Sedition and the Indian Constitution: A Critique
The author of this blog is Kavish Arora 1st Year BBA LLB at Symbiosis Law School, Hyderabad.
Sedition was introduced in India by
Lord Macaulay under the British regime to curb the surging nationalist voices
and to strengthen British jingoism. The offence of sedition includes all those
activities which aim to excite discontent and dissatisfaction or hatred towards
the government which promotes public disorder or leads to a civil war.[1] The
offence of sedition comes under the section 124A of the IPC and since time
immemorial it has received criticism from the mass intelligentsia. Sedition is
a British relic, which reflects the colonial notion of the relationship between
the ‘ruler’ and the ‘ruled’. This violates the constitutional essence as India
is a sovereign democratic country where criticism towards the government should
not only be welcomed but should be encouraged. Sedition became an instrument of
the British for terrorizing the colonized.[2]
Sedition through Constitutional
Precedents
The British regime used the offence
of sedition to serve their political interests and to curb the political dissent.
The first-ever trial of sedition was Queen
Empress v. Jogendra Chunder Bose[3], where the
defendant was charged for the offence of sedition for criticizing the Age of
Consent Bill and the negative economic impact of the colonial regime. Further,
the trial clarified the difference between ‘disaffection’ and ‘disapprobation’.
It was opined that only disaffection is penalized and not disapprobation.
‘Disaffection’ is considered to be a feeling that can only exist between a
‘ruler’ and the ‘ruled’.[4] This
violates the constitutional realms incorporated in the Preamble which describes
India as a sovereign and democratic country, where people are sovereign and a
leader is chosen democratically in every five years.
Various constitutional debates were
held on the topic of sedition because many amongst the framers of the
constitution believed that the offence of sedition restricted the freedom of
speech and expression, but it continued to exist within the penal statute. Post
framing of the constitution, section 124A came into question for the first time
in the case Ramesh Thappar v. State of
Madras[5]. The Apex court was in the opinion
that unless freedom of speech or expression threaten the ‘security of or tend
to overthrow the State’ any law imposing restriction on the same would be under
the purview of Article 19(2). Further, the case led to the Nehru government
deciding to amend the constitution by inserting “public order” and “relation
with friendly states” under Article 19(2) to provide a safeguard against the government
misuse.
The Punjab High Court in the case of
Tara Singh v. The State[6] held the offence of sedition
unconstitutional as it contravenes with the fundamental rights guaranteed
under Article 19(1) (a) of the
constitution. It was further observed by the Supreme Court that though the law
of sedition was considered as appropriate provision during the period of
colonial rule but now it has become inappropriate. Similarly, the Allahabad
high court in Ram Nandan v. State[7] held the section 124A unconstitutional
because it restricted the freedom of speech and expression guaranteed by the
constitution.
When the constitutional validity of
section 124A IPC was questioned to the Supreme Court in the landmark case of Kedar Nath v. State of Bihar[8] it
overturned the decision of the Allahabad High Court and upheld the
constitutionality of the section 124A. The court interpreted that the
incitement of violence was one of the most essential ingredients of the offence
of sedition. Further, the scope of offences applied under sedition was reduced
by the Apex court. It was established that the offence of sedition was a crime
against the public tranquillity and not a political crime.[9]
Freedom of Speech and Sedition
within the Constitutional Contours
The essence of a democracy lies in
the free speech of its citizens and the offense of sedition acts as a
restriction towards such essence. With the development of the Constitution, the
law of sedition acquired a new perspective. The draft constitution consisted of
the ground on which the freedom of speech and expression could be restricted,
which was ‘sedition’. But the Constituent Assembly deleted the word ‘sedition’
and substituted it with “which undermines the security of or tends to overthrow
the states”.[10]
It is imperative to address whether
the restriction imposed by section 124A of IPC on freedom of speech and
expression is reasonable or not. The Kedar
Nath judgment fails to highlight so. With the test of reasonableness, it
can hardly be said that section 124A strikes a balance with freedom of speech
and public order. Furthermore, it fails to fulfill the requirement of a rational
relationship with the object that the legislation seeks to accomplish and it
does not exceed the object. The
legislation makes penal, not only incitement of certain feelings but also the
attempt to do so, even in cases where it would be
improbable to go through with the offense. It attracts punishment for the use
of words, signs, or representation to incite a person even though they were
addressed to one from whom no public disorder can be expected. Moreover, the
legislation seeks to punish a person for his state of mind by the use of such
as disaffection, enmity, or disloyalty.[11]
Free speech is the foundation of a
democratic society. A free exchange of ideas and dissemination of knowledge and
viewpoints are the basic indicia of a free society.[12] This
indicium which distinguishes a democratic society from other societies is
hampered by the offense of sedition. In the case of Shreya Singhal v. Union of India[13], the
Supreme Court declared section 66A of the IT Act 2000 as unconstitutional on
the grounds that it conflicted with the freedom of speech and expression under Article 19(1) (a) of the constitution. It was reiterated by the Apex Court
that the freedom of speech and expression is of “paramount importance”. Taking
a similar viewpoint, it can be suggested that section 124A is in conflict with Article 19(1) (a) of the constitution. Thus, it should either be repealed
or amended.
Moving Forward: Conclusion and
Suggestion
In the case of Javed Habib v. State of Delhi,[14]it was
highlighted that “the criticism of the
government is the hallmark of democracy. As a matter of fact, the essence of
democracy is criticism of the Government”. Thus, the presence of the law of
sedition profanes the constitutional and democratic essence. It is quite
startling that even though the makers of this draconian law, the British have
moved on, we have not. The presence of the law of sedition as a tool of loyalty
is bogus and arbitrary. Further, the Kedar
Nath judgment itself shows the deficiency in understanding and implementing
this provision. Drawing inspiration from England, it can be interpreted that
the law has become obsolete. It should either be repealed or be amended.
It is suggested that the definition
of sedition should be revisited to ensure a proper balance between section 124A
and freedom of speech. Further, it is suggested to judicially interpret that at
what time criticism would qualify as hate speech. It is also suggested to
incorporate proper measures to safeguard the interest of citizens against the
misuse of sedition. Moreover, section 124A should only be invoked in cases
where the intention behind any act is to disrupt public order or to overthrow
the existing government with violence and illegal means.[15] The
society has evolved socially and legally, it is now the obligation of the
judiciary to adjust according to the needs of this developed society. It is now
time to either bid farewell to the law of sedition or amends it according to the
needs of the society.
[2] Arvind Ganachari,
“Combating Terror of Law in Colonial India: The Law of Sedition and the
Nationalist Response” in M. Vardolas, G.K. Letts, H.M. Teixeira, A. Karzai, J.
Haig (eds.), Engaging Terror: A Critical
and Interdisciplinary Approach (2009).
[3] ILR (1898) 22 Bom 112.
[4] Sidhharth Narrain, “Disaffection' and the Law: The
Chilling Effect of Sedition Laws in India” 46 Economic and Political Weekly 8 (2011).
[5] AIR 1950 SC 124.
[6] AIR 1951 Punj. 27.
[7] AIR 1959 All 101.
[8] AIR 1962 SC 955.
[9] Nivedita Saksena,
Siddhartha Srivastava, “An Analysis of the Modern Offence of Sedition”, 7 NUJS L. Rev. 121 (2014).
[10] R.K. Mishra, “Freedom
of Speech and the Law of Sedition in India”, 8 Journal of Indian Law Institute 117-131 (1996)
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