the relevancy of sedition law in contemporary society
TRANSCRIPT
THE RELEVANCY OF SEDITION LAW IN
CONTEMPORARY SOCIETY
Dissertation submitted in part fulfilment for the requirement of the
Degree of
LL.M.
Submitted by: Supervised by:
AMIT KUMAR DR. NIRAJ KUMAR
13LLM18 ASSISTANT
PROFESSOR
NLU, DELHI
NATIONAL LAW UNIVERSITY
DELHI (India)
2019
i
DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “ The Relevancy of Sedition
Law in Contemporary Society,” submitted at National Law
University, Delhi is the outcome of my own work carried out under the
supervision of Dr. Niraj Kumar, Assistant Professor, National Law
University, Delhi
I further declare that to the best of my knowledge, the dissertation does not contain
any part of work, which has not been submitted for the award of any degree either in
this university or in any other institution without proper citation
Amit Kumar
Roll no- 13LLM18
National Law University, Delhi
New Delhi
May 21,2019
ii
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M dissertation entitled “The
Relevancy of Sedition Law in Contemporary Society,”
submitted by Amit Kumar at National Law University, Delhi is a bona fide
record of his original work carried out under my supervision.
To the best of my knowledge and belief, the dissertation : (i) embodied the work of
candidate hiself; (ii) has been duly completed ; (iii) is upto the standard, both in
respect of content and language, for being refered to the examiner.
Dr. Niraj Kumar
Assistant Professor,
National Law University, Delhi
New Delhi
May 21,2019
iii
ACKNOWLEDGMENT
I would like to express my sincere gratitude to all who guided and supported me in the
completion of this work.
Foremost, I am grateful to my supervisor, Dr . Niraj Kumar for his continuous
guidance,patience and support throughout the work. It was for his immense
knowledge and expertise on the law and jurisprudence that provided due direction to
this work, andenabled me to understand and appreciate the topic efficiently.
Furthermoew, I would like to thank my father and mother for their continuous support
and generosity throughout the years. I am also grateful to my peers, Amardeep
Sandhu,Amit Lamba and Abhishek Sharma for their delightful company throughout
this year. Thanks also to the Prof. (Dr.) Ranbir Singh and Prof (Dr.) G.S. Bajpai for
providing an execellent acadmic envirornment in NLU, Delhi for legal study and
research.
Amit Kumar
iv
LIST OF ACRONYMS AND ABBREVIATIONS
A.I.R All India Reporter
All. Indian Law Reports, Allahabad series
ACHR African Charter on Human and Peoples’ Rights, 1979
Art. Article
Bom Indian Law Reports, Bombay series
CJ Chief Justice
CJI Chief Justice of India
Cr. L.J. Criminal Law Journal
Cr. Lr Criminal law reporter
Cox Cox’s Criminal cases
ECHR European Convention on Human Rights
e.g. for example
H.C. High Court
ILR India law reports
UDHR Universal Declaration of Human Rights
IPC Indian Penal Code
ICCPR International Covenant on Civil and Political Rights
Ibid. repetition of footnote on the same page
Id. repetition of footnote on different page
i.e. that is
Infra quoted in later pages
J. Hon’ble Justice
Sec Section
v
SC Supreme Court of India
SCC Supreme Court cases
Supra quoted in earlier pages
UOI Union of India
Q.E Queen Empress
V. Versus
Vol. Volume
vi
LIST OF CASES
1. Abrams v. United States 250 U.S. 616, 630 (1919)
2. Babulal Parvate v. The State of Maharashtra A.I.R. 1961 S.G. 884.
3. Balwant Singh v. Punjab 1976 AIR 230.
4. Binayak Sen v. State of Chhattisgarh (2011) 266 ELT 193
5. Brandenburg v. Ohio 395 U.S. 444 (1969).
6. Chintaman Rao v. The State of Madhya Pradesh A.I.R. 1951 S.C. 118
7. De Libellis Famosis, (1606) 5 Co. Rep. 125a
8. Gurjatinder Pal Singh v. State of Punjab (2009) 3 RCR (Cri) 224.
9. Kedar Nath Singh v. State of Bihar, AIR 955 (1962).
10. King Emperor v. Sadashiv Narayan Bhalerao, L.R. 74 I.A. 89 (1947).
11. Nazir Khan v. State of Delhi 8 SCC 461 (2003)
12. New York Times v Sullivan 376 U.S. 254 (1964)
13. Niharendu Dutt Majumdar v. King Emperor, AIR FC 22 (1942).
14. P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793.
15. Queen Empress v. Amba Prasad, ILR 20 All 55(1898).
16. Queen Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112 (1898).
17. Queen Empress v. Jogendra Chunder Bose 1891, (1892) ILR 19 Cal 35.
18. Queen Empress v. Jogendra Chunder Bose ILR (1892) 19 Cal 35.
19. Queen Empress v. Ramchandra Narayan, ILR 22 Bom 152 (1898).
20. R. v. Burns and Others 16 Cox. C.C. 355, 361.
21. R. vs Sullivan, 11 Cox C.C. 44
22. Ram Nandan v. State, AIR All 101 (1959).
23. Ram Nandan v. State, AIR All 101 (1959).
24. Romesh Thappar v. State of Madras AIR SC 124 (1950)
25. Sanskar Marathe v. State of Maharashtra Cri.PIL 3-2015
26. Schnek v. United States 249 U.S. 47 (1919)
27. The Superintendent vs Ram Manohar Lohia 1960) S.CJ. 567
28. Yates vs USA. 354 U.S. 298 (1957)
vii
BIBILOGRAPHY
BOOKS
1. Gautam Bhatia, 2016, Offend, Shock, or Disturb: Free Speech under the
Indian Constitution. 1st Edn., Oxford University Press, USA. p.88
2. PSA Pillai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
3. V.N. Shukla, Constitution of India (M.P. Singh, New Delhi) 2008
STATUES
1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. The Constitution of India, 1950
4. Prevention of seditious meetings act, 1911
ARTICLES
1. R. K Misra. “FREEDOM OF SPEECH AND THE LAW OF SEDITION IN
INDIA.” Journal of the Indian Law Institute, vol. 8, no. 1, 1966, pp. 117–131
2. Roger B Manning. “The Origins of the Doctrine of Sedition.” Albion: A
Quarterly Journal Concerned with British Studies, vol. 12, no. 2, 1980, pp.
99–121
3. SARAH SORIAL. “CAN SAYING SOMETHING MAKE IT SO? THE
NATURE OF SEDITIOUS HARM.” Law and Philosophy, vol. 29, no. 3,
2010, pp. 273–305
4. Nicholas Shackel. “The Fragility of Freedom of Speech.” Journal of Medical
Ethics, vol. 39, no. 5, 2013, pp. 316–316.
viii
5. Umar Khalid, Meenakshi Lekhi & T.S.R. Subramanian, “Should the sedition
law be scrapped ?”, The Hindu, 19-06-2017
6. Akshdeep Singh, LAW OF SEDITION AND CONSTITUTIONAL RIGHTS IN
INDIA: A CRITIQUE. International Journal of Research Cultural Society,
Volume-1, Issue-6, Aug-2007
7. Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the
Indian Freedom Struggle in Nationalism And Social Reform In A Colonial
Situation 54 ( Kalpaz Publications, Delhi, 2005).
8. Narrain, S., “Disaffection and the Law: The Chilling Effect of Sedition Laws
in India” Economic & Political Weekly, September 2016, pp. 33-37.
9. Clare Feikert-Ahalt, Sedition in England: The Abolition of a Law from a
Bygone Era, October 2, 2012
10. Malaysia Backtracks on Sedition Law. The Diplomat, November 29, 2014
11. Malaysia Court Dismisses Challenge to ‘Unconstitutional’ Sedition Law”. The
Guardian, October 6, 2015
12. Judicial Independence and The Rule of Law in Hong Kong”, Hong Kong
University Press (2001), Page 78.
13. Carol P. Lai, Media in Hong Kong: Press Freedom and Political Change,
1967-2005 145 ( Routledge, Abington, Oxfordshire, 2007)
14. Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the
Indian Freedom Struggle in Nationalism And Social Reform In A Colonial
Situation 54 ( Kalpaz Publications, Delhi, 2005).
15. Narrain, S., “Disaffection and the Law: The Chilling Effect of Sedition Laws in
India” Economic & Political Weekly, September 2016
ix
REPORTS
1. Law Commission 267th Report on Hate Speech,(2017)
2. Law Commission 42nd Report (1971) titled ―Indian Penal Code
3. Law Commission 39th Reports (1968) titled ―The Punishment of
Imprisonment for Life under the Indian Penal Code
4. National Crime Records Bureau. (2015).
5. National Crime Records Bureau. (2016).
6. Royal Commission on Australia‘s Security and Intelligence Agencies, Report
on the Australian Security Intelligence Organization (1985)
7. The Law Commission,Treason, Sedition and Allied Offences (Working Paper
No.72), paragraphs 78 and 96(6) (1997)
