Introduction
In what may be termed an unprecedented judicial criticism of the sedition law in recent times, the Chief Justice of India N.V. Ramana, recently asked the Government of India why it did not throw out the sedition law along with the hundreds of stale colonial laws it had expunged from the statute books.
This remark from the CJI is not surprising if one analyses the chilling effect of sedition law on liberties, particularly free speech. The British Government had inserted it in the Indian Penal Code 1860 (henceforth IPC) to suppress the freedom struggle.
However, in Independent India, it has been conveniently and often misused by the state to harass some of its fiercest critiques and political opponents. More so, people from diverse backgrounds have been charged under this law just for being too critical of government policies.
Given the frequent misuse of sedition law by politicians in power, leading legal and social personalities of India have called for its immediate repeal. People have questioned the need, rationale, and utility of having such a law in the statute book of Independent India.
It is so because the sedition law premised on the idea of affection of the subjects towards the ruler militates against the democratic foundations of modern India based on the consent and will of the governed. It’s an affront to our liberal welfare and constitutional republic.
Against this background, this post succinctly analyses the sedition law in India. Read this to know more.
Sedition Law Provisions
Section 124A of the Indian Penal Code (IPC) 1860 contains the law of sedition in India.
It provides that whoever “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 which may extend to three years or for life with or without fine.
This provision did not exist in the original IPC when it was enacted in 1860. It was inserted in IPC over a decade later in 1870 and was subsequently amended and substituted by Act 4 of 1898.
With this, the government aimed to punish those who, by their conduct, aimed to jeopardize the safety and stability of British India, or disseminated such feelings of disloyalty having the tendency to lead to the disruption of the State or to public disorder.
Given below are the wordings of S.124 of the IPC in its current form-
124A. Sedition 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.
Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offense under this section.
Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.
A Law thoroughly Misused by British and Independent India
The sedition law as contained in S.124A of the Indian Penal Code has been misused both by the colonial and post-independent dispensations.
While in British India, it was primarily used against politicians like Gandhi, Nehru, Tilak, Azad, etc, independent India has used it even against dissenting citizens.
People from all walks of life including doctors, students, teachers, journalists, human rights activists, scholars, marginalized sections, poor, and tribals, etc have been booked under sedition law for being too critical of the government policies.
As per the reports of the National Crime Records Bureau (NCRB), there has been a massive 160% increase in the filing of sedition cases between 2016 to 2019 even though the conviction rate was just 3.3%.
During the Sino-Indian military face-off in Ladakh, the Press Trust of India (PTI) aired an interview with the Chinese ambassador to India Sun Weidong.
In the said interview, the Chinese ambassador blamed India for the violent standoff that resulted in the death of over 20 Indian soldiers.
People and Media associations all over India criticized PTI for airing the interview. While many condemned the Chinese ambassador, some even demanded strict actions against the PTI for interviewing the Chinese ambassador at such a sensitive time.
Subsequently, the PTI was labeled as anti-national and various journalist groups threatened to boycott and cancel its subscriptions.
All this shows that Indian politicians in some ways have outwitted even the colonial government in suppressing dissent.
In addition to sedition law, various other draconian laws like the Unlawful Activities (Prevention) Act, National Security Act, and even the Epidemic Diseases Act are also invoked to contain dissent, especially during the all-India protests against the Citizenship Amendment Act 2019 and National Register of Citizens in Assam.
History of Sedition Law in India
The sedition law has its roots in the colonial idea of affection that subjects should have towards their ruler. It was influenced by the Treason Felony Act that was in force in Britain at that time.
The offense was made a cognizable and non-bailable one and contained the maximum punishment of life imprisonment. An explanation attached to the section differentiated between ‘exciting disaffection against the government established by law’ and ‘disapprobation or mere criticism’.
While the former was completely prohibited, the latter was tolerated to an extent.
The underlying rationale was that “the ruler must be accepted as a ruler, and disaffection, which is opposite of that feeling, is the repudiation of that spirit of acceptance of a particular government as a ruler” (Narayan).
The immediate reason, however, for the insertion of S.124A in the Indian Penal Code was to contain the threat to British rule from the Wahabi conspiracy.
