Sedition Law and Debate Around it

Context: 

• The arrest of K. Raghu Ramakrishna Raju, an MP from Andhra Pradesh, on the grave charge of sedition, is yet another instance of the misuse of the provision relating to exciting “disaffection” against the government. The police in different States have been invoking sedition, an offence defined in Section 124A IPC, against critics of the establishment and prominent dissenters.
• That State governments and various police departments are known for the casual resort to prosecution under this section is a poor reflection of the understanding of the law among civil servants everywhere. It is now fairly well known that the section