Sedition and the Indian Constitution: A Critique


The author of this blog is Kavish Arora   1st Year BBA  LLB at Symbiosis Law School, Hyderabad.





Introduction
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.





[1] Nazir Khan v. State of Delhi (2003) 8 SCC 461.
[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)
[11] Id.
[12] Union of India & Ors. v. The Motion Picture Association & Ors AIR 1999 SC 2334.
[13] AIR 2015 SC 1523.
[14] (2007) 96 DRJ 693.
[15] Law Commission of India, Consultation Paper on “Sedition” (August, 2018).

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