The revolt of 1857 had shaken the foundations of British rule in India. The British had a hard time coping and recovering from its after-shocks. While the rebels had failed to overthrow British rule, many Muslims turned to extremism and took refuge in the Wahabi Movement.
It was an underground Muslim politico-religious movement to resuscitate the Muslim consciousness in the Indian sub-continent.
To contain this potent threat at the earliest, the British government hastily inserted the sedition provision in the Indian Penal Code in 1870 (Narayan).
In 1889, an amendment was made to the provision on the intervention of the shrewd British Judge Strachey, and the words ‘hatred’ and ‘contempt’ were added along with ‘disaffection’ which he explained in a judgment, included all feelings of enmity and disloyalty against the government.
This was done primarily to eliminate any possible loophole in the provision which could give an accused the benefit of the doubt.
Some other provisions such as Sections 153A and 505 were also added in the penal code to deal with the rising cases of extremism and communal hatred and to reign in the revolutionary preachings of some vernacular newspapers.
Jogendra Chandra Bose was the first Indian to be booked under sedition in India. He was the editor of a Bengali newspaper “Bangobasi” and was accused of sedition for publishing an article criticizing “Age of Consent Bill”.
Famous Sedition Law Cases in India
Bal Gangadhar Tilak and Muhammad Ali Jinnah
Though the provision was brought in the IPC mainly to deal with the Wahabi movement of Indian Muslims, some of the famous trials that took place under it included many high profile Congressmen like Bal Gangadhar Tilak, Mohandas Karamchand Gandhi, Pandit Jawahar Lal Nehru, and Abul Kalam Azad, etc.
Tilak was tried thrice under this provision and defended twice by Muhammad Ali Jinnah.
In one of the cases, Jinnah famously argued that if at all he had excited any disaffection, it was against a foreign occupation over India.
Tilak was nonetheless convicted and could be released only after the intervention of some leading international figures including Max Weber.
In 1908, Tilak was once again booked and tried under sedition law after an editorial in his newspaper ‘Kesari’ severely criticized the government policies of curbing press freedom.
In 1916, he was arrested one more time for allegedly disseminating seditious materials in the Bombay Province but this time Jinnah successfully saved him by arguing that Tilak had only criticized the bureaucracy and not the government established by law in India.
Mahatma Gandhi and Sedition
Another pre-independence trial that generated much hype was of Mohandas Karamchand Gandhi. He was tried in 1922 for publishing some allegedly seditious articles in his magazine ‘Young India’.
During the trial when Justice Strangman asked what made him such a strong disloyalist from a staunch royalist, Gandhi replied that “affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence”.
It may be noted here that during his initial days in South Africa, Gandhi displayed a remarkable affection for the British Empire and extreme disdain for native Africans.
According to a book titled “The South African Gandhi: Stretcher-Bearer of Empire.” authored by Ashwin Desai and Goolam Vahed, professors at the University of Johannesburg and the University of KwaZulu Natal, Gandhi described black Africans as “savage,” “raw” and living a life of “indolence and nakedness,” and he campaigned relentlessly to prove to the British rulers that the Indian community in South Africa was superior to native black Africans, reports the Washington Post.
Now turning back to the sedition trial of Gandhi, he was quite adamant before the English Judge. As a result, he was sentenced to six years imprisonment even though the judge was impressed with Gandhi’s viewpoint.
Colonial Interpretation of Sedition Law
Like Gandhi, many other revolutionaries too justified their disaffection towards the British rule using novel arguments.
They openly challenged the legality of the British government which they said was established in India not according to the will of the people or mandate of law but by brute force and fraud, and, therefore, there existed neither any obligation to obey its writs nor did it deserve any affection or loyalty from Indians.
In Niharendu Dutt Majumdar v The King-Emperor 1939, the Federal Court of British India for the first time attempted to read down the sedition law in India when Justice Maurice Gwyer held that “public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offense. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency“.
However, later the Privy Council in King Emperor v Sadashiv Narayan Bhalerao 1947 overturned the Niharendu Dutt Majumdar ruling and emphatically reaffirmed the view expressed in Tilak’s case to the effect that “the offense consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small“.
Sedition Law in Post-Independent India
The sedition law should have been repealed after independence. Even after drawing severe flak from the opposition and courts in numerous cases, the then Congress government choose to keep this draconian law in the statute books of independent India.
