The Supreme Court Wednesday directed the Centre and states to keep in abeyance all pending trials, appeals, and proceedings with respect to the charge framed under Section 124A of the Indian Penal Code (IPC), which deals with the offence of sedition, till the central government completes the promised exercise to reconsider and re-examine the provision.
The central government had initially defended the colonial provision, but later told the apex court it was reviewing it.
Section 124A defines sedition as: “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 shall be punished with imprisonment for life, to which fine may be added…”
The provision also contains three explanations: 1- The expression “disaffection” includes disloyalty and all feelings of enmity; 2- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section; 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 offence under this section.
Although Thomas Macaulay, who drafted the Indian Penal Code, had included the law on sedition, it was not added in the code enacted in 1860. Legal experts believe this omission was accidental. In 1890, sedition was included as an offence under section 124A IPC through the Special Act XVII.
The punishment prescribed then, transportation “beyond the seas for the term of his or her natural life”, was amended to life imprisonment in 1955.
The provision was extensively used to curb political dissent during the Independence movement. Several pre-independence cases involving Section 124A of the IPC are against celebrated freedom fighters, including Bal Gangadhar Tilak, Annie Besant, Shaukat and Mohammad Ali, Maulana Azad and Mahatma Gandhi. It is during this time that the most notable trial on sedition — Queen Empress v. Bal Gangadhar Tilak — took place in 1898.
Courts largely followed a literal interpretation of the provision holding that “… the disapprobation must be ‘compatible’ with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority.”
The Constituent Assembly debated including sedition as an exception to the fundamental right to freedom of speech and expression, guaranteed in the Constitution, but several members vehemently disagreed and the word is not included in the document.
As early as 1950, the Supreme Court in Romesh Thapar v State of Madras held that “criticism of the government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the state.” Justice Patanjali Shastri cited the Constituent Assembly’s deliberate omission of the word sedition from the Constitution for the liberal reading of the law.
Subsequently, two high courts — the Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) — declared that Section 124A of the IPC was primarily a tool for colonial masters to quell discontent in the country and declared the provision unconstitutional.
However, in 1962, the issue came up before the Supreme Court in Kedarnath Singh v State of Bihar.
A five-judge Constitution Bench overruled the earlier rulings of the high courts and upheld the constitutional validity of IPC Section 124A. However, the court attempted to restrict its scope for misuse. The court held that unless accompanied by an incitement or call for violence, criticism of the government cannot be labelled sedition. The ruling restricted sedition only insofar as seditious speech tended to incite “public disorder”- a phrase Section 124A itself does not contain but was read into it by the court.
The court also issued seven “guidelines”, underlining when critical speech cannot be qualified as sedition.
In its guidelines on using the new, restrictive definition of sedition law, the court said not all speech with “disaffection”, “hatred,” or “contempt” against the state, but only speech that is likely to incite “public disorder” would qualify as sedition.
Following the Kedar Nath verdict, “public disorder” has been considered a necessary ingredient for the commission of sedition. The court has held that mere sloganeering unaccompanied by any threat to public order would not qualify as sedition.
This ruling in Balwant Singh v. State of Punjab (1995), reiterated that the real intent of the speech must be taken into account before labelling it seditious. The petitioners were accused of sedition for raising slogans of “Khalistan Zindabad, Raj Karega Khalsa, Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Kar” (Hindus will leave Punjab and we will rule) etc. in a public space.
In subsequent rulings — Dr. Vinayak Binayak Sen v. State of Chhattisgarh (2011), — the court also held that a person can be convicted for sedition even if she is not the author of the seditious speech but has merely circulated it.
In 2016, in Arun Jaitley v State of Uttar Pradesh, the Allahabad High Court held that criticism of the judiciary or a court ruling — former Union minister Arun Jaitley in a blog post had criticised the Supreme Court’s 2016 ruling declaring the National Judicial Appointments Commission unconstitutional — would not amount to sedition.
Successive reports of the Law Commission of India and even the Supreme Court, have underlined the rampant misuse of the sedition law. The Kedar Nath guidelines and a textual deviation in law puts the onus on the police who register a case to distinguish between legitimate speech from seditious speech.
Just last year, in Vinod Dua v Union of India, the Supreme Court quashed FIRs with charges of sedition against the journalist for criticising Prime Minister Narendra Modi’s handling of the Covid-19 crisis and cautioned against unlawful application of the provision.
The Supreme Court has agreed to hear a fresh challenge against the provision after a batch of petitions were filed by journalists, Kishorechandra Wangkhemcha, Kanhaiya Lal Shukla; and Trinamool Congress MP Mahua Moitra, among others. This would involve a seven-judge bench considering whether the Kedar Nath ruling was correctly decided.
Although the government initially defended the provision arguing that “isolated incidents of misuse” do not necessitate removal of the provision itself, it has now told the court that it is mulling a fresh review of the colonial law.
The petitioners have argued that the restricted Kedar Nath definition of sedition can be addressed through several other laws, including stringent anti-terror laws such as the Unlawful Activities Prevention Act.
The court’s intervention is crucial because in case it strikes down the provision, it will have to overrule the Kedar Nath ruling and uphold the earlier rulings that were liberal on free speech. However, if the government decides to review the law, either by diluting the language or repealing it, it could still bring back the provision in a different form.
In the United Kingdom, the sedition law was officially repealed under Section 73 of the Coroners and Justice Act, 2009, citing a chilling effect on freedom of speech and expression. The common law on sedition, which is traced to the Statute of Westminster, 1275, when the King was considered the holder of Divine right, was termed “arcane” and “from a bygone era when freedom of expression wasn’t seen as the right it is today.”
In the United States, sedition is a federal felony under the Federal Criminal Code, Section 2384, and is now being used against rioters involved in the January 6 attack on the Capitol. Despite the First Amendment that forbids any restrictions on free speech, “conspiracy to interfere directly with the operation of the government” and not just speech is considered sedition.
Australia repealed its sedition law in 2010, and last year, Singapore also repealed the law citing that several new legislations can sufficiently address the actual need for sedition law without its chilling effects.
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