionality of the sedition. The case had a deep impact on sedition’s evolution in India and is explored later in this paper.


Recent Judicial Interpretation of Sedition Law

Section 124A falls under Chapter VI of the IPC.19 Initially, the court’s interpretation of sedition was such that its implementation exceeded the reasonable restrictions laid out in 19(2). This can be said through the earlier mentioned case of Bal Gangadhar Tilak.20 However, the Supreme Court has now laid out certain caveats to safeguard us against the abuse of sedition law, discussed in the following cases.

Article 19(2) authorizes restrictions for the wider purpose of securing public safety or maintenance of public order. In the Lohia case21 acknowledged that the scope of ‘public order’ is categorized under different parts. Public order was defined as an ‘aggravated form of disturbance which affects the day-to-day life of the general  public’22,  a  very ambiguous and open-ended interpretation. Most importantly, it laid down a strict test of proximity between speech and consequence, stating that ‘The restrictions imposed by the Legislature must have a proximate connection and nexus with public order and should not be far-fetched and remote in the chain of its relation with public order’23.

Along similar lines, the landmark judgement in the Kedarnath24 upheld the constitutionality of 124-A. However, and more importantly, it curtailed the earlier meaning of sedition and added safeguards to its application by making ‘intention or tendency to create disorder,  or disturbance of law and order,  or incitement to violence’25 a requisite to constitute sedition. Thereby, the court upheld the law on the grounds of it being a requirement of the state to protect itself while limiting the application of sedition. Justice B. P. Sinha also said that ‘if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.’26  This statement holds to be crucial in the current day where sedition is maliciously misused to violate the principle of Article 19(1-A), covered later in this essay.

Other judgements have also worked to limit the scope of sedition law and ensure it does not become violative of Article 19. An apt example of this is the Aseem Trivedi27 case. Trivedi faced the wrath of sedition for allegedly insulting the constitution and the national symbol by his drawings satirising corruption among India’s politicians. The Bombay High Court rightly held that the cartoons were in the nature of mere satire: there was no incitement to violence, tendency or intention to create public disorder. The court also held that ‘Comments expressing disapproval or criticism of the government with a view to obtaining a change by any lawful means, is not seditious under Section 124A.’28

Through this,   the court reaffirmed the safeguards laid down in Kedarnath29. More importantly, the court issued guidelines to police personnel in the form of preconditions for prosecutions under §124A as ‘Words, signs, or representations that bring the government into hatred or contempt, or must cause, or attempt to cause disaffection, enmity or disloyalty to the government.’30 This highlights that the motive of the court was to stop the abuse of sedition and to stop its abuse as a tool of terror to suppress freedom of speech in India. Somnath Lahiri, in the Constituent Assembly debates, predicted the events, as seen in the  Trivedi31 case, by stating ‘if at any time in the future if a member of the Socialist party criticized the government, the ruling government would be able to put members of the socialist party behind bars, thereby making the government despicable.’32

The Continuing Misuse of 124-A

Even after the safeguards have been placed by the judiciary, the misuse of §124-A has not been curtailed, with arbitrary charges still being thrust unjustly. To illustrate, one can study the trials of Binayak Sen, Arundhati Roy, and especially the recent arrest of Kanhaiya Kumar, which illustrate how draconian the sedition law can be. In this case, Kanihaiya was immediately held to be guilty by a state-fueled media although the case did not constitute sedition. Further, the case also emphasizes how the safeguards to the law of sedition are not being respected. This can be said as the police wholly failed to file a charge sheet for almost four years post the incident. Additionally, they failed to obtain the necessary sanctions from NCT Delhi to prosecute Kanhaiya33. Clearly, the executive failed to abide by the strict safeguards put forth by the cases of Trivedi and Kedarnath.

This is further shown by the incidence of the Citizenship Amendment Act and §124-A. The National Crime Records Bureau (NCRB) clarifies that over 194 cases of sedition have been filed since the CAA was passed on December 11, 201934. They also signify that there is an increase in sedition cases being filed every year. This growing number can signify the abuse of sedition. However, the next case clarifies this matter. The Bidar School35 case exemplifies the tyranny of the government. In this case, a parent and the principal of a school were charged with sedition for staging a play critical of the CAA. One can see that sedition is being misused to terrorise the minds of the public to stem out any disaffection against the ruling government.

