Sedition law is one of many pre-Constitution laws brought over from colonial to independent India. As per the Indian Penal Code 1860, sedition means an act that brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards a government established by law. It is a non-bailable offence, with punishment ranging from imprisonment up to 3 years to a life term.
The Supreme Court recently 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.
This is the first time in 162 years that the operation of a provision of Section 124A has been suspended. The central government had initially defended the colonial provision, but later told the apex court it was reviewing it.
Historical Backdrop British historian-politician Thomas Babington Macaulay drafted the penal law on sedition in 1837. In the 19th and 20th centuries, the colonial British government primarily used the sedition charge, which was included in Section 124 A of the Indian penal code in 1870, to suppress the writings and speeches of Indian nationalists and freedom fighters to crush dissent.
Sedition was inexplicably omitted in the enactment of the IPC in 1860. A decade later, in 1870, the IPC was amended to introduce Section 124A via an amendment forwarded by Sir James Stephen, surmising that a separate section was warranted to deal with this special category of offence against the government. With another amendment in 1898, sedition was made a punishable offence. The law has been challenged on several grounds since the time of Independence.
According to a blog published by the Library of Congress (LOC), the first known instance of the use of sedition law was in a trial against newspaper editor Jogendra Chandra Bose in 1891. Other prominent people against whom the law was applied at the time include Bal Gangadhar Tilak, Mahatma Gandhi, Jawaharlal Nehru, and Abul Kalam Azad. Vinayak Damodar Savarkar was also charged with sedition. In 1922, the British government arrested Gandhi was arrested on Sedition charges in Bombay for taking part in anti-government protests and sentenced him to six years in prison.
Sedition Law after Independence
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. However, Section 124A of IPC was retained after gaining independence even though first Prime Minister Jawaharlal Nehru, criticised it in no uncertain terms.
In 1951, Jawaharlal Nehru brought in the first amendment of the Constitution to limit the freedom under Article 19(1)(a) and enacted Article 19(2) to empower the State put curbs in the form of “reasonable restrictions” on right to free speech.
It was the Indira Gandhi government made Section 124A a cognisable offence for the first time in India’s history. In the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonial-era 1898 Code of Criminal Procedure, sedition was made a cognisable offence authorising the police to make arrests without a warrant.
Article 372 of the Constitution provides for the application of pre-constitutional laws to even independent India in the interest of continuity. The State has resorted to the active invocation of this law and it has frequently been used to date. The State argues that it is essential to have a law on sedition which serves to protect the integrity and sovereignty of the nation.
Legal Challenges to the Sedition Law
In Kedar Nath v State of Bihar (1962) the Supreme Court of India upheld the constitutionality of the law, observing that such power was required by the State to protect itself. However, in this judgement, the apex court attempted to define the contours of the law by stating that an individual could be prosecuted for sedition only if the act ’caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace’. Interestingly in 1968, the Law Commission of India in its 39th Report had rejected the idea of repealing the section. In fact, in its 42nd report of 1971, the Law Commission supported the idea of expanding the scope of sedition to include the Constitution, the legislature and the judiciary, in addition to a lawfully established government.
Several judgements like Balwant Singh v State of Punjab (1995), Bilal Ahmed Kaloo v State of Andhra Pradesh (1997) and Common Cause v Union of India (2018) have limited the scope of what constitutes sedition. The common theme reiterated by the apex court through case law has been that charges of sedition cannot be brought just for criticising the government or its policies but any seditious act must have implicit in them the idea of subverting government by violent or illegal means.
The Law Commission of India’s 2018 report opined that section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the government with violence and illegal means. It also reportedly opined that whether ‘right to offend’ qualified as hate speech must also be scrutinised, and urges for striking a balance between sedition and the right to freedom of speech, and installing safeguards against misuse of the sedition charge.
According to a Consultation Paper on ‘Sedition’ published by the Law Commission of India, in order to study the revision of section 124A further, the following issues would require consideration:
1) The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given that the British introduced the section itself as a tool to oppress the Indians, how far it is justified to retain s.124A in IPC?
2) Should sedition be not redefined in a country like India – the largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?
3) Will it be worthwhile to think of an option of renaming the section with a suitable substitute for the term ‗sedition ‘and prescribe punishment accordingly?
4) What is the extent to which the citizens of our country may enjoy the ‘right to offend’?
5) At what point the ‘right to offend’ would qualify as hate speech?
6) How to strike a balance between s.124A and right to freedom of speech and expression?
7) In view of the fact that there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping section 124A in the IPC, serve any purpose?
8) Given the fact that all the existing statutes cover the various offences against the individual and / or the offences against the society, will reducing the rigour of s.124A or repealing it be detrimental or beneficial, to the nation?
9) In a country, where contempt of Court invites penal action, should contempt against the Government established by law not invite punishment?
10) What could be the possible safeguards to ensure that s.124A is not misused?