WEBSITES
1. http://www.legalservicesindia.com/
2. http://www.indianlawcases.com/
3. http://indiankanoon.org/
4. http://www.scconline.com/
5. http://www.lawcommissionofindia.nic.in/
6. http://www.lawcommissionofindia.com/
7. http://indianexpress.com
8. http://timesofindia.indiatimes.com/
9. http://www.hindustantimes.com/
x
TABLE OF CONTENTS
S. NO TITLE PAGE NO.
COVER PAGE
Declaration by the candidate i
Certificate of supervisor ii
Acknowledgement iii
List of Acronyms and Abbereviations iv-v
List of cases vi
CHAPTER 1 INTRODUCTION 1-9
1.1 INTRODUCTION 1-4
1.2 LITERATURE REVIEW 4-6
1.3 RESEARCH METHOD 6-9
1.3.1 Statement of research problem 6-8
1.3.2 Objectives of study 8
1.3.3 Research questions 8
1.3.4 Research methodology 8
1.4 CHAPTERIZATION SCHEME 9
CHAPTER 2 SEDITION IN CONSTITUTION 10-17
2.1 DEFINITION 10-13
2.2 ORIGIN 13-14
2.3 CONSTITUTIONAL PROSPECTIVE 14-15
2.4 THE LAW OF SEDITION AND
FREEDOM OF SPEECH
15-17
CHAPTER 3 COMPARATIVE PERSPECTIVE
OF SEDITION LAW
18-29
3.1 UNITED KINGDOM 18-20
3.2 AUSTRALIA 20-21
3.3 UNITED STATES OF AMERICA 21-23
3.4 MALAYSIA 24-25
3.5 HONGKONG 25-26
3.6 INTERNATIONAL FRAMEWORK 26-28
3.7 CRITICAL INFERENCES 28-29
xi
CHAPTER 4 INDIAN PERSPECTIVE OF
SEDITION LAW
30-41
4.1 LEGISLATURE APPROACH 30-32
4.1.1 pre-constitutional 30-31
4.1.2 Constitutional assembly debates 31
4.1.3 Post constitutional development 31-32
4.2 JUDICIAL APPROACH 32-38
4.2.1 Pre-independence 32-34
4.2.2 Post-independence 34-35
4.2.3 Recent decisions 36-38
4.3 VOICE OF CONCERN 39-41
CHAPTER 5 CONCLUSION AND SUGGESTION 42-44
5.1 CONCLUSION 42-44
5.2 SUGGESTIONS 44
BIBILOGRAPHY vii-ix
[1]
CHAPTER -1
INTRODUCTION
1.1 INTRODUCTION
Section 124A is a product of our colonial history, introduced by the British. Thomas
Macaulay introduced sedition as an offense in the draft of the IPC in 1837, but it was
omitted in the version enacted in 1860 The offense of sedition was added to the Indian
penal code in the year 1870 as the response of Wahabi movement.1 Although the
word “sedition” does not occur in section but it is found in marginal note of the
section which provide that whosoever through his words whether these words are
spoken or in written format if these words are promoting either hatred or contempt or
disaffection against the government established by law shall be booked under offence
of sedition and whereas people can be sentenced to three years in jail or life
imprisonment in jail to which a fine can also be added.2
Many writers, nationalist, poet through articles, writings, newspapers they were trying
to inform and educate the masses about the situation that people have to come
together on a single platform and launch a struggle for India's independence. British
soon realized that if they allow Indians to carry on with this education propaganda
then their days in India are numbered and they need to have criminalized their
freedom of speech and expression and for this very purpose the sedition law was
incorporated in Indian penal code and the primary objective was that somehow
prevent nationalist feelings from getting developed amongst the Indians and suppress
their voices
Bal Gangadhar Tilak, Maulana Abul Kalam Azad, and Mahatma Gandhi are the
prominent personalities that booked under sedition law. When Mahatma Gandhi was
booked under sedition after the non-cooperation movement he pleaded guilty and said
‘this government is cruel and for every right-thinking individual it is the duty to
1 Nivedita Saksena & Siddhartha Srivastava, “An Analysis of the Modern offense of Sedition”,
Manupatra, 2015, p.123 2 Section 124-A, The Indian Penal Code ,1860
[2]
promote disaffection against that cruel government’.3 The irony is the largest
democracy in the world is having laws which were once hurdles in their own path of
freedom. Whereas after the independence while framing the new constitution for the
people of this country a committee on fundamental rights was headed by Sardar Patel
formed.4 Where the committee initially added sedition as one of the grounds on which
freedom of speech and expression under article 19(1)(a) can be restricted that means
constitution would have provided us freedom of speech and expression but it was not
meant to be absolute there would be reasonable the restrictions on freedom of speech
and expression one such restriction was sedition but when sedition as a ground for
restriction on freedom of speech and expression was introduced in the draft
constitution many people in the constituent assembly protested.5 Ultimately sedition
ground was dropped that means sedition was not mentioned as the reasonable
restriction under freedom of speech and expression as sedition is not one of those
grounds but then sedition is still mentioned under 124-A of Indian penal code that is
currently in force in this country.6
Whereas article 13 of the Indian constitution stated that any law even if it has been
passed before the independence if this law is an agreement with fundamental rights
chapter under part three of Indian constitution this law will be valid but if this law
violates the fundamental rights provided under part three of Indian constitution it will
be declared unconstitutional. For the same reason, the matter went to the court in a
famous case of Kedar Nath Singh versus State of Bihar7, in this case, the
constitutional validity of the sedition law was challenged but Supreme Court said that
sedition law under Indian penal code is valid but narrow down the interpretation of
the sedition law.
Further stated that we cannot have sedition, as well as freedom of speech and
expression in the same breath, give precedence to freedom of speech and expression
but if any person is using freedom of speech and expression to incite people to
3 Stanley A. Wolpert, Tilak and Gokale: Revolution and Reform in the Making of Modern India,
University of California Press, Berkley and Los Angeles, 1961, p. 101. 4 Gautam Bhatia, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st
Edn., Oxford University Press, USA. p.88 5 Constituent Assembly of India Part I Vol. VII, 1-2 December 1948, (Jan. 10, 2019)
http://parliamentofindia.nic.in/ls/debates/vol7p16b.htm 6 Maneesh Chibber, How our Constitution makers debated & rejected the draconian sedition law
https://theprint.in/opinion/how-our-constitution-makers-debated-rejected-the-draconian-sedition-
law/183548/ (accessed 10 Mar. 2019) 7 1962 AIR 955
[3]
violence then he can be booked under sedition and where he can be sentenced to three
years in jail or life imprisonment because if any person is inciting people to violence,
therefore, he is also violating public order and since public order is one of the
reasonable restrictions under article 19 clause 2 on which people freedom of speech
and expression can be restricted in that case the constitutional validity of sedition law
is intact due to this Supreme court narrow down the interpretation of sedition where
people can say whatever they want to say but that should not amount to incite people
to violence.
In 1980s operation Blue Star was launched subsequently Indira Gandhi got
assassinated by her Sikh bodyguards then the slogans were raised ‘Raj Karega
Khalsa’, ‘Khalistan Zindabad’ since there was a section of Sikh community in Punjab
which wanted an independent country called Khalistan.8 Those people who raised
these slogans were also arrested and they were booked under sedition for promoting
disaffection against the government established by law matter went to the court. In
case of Balwant Singh versus State of Punjab9, it was held by supreme court that mere
slogans no matter how unpalatable these slogans are they won't be deemed as sedition
because people have the freedom of speech and expression unless and until they are
inciting people to violence and calling people to raise arms to overthrow the
government then the only person can be booked under sedition.
In the landmark case Shreya Singhal versus Union of India10
, where for the first time
Supreme Court defined what speech primarily is amount to sedition. Which stated that
through spoken words or written words people can advocate whatever they want to
advocate but don't incite people to violence that means advocating any idea is your
freedom of speech and expression propagating any idea is your freedom of speech and
expression they can't incite people to violence if they do then there is breakdown of
public order where person is violating the peace and tranquillity in the state then only
person can be booked under sedition, So the law and supreme court rulings are clear
no matter how unpalatable the speeches are the words including the cringe-worthy
slogans such as ‘Bharat ki barbadi tak jhang rahegi’ that is not sedition because the
supreme court is clear unless and until you are inciting people to violence people
8 R. K Misra. “FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA.” Journal of the
Indian Law Institute, vol. 8, no. 1, 1966, pp. 117–131. 9 1995 (1) SCR 411
10 AIR 2015 SC 1523
[4]
won't be charged with sedition but although the law and the supreme court rulings are
clear still we have seen that this sedition law is being misused by the police like
student activists in JNU were arrested11
and activists in Assam who are protesting
against the citizenship amendment bill they have been also booked under sedition we
have seen people from around the Arundhati Roy to Hardik Patel they have been
booked under sedition.This is the reason law commission in its 42nd report said that
we have a relook at this entire sedition law and that is the reason many people today
are asking for that this sedition law it's a relic of colonial error and it should be
altogether scrapped and give freedom to the people, so that democracy could stay
alive
1.2. LITERATURE REVIEW
Nicholas Shackel (2013) ‘Democracy’ and ‘Freedoms’ are two sides of the same coin.
Freedoms are very vital in the true realization of democracy. But sedition laws stand
as an exception to the freedoms. The most pertinent question that requires to be
answered is whether ‘Sedition’ is a justified exception to the freedom enshrined in the
Constitution of India. Before coming to this question, we need to trace the origin of
sedition laws in India.
Roger B Manning (1980) talks about the evolution of the doctrine of sedition law in
England and how it’s spread all over commonwealth countries. In the19th
-century
sedition law was used by most countries as these laws were considered as a powerful
tool to suppress the voice of the citizen against the government. Similarly, the British
Empire enacted the sedition law in its colonies to get control over their territories.
Even after the independence countries like India hold this law which was once hurdles
in their own path of freedom. While most of the country repeal the law or minimized
its effect so that it can’t be further misused by the state even by a country like the UK.
Arvind Ganachari (2005) Earlier it was used as a political weapon by the government
to suppress voices of the people. So that no one can raise their voices against the
action of the government. In a retrospective analysis, it is understood to have been so
11
How the JNU crisis played out.
https://timesofindia.indiatimes.com/india/How-the-JNU-crisis-played-out/articleshow/51034297.cms
(accessed 11 Mar. 2019)
[5]
enacted to stifle anti-colonial voices of the time (pre- Independence). As a precedent,
therefore, this section was used against various nationalist leaders, most notably
against Bal Gangadhar Tilak and Mahatma Gandhi. As many of the countries
abolished sedition law like the UK. Again question rise relating to existence in India
where the law continues to be in existence
Sarah Sorial (2010) There can be a direct and indirect relationship between two of
them one act which was foreseeable by the person who did seditious act and secondly,
where the person was doing the act in good faith who had no idea about the
consequence. But if we see in Indian context there is no such classification both the
act would amount to the same punishment. There is also no way to measure the actual
harm like in case of hurt, murder, etc. It’s all about the mental capacity of persons to
persons for some persons something can be more seditious for some persons it can be
not at all. Due to this also need to check whether in such kind of offenses mens rea
plays a crucial role? As even in England mens rea was required before it was repeal
R. K Misra (1966) Sedition law faced many challenges regarding their constitutional
validity. Where it was rejected by the Constitutional committee to declared
unconstitutional by various High court.“Freedom of speech is a fundamental liberty
that imposes a stringent duty of tolerance. Tolerance is limited by direct incitements
to violence In this paper,”The only reason that sedition continues able to survive as it
was inserted under article 19(2) as restriction of freedom of speech and expression
due to this in Kedarnath case it was declared constitutional valid. Due to this, it’s
required to check whether it is justified as the ground of restriction or not.
Gautam Bhatia (2016) book explores the history, conceptual basis, and operation of
these provisions. One of the chapter deal with the sedition law where he described
factors that make sedition law come into existence and how this law was inserted
under article 19(2) of Indian Constitution to provide as reasonable restriction of
freedom of speech and expression. This book helps to understand the evolution of
sedition law in India and their relationship with the freedom of speech and expression.
John Stuart Mill’s arguments including the “harm principle and the offense principle”
and their applications in order to justify or not restrictions of free speech. Also,
highlight one of the major problems that cause missuses of the section is ambiguity in
[6]
the law itself and there is a difference between the laws interpreted by the Supreme
Court and law that actually is being followed by the lower court
Akshdeep Singh (2007) where all the argument presented to the existence of sedition
law in present society which is related to whether there is any need to repeal sedition
law or not. That help to understand the core issue related to sedition law in the present
situation. Where many arguments are made like one of them is less conviction rate in
sedition law where the author tried to relate it with government political weapon to
harass the people but less conviction rate does not make bad law itself. Even in the
case of rape, there is less conviction rate so, it does not make law useless.“This paper
endeavors to feature the lacunas in the meaning of Section 124A of IPC and its right
interpretation as per the Indian Constitution with the assistance of Judicial
Interpretation by the Court.” It was in 1870 that the British government enacted
section 124A into the primary penal legislation. There are various factors which
required to check whether there is any requirement of sedition law in present society
as it was used to suppress voices.