International Perspectives on Sedition

When deciding on the matter of defining freedom of speech, India should also look at other countries. While these examples, not wholly legally binding, hold persuasive value and can guide India in dealing with its own sedition law. For example, England – the country that first introduced the concept of sedition into the Indian legal sphere – in 2009 decided to repeal its sedition law. This was established by The Coroners and Justice Act 2009. The parliament’s notable response, through Justice Minister Claire Ward was as follows:

“Sedition and seditious and defamatory libel are arcane offences… The existence of these obsolete offences in this country has been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries…”36

Other countries such as South Korea, Scotland, New Zealand, Kenya and Indonesia have also abolished this law from their statutes, chiefly owing to the abuse of the law of sedition, through the judiciary or a legislative change. For example, a commission was constituted in New Zealand to examine the constitutionality of the law on sedition. The commission, while recommending the abolition, also expressed concern over retaining the law as it gave the executive an opportunity to abuse it no matter the safeguards placed.37

Furthermore, India has also ratified the ICCPR38, which sets forth internationally recognized standards for the protection of freedom of expression. Yet, in India, the arbitrary slapping of sedition charges are wholly inconsistent with this commitment. Hence, this is in contravention of Article-51(c) of the Constitution obligating the State to ‘foster respect for international law and treaty obligations.’39 Highlighting yet another reason for doing away with 124-A.

On the other hand, countries that have chosen to retain their laws have worked to limit the scope of sedition to uphold the fundamental right of freedom of expression. To illustrate, the USA has adopted the rigorous test directed towards sedition as being constituted when inciting or producing imminent lawless action as evolved by the United States Supreme Court in these decisions are unequivocal in their fierce endorsement of the right of freedom of speech and provide a bulwark against executive abuse of powers. It highlights to India that it is possible to interpret 124-A in a manner where abuse is restricted. The USA does this through narrowly defined restrictions and a strong regime of accountability for the political executive. The cases of Arup Bhuyan v State of Assam41 and Shreya Singhal v Union of India42 progress towards establishing a similar test for deciding protectable speech.

Yet, as the recent cases of Bidar and Kanhaiya show, these tests do not prevent the misuse of §124-A. Perhaps, after looking at the persuasive aspect of England’s view on sedition and the failings of India to follow the USA in using the judiciary to impose restrictions on the law of sedition, India should follow other common law countries in abolishing this draconian law of the colonial regime through legislative change.

Bringing out Legislative change

The constitution must be understood as a transformative document, as seen in several post-colonial constitutions. The main concept of transformative constitutionalism lies in its emancipatory pursuit in the convection that large scale social change within a political system is possible through the process and instrumentality of the law.43 This theory would entail that the bare text of the constitution must be interpreted with pure positivism that acknowledges the reality of the hierarchical structures and power relationships within the society.

While decriminalising homosexuality in Navtej Singh44, the transformative value was invoked by acknowledging the wrongs to correct the course for the future.45 The court found that pre-constitutional legislation has no legal presumption of constitutionality. In light of the recent social and legal development, it is imperative that the courts adjust the old legal system to adopt the needs of this new society. What we had earlier held to be constitutional with safeguards and riders is no longer constitutional.

At the present stage of our social and political development, it is an obligation of the courts to adopt the needs of the new society. The doctrines and institutions will have to be modified and some laws will have to be set aside. §124A neglects the central principle in a constitutional democracy: of every state action to be measured against reasonable limiting principles laid down by the founding document. In regards to the contextual origin of the law, and political development ever since, it is imperative for the legislature to examine the applicability of the law. As seen in other post-colonial countries like South Africa, where the law of sedition has been abolished, the Indian legislature must repeal the law as it violates the sanctity of democracy.

Conclusion

After a careful analysis of all the aforementioned facets of Sedition Law, it is not surprising that the judgment in the Kedarnath46 case does not live up to the expectations of many. One may even contend the court lapsed in its duty as sentinel qui vive of dissent in a democracy, as it had the opportunity to do away with this draconian law, but chose to retain it. As considered earlier, the broad scope of §124A gives the State the power to terrorize individuals challenging its power and the mere pressing of sedition charges ends up acting as a deterrent against any voice of dissent or criticism. Hence, perhaps a re-examination of this law is necessary to truly enjoy the fundamental hallmark of our constitution: freedom of speech.

After all, the law must adequately ensure the liberty of thought and expression so that the executive power may not encroach upon an individual’s field of opinion. In view of the controversy, an appeal to wholly do away with section 124-A, is the need of the hour. A law on sedition with such a wide scope is unnecessary and is being abused. The specific offences under Chapter VI of the IPC, such as Section 121,47 are sufficient to protect the state. As Nehru said, ‘Now so far as I am concerned [Section 124A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass.’48

REFERENCES-

1 “Sedition (n.)” (Index) <https://www.etymonline.com/word/sedition> accessed May 9, 2020.

