Background and History
Article 19(1)(a) of the Indian Constitution guarantees to citizens, the Freedom of Speech and Expression as a fundamental right. This right ensures citizens' freedom to express their own convictions and beliefs through words, drawings, writings, printed material, paintings, or any other mode of expression. Nevertheless, this freedom is subject to reasonable limitations set forth in Article 19(2). The law of sedition has arisen as a restriction to this freedom, and it applies in matters when a person's conduct or speech incites others to protest or oppose the government authority established by law in India. The Constituent Assembly debates through the years have revealed that there was strong opposition to the law of sedition, which was incorporated under the draft Constitution's Article 13 as a restriction on freedom of speech and expression. M.A Ayyangar, the first Deputy Speaker and then Speaker of the Lok Sabha, stated in his address to the Parliament that the citizens must have the fundamental right to overthrow the ruling government without resorting to violence, by mobilizing the people and exposing the administration's flaws and methods. He believed that the term 'sedition' should be dropped in a democratic India unless the entire state is toppled by violence, resulting in widespread public disorder. The Britishers adopted the law of sedition to prevent themselves from being overthrown by the public. The legislation was ambiguous, and there were incidents where persons were arrested for sedition on dubious grounds.
Insertion of Section 124A
Section 124A of the Indian Penal Code, 1860, criminalizes sedition. The section was added to the IPC in response to the Treason Felony Act, which punished seditious remarks. Sedition law in India has its roots in the Wahabi movement of the nineteenth century. Different interpretations of freedom of speech and expression have appeared in various cases from time to time. Many landmark sedition cases have been decided, including Kedar Nath Singh v. State of Bihar, Dr. Binayak Sen v. State of Chhattisgarh, and Shreya Singhal v. UOI. A person who has committed a sedition offence is not eligible for free legal aid either.
The law of sedition was brought into colonial India through clause 113 of Thomas B. Macaulay's IPC Draft, which was proposed in 1837. The stated section was eliminated by the authorities when the Indian Penal Code was adopted after 20 years in 1860. Britishers introduced two new laws, the Dramatic Performances Act XIX of 1876 ('DPA') and the Vernacular Press Act (IX) of 1878, to reinforce the rules against sedition in India. The former act's purpose was to prevent seditious activities in the country, while the latter was used to silence criticism of British policies and decisions. Many countries including the UK itself, Canada, Australia, Ghana, Ireland, etc. have repealed their respective sedition laws. Indian citizens too, asked that such laws be repealed on the grounds that they impede freedom of speech and expression. Most recently, the Supreme Court bench of CJI N.V. Ramana, Justice Surya Kant, and Justice Hima Kohli made it clear in its order on May 11th '22 that the sedition law shall remain suspended in the country. The SC further instructed that it did not want the Central and state governments to exercise it at all while it was under 'review'.
Ambiguity of Section 124A
There have been innumerable cases where people have been booked for sedition even without the infliction of violence. This is mostly because of the ambiguous provision. For instance, in the case of Binayak Sen, some letters consisting of information on police atrocities and Naxalite literature was delivered by one of the accused. The accused was convicted for the violence done by the Naxalite group against members of the armed forces. The court, however, was unable to state how the possession of a piece of literature would constitute as sedition and result in inciting violence among the masses.
Other Landmark Judgments
A similar decision was passed by the court in the case of Asit Kumar Sen Gupta where the court failed to answer how the circulation of Naxalite literature and even talking of the overthrowing of government, was an act of sedition that could disrupt peace. There was no direct and explicit incitement by the accused whatsoever. Even the principles laid down by the court in the Kedarnath Case did were not applicable to this judgment and the matter may be considered per incuriam.
The Indian judiciary has ironically been very liberal in its interpretation of the Freedom of Speech and Expression in cases other than of sedition. It has continued to state how this right strengthens a citizen's ability to participate in decision-making. The Supreme Court, in its judgment in In Re: Harijai Singh and Anr. stated that a democratic framework necessitates citizen participation in all aspects and enterprises of their community as well as states. It further stated that the citizens in a country have the right to receive information about significant issues in order to think about and form broad opinions about such issues and how they are dealt with by the government and its functioning organs. Similarly, in the case of S. Khusboo v. Kanniamal & Anr., the court stated that for a good governance, the citizens of a country must not be afraid of the dire consequences of voicing out their ideas and opinions that are in contradiction to the opinions of the ruling governments.
In the case of UOI v. Motion Pictures, the court stated that in a democracy, the foundation of a society laid in the right to free speech including the expression of different views and opinions and debating with respect to such expressions. Furthermore, in the recent case of Shreya Singhal, section 66A of the IT Act was declared unconstitutional as it was violative of the Freedom of Speech and Expression. The court declared that the three basics concept of this fundamental right were advocacy, discussion, and incitement. When advocacy and discussion led to direct incitement resulting in public disorder and violence, it would demand the judiciary's attention. However, trivial activities such as liking posts on Facebook or drawing cartoons must not be considered seditious.
Conclusion
It is true that the Freedom of Speech and Expression is not absolute in nature as many a times such actions may lead to direct incitement of violence and public disorder. However, booking people for sedition is not a solution for crossing any such line. For instance, in the recent matter of MPs Navneet Rana and Ravi Rana, the couple was booked for sedition by the Maharashtra Police for chanting Hanuman Chalisa outside the residence of CM Udhav Thakarey. The court ultimately stated that
"Undoubtedly the applicants have crossed the lines of freedom of speech and expression guaranteed under the constitution. However, mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Section 124A [Sedition] of IPC."
Other existing laws in India are sufficient to deal with trivial crimes. Despite this, the government and the executives have been using section 124A and provisions of UAPA to silence the voices raised against them. In the year 2019, the police closed 9% of sedition cases (pending from previous years and filed in 2019) due to a lack of evidence or because the accused was untraceable. Chargesheets were filed only in 17% of the sedition cases while the conviction rate in 2019 was merely 3.3%. Above all, the treatment meted to the accused after being charged for sedition is in itself a punishment. Longer periods in prisons and reluctance in granting bails are faced by the accused. Steps have already been taken by the Indian Government to revisit the laws on sedition and this was, in my opinion, a much-needed action.
Author: Pragya Nagpal - a law student at Jindal Global Law School), in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.
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