1.3 RESEARCH METHOD
1.3.1 Statement of research problem
The right to freedom of speech and expression is an implicit part of any democratic
nation; to curb this right is to curb free will and liberty of thought. If one cannot voice
his or her opinion freely then it invalidates the point of having an opinion. India is
considered as the world largest democratic nation and dissent is the lifeblood of
democracy still India’s imposing restriction on people freedom of speech, where one
of the restriction present in form of sedition which was nowhere in the picture when
the constitution was framed even during the constitution debate on sedition law by
majority it was decided not to insert sedition as one of the restrictions under Article
19(2) of the Constitution. It was later added under Article 19(2) by broadening its
scope and including it under the domain of “public order” to save it from the decision
of Allahabad high court which already declared sedition as unconstitutional latterly,
[7]
Due to this amendment in Kedarnath case12
it was held constitutional. Indeed, sedition
has survived numerous attempts to get rid of it and the only reason that sedition
continues able to survive as it was inserted under article 19(2) so the question also
will be rise whether it is justified as the ground of restriction of freedom of speech and
expression
Also after the case of Kedarnath Even though the Supreme Court has narrowed the
scope and applicability of section 124A, in its landmark judgment,“where it linked
sedition to a test of tangible evidence of actual harm, still the lower courts and
investigating authorities have continually overlooked this interpretation of the
Supreme Court”where need to find out whether there is any ambiguity in laws itself or
their implementation as some argued interpretation is still wide that required more
clarity. But in a democracy the people are supreme. They are the masters, while the
govt is the servant of the people. Surely the master has a right to criticize the servant.
In fact, a few months after the promulgation of the Constitution a Constitution Bench
of the Supreme Court held in Romesh Thapar vs the State of Madras that in a
democracy people have a right to criticize the govt, and that judgment holds the field
even today. The legislature well knew of the fact that sedition law continues to being
misused still they didn’t repeal or amend the law because they don’t want to do.
Due to the increasing cases of sedition in present times and in the wake of recent
controversies regarding section 124-A IPC (i.e Kanhaiya Kumar controversy) and a
demand for its abolition or amendment, it is necessary to find the core problem of
these cases. Whether there is still a requirement of strict law on sedition in the present
society or it’s become now obsolete as it was inserted into Indian penal code by
Britishers after 10 years as a response to the rising Wahabi movement by the colonial
government to prosecute Journalist, politician, writers, and others people to suppress
their voices at that time. Even nowadays it argued that this law continues to be used as
a political weapon by the government recently, Assamese RTI activist Akhil Gogoi,
writer Hiren Gohain charged for sedition for their remarks against the Citizenship
(Amendment) Bill, the Jadavpur University Professor Ambikesh Mahapatra was
arrested for sharing cartoons of Mamata Banerji. A farmer Silanath Choudhary was
arrested for telling Mamata Banerji that she has not kept her election promises to
farmers, many more such examples can be given. As many of the countries abolished
12
Supra note 7.
[8]
sedition law like UK and US again question rise relating to existence in India which is
the largest democracy in the world is having laws which were once hurdles in their
own path of freedom. Democracy’ and ‘Freedoms’ are two sides of the same coin.
Freedoms are very vital in the true realization of democracy. But sedition laws stand
as an exception to the freedoms. The most pertinent question that requires to be
answered is whether ‘Sedition’ is a justified exception to the freedom enshrined in the
Constitution of India.
1.3.2 Objectives of study
To Understand the relation and balance between sedition and freedom of
speech and expression
To resolve the issues and the dilemmas associated with sedition laws.
To study the extent to which the sedition law should be amended to ensure that
is not misused
To find out the ambiguity or loopholes in existing sedition law and its
application
1.3.3 research questions
Whether the law of sedition is justified as the reasonable restriction of freedom
of speech and expression?
Whether the law of sedition has now become obsolete?
1.3.4 Research methodology
In present work, Doctrinal method of research was adopted. This work does not
involve any empirical and field work as sufficient data was available. For the purpose
of this work, data was collected from secondary sources which include various
relevant statutes, articles, newspapers, Constituent assembly debates, and landmark
decisions which further analyzed in a systematic manner.
[9]
1.4 CHAPTERIZATION SCHEME
Chapter 1 gives a general introduction of the problem which is to be dealt in with.
Chapter 2 gives an introduction to the concept of sedition keeping in view the
constitutional perspective of law and their relation with freedom of speech and
expression.
Chapter 3 discusses the position of sedition law in different countries was discussed.
Both(developed and developing) kind of countries taken into consideration as law of
sedition was used by most of the countries in the 19th
centuries but now the picture
has totally changed as many countries have repealed the provision and discuss
countries like the UK which enacted the law of sedition in its colonies and many
Commonwealth countries which abolished the crime of sedition in 2010 or narrowed
down the scope such as the USA.
Chapter 4 has been entirely devoted to the development of sedition law in India.
Where both the judicial and legislative approach has been taken into consideration
from the pre-independence period to the present period. It further discusses the
controversy in the present time which supports both side of the argument regarding
amendment of sedition law or repeal.
Finally, Chapter 6 which concluded this work end with the note that In the short run,
There is a requirement to the amendment of the law to make sure the process of law is
not being abused for political gains. In the long run, aim for the total abolishment of
sedition laws and set a roadmap to get there eventually
[10]
CHAPTER -2
SEDITION IN CONSTITUTION
“As the matter of fact, the essence of democracy is Criticism of Government”
-K.M.Munshi13
2.1 DEFINITION
The right to freedom of speech and expression is an implicit part of any democratic
nation; to curb this right is to curb free will and liberty of thought. If one cannot voice
his or her opinion freely then it invalidates the point of having an opinion. In the past,
the successive governments have often been alleged to have used certain laws as their
weapon of choice to suppress this very free speech that forms the basic foundation of
democracy.
One such law is the sedition law, which in our legal system, is embodied under
section 124A of the Indian Penal Code (IPC). It states that:
“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 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.”14
Sedition, therefore, in simplified terms, is an act by any person or entity who seeks to
incite “disaffection” against the State of India. Such a person will be subjected to the
13
Freedom Fighter as well as Lawyer, Constiuent assembly of India Part I Vol. VII, 1-2 December
1948, http.// parliamentofindia.nic.in/Is/debates/vol7p16b.htm (accessed 11 Mar. 2019) 14
Indian Penal Code, 1860, Section 124A.
[11]
due process of law which may extend up to life imprisonment. Charges under this
provision of law will naturally be brought against speech or writing that happen to
incite acts of a seditious nature and therefore constitute a limitation on the
fundamental right of freedom of speech and expression provided for under Article 19
of the Constitution.15
As with any limitation on a fundamental right, the concept of imprisonment or even
chastisement for seditious behavior has its detractors who believe that in a proper
democracy, seditious behavior is also covered under and protected by the freedom of
speech and expression. Such an idea is in direct conflict of traditional notions of
nationalism and patriotism while others claim that India is not a nation so weak as to
be in any actual danger by mere seditious words and ideas. However, the debate on
sedition is not limited only to India and has a long jurisprudential history in almost
every country in the world. To offer some perspective on the situation in India, it is
imperative to compare and contrast the history and future of sedition in India and
other countries across the world.
The ambit of this section (law) provides wide-ranging powers to the government to
prevent the use of free speech, however, the explanation to this section also includes
several exceptions. Cases which do not incite feelings of enmity against the
government or which are mere lawful criticisms of the policies of the government are
not to be included within the scope of this section.
In that era of colonialism, it was believed that the provision with respect to sedition is
more stringent and strict in comparison to other offenses mentioned in IPC. It was
also believed that there will be a necessary denial of bail for the accused in the offense
of sedition.16
This provision was also used to curb the voices raised for criticizing the
government policies.
15
Protection of certain rights regarding freedom of speech etc
(1) “All citizens shall have the right
(a) to freedom of speech and expression
(b) to assemble peaceably and without arms
(c) to form associations or unions
(d) to move freely throughout the territory of India
(e) to reside and settle in any part of the territory of India and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business” 16
PSA Pillai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
[12]
It is pertinent to understand the very ideology of the section 124A of Indian Penal
Code, 1860. The ideology of this provision can be understood by understanding the
explanation 1 of this provision. It is pertinent to produce the explanation 1which is
provided as under:
“Explanation 1.—the expression disaffection includes disloyalty and all
feelings of enmity.”
Here the point of issue is the word disloyalty. In a democracy is there a need to be
loyal towards the elected government. What is the scope of loyalty? Honest criticism
is also included in disloyalty? These are a few questions that need to be answered or
given a thought to understand the ideology behind the creation of the law of sedition
of the draftsman of this section.
It is important to know and understand the meaning or the scope of the term sedition.
The scope of sedition laws can be traced from the common law. In R. v. Burns and
Others17
, it was observed that:
“Sedition in itself is a comprehensive term and it embraces all those
practices ‘whether by word, deed, or writing which are calculated to
disturb the tranquillity of the State, and lead ignorant persons to endeavor
to subvert the Government and the laws of the Empire. The objects of
Sedition generally are to induce discontent and insurrection, and stir up
opposition to the Government ... and the very tendency of sedition is to
incite the people to insurrection or rebellion”
The same view of the English Court was reiterated by the Supreme Court in the year
2003 in Nazir Khan v. State of Delhi18
. It was further stated by the Apex Court that:
“Sedition has been described as disloyalty in action, and the law considers
as sedition all those practices which have for their object to excite
discontent or dissatisfaction, to create public disturbance, or to lead to
civil war; to bring into hatred or contempt the sovereign or the
Government, the laws or constitutions of the realm, and generally all
endeavours to promote public disorder.”
17
16 Cox. C.C. 355, 361. 18
8 SCC 461 (2003)
[13]
The Supreme Court has clearly stated the test for establishing the linkage between the
act and the aim of the object. If the aim of the practice is to create public disturbance
or hatred against the sovereign then that practice shall be termed as sedition.
To understand the rationale behind the implementation of this law, it is vital to
understand the history and the framework of the law.
2.2 ORIGIN
Like much of the Indian Penal Code, section 124A is a product of our colonial
history, introduced by the British. Thomas Macaulay introduced sedition as an offense
in the draft of the IPC in 1837, but it was omitted in the version enacted in 1860.19
British legislators considered this to be a mistake and believed that the Indian press
needed to be kept in check to prevent the rise of a nationalist movement. Furthermore,
they were afraid of the rise of Wahabism and greatly increased Wahabi activities in
the late 1800s.20
As a result, the provision was re-introduced in the Code in
1870.21
Queen Empress v. Jogendra Chunder Bose22
was the first ever case brought
about on the grounds of sedition.
It was in 1870 that the British government enacted section 124A into the primary
penal legislation. In a retrospective analysis, it is understood to have been so enacted
to stifle anti-colonial voices of the time (pre- Independence). As a precedent,
therefore, this section was used against various nationalist leaders, most notably
against Bal Gangadhar Tilak and Mahatma Gandhi.
