Every citizen has been given a right to freedom of speech and expression to express their views by the Indian Constitution under Article 19(1)(a). However, this right to freedom is not absolute and some reasonable restrictions have been imposed on such freedom of speech and expression under Article 19(2). But when a person does an act by his words, signs or representation which is held to be contemptuous towards the Government of India, then such act is punishable under section 124 A (i.e., Sedition) of Indian Penal Code, 1860.
Origin of Sedition law in India is connected to the Wahabis Movement of the 19th century, which was an Islamic revivalist movement and was led by Syed Ahmed Barelvi. Since 1830, the movement was active but in the wake of the 1857 revolt, it turned into armed resistance, a Jihad against the British. The British termed Wahabis as rebels and carried out military operations against Wahabis.
In British Era, Section 124 A was not a part of Indian Penal Code, 1860. But this Section was inserted into IPC by the IPC (Amendment) Act, 1870. By an amending act of 1898, this provision was later replaced by Section 124 A. According to the British Era Law, under the old IPC, “Exciting or attempting to excite feelings of disaffection was considered as Sedition”.
LAW OF SEDITION
In simple words, Sedition means “conduct or speech which results in revolt against the authority of the state”. Section 124A of IPC, 1860 deals with the Law of Sedition, which is considered as a reasonable restriction on the freedom of speech and expression.
Sedition has broadly been understood by many as an offence against public tranquility and being connected in some way or the other with public disorder.
The Indian Penal Code under Section 124 A defines sedition as an offence committed when “any person 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”.
Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.
However, any comments that show disapproval of any actions or steps or administrative actions taken by the Government, which have been made with an intent to ensure the Government alters the steps taken by it would not be considered as sedition provided that such statements do not excite or attempt to excite hatred, contempt or disaffection towards the Government.
Thus, Sedition is defined as an offence that criminalizes speech that is regarded to be disloyal to or threatening to the state.
PUNISHMENT (for the offence of sedition under Section 124A
Sedition is a criminal offence under Section 124A of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) which could attract either imprisonment up to three (3) years or even imprisonment for life. The law not only allows for imprisonment but also grants the courts the discretion of levying a fine along with imprisonment.
In other words, it is a non-bailable offence for which the punishment is specified under Section 124 A which ranges imprisonment from up to three years to a life term, to which fine may be added. A person charged under this law is barred from a government job. They have to live without their passport and must produce themselves in the court at all times as and when required.
ELEMENTS OF SEDITION
In India, what constitutes ‘Sedition’ is highly debated. As per the Indian Penal Code, for an act to be called “seditious”, it should have the following components:
Any words, which can either be written or spoken, or signs (i.e., visual representation) which include placards/posters.
Such words must bring hatred/contempt/disaffection against the Indian Government.
And they must result in ‘imminent violence’ or public disorder.
ACTIVITIES THAT ARE SEDITIOUS IN NATURE
As per the interpretation of the Court on Section 124 A of the Indian Penal Code, 1860 the following acts have been considered as “seditious” :
Raising of slogans against the government amounts to be seditious.
For example : “Khalistan Zindabad” by groups.
Raising of slogans by individuals casually once or twice was not held to be seditious.
The speech made by any person must incite violence / public disorder for it to be considered as seditious.
Subsequent cases have gone to further interpret it to include “incitement of imminent violence”.
Any written work which incites violence and public disorder is held to be seditious.
ACTIVITIES THAT ARE NOT CONSIDERED AS SEDITIOUS IN NATURE
The following acts are not considered as seditious in nature :
Improvement or alteration by lawful means with the disapproval of the measures of government.
The strong words which are expressing disapprobation of actions of the Government and not encouraging those feelings which generate public disorder by acts of violence.
To improve the condition of the people or to secure the alteration of those acts by lawful means without the feelings of enmity and disloyalty which involve excitement to public disorder or the use of violence.
DEFENCES AVAILABLE TO A PERSON CHARGED WITH SEDITION
To get the exemption from Criminal Liability, the following are the defences available to a person :
That he did not make the sign or representation or not speak or write the words, or not do any act in question.
That he did not attempt contempt or attempt disaffection.
That such disaffection should not be towards the Government.