It even amended the Constitution to preserve the constitutionality of S.124A after the Romesh Thapar case.
Note, that in this case, the Supreme Court had tested the wording of the provision from the constitutional framework.
The court had held that the words like ‘Public Order’ and ‘Public Safety’ as contained in S.124A of the penal code are too wide and broad compared to the more specific restrictions on freedom of speech and expression under Article 19(2) of the Constitution.
So to pre-empt the possibility of it being declared unconstitutional, the government amended the Constitution and added ‘Public Order’ as one of the reasons for restricting free speech and also added ‘Reasonable’ before the word ‘restriction’ in Article 19 of the Indian Constitution.
Constitutionality of Sedition Law
The first direct challenge to the constitutionality of S.124A came before the Allahabad High court in the case of Ram Nandan v State in 1959.
Ram Nandan was charged under this section for giving an inflammatory speech against the Central government for not addressing the issues of poverty and laborers.
He allegedly incited them to overthrow the Congress regime by forming an armed militia and accused Prime Minister Nehru of being a traitor for allowing the partition of the nation.
Lower courts convicted him but on appeal, the Allahabad High Court not only overturned the conviction but also declared S.124A IPC to be ultra-vires of the Constitution because it restricted freedom of speech and expression regardless of the fact whether such an expression tended to cause public disorder.
Court termed such restrictions to be undemocratic which can strike the very roots of the Constitution and the democracy.
The court held that “that Section 124-A of the Indian Penal Code, is ultra vires of Article 19(1) of the Constitution, both because it is not in the interests of public order as well as because the restrictions imposed thereby are not reasonable restrictions.
This Section is, therefore, not saved by the reservations contained in Article 19(2) of the Constitution, and should be declared to be void”.
Some other observations of the court with regard to sedition law in India include-
- Everyone in the land should be free to criticize the Government or any party or group of people, so long as he does not incite anyone to violence.
- The mere fact that a speech has a tendency to result in an unlawful act may not be enough, unless the unlawful act possesses a further characteristic also, viz, the capacity or potentiality to disturb public order or an inherent tendency in that direction.
- Section 124A, Indian Penal Code, however, makes an act penal irrespective of any such capacity, potentiality, or tendency. The restriction imposed thereby does not, therefore, appear to be a reasonable one.
- Any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear land present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.
- These rights rest on a firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion at an appropriate time and place, must have clear support in public danger, actual or impending. (United States v Carotene Products)
Read more| Constitutional Law Class Notes
Kedar Nath Judgement
The decision in the Ram Nandan case was overturned by the Supreme Court in the case of Kedar Nath v State of Bihar 1962. Here the apex court restored the constitutional validity of S.124A although limiting its scope at the same time.
Kedar Nath was a communist leader who in his speeches had called for an armed revolution to overthrow zamindars, capitalists, and Congress governments from different provinces.
The court distinguished between ‘disloyalty to government’ and ‘mere criticism of government policies without inciting public disorder by using acts of violence.
The court upheld its constitutionality by reasoning that if there are two interpretations of a statute, and one interpretation will render the provision unconstitutional while another will make it constitutional, then the court shall go by the latter interpretation.
Thus, the court saved it from the vice of unconstitutionality by giving it a narrow interpretation. It restricted its application to only those acts involving intention or tendency to create disorder or disturbance of law & order or an incitement to violence.
As far as the “strong-worded” criticism of the government, the court held that “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 is not sedition“.
Increasing Accusations despite the Narrow Interpretation
The Supreme Court ruling in the Kedar Nath case made little impact on the trials and accusations under the sedition law.
Despite the narrow interpretation given to the sedition law in this case, accusations and trials under sedition law have only increased over the years.
For instance, as per the reports of the NCRB, there has been a massive 160% increase in the filing of sedition cases between 2016 to 2019.
Even criticism of government policies and politicians has been treated as sedition by the police under political pressure and thus endangering the very idea of a healthy and inclusive democracy.
Even if the convictions are rare in such cases, a mere accusation and arrest can cause so much harm to the dignity of an accused individual.
Writing on this issue, Justice AP Shah had rightly said that a parochial, selfish, and narrow-minded nationalism has caused so much misfortune and misery to our nation and the world. We must get rid of it.