2 The Indian Penal Code 1860, s 124(A)

3 The Special Act (XXVII of 1870).

4 (1917) 19 BOMLR 211.

5 Tilak (n 4).

6 “Gandhi Would Approve” (Hindustan Times September 12, 2012).

<https://www.hindustantimes.com/columns/gandhi-would-approve/story-SC2mNYGrN5PqsQxoHyNlPM.html> accessed May 10, 2020.

7 Constituent Assembly, Interim Report on Fundamental Rights, 1947.

8 Article 19 was numbered as Article 13 in the initial draft of the constitution. 9 Statement by KM Munshi, Constituent Assembly Debates (29 April 1947).

10 Niharendu Dutt Majumdar And Ors. v Emperor AIR 1939 Cal 703.

11 1978 AIR 597.

12 Ibid [77] (Justice Bhagwati).

13 1950 AIR 124.

14 1951 AIR 441.

15 Ibid.

16 AIR 1959 All 101.

17 Ibid.

18 Kedar Nath Singh v State Of Bihar 1962 AIR 955.

19 Offences against the state.

20 Tilak (n 4).

21 The Superintendent, Central … v Ram Manohar Lohia 1960 AIR 633.

24 Kedar Nath (n 18).

25 Ibid.

26 Ibid [43] (Justice Sinha.)

27 Sanskar Marathe vThe State Of Maharashtra And Anr (1998) 4 LLN 205

28 Ibid.

29 Kedar Nath (n 18).

30 Sankar Marathe (n 27).

33 Sriram J, “Should the Sedition Law Be Scrapped?” (The Hindu March 6, 2020)

<https://www.thehindu.com/opinion/op-ed/should-the-sedition-law-be-scrapped/article30993146.ece> accessed May 10, 2020.

34 Ibid.

35Dhns, “Sedition Case: Bidar School Management Gets Advance Bail” (Deccan Herald March 3, 2020)

<https://www.deccanherald.com/state/top-karnataka-stories/sedition-case-bidar-school-management-gets-advance-bail-810270.ht ml> accessed May 10, 2020.

36 PA Media Lawyer, “Criminal Libel and Sedition Offences Abolished” (Press GazetteNovember 30, -1)

<https://www.pressgazette.co.uk/criminal-libel-and-sedition-offences-abolished/> accessed May 10, 2020.

37 “R96 Reforming the Law of Sedition” (2007 March)

<https://www.lawcom.govt.nz/sites/default/files/projectAvailableFormats/NZLC%20R96.pdf>

38 International Covenant on Civil and Political Rights (1966)

39 The Constitution of India 1950, art 51(c).

Brandenburg v Ohio40

40 (1969) 395 U.S. 444.

41 (2011) 3 SCC 377.

42 (1982) 2 SCR 272.

43 2018 S9 S, “Decriminalising Homosexuality in India as a Matter of Transformative Constitutionalism” (Verfassungsblog)

<https://verfassungsblog.de/decriminalising-homosexuality-in-india-as-a-matter-of-transformative-constitutionalism/> accessed May 9, 2020

44 Navtej Singh Johar v Union Of India (2018) 10 SCC 1

45 Ibid

46 Kedar Nath (n 18).

47 The Indian Penal Code 1860, s 121.

48 Tribune News Service, “To Repeal or Not: Nehruvian Dilemma on Sedition Law” (Tribuneindia News Service) <https://www.tribuneindia.com/news/archive/nation/to-repeal-or-not-nehruvian-dilemma-on-sedition-law-650444> accessed May 10, 2020.

CITE THIS WORK

Legal Maxim (October 26, 2020) Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law. Retrieved from https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/.
Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law.” Legal Maxim – October 26, 2020, https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/
Legal Maxim September 28, 2020 Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law., viewed October 26, 2020,<https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/>
Legal Maxim – Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law. [Internet]. [Accessed October 26, 2020]. Available from: https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/
Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law.” Legal Maxim – Accessed October 26, 2020. https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/
Constitutionality of §124-A of the IPC: The Evolution and Misuse of Sedition Law.” Legal Maxim [Online]. Available: https://www.legalmaxim.in/constitutionality-of-124-a-of-the-ipc/. [Accessed: October 26, 2020]
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Manya Ahuja
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Great read! 👌

Sameeksha Kapoor
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Very informative 🙌🙌

Avichal Tanwar
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Great read!

Ria
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Interesting perspective!

Diya Shenoy
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Very well elucidated! Great job👏🏻

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