Render sedition unconstitutional

Sedition, defined as “incitement to violence” or “disorder”, is a legislation meant to suppress the voice of Indian people and has no place in a 21st century democracy. The Supreme Court, being the protector of the fundamental rights of the citizens needs to declare the law unconstitutionalSince the governments and its agencies have strictly gone by the text of Section 124A though the Supreme Court itself did not apply these principles to the speech of Kedarnath, the law declared in Kedarnath has lost its potencyIndependent India’s governments seem to have found great relief in having a provision on sedition. Amendments made to Article 19 of the Constitution imposing curbs and validating them on the ground of “reasonable restrictions”, indicate just that

Some trigger-happy State governments in India start shooting from the hip the moment they see an article or a cartoon or hear a speech very critical of the government or Ministers or politicians in power. ‘Sedition’ is an offence incorporated into the Indian Penal Code (IPC) which they have found handy to silence or discipline critics. This nineteenth century law, enacted to silence the Indian people by the colonial rulers, has been retained by the democratic government in free India. Not only that, it has perhaps been used more often by free India’s governments than the colonial government did during the 77 years of its presence in the Penal Code. Sedition was not a part of the original Indian Penal Code (IPC) enacted in 1860 and was introduced in 1870.

P. D. T. Achary

Independent India’s governments seem to have found great relief in having a provision on sedition in the penal statute. A spate of litigations in the fifties and sixties, and the amendments made to Article 19 of the Constitution — widening the scope of penal legislation and validating them on the ground of reasonable restrictions — indicate just that. During the past four years, we have again witnessed frequent invocation of sedition to deal with free speech and expression.

State intolerance to freedoms

Recently, the Gujarat government booked a Patel leader under sedition for sending messages containing “offensive language against the Prime Minister, the State Chief Minister and Amit Shah, the President of BJP”. These cases are indicative of a high level of intolerance being displayed by governments towards the basic freedom enjoyed by citizens. Democracy has no meaning without these freedoms and sedition as interpreted and applied by the police is a negation of it.

Section 124A of the IPC defines sedition and says: (i) 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, the government established by law; or (ii) whoever by the above means excites or attempts to excite disaffection towards the government established by law, has committed the offence of sedition. The punishment prescribed varies from imprisonment up to three years to life imprisonment, with fine or without it. The first explanation says that disaffection includes disloyalty and all feelings of enmity. Explanations 2 and 3 in effect say that disapprobation of the measures or administrative action etc. of the government to obtain their alteration by lawful means is not an offence.

The caveat however, is that there should be no attempt to excite hatred or contempt or disaffection. In other words, even if the impugned speech or article or cartoon seeks to obtain the alteration of the wrong governmental decisions, if they excite hatred, contempt or disaffection towards the government, the author of the speech and others are liable to be charged with sedition and punished.

History of sedition

The history of the offence of sedition in the IPC is one of conflicts in judicial interpretations. In the pre-Independence era, a number of landmark cases on sedition were decided by the Federal Court as well as the Privy Council. These two high judicial bodies had taken diametrically opposite positions on the meaning and scope of sedition as a penal offence. The Federal Court in Niharendu Dutt Majumdar Vs. King Emperor (1942) FCR 48, held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”. These judges were of the view that sedition implies resistance or lawlessness in some form. In all these cases the point that has been emphasised is that if there is no incitement to violence, there is no sedition.

On the other hand, the Privy Council was of the view that acts like incitement to violence and insurrection are immaterial while deciding the culpability of a person charged with sedition. It said that since the IPC defines the offence of sedition, unlike the English Law, which doesn’t define it, one needs to go by that definition only. Queen Empress Vs. Bal Gangadhar Tilak (1897) was the first case wherein the law on sedition under Section 124A in the IPC was explained. Strachey J. stated the law in the following terms;

“The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”

In King Emperor V. Sadashiv Narayan Bhalerao (1947) , the Privy Council not only reiterated the law on sedition enunciated in the Tilak case, but also held that the Federal Court’s statement of law in theNiharendu Majumdar case was wrong. The Privy Council overruled the decision of the Federal Court and held that excitement of feelings of enmity to the government is sufficient to make one guilty under Section 124A of the Code.

Now, let us look at the decisions of the Supreme Court of independent India on sedition. The Constitution bench of the Supreme Court explained the amplitude of sedition for the first time in 1962 in the case of Kedarnath Vs. State of Bihar (1962). Quite interestingly the court adopted the view of the Federal Court of India that the gist of the offence of sedition is “incitement to violence” or the “tendency or the intention to create public disorder”. So, as per the Constitution Bench of the Supreme Court, a person can be charged with sedition only if there is incitement to violence in his speech or writing or an intention to create disorder.

Kedarnath decision

The occasion for this decision was an appeal by a person named Kedarnath Singh of Bihar who was punished by the trial court for making a speech, a punishment upheld by the High Court. A few lines of his speech are worth quoting:

“To-day the dogs of CID are loitering around Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congressgoondas to the gaddi…. When we drove out the Britishers, we shall strike and turn out these Congressgoondas as well… They have today established a rule of lathis and bullets in the country…. We believe in [a] revolution, which will come and in the flames of which, the capitalists, zamindars and the Congress leaders of India… will be reduced to ashes and on their ashes will be established a Government of the poor and downtrodden people of India.”

It can be seen from this speech that there is no “incitement to violence” or “disorder” which alone, according to the Supreme Court, formed the basis of a charge of sedition. Therein lies the contradiction in this landmark judgment. In fact, the issue before the court was whether Section 124A was violative of Article 19(1)(a) relating to freedom of speech and expression. If the view of the Privy Council on sedition was to be adopted, then Section 124A would have had to be struck down as violative of Article 19(1)(a). The Supreme Court did not want to do that, so, it adopted the strict principles of English Law on sedition which were laid down in the Niharendu case in 1942. But the court upheld the punishment of Kedarnath who did not incite anyone to resort to violence and overthrow the government.

Sedition defined under Section 124A of the IPC is a colonial law meant to suppress the voice of Indian people. That is why the Indian law on sedition was different from the English law. Despite the strict construction adopted by the Supreme Court, the law enforcement agencies have always used it against artists, public men, intellectuals, et al for criticising the governments. In fact the Supreme Court itself did not apply these strict principles to the speech of Kedarnath and his conviction. The government and its agencies have, in reality, followed the law enunciated by the Privy Council and not by the Supreme Court in Kedarnath. The governments in free India continue to use it for the very purpose for which the colonial government used it.

Therefore, since the governments and its agencies have strictly gone by the text of Section 124A though the Supreme Court itself did not apply these principles to the speech of Kedarnath, the law declared in Kedarnath has lost its potency. The Supreme Court, being the protector of the fundamental rights of the citizens may step in now and declare Section 124A unconstitutional. India of the 21st century does not require a law used by the colonial government to suppress India’s voice.

(P .D.T. Achary is a constitutional expert and former Secretary General of the Lok Sabha)