The concern of having Sedition as a restriction on the freedom of speech was not lost
in the constitutional assembly debates. With a recent history of our prominent
freedom fighters (virtually our heroes of independence) being charged and imprisoned
under this law, the drafters of the constitution were cautious of the implications of the
inclusion of sedition in the constitution and with just reason. After all, this basic right
19
Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle
in Nationalism And Social Reform In A Colonial Situation 54 ( Kalpaz Publications, Delhi, 2005). 20
Supra, note 3, Page 56. 21
Narrain, S., “Disaffection and the Law: The Chilling Effect of Sedition Laws in India” Economic &
Political Weekly, September 2016, pp. 33-37. 22
1891, (1892) ILR 19 Cal 35.
[14]
of a person to free speech was one of the main ingredients that got us our freedom
from oppressive foreign rule.
Initially, the draft constitution did include ‘sedition’ as a foundation on which laws
could be established upon for limiting the fundamental right to speech (restriction on
freedom of speech). In the final draft, however, Sedition was eliminated from the
exceptions under article 19(2). This was largely due to the initiative of eminent lawyer
and freedom fighter, K.M. Munshi. , speaking for the deletion of the word "sedition,"
observed:
“The public opinion has changed considerably since and now that we have a
democratic Government a line must be drawn between criticism of the Government
which should be welcome and incitement which would undermine the security or
order on which civilized life is based, or which is calculated to overthrow the State.
Therefore, the word sedition has been omitted. As a matter of fact, the essence of
democracy is a criticism of Government”23
Deletion of the word "sedition" was also necessary, Mr. Munshi added, “otherwise an
erroneous impression would be created that we want to perpetuate 124-A of the I.
P.C." The move was unequivocally welcomed by all the sections of opinion in the
Assembly”24
Contrary to the impassioned belief of Indians that post-independence, there would be
a revolution with regard to freedom of speech and expression, within 15 months from
the enforcement of the Constitution, the Government of India brought the first
amendment to amend the Article 19 of the Constitution of India.
2.3 CONSTITUTIONAL PROSPECTIVE
It is pertinent to mention here that the objectives of the 1st Amendment state that
“certain difficulties have been brought to light by judicial decisions and
pronouncement” One of the judicial decisions which led to the 1st amendment with
23
7 C.A.D. 731 (1948) 24
Id. at 731-32.
[15]
respect to Article 19 (1) (a) of the Constitution was the famous judgment of the
Supreme Court in Romesh Thappar v. State of Madras25
case.
In Kedar Nath case26
, the Supreme Court has read down the section 124A of the
Indian Penal Code. The words criticizing the government or the policy of the
government do not attract the provision of sedition unless those words incite the hatred
or disturbance amongst the society or the people at large. It is important to note that in
the above-mentioned case, actually, the Supreme Court did not say anything
extraordinary while interpreting the section 124A of the Indian Penal Code. If you
read explanation 2 & 3 of section 124A of the Indian Penal Code, the words are as
same as used by the apex court while interpreting section 124A of the Indian Penal
Code. It is believed that the section 124A of the Indian Penal Code was read down in
the Kedar Nath Case, but it was just a way or a medium to emphasize the value of
explanations 2 & 3 of section 124A of the Indian Penal Code.
Even with the judgment of Kedar Nath case, there have been ample examples in
which section 124A has been levied for criticizing the government policies, etc. There
have been various names that have been booked for sedition in recent years. Vaiko,
Binayak Sen, Arundhati Rai, etc. In the recent past, a professor was booked in
Kashmir for putting questions in an examination with regard to the unrest in Kashmir.
With the examples like these, we need to analyse the judicial response towards section
124A of Indian Penal Code.
Across the world, there is no nation which has absolute freedom with regard to speech
and expression. There has to be a reasonable restriction on all the freedom as ‘the
limit of one’s liberty is where other’s liberty starts’. If we understand the existing
wording of section 124 A of the IPC, we realize that it is a tool to curb or restrict the
fair criticism against the government.
2.4 THE LAW OF SEDITION AND FREEDOM OF SPEECH
‘Democracy’ and ‘Freedoms’ are two sides of the same coin. Freedoms are very vital
in the true realization of democracy. But sedition laws stand as an exception to the
25
AIR SC 124 (1950) 26
Supra note 7.
[16]
freedoms. The most pertinent question that requires to be answered is whether
‘Sedition’ is a justified exception to the freedom enshrined in the Constitution of
India. Before coming to this question, we need to trace the origin of sedition laws in
India.
In independent India, the co-existence of the offense of sedition and freedom of
speech and expression was difficult. First Amendment of the Constitution of India
added ‘public order’ and ‘relations with friendly states’ in the exceptions to the
freedom of speech and expression and the word ‘reasonable’ was added before
‘restrictions’
The Supreme Court, after expressing its preference for the views of the Federal Court
on the interpretation of section 124-A, seems to have assumed, without adequate
analysis, that the restrictions imposed by the section on the freedom of speech and
expression fall within the permissible limits of article 19(2).
This is, no doubt, true but it does not mean that every restriction placed on the
freedom of speech and expression will be valid if some connection with the public
order can be established. There has to be, as pointed out by Mr. Justice Subba Rao, in
the Lohia case27
"an intimate connection between the Act and the public order sought
to be maintained by the Act." and the restriction, in order to be held reasonable
restriction, should be one “which has a proximate connection or nexus with public
order but not one far-fetched, hypothetical or problematic or too remote in the chain
of its relationship with the public order.”28
The only reason given by Mr. Chief Justice Sinha on the point was that the words “in
the interest of public order used in clause (2) are words of great amplitude and are
much more comprehensive than the expression "for the maintenance of.”29
The decision in the Kedar Nath Case30
fails at establishing any such relationship even
if it is assumed that the impugned section 124-A, aims only at speeches which have a
tendency to incite disorder or violence. Besides the requirement of proximity to public
order, it is necessary in order to sustain its validity, that restriction imposed by section
124-A on the freedom of speech and expression is reasonable.
27
The Superintendent, Central vs Ram Manohar Lohia .(1960) S.CJ. 567 28
Ibid. 29
Ibid. 30
Supra note 7.
[17]
The application of the judicially determined standards of reasonableness leads us to an
opposite conclusion. The word “reasonable,” according to the Supreme Court in
Chintaman Rao v. The State of Madhya Pradesh31
, Implies intelligent care and
deliberation, i.e., the choice of course which reason dictates. The supreme test of
reasonableness is that
“the limitation imposed on a person in the enjoyment of the right should not be
arbitrary or of an excessive character, beyond what is required in the interest of the
public. Legislation which arbitrarily or excessively invades the right cannot be said to
contain the quality of reasonableness”32
It can hardly be said that section 124- A strikes a proper balance between the
freedom of speech and social control;
It also does not fulfill the requirement of a rational relation with the object
which the legislature seeks to achieve and not be in excess of that object. A
reference to only some of the aspects of the definition of the offense in the
section would suffice to prove the unreasonableness of the restrictions
contained therein.
The section makes penal not only the incitement of certain feelings but also an
attempt (even though with no chances of success) to do so. The impugned
words, signs or representation would attract the provision of the section even
though addressed to one from whom no danger to public order can be
expected.
Further, the section seeks to punish a person for his state of mind when it
defines the offense by the use of the words disaffection, disloyalty, and
enmity. Explanations 2 and 3 by permitting the expression of disapprobation
of the measures and activities of the government to seek to draw an
unreasonable distinction between the criticism of the measures of the
government on the one hand and criticism of the government on the other a
line which may be impossible to maintain in concrete cases
In a developing country where the democratic traditions have yet to be established,
the right to freedom of speech has to be given a pride
31
A.I.R. 1951 S.C. 118 32
Ibid. para-6
[18]
CHAPTER-3
COMPARATIVE PERSPECTIVE OF SEDITION LAW
A lot of modern democracies, especially in Asia, can point to the British colonial
legacy as the source of their sedition laws. Recent political developments in India and
multiple countries across the world regarding the crime of sedition have once again
given rise to a debate on the ethical and legal validity of criminalizing the act of
sedition. To provide a comparative look at the different legal scenarios in the world,
studies (anti)sedition laws in the United Kingdom, the United States of America,
Malaysia, Hongkong, and Australia.
In the 19th
-century sedition law was used by most countries as these laws were
considered as a powerful tool to suppress the voice of the citizen against the
government. Similarly, the British Empire enacted the sedition law in its colonies to
get control over their territories.
Even after the independence countries like India hold this law which was once hurdles
in their own path of freedom. While most of the country repeal the law or minimized
its effect so that it can’t be further misused by the state even by a country like the UK.
[19]
3.1 UNITED KINGDOM
The principal of sedition law can be traced from some of British oldest law, Such as
Statue of Westminster 1275. Where Divine rights belong to the king which were not
questioned. It was required to prove an intention to make the offense of sedition.
Much like most of their laws, England set the judicial precedent for the concept of
sedition in the form of the offense of seditious libel. The English “Star Chamber”
court in 1606 defined seditious libel as a criticism of public persons, the government,
or King.33
The consequences were barbaric by today’s standards, but seemingly on par with the
prevalent legal scenario. The intent of the libel and the actual damage suffered as a
consequence of such libel was considered to be irrelevant. The truth was no defense to
the offense either. The Church and the State being intrinsically linked and
interchangeable to such an extent as to practically be considered one and the same
(even with different heads for both organs), seditious libel was equated to religious
blasphemy.
The history of seditious libel and this case, in particular, are telling examples of the
underlying significance of making sedition a crime; questioning the State’s authority
is not condoned by the State. Sedition and blasphemous libel were liberally used by
the State to curb questioning of authorities by civilians in the eighteenth and
nineteenth centuries
In the case of R. vs Sullivan, Fitzgerald J. defined sedition as “Sedition in itself is a
comprehensive term and it embraces all those practices, whether by word, deed or
writing, which are calculated to disturb the tranquillity of the State, and lead ignorant
persons to endeavor to subvert the Government and the laws of the Empire. The
objects of sedition generally are to induce discontent and insurrection and to stir up
opposition to the Government, and bring the administration of justice into contempt,
and the very tendency of sedition is to incite the people to insurrection and
rebellion”34
However, British democracy evolved in the 20th
century were the offenses of sedition
dropped sharply with the time and 1970s was the last decade where any prosecution
took place. The Criminal Justice and Immigration Act of 2008 abolished religious
33
De Libellis Famosis, (1606) 5 Co. Rep. 125a 34
R v. Sullivan (1868) 11 Cox C.C. 44 at p. 45
[20]
blasphemy as an offense while the Coroners and Justice Act of 2009 removed sedition
as an offense, along with seditious libel.35
Therefore as the law now stands, sedition in
any manner or form is not a criminal offense in the United Kingdom
Due to this United Kingdom law commission examine whether there is any necessity
of sedition libel law in a modern democracy and following this law commission report
in February 201036
, they prepared a note on freedom and privacy that these laws
violate article 12 of Human Right Act, 1998 also in contravention to the European
Convention on Human rights. While repealing the sedition as an offense the
parliament stated the reason that
“offenses – from a bygone era when freedom of expression wasn‘t seen as the right it
is today… The existence of these obsolete offenses in this country had 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 offenses will allow the UK to take a lead in challenging similar laws in other
countries, where they are used to suppress free speech”37
Subsequently, the crime of sedition and seditious libel was abolished by Coroners and
justice act, 200938
. The primary consideration was the language of the offense which
was archaic in nature and did not portray the real image of the present democratic
nation. Which was used by the king or state to suppress the voices of the people.
