Criticism without incitement to violence isn’t seditionhttps://indianexpress.com/article/explained/simply-put-criticism-without-incitement-to-violence-isnt-sedition/

Criticism without incitement to violence isn’t sedition

Sedition is a cognisable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.

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Supreme Court. (File Photo)

How is ‘sedition’ defined under the Indian Penal Code?

Under Section 124A of the IPC, the offence of sedition is committed when any person by words or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law. Three explanations added to the provision lay down that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.

Sedition is a cognisable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine. Sedition was not a part of the original IPC that was enacted in 1860 — it was introduced in 1870, when it was said it had been dropped from the original IPC draft by mistake.

How was this provision of the IPC used by the government of the British Raj?

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It came in handy to muzzle nationalist voices and demands for freedom — the long list of India’s national heroes who figured as accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh and Jawaharlal Nehru. Tilak was sentenced to six years in jail after he was held guilty of sedition by the Privy Council for writing a piece in his newspaper, Kesari, under the heading “The misfortune of the country”.

READ | Strong criticism of govt isn’t defamatory or seditious, says SC, underlines 1962 verdict

However, ‘sedition’ was interpreted differently by the Federal Court that started functioning in 1937, and the Privy Council, which was the highest court of appeal based in London. In Niharendu Dutt Majumdar Vs King Emperor, 1942, the Federal Court held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”, but this proposition was overturned by the Privy Council in King Emperor Vs Sadashiv Narayan Bhalerao, 1947.

The Privy Council underscored the law laid down in Tilak’s case to hold that incitement to violence was not a necessary precondition for constituting the crime of sedition. It held that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A.

How has the Supreme Court interpreted Section 124A since Independence?

In 1962, the Supreme Court dealt with an appeal by one Kedar Nath Singh from Bihar, who had been convicted and jailed under the sedition charge for delivering a speech in which he said: “Today, the dogs of CBI are loitering around Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the British from the country and elected these Congress goondas to the gaddi. As we drove out the British, we shall strike and drive out these Congress goondas as well. They have today established a rule of lathis, bullets in the country. We believe in (a) revolution which will come, and in the flame of which, capitalists, zamindars and Congress leaders will be reduced to ashes, and on their ashes will be established a government of the poor and the downtrodden people of India.”

In his appeal to the top court, Singh questioned the constitutional validity of Section 124A, contending it stifled his right to free speech under Article 19 of the Constitution. The court faced two directly conflicting interpretations of Section 124A — one by the Federal Court in Niharendu Dutt’s case; the other by the Privy Council in the Sadashiv Narayan Bhalerao case. The judgments expressed contradictory views on whether the incitement to violence or a tendency to disturb public order was a necessary ingredient of the offence under Section 124A.

And what did the Supreme Court rule in the case?

The court examined whether the constitutionality of Section 124A could be protected as a reasonable restriction on the right to free speech, with particular reference to the security of the state and public order. It upheld the constitutional validity of Section 124A in the IPC by holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”.

Okay, so what then is sedition?

The Constitution Bench of the Supreme Court ruled in the Kedar Nath case that any act that had the “effect of subverting the Government” by violent means or create public disorder would come within the definition of sedition.

“Acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question,” ruled the top court.

And what is not sedition?

The court ruled that disapproval of the measures of government with a view to their improvement or alteration by lawful means is not sedition. It held that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” would not attract the penal offence.

The court added 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.

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“A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder,” it further maintained.