Conclusion
To sum up, the colonial-era sedition law premised on the idea of affection of the subjects towards the ruler militates against the democratic foundations of modern India based on the consent and will of the governed.
It’s an affront to the value system of our democratic, liberal, welfare, and constitutional republic.
And therefore, it should either be repealed in its entirety or its scope should be drastically narrowed down by the legislature and judiciary to exclude merely political comments or rhetorics that do not advocate violent upheavals or otherwise pose an imminent threat to the sovereignty and territorial unity and integrity of India.
And given its historicity of rampant misuse, it would not be unwise to call upon the honorable Supreme Court to reconsider its decision in the Kedar Nath for a more suitable interpretation of this law which is based on the idea of affection towards the ruler and not the will of the people.
Our republic is certainly not that fragile that its integrity is threatened by some sloganeering and speeches.
The state must strive to win over the nation’s will and affection through honest public works and not through the coercive force of the sedition law.
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 is not sedition
Kedar Nath Singh v State of Bihar 1962
Given below are some Frequently Asked Questions on Sedition Law in India-
What is the Sedition Law in India?
Section 124A of the Indian Penal Code (IPC) 1860 contains the law of sedition in India. It penalizes the act or attempt of bringing hatred, contempt, or disaffection towards the Government established by law in India.
Is it Sedition to criticize the Government?
No. As far as the “strong-worded” criticism of the government, the courts have held that 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 is not sedition.
Is Sedition Punishable by Death in India?
No. According to Section 124A of the Indian Penal Code, the punishment for sedition is imprisonment which may extend to three years or for life with or without a fine.
What was the first case under Sedition in India?
Jogendra Chandra Bose was the first Indian to be booked under sedition in India. He was the editor of a Bengali newspaper “Bangobasi” and was accused of sedition for publishing an article criticizing “Age of Consent Bill”.
Recent Developments
Given below are a few latest developments on sedition law in India.
On May 27, 2021, Indian Medical Association (IMP) wrote a letter to PM Modi demanding a sedition case against Baba Ramdev for his disparaging remarks against Allopathy and covid vaccination.
Ramdev had said that Allopathy is a stupid science and that lakhs of people had died due to allopathic medicines.
In its letter to the PM, IMA alleged that people like Baba Ramdev by making false statements are spreading rumors and creating hesitations or superstitions in the minds of the common man thereby discouraging them from getting vaccinated.
On March 3, 2021, the Supreme Court quashed a sedition case registered against a senior journalist and Padma Shri awardee Vinod Dua for his critical remarks against the Prime Minister and the Union government in his YouTube telecast.
The court held that “every journalist is entitled to protection under the Kedar Nath Singh judgment”.
On July 15, 2021, Chief Justice of India N.V. Ramana, asked the government why a colonial law used against Mahatma Gandhi and Bal Gangadhar Tilak continued to survive in the law book 75 years after Independence, reported the Hindu.
Suggested Reading: Constitutional Law Class Notes
Works cited
- Staff, Scroll. “Delhi Violence: Shimla Police Summon Journalist Vinod Dua after BJP Leader’s Sedition Complaint.”
- Ramachandran, Shastri. “Section 124A: The Case Against The Much-Misused Sedition Law.” Outlook India
- Sriram, Jayant. “Should the Sedition Law Be Scrapped?” The Hindu, The Hindu, 6 Mar. 2020
- Alam, Mahtab. “Book Review: Chronicling the (Mis)Use of Sedition Law in India.” The Wire, 1 Sept. 2019.
- Narayan, Siddharth. “Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India.” JMI
- Scroll, Staff. “Prasar Bharati threatens to cancel PTI subscription over ‘anti-national’ coverage: The Hindu.” Scroll
Case Laws
- Niharendu Dutt Majumdar v The King Emperor AIR (29) 1942 FC 22
- King Emperor v Sadashiv Narayan Bhalerao (1947) L.R. 74 IA 89
- Brij Bhushan and Anr. v The State Of Delhi 1950 AIR 129
- Romesh Thapar v State of Madras 1950 AIR 124
- Ram Nandan v State AIR 1959 All 101
- Kedar Nath Singh v State of Bihar AIR 955 1962