Secondly, Only 3 cases reported in the 1990s and there was no major case reported in
recent years.
Thirdly, Many countries already repealed the law or minimized the effect of sedition
law for giving the right to freedom of speech and expression due to this many
international institutions pass the law due to this many provision of the statue was
being violated such as article 12 of human rights act,1998.
35
Clare Feikert-Ahalt, Sedition in England: The Abolition of a Law from a Bygone Era, October
2, 2012, http://blogs.loc.gov/law/2012/10/sedition-in-england-the-abolition-of-alaw-
from-a-bygone-era/ (accessed 21 Mar. 2019) 36
The Law Commission,Treason, Sedition and Allied Offences (Working Paper No.72), paragraphs 78
and 96(6) (1997); the Law Commission, Criminal Law: Report on Criminal Libel (Cm 9618) (1985). 37
Criminal libel and Sedition Offences Abolished, Press Gazette (Jan. 13, 2010) 38
Section 73: Abolition of common law libel offences etc
“The following offences under the common law of England and Wales and the common law of
Northern Ireland are abolished—
(a)the offences of sedition and seditious libel;
(b)the offence of defamatory libel;
(c)the offence of obscene libel”
[21]
One may note that in the seven years since the repeal of criminal sedition, there has
been no military coup or any attempts to destabilize the Government, nor has there
been any internal warfare, rebellious uprisings or civil wars. But then again, one has
to keep in mind that the United Kingdom is a stable democracy and not a fledgling
one that was at risk of a rebellion or coup at any point of time in recent history.
3.2 AUSTRALIA
Australia was one of the Commonwealth countries where sedition law was enforced.
Foremost legislation where sedition offense was found in Crime Act 1920. Provision
of sedition under this act was more in a wider form similar to Indian Sedition. Which
does not require to have subjective intention and incitement to violence due to this
law become more dangerous in nature. For the same reason, the Hope Commission
(1984) and Gibbs Committee (1991) was formed that recommended that the
Australian definition of the sedition law should be a line up with the other
Commonwealth nation.
Subsequently, Provision was again suggested by the former committee that
Conviction should be limited to that act which incites violence and the requirement to
incitement of violence for the purpose of overthrowing constitutional body.
In 2005 most of the existing provision on sedition was repealed by the Anti-terrorism
Act. Where new provision was inserted into the Criminal Code. Afterward, there is
again issue raised whether the word sedition is suitable to describe the offenses after
the 2005 amendment for this Australian Law reform commission studied the
provision and recommended that.39
“The Australian Government should remove the term sedition from federal criminal
law. To this end, the headings of Part 5.1 and Division 80 of the Criminal Code
should be changed to Treason and urging political or inter-group force or violence‘,
and the heading of s 80.2 should be changed to Urging political or inter-group force
or violence”
39
Royal Commission on Australia‘s Security and Intelligence Agencies, Report on the Australian
Security Intelligence Organization (1985) cited in Australian Law Reform Commission, ―Report on
Fighting Words: A Review of Sedition Laws in India‖ (July 2006)
[22]
National Security legislation Act 2010 Implement the recommendation of a law
reform commission where the word sedition was substituted with reference to “urging
violence offenses.”
3.3 UNITED STATES OF AMERICA
In the United States of America as well, sedition was criminalized hundreds of years
ago. The Sedition Act of 179840
criminalized sedition for the main purpose to protect
the nation from ‘Spies and traitors’. Which was later repealed in 1820 afterward, the
sedition act, 1918 come into picture which was aggressively used during the world
war period which followed the communist ideology. Act survived the series of cases
where constitutional validity was of the act was acknowledged.
The United States of America thus criminalized speaking up against the Government
and its various members including members of Congress and the President, merely a
little more than twenty years after the inception of the country itself. A country which
was born after a war of independence from Britain, whose citizens formed the original
colonies that later evolved into the USA. A country that was formed by an act of
rebellious warfare would naturally know the dangers of a violent uprising. The
country later verged on the violent division of its territory after the southern states
attempt to secede during the course of the American Civil War.
The USA was also faster to abolish the crime of sedition that its parent country
Britain. In 1919, Justice Holmes, with Justice Brandeis of the American Supreme
Court held a dissenting opinion, one that has been largely appreciated, that the First
Amendment to the American Constitution which guaranteed the right of free speech
abolished the crime of sedition and seditious libel in the Abrams v. United
States41
case. It is interesting to note that whenever the judiciary or the legislature has
had to step in to alter the concept of sedition, the backdrop is usually a progressive
social movement.
40
1 Stat. 596 41
250 U.S. 616, 630 (1919)
[23]
In one of the case while adjudicating the question regarding validity. Where the court
laid down the ‘Clear and present danger test’ for limiting the scope42
.
“Words which, ordinarily and in many places, would be within the freedom of speech
protected by the First Amendment may become subject to prohibition when of such a
nature and used in such circumstances as to create a clear and present danger that
they will bring about the substantive evils which Congress has a right to prevent.”
In the United States, the New York Times v Sullivan case43
set the golden standard on
the free press, thereby allowing unrestricted freedom of the press to report on the
growing civil rights movement in the country. The civil rights movement largely
depended on the press to gather followers from the African-American community and
eventually lead to the end of segregation and legal racism in the country. If the court
had held in the case that opinions directly against public officials were not to be
printed by the media, the outcome may have been delayed, to say the least. An
important aspect of this judgment was that it established a standard of malice to be
established in a case brought against a publisher for publishing content against a
public official.
In the case of Yates vs USA.44
Supreme Court narrow down the restriction on the
freedom of speech and expression. Where court distinguish between “the advocacy to
overthrow as an abstract from advocacy to action”
In the United States, an attempt has been made to resolve the conflict, so far as the
freedom of speech is concerned, by the application of the “clear and present danger”
test enunciated by Mr. Justice Holmes in the famous case of Schenck v. United
States45
and further refined and applied in a number of subsequent cases.46
The
Supreme Court of India refused to import the doctrine of the clear and present danger
when urged to do so in the case of Babulal Parvate v. The State of Maharashtra.
47The Supreme Court thought - and maybe rightly - that the doctrine will not be in
42
Schnek v. United States 249 U.S. 47 (1919) 43
376 U.S. 254 (1964) 44
354 U.S. 298 (1957) 45
Supra note 39 46
Abrams v. United States , 250 U.S. 616.
The test sought to draw a balance between the freedom of speech of the individual and police power of
the state and provided a handy guide to the courts for deciding cases involving restrictions on freedom
of speech 47
A.I.R. 1961 S.G. 884.
[24]
keeping with our constitutional scheme. It is time that the judiciary evolved some
formula towards reconciliation of the freedom of speech with the need for social
control
While the crime of sedition has not been struck down in the USA, it is practically an
obsolete offense now as multiple cases like the Sullivan case48
have made it
abundantly clear that publishing anything against a public authority is not a crime and
is protected by the First Amendment. Brandenburg v. Ohio49
laid down the limitations
to such freedom and the essence of the judgment boils down to the rider that speech
may only be considered to be an offense if it incites “imminent lawless action”50
.
Hence, Generally, USA Court provides wide protection to the freedom of speech and
various doctrine are being practiced such as present danger test to protect the interest
of the persons.
3.4 MALAYSIA
To provide a clearer contrast to the mostly anti-sedition-law scenario in the more
liberalized western legal structure, we take a look at the situation in South-East Asian
countries. This part of the world is still home to a number of countries that are either
not democratic or are home to populist cultures that call for death or stringent
punishment for seditionists.
In Malaysia, which was also a British Colony, the Sedition Act was brought about,
quite unsurprisingly, by the British colonial authority as late as in 1948.51
This was
akin to the circumstances that criminalized sedition in India in the late 1800s. Article
3 of the Sedition Act of Malaysia criminalizes.
“the commission, attempt, or conspiracy to commit any act which has or would have
a seditious tendency; uttering any seditious words; and printing, publishing, offering
for sale, distributing, reproducing, or importing any seditious publication”.
48
Ibid. 49
395 U.S. 444 (1969). 50
Ibid. 51
The Sedition Ordinance came into force on July 19, 1948.
[25]
The Malaysian sedition act is infamous for its stringent provisions and its ever-
expanding scope that now includes speech against Islam and other religions.52
Even though promises were made to repeal the Act in 2012 by the Prime Minister of
Malaysia, he backtracked on his promise and in a speech made to the UN even
promised to bolster the act and make it stronger and wider in scope.53
In a worrisome
move in late 2015, the apex court of Malaysia also upheld the validity of the law and
firmly affirmed the regressive nature of the law.54
Critics of the concept of sedition as a crime often blame it as a colonial hangover and
evidence of the British legacy, but the Malaysian example serves as a reminder to the
fact that sometimes states actively embrace, adopt and enlarge such laws in an attempt
to secure their own future and power.
Authoritarian powers especially those that do not derive their power from the popular
vote are already working against popular opinion and in such a scenario tend to look
at free-flowing public opinion as an omniscient danger to their presence. Ideologies
provoke rebellions and uprisings, and sedition laws can be used as a method of
clamping down on the free flow of thought and opinion in the country.
3.5 HONGKONG
In Hong Kong, sedition laws are once again a remnant of British colonial history.
However, it has been strongly shaped by the influence of the Chinese. China has, after
all, had a legacy of such strict control on its populace so as to arguably be considered
a part of its traditional history. Speaking up against the State is hardly encouraged in
the Republic of China. The Hong Kong Government passed the Ordinance on Chinese
Publications (Prevention) in October 1907.
Under section 2 of the Ordinance, “any person who printed, published, or offered for
sale or distributed any printed or written newspaper or book or other publication
containing matter calculated to excite tumult or disorder in China or to excite persons
52
Lawyers Rights Watch Canada, “Lawyers And The Rule of Law on Trial: Sedition In Malaysia”,
May 2000, http://www.lrwc.org/ws/wp-content/uploads/2013/02/Lawyers-and-the-Rule-of-Law-on-
Trial-Sedition-in-Malaysia.pdf. (accessed 23 Mar. 2019) 53
Malaysia Backtracks on Sedition Law. The Diplomat, November 29,
2014.:http://thediplomat.com/2014/11/malaysia-backtracks-on-sedition-law/.(accessed 23 Mar. 2019) 54
“Malaysia Court Dismisses Challenge to ‘Unconstitutional’ Sedition Law”. The Guardian, October
6, 2015:https://www.theguardian.com/world/2015/oct/06/malaysia-court-dismisses-challenge-to-
unconstitutional-sedition-law. (accessed 23 Mar. 2019)
[26]
to crime in China would be liable for a fine not exceeding five hundred dollars or a
maximum of 2 years imprisonment or both.”