USE AND MISUSE OF SECTION 124 A
Utility of Section 124 A:
Section 124 A is needed in combating anti-national, secessionist and terrorist elements.
It protects the elected government from attempts to be overthrown with violence and illegal means.
Many districts in different states are affected by Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution. Hence the abolition of Section 124 A would be ill-advised.
Arguments against Section 124 A:
Section 124 A is a remaining part of colonial legacy and unsuited to democracy.
It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy and they should not be constructed as sedition.
The terms used under Section 124 A like ‘disaffection’ are vague and subject to different interpretations to the whims and fancies of the investigating officers.
IPC and Unlawful Activities Prevention Act which have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means” are sufficient for protecting national integrity.
The sedition law is being misused as a tool to persecute political dissent.
THE SEDITION LAW AND ITS VALIDITY
Section 124 A has been challenged in various courts in specific cases. The validity of the provision itself was upheld by a Constitution Bench in 1962,
In Kedarnath Singh vs State of Bihar :
That judgment went into the issue of whether the law on sedition is consistent with the fundamental right under Article 19 (1) (a) which guarantees each citizen’s freedom of speech and expression. The Supreme Court laid down that every citizen has a right to say or write about the government, by way of criticism or comment, as long as it does not “incite people to violence” against the government established by law or with the intention of creating public disorder.
The High Court in 2015 referred to the Kedarnath judgment and said there was a need to lay down parameters for the invocation of Section 124 A. “Otherwise a situation would result in which an unrestricted recourse to Section 124 A would result in a serious encroachment of guarantee of personal liberty conferred upon every citizen of a free society,” the court had said.
Apart from the Kedarnath judgment, the High Court also referred to five other judgments, including a Supreme Court judgment (Balwant Singh vs State of Punjab) regarding raising of slogans by three men after former Prime Minister Indira Gandhi was assassinated. The SC then ruled that “casual raising of slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection by the government”.
The court observed, “It is clear that the provisions of Section 124 A of IPC cannot be invoked to penalise criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means.”.
SCOPE OF IMPROVEMENT
In democratic India, the citizens must be given liberty to express their affection towards the Nation in their own way which may be in the form of debates, exposure of the loopholes in the policy of the government, constructive criticisms etc. Section 124 A, the law of sedition must only be carefully applied in cases where the intention of such actions lies with the purpose to disrupt the public order or overthrow the government by way of illegal or extremist means of violence. This sedition law is misused to bully and terrorise citizens.
A clear distinction between freedom of speech and expression concerning Sedition could be reviewed in the Courts of law as the concept of sedition is a very specific and serious offence and when used upon to silence and terrorise an ordinary citizen, raising a concern/ grievance, it is terrorism imposed by the State. Moreover, in the events of the protest, the law enforcement can be easily bullied by a local leader into registering a case under sedition giving rise to many cases lagging in the Court to be cleared of.
Sedition is known as the serious offence in the violation of Article 19 provided by the Constitution of India. So, there is a need that sedition laws should contain words which should satisfy the restrictions of Article 19(2). The purpose of restricting the freedom of speech and expression under Sedition Act is the protection of National Security. Sedition laws should be interpreted and applied accordingly as per the guidelines given by the Supreme Court.
India is the largest democracy of the world and the right to freedom of speech and expression is an essential ingredient of democracy. The expression or thought that is not in consonance with the policy of the government of the day should not be considered as sedition. Even the Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. If the country is not open to positive criticism, there would be no difference between the pre- and post-Independence eras.
Of course, it is an essential element to protect national integrity. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124 A will be scrapped soon. However, the section should not be misused as a tool to curb freedom of speech and expression.
As discussed, there are certain essential elements that are required for a statement, words, cartoons etc. to be considered as seditious, without which an offence of sedition cannot be made out. Section 124 A of the IPC is constitutional and is required to ensure stability of the State and give the Government the tools to effectively combat anti-national, secessionist terrorist elements.
However, there is a difference of understanding between the principles laid down by the Apex Court and actual implementation of Section 124 A of the IPC which has seen many call for an amendment to the Section and terming Section 124 A of the IPC as draconian. However, given the focus on national security, we might only see the law on sedition being made stronger.