The ordinance was, therefore, a classic example of the form a sedition law takes.
Impeding the flow of opinions and thoughts in a country is the basic idea of sedition
law. Multiple ordinances and acts were enacted over the subsequent decades that
expanded the crime of sedition in the country55
.
It was only in 1997 that the amendment to the laws was made and the ambit and
punishment of the crime of sedition were reduced in a significant manner.56
The
reasoning behind such reduction was provided by the committee that proposed the
amendment and reads as, “The offense of sedition is archaic, has notorious colonial
connotations and is contrary to the development of democracy. It criminalizes speech
or writing and may be used as a weapon against legitimate criticism of the
government.”57
While it is easy to blame the British for leaving a trail of sedition laws in their wake
as a lasting reminder of their role as colonialists, one cannot deny the multiple factors
involved that have led to their continued existence. Hong Kong is a prominent
example for two main reasons:
Firstly, the departure of the British did not dampen the State’s enthusiasm to
continually expand and increase the ambit and power of sedition laws in the country.
If anything, once the British left, the State’s policy on sedition as a crime seems to
have intensified.
Secondly, there is a singular geo-political reason for Hong Kong to have such strong
anti-sedition laws; China. China uses such laws to quell disquiet and opposition to its
influence on Hong Kong which many in the state resent and oppose58
.
Whether or not such opposition is right is a complicated political question this paper
will not dabble it. However, it is evident that wherever there is a significant amount of
55
Like the Post Office Ordinance 1900, Seditious Publications Ordinance 1914, Sedition Ordinance
1938, Control of Publications Consolidation Ordinance 1951, Crimes Ordinance 1971. 56
Judicial Independence and The Rule of Law in Hong Kong”, Hong Kong University Press (2001),
Page 78. 57
Legislative Council of Hong Kong, Report of the Bills Committee on the Crimes (Amendment)
(No.2) Bill 1996: Paper for the House Committee Meeting on 13 June 1997 ( LegCo Paper No. CB
(2)2638/96-97). 58
Carol P. Lai, Media in Hong Kong: Press Freedom and Political Change, 1967-2005 145 (
Routledge, Abington, Oxfordshire, 2007)
[27]
opposition against the State and its authority, sedition laws seem to pop up stronger
and more ambiguous than ever before. Whether causation and correlation are one and
the same in this situation is for the reader to decide.
3.6 INTERNATIONAL FRAMEWORK
In the Universal Declaration of Human Rights, 1948 (UDHR), Article 19
states that
“Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of
frontiers.”
Article 19 of the International Covenant on Civil and Political Rights,
1966 (ICCPR) states:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may, therefore, be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health
or of morals.”
Article 10 of the European Convention on Human Rights Act, 2003
(ECHR) states:
[28]
“1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. …
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation
or the rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 9 of the African Charter on Human and Peoples’ Rights, 1979
(ACHR) states:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his opinions
within the law.”
3.7 CRITICAL INFERENCES
1. Some places, the law of sedition have been repealed without replacement;
2. Prosecution for the offense of sedition has reduced due to this in many places it’s
become dead letter law such as in the UK which plays a crucial part in deciding
whether there is any requirement of such offenses or not. Even in India only 2
conviction in 2015 and 2016;
3. Even in Countries where law remains to exist on the statute book such as the
USA which adopts an effect based test rather than a content-based test which
was a focus on the effect of the words rather than words itself and various
doctrine has been formulated to minimize the misuse of law such as clear and
present test;
4. Many countries have accepted recommendation given by their law reform
commission like UK, USA, and Australia. Which provide details study regarding
the actual situation of counties. Even in India law commission, many times
(42nd
,43rd
,267th)
suggest various reform in the sedition law which was neglected
[29]
by the legislature such as include mens rea, fill the gap between the punishment,
etc;
5. Many International institution consensuses seem to have developed that offense
of sedition should not exist. Although this provision does not bar any countries
to have the offense if it is justified but still have importance and influence in
lawmaking of any countries.
We saw complete legislative abolishment of sedition in the United Kingdom and
judicial abolishment of the same in the United States of America, even though the UK
is a common law country more so than the US.
In Asia, we saw the history of sedition in India with the most prominent cases have
been those that were filed against Mahatma Gandhi along with those against Tilak and
Annie Besant. This may ostensibly come across as a portrayal of all seditionists as
freedom fighters fighting for the advancement of democracy. This is simply not true,
as seditious behavior can have unexpected consequences. As seen in countries like
Malaysia and erstwhile Church-State countries like Britain in the 1800s, religious
blasphemy can be the cause of a lot of chaos. The underlying rider to any fundamental
right is that one has the absolute freedom to enjoy such rights provided that the right
of no other person is infringed in such exercise
The collective good also matters and may be affected if sedition laws are removed.
One has to keep in mind that it took more than 400 years for the UK to do away with
sedition as a concept. While it is easy for critics to point westwards and claim that
since democracy in the west does not penalize sedition, we mustn’t either. This is
simply not true because of the history that marks the removal of sedition as a crime
and the political, geopolitical, cultural and economic factors that back such a decision.
This is where the examples of Malaysia and Hong Kong come into place. Malaysia
and Hong Kong represent the common form of socialist democracy prevalent in Asia
and are thus more reflective of the general legal framework
[30]
CHAPTER 4
INDIAN PERSPECTIVE OF SEDITION LAW
4.1 LEGISLATURE APPROACH
4.1.1 pre-constitutional
Section 124A is a product of our colonial history, introduced by the British. Thomas
Macaulay introduced sedition as an offense in the draft of the IPC in 1837, but it was
omitted in the version enacted in 1860.59
British legislators considered this to be a
mistake and believed that the Indian press needed to be kept in check to prevent the
rise of a nationalist movement. Furthermore, they were afraid of the rise of Wahabism
and greatly increased Wahabi activities in the late 1800s.60
As a result, the provision
59
Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle
in Nationalism And Social Reform In A Colonial Situation 54 ( Kalpaz Publications, Delhi, 2005). 60
Ibid.
[31]
was re-introduced in the Code in 1870.61
Queen Empress v. Jogendra Chunder Bose62
was the first ever case brought about on the grounds of sedition.
With the increasing incidents of rebel activities against the British, the need to make a
substantial sedition offense has been widely recognized, and the inclusion of a section
specifically to the seditious rebellion was considered demanding. It was the result of
this rising issue of the 20th
century that is the horse nationalism that led to the bill that
contains the law of sedition finally be passed. Just after the passing of the act, two
more laws were passed with the aim of curbing the criticism against the British
policies. These acts were; Dramatic Performances Act, 1876 and the Vernacular Press
Act 1878. All these policy changes or decisions led to the curbing of the free criticism
of the government policies
It was in 1870 that the British government enacted section 124A into the primary
penal legislation. In a retrospective analysis, it is understood to have been so enacted
to stifle anti-colonial voices of the time (pre- Independence). As a precedent,
therefore, this section was used against various nationalist leaders, most notably
against Bal Gangadhar Tilak and Mahatma Gandhi.
4.1.2 Constitutional assembly debates
Prior to independence, many freedom fighters were subjected to sedition laws, to curb
the freedom movement and curtail their freedom of speech and expression. Mahatma
Gandhi, Bal Gangadhar Tilak, Annie Besant, etc were few of them. With a recent
history of our prominent freedom fighters (virtually our heroes of independence)
being charged and imprisoned under this law, the drafters of the constitution were
cautious of the implications of the inclusion of sedition in the constitution and with
just reason.
After all, this basic right of a person to free speech was one of the main ingredients
that got us our freedom from oppressive foreign rule. Initially, the draft constitution
did include ‘sedition’ as a foundation on which laws could be founded upon for
limiting the fundamental right to speech (restriction on freedom of speech). In the
61
Narrain, S., “Disaffection and the Law: The Chilling Effect of Sedition Laws in India” Economic &
Political Weekly, September 2016, pp. 33-37. 62
1891, (1892) ILR 19 Cal 35.
[32]
final draft, however, Sedition was eliminated from the exceptions under article 19(2).
This was largely due to the initiative of eminent lawyer and freedom fighter, K.M.
Munshi.63
While sedition was removed from the constitution it was retained by the
IPC
4.1.3 Post constitutional development
In independent India, the co-existence of the offense of sedition and freedom of
speech and expression was difficult. First Amendment of the Constitution of India
added ‘public order’ and ‘relations with friendly states’ in the exceptions to the
freedom of speech and expression and the word ‘reasonable’ was added before
‘restrictions’
So, the word added through the first amendment may not be used as a justification for
the existing sedition laws as the then government had no wish invalidating the sedition
laws through it. The existence of the sedition laws allowed the misuse of the same in
the post-independence period as well. There were many examples of the same. At one
point, § 124 A of the Indian Penal Code, was declared unconstitutional at the other it
was declared constitutional. There were many landmark judgments to back them of the
various High Courts and Supreme Courts.
In the Ram Nandan’s Case64
, the constitutional validity of the section124 A was
challenged and the section 124A of Indian Penal Code was declared unconstitutional.
It was later added under Article 19(2) by broadening its scope and including it under
the domain of “public order” to save it from the decision of Allahabad high court
which already declared sedition as unconstitutional latterly, later this judgment was
overruled in Kedar Nath Case65
by Supreme Court and it was held constitutional.
Indeed, sedition has survived numerous attempts to get rid of it and the only reason
that sedition continues able to survive as it was inserted under article 19(2)
4.2 JUDICIAL APPROACH
4.2.1 Pre-independence
63
Constitutional Assembly Debates, part 1 vol. VII, 7 December 1948, http://parliamentofindia.
nic.in/ls/debates/vol7p16b.htm. 64
Ram Nandan v. State, AIR All 101 (1959). 65
Kedar Nath Singh v. State of Bihar, AIR 955 (1962).
[33]
The sedition law has its origin from the common law. When the amendment was
introduced, it was stated that the present amendment is a new and better form of the
existing sedition law in England. Sir James Stephen, while introducing the
amendment, justified its inclusion in the Act by asserting that it was “free from a
great amount of vagueness and obscurity with which the Law of England was
hampered”.66
To the contrary of the statement made by Sir Stephens, the Indian Courts faced
difficulty in interpreting the word ‘disaffection’. The difficulty came in the year 1892
with the first case of sedition. In this case67
, the difference between disaffection and
disapprobation was clarified. The court very categorically defined disaffection in the
following words:
“It the use of spoken or written words to create a disposition in the minds
of those to whom the words were addressed, not to obey the lawful
authority of the government, or to resist that authority.”68
The word disapprobation means disapproving or condemning the acts of the
government. It is pertinent to note that this case demarcated the condemning of the
government and creating the ill will amongst the people at large. The Court also stated
the requirements or ingredients of this section. The first requirement of this section is
the words are such that can excite the ill will against the sovereign or government.
Secondly, the words should aim to incite hatred and the feeling of contempt with in
people. Lastly, the mens rea i.e. clear intention to create such feeling of hatred or ill
will.
Further, this position was clarified in various judgments like the Re, Bal Gangadhar
Tilak69
, Ramchandra Narayan70
, Amba Prasad71
, etc. All the judgments widened the
scope of sedition or seditious act. The judgments were such where the line between
disaffection and disapprobation blurred. It is pertinent to mention a few views of the
courts.
66
Walter Russel Donogh, A treatise on the law of sedition and cognate offences in British India,
http://archive.org/stream/onlawofsedition00dono#page/n23/mode/2up. (accessed 28 Mar. 2019) 67
Queen Empress v. Jogendra Chunder Bose ILR (1892) 19 Cal 35. 68
Ibid 69
Queen Empress v. Bal Gangadhar Tilak, ILR 22 Bom 112 (1898). 70
Queen Empress v. Ramchandra Narayan, ILR 22 Bom 152 (1898). 71
Queen Empress v. Amba Prasad, ILR 20 All 55(1898).
[34]
In the Re, RamChandran Narayan, it was categorically stated that the disaffection
does not necessarily mean the opposite of affection. In Re Amba Prasad the court held
that:
“…even in cases of ‘disapprobation’ of the measures of the government, if
it can be deduced from a fair and impartial consideration of what was
spoken or written, that the intention of the accused was to excite feelings
of disaffection towards the government and therefore it could be
considered a seditious act. Thus ‘disaffection’ would include the absence
or negation of affection as well as a positive feeling of aversion towards
the government.”72
It can be deduced from the above discussion that in few cases disapprobation can also
be termed as seditious act. In the year 1942, in the re Majumbdar73
, it was held that
violent words only will not be sufficient for the offense of sedition. It was further
stated that “the acts or words complained of must either incite to disorder or must be
such as to satisfy reasonable men that that is their intention or tendency.”74
Though this view was latter overruled in the year 1947 in the re Bhalerao75
, they
applied literal interpretation to the provision of § 124-A. It also stated that there is no
requirement the words lead to disaffection or rebellion then only sedition is
committed. In other words, violent words or the words expressing criticism against
the government can amount to sedition.
4.2.2 Post-independence
In independent India, the co-existence of the offense of sedition and freedom of
speech and expression was difficult. First Amendment of the Constitution of India
added ‘public order’ and ‘relations with friendly states’ in the exceptions to the
freedom of speech and expression and the word ‘reasonable’ was added before
‘restrictions’.
72
Supra Note 13 73
Niharendu Dutt Majumdar v. King Emperor, AIR FC 22 (1942). 74
Ibid 75
King Emperor v. Sadashiv Narayan Bhalerao, L.R. 74 I.A. 89 (1947).
[35]
So, the word added through the first amendment may not be used as a justification for
the existing sedition laws as the then government had no wish in validating the
sedition laws through it. The existence of the sedition laws allowed the misuse of the
same in the post-independence period as well. There were many examples of the same.
At one point, section 124 A of the Indian Penal Code, was declared unconstitutional at
the other it was declared constitutional. There were many landmark judgments to back
them of the various High Courts and Supreme Courts.
In the Ram Nandan’s Case76
, the constitutional validity of the § 124 A was challenged
and the § 124A of Indian Penal Code was declared unconstitutional. Later this
judgment was overruled in Kedar Nath Case77
by Supreme Court. The apex court held
that:
“Government established by law’ is the visible symbol of the State. The
very existence of the State will be in jeopardy if the Government
established by law is subverted. Hence the continued existence of the
Government established by law is an essential condition of the stability of
the State. That is why ‘sedition’, as the offense in s. 124A has been
characterized, comes under Chapter VI relating to offenses against the
State. Hence any acts within the meaning of s. 124A which have the effect
of subverting the Government by bringing that Government into contempt
or hatred, or creating disaffection against it, would be within the penal
statute because the feeling of disloyalty to the Government established by
law or enmity to it imports the idea of tendency to public disorder by the
use of actual violence or incitement to violence. In other words, any
written or spoken words, etc., which have implicit in them the idea of
subverting Government by violent means, which are compendiously
included in the term ‘revolution’, has been made penal by the section in
question. But the section has taken care to indicate clearly that strong
words used to express disapprobation of the measures of Government with
a view to their improvement or alteration by lawful means would not come
within the section. Similarly, comments, however strongly worded,
expressing disapprobation of actions of the Government, without
76
Ram Nandan v. State, AIR All 101 (1959). 77
Kedar Nath Singh v. State of Bihar, AIR 955 (1962).
[36]
exciting those feelings, which generate the inclination to cause public
disorder by acts of violence, would not be penal. In other words,
disloyalty to Government established by law is not the same thing as
commenting in strong terms upon the measures or acts of Government, or
its agencies, so as to ameliorate the condition of the people or to secure the
cancellation or alteration of those acts or measures by lawful means, that is
to say, without exciting those feelings of enmity and disloyalty which
imply excitement to public disorder or the use of violence.”
In Kedar Nath case, the Supreme Court has read down the section 124A of the Indian
Penal Code. The words criticizing the government or the policy of the government do
not attract the provision of sedition unless those words incite the hatred or disturbance
amongst the society or the people at large.
It is important to note that in the above-mentioned case, actually, Supreme Court did
not say anything extraordinary while interpreting the section 124A of the Indian Penal
Code. If you read explanation 2 & 3 of section 124A of the Indian Penal Code, the
words are as same as used by the apex court while interpreting section 124A of the
Indian Penal Code. It is believed that the section 124A of the Indian Penal Code was
read down in the Kedar Nath Case, but it was just a way or a medium to emphasize
the value of explanations 2 & 3 of section 124A of the Indian Penal Code.
4.2.3 Recent decisions
With the Kedarnath78
rationale locked safely in place, let us fast forward to the advent
of the twenty-first century. India seems to have woken up to a generation that expects
the highest of freedoms from its Constitution. It refuses to be shackled by draconian
measures masked as reasonable restrictions; it refuses to be stifled by the misuse of an
archaic law.
78
Kedarnath v. State of Bihar AIR 1962 SC 955
[37]
The India of the twenty-first century is young, fearless and is willing to rise against
anything that makes the foul mistake of dictating the terms of democracy they are so
familiar with. The law of any land must be a reflection of the society in which it
exists. This highlights one of the most pertinent questions of the present context –
how is Section 124A, being an admittedly colonial import, perceived today?
The law of sedition, in recent times, has been the subject of major criticism. Despite
the principles laid down in Kedarnath, which has been accepted as the primary test for
determining the commission of the offenses of Sedition – the newspapers of the
country are riddled daily with the news of Section 124A having been slapped on some
new “offender”.79
Of course, the Courts in appreciation of the same cases have gone
on to acquit most of the aforementioned offenders.
This, however, does nothing to redeem all that is lost in the numerous Court visits,
legal fees borne by the alleged offender, police detention suffered by them, the trauma
and the unimaginable mental burden on them for having allegedly committed the
single gravest offense of waging war against the State.
Binayak Sen v. State of Chattisgarh80
: In one of the most infamous cases of Sedition
in the recent past, the Chhattisgarh High Court created history for many wrong
reasons. Convicting the accused for the offense of Sedition, the High Court passed a
judgment for which it has drawn a lot of flak. The accused that was in possession of
and had ordered the distribution of certain letters containing information regarding
police atrocities and Naxal literature was convicted of Sedition keeping in view the
widespread Naxalite violence against the State. Blatantly disregarding the afore-
mentioned principle of direct “incitement to violence” established in Kedarnath, the
High Court refused to allow an objective application of the frequently misused
provision of law connecting the accused with the Naxals and their offenses. In an
interesting turn of events, however, the Supreme Court on appeal granted Dr. Sen bail
and commenting on the merits of the case highlighted the importance of protecting the
fundamental freedom of speech and expression while also appreciating the underlying
principle of “Guilt by Association”.
79
Ibid. 80
Binayak Sen v. State of Chhattisgarh (2011) 266 ELT 193
[38]
Gurjatinder Pal Singh v. State of Punjab81
: In this case, the accused gave a
“ProKhalistan” speech at a religious ceremony and commented on the Constitution,
which was followed by sword-raising and unpleasant slogans. Adopting and
upholding the precedent set by the Supreme Court in Balwant Singh v. State of
Punjab,82
which had similar facts and circumstances, the Chandigarh High Court held
that the casual raising of slogans cannot be held seditious as it did not point to a direct
incitement of violence or public disorder. The accused was, therefore, acquitted of
charges u/s 124A.
P.J. Manuel v. State of Kerala83
: Decided by the Kerala High Court, this case
involved a poster that exhorted people to boycott the Legislative Assembly elections
of “masters who have become swollen exploiting the people”. This poster and its
circulation brought for the accused charges u/s 124A, observing that even Section
124A must be read with the intent and spirit of the Constitution and not the
Colonizers of a bygone era. It further appreciated the essential ingredient of
“incitement to violence”, the true meaning of “disaffection against the government” in
modern times and acquitted the accused. Interestingly, however, the Court also
applied Section 196 of the CrPc,84
according to which a Court can only take
cognizance of a complaint involving an offense against the State if such complaint has
been expressly authorized by the Government.
Sanskar Marathe v. State of Maharashtra:85
A similar view as the aforementioned
case was taken here by the Bombay High Court, acquitting the accused – cartoonist,
Aseem Trivedi of charges u/s 124A. Further, the court also came out with a series of
guidelines to be followed by the Maharashtra Police before booking someone for the
offense of Sedition. Based on these guidelines, the Maharashtra government came out
with a circular laying down grounds for invocation of section 124A, which it was then
forced to withdraw following a case in the High Court questioning its
constitutionality.
One would assume, that with developing times and the plethora of legal precedents,
clearly setting out the boundaries of the law of sedition in India, the reckless
81
Gurjatinder Pal Singh v. State of Punjab (2009) 3 RCR (Cri) 224. 82
Balwant Singh v. Punjab 1976 AIR 230. 83
P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793. 84
Code of Criminal Procedure, 1973, Section 196 85
Sanskar Marathe v. State of Maharashtra Cri.PIL 3-2015
[39]
invocation of Section 124A against unsuspecting individuals would reduce. This,
however, has not proved to be the case – and the recent past has been flooded if not
completely shrouded by many of the strangest instances of alleged “sedition”; some
worthy of a mention in this article being: In March 2014, around 67 Kashmiri students
from Swami Vivekanand Subharti University in Meerut were charged u/s 124A for
merely cheering for Pakistan in the Asia Cup match against India. The charges were
later dropped when the Police came under major criticism for their actions and major
political parties got involved.86
Another familiar and laughably ironic incident that hit headlines was when reputed,
Bollywood actor and filmmaker, Aamir Khan was charged with sedition for his
comments on “intolerantce” in the Country.87
The most recent example of what can only be termed as a misuse of legislation is the
January 2016 incident of a Kerala man being charged with sedition over a derogatory
Facebook post on Lt. Col. E K Niranjan, who died in the terror attack at the Pathankot
Air Force base.88
All the afore-mentioned incidents lack the basic ingredients of Sedition made out by
the Courts of India, as discussed above. At best, what these incidents seem to have in
common is an expression – made within the apparently secure confines of
fundamental freedom.
4.3 VOICE OF CONCERN
One of the major allegations regarding the existing sedition law is that it is often
misused by the government to get political gains. According to the data accessed
through NCRB from 2014 to 2016, 179 people were arrested on the charge of sedition
86
Sandeep Rai, “Kashmiri students charged with sedition, freed after controversy erupts”, The Times
of India, March 6, 2014;
http://timesofindia.indiatimes.com/india/Kashmiri-studentscharged-with-sedition-freed-after-
controversy-erupts/articleshow/31553407.cms. (accessed 1 May. 2019) 87
Omar Rashid, “Sedition case filed against Aamir Khan”, The Hindu, 25 November 2015;
http:/ /www.thehindu.com/news/national/sedition-case-filed-against-aamir-khan/article7916139.ece.
(accessed 11 May. 2019) 88
Vishnu Varma, “Kerala man arrested for seditious FB comment insulting Pathankot martyr Lt Col
Niranjan”, The Indian Express, 05 January 2016,
http://indianexpress.com/article/india/ india-news-india/kerala-man-arrested-for-seditious-facebook-
comment-insulting-pathankotmartyr-lt-col-niranjan/. (accessed 11 May. 2019)
[40]
but only two were convicted in three years. One conviction was procured by the
Jharkhand Police in 2014 and the other by the Andhra Pradesh Police in 2016.
In 2016, after the JNU controversy erupted with students being slapped with sedition
charges by the Delhi Police, the MHA data states there was only one conviction in the
entire year. In 2016, there were 35 cases of sedition registered, in which 48 persons
were arrested. But, the document showed that only 26 were charge sheeted and only
one person from Andhra Pradesh was convicted.
According to the MHA, data for 2017 is not available at the National Crime Record
Bureau (NCRB) has not compiled it yet.
Given long investigations, low charge sheet rate, lengthy trials and much lower
conviction rate, the process of pendency itself is used as a weapon of suppression
by the state to harass and punish people accused of such offenses
According to NCRB Data of 201689
Murder -13,332 (convicted) 22,123 (acquitted) 37 % (conviction rate)
Unlawful
Assembly - 5,933 (convicted) 14,160 (acquitted) 29 % (conviction rate)
Robbery- 6,278 (convicted) 13,730 (acquitted) 31% (conviction rate)
Sedition 0 (convicted ) 35 (acquitted) 0% (conviction rate)
According to NCRB data of 201590
Murder - 15541 (convicted) 23132 (acquitted) 40% (conviction rate)
89
National Crime Records Bureau. (2016). Crime in India Statistics. Retrieved
from http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Crime%20Statistics%20-%202016.pdf
(accessed 14 May. 2019) 90
National Crime Records Bureau. (2015). Crime in India Statistics. Retrieved from
http://ncrb.gov.in/StatPublications/CII/CII2015/FILES/CrimeInIndia2015.pdf (accessed 14 May. 2019)
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Unlawful
Assembly - 4,118 (convicted) 15,681 (acquitted) 27% (conviction rate)
Robbery- 7283 (convicted) 12,730 (acquitted) 36% (conviction rate)
Sedition 1 (convicted ) 11 (acquitted) 8% (conviction rate)
If we analyzed the data above mention, we broadly found two things. A number of
cases registered is low and the Conviction rate is very low compared to other serious
crimes. Firstly, in most cases, the idea of the authorities is to arrest the person without
thinking of the course of action. Sometimes it was intended to torture the person and
sometimes police has no option left except register of the case due to nature of the
offense which makes it cognizable offense and police does not have any other option
left.
In most the cases even charge sheet was not filed even where charge sheet filed and
the matter moves to court,“ultimately these cases do not stand in a court of law. In
2016, six sedition cases were dropped by the police for the lack of evidence and two
were termed as false cases in final reports.”
The NCRB data tell us that a total of 179 people were arrested for sedition under
Section 124A of the IPC during 2014-16. However, by the end of 2016, the charge
sheet was not filed for almost 80% of the cases and 90% sedition cases are lying
pending in the court. In 2016, a trial was completed for only 3 out of 34 cases, with
one conviction and two acquittals.
In 2015, none were convicted and 11 were acquitted out of 38 against whom charges
were framed. The question now arises as to why is the conviction rate so low. Mostly,
it is because of political appeasement. Politicians let off people accused in the
violence, largely keeping in mind the vote-bank politics
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This works to the disadvantage of the defendant, the longer a case takes to reach
court, the greater the scope for the authorities to harass the defendant, senior advocate
Sanjay Hedge91
correctly said.
“The primary reason for the abysmally low conviction rate for sedition cases
is that the law is misapplied, While the provision of sedition can only be
applied under extraordinary circumstances, accompanied by sanctions from
relevant authorities, practically it has become a tool of harassment.”
Where the process of justice becomes punishment itself for the defendant like recently
even before filling of charge sheet by the police in case of kanhaiya Kumar. Who was
beaten-up by the people on several occasion. Where in our criminal system person
should be presumed innocent until it's proved.
CHAPTER 5
CONCLUSION AND SUGGESTION
91
Sanjay Hegde, JNU row: Government’s ham-handed action is what can cause ‘barbaadi’. India
times.https://economictimes.indiatimes.com/blogs/et-commentary/jnu-row-governments-ham-handed-
action-is-what-can-cause-barbaadi/ (accessed 15 May. 2019)
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5.1 CONCLUSION
Most of the democracies in the world have removed sedition offense from their statute
books. The reason being – that it is an outdated law, more law of colonial times to
oppress rather than deal justice, which suddenly seems to reveal its ugly head in the
present generation which is rather unforgiving of anything that curtails its fundamental
freedoms.
For far too long the laws of this land have been used as means of attacking the
fundamental principles of democracy. It is to be remembered that this is not a
judgment call on whether or not section 124A should be repealed. Rather, it is a call
on whether 124A should remain as it is or whether the liberty of free speech and
thought should be further subjected to the reasonable restriction.
It appears that abolishment of laws that criminalize sedition is the ultimate and
inevitable outcome in any modern democracy. What matters, however, is the path such
democracy takes to get there. Organizations like Amnesty call for overnight removal
of such laws, but it is also to be considered whether such countries are prepared for a
lack of sedition laws. In countries where religious sentiments run high, tempers are
frayed and relationships between different communities are tenuous at best, the State
has to constantly work as a watchdog to ensure that conflicts within the country do not
arise. To this end, some sedition laws are required. On the other hand, when political
cartoonists are jailed and newspaper editors are tried for merely criticizing the
Government, the Government has successfully crossed the line from being a
democratic authority to a draconian one.
I would like to conclude by answering the important question as to the need for
Sedition as an offense. In India, we have a very comprehensive penal code which has
rioting, affray, etc and many other laws to protect the law and order in the country. But
I still believe that deleting the sedition law from the statute book is not a good
solution. Sedition as the law had its origin in the colonial period with the objective of
improvising and maintaining the colonial rule. In the previous chapters, we have
discussed various aspects of sedition like constitutional validity, reading down of
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sectiom 124A of Indian Penal Code, 1860, the judicial response in the past 18 years,
etc.
Even after the reading down of the provision of sedition, its misuse cannot be stopped
by the state or central executive machinery as the words used in defining the sedition
and explaining it further cannot curb the misuse of law of sedition. Per se, it can’t be
stopped because of the political motives. It is pertinent to remember when Mahatma
Gandhi calls the sedition as the ‘Prince of the political sections’, he hints towards the
misuse of the provision for political gains. In the year 2009, in English law, the law of
sedition has been repealed.
Even in India, looking at the statistics, 05 convictions in 18 years, in itself raise a
doubt with regard to the importance of the law of sedition. The need of the hour is to
rethink on the requirement of sedition law on the part Law Commission of India as
well as the legislature while considering the judicial response in the past 18 years.
India being an emerging superpower is under more global scrutiny than ever before
and has the responsibility of setting an example in human rights developments for
most of Asia including our quite regressive neighbor, Pakistan. The solution,
therefore, should be forward-looking.
In the short run, reduce the severity of punishment for sedition and appoint a
watchdog or create a special tribunal to make sure the process of law is not being
abused for political gains. In the long run, aim for the total abolishment of sedition
laws and set a roadmap to get there eventually.
A democracy is defined by its ability to evolve with the times and exist as a dynamic
reflection of global humanitarian concerns. As the law exists now, anybody who
speaks up against the State can be charged with sedition. Arundhati Roy has been
charged for sedition for making speeches that have caused absolutely no violence.92
Political cartoonist Aseem Trivedi was arrested on sedition charges for a cartoon that
once again has had no violence attributed to it.93
India cannot afford to be labeled as a
regressive country and its actions towards its citizens of late have been criticized
across the world. By taking the right approach towards sedition laws, India can bring
about a change in public perception of itself. The solution is simple; existing laws
92
“Arundhati Roy faces arrest over Kashmir remark.”The Guardian October 26, 2010. 93
“Indian Cartoonist Aseem Trivedi Jailed After Arrest on Sedition Charges.” The Guardian,
September 10, 2012.
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need to be reworked to be narrower in what they consider a crime while a committee
should be set up to consider the path to total abolishment. Change is slow even in a
modern democracy like India, but change is inevitable and we need to gear up for the
future.
5.2 SUGGESTIONS
1. There is a need to amend the provision of sedition under Indian Penal Code,
1860 and not repealing the section from the statute book. I strongly
recommend that in a country like India where we consider diversity as our
strength, sedition should be a mandatory provision in the statute book.
2. In the light of Kedar Nath Case in which the apex court read down section 124
A of Indian Penal Code, 1860 the legislature should amend section 124 -A and
make it, nation-centric rather than the government-centric. One of the ways is
by removing the words ‘DISLOYALTY’ from the statute book. Otherwise, the
fair criticism of the government will always amount to sedition.
3. Lastly, the amendment is required with regard to procedural aspects of § 124A
of the Indian Penal Code, 1860. There should be the power to conduct a
preliminary inquiry by a police officer before registration of the case. To avoid
political misuse of the provision. This would serve as a check against
unnecessary harassment of persons wrongfully charged with 124A, while also
ensuring a fair trial of those rightfully charged
4. Supervisory Amendments: It is also suggested that for further supervision in
cases of alleged Sedition, the investigation/arrest of the accused u/s 124 A,
should be confirmed by a gazetted or senior officer of the State or district
before such arrest is made to avoid other repercussions of an allegedly false
charge, in addition to the powers and duties of the police as u/s 156 & 157 of
the CrPC.
To conclude, the law ought to be such that promotes freedom and strengthens the roots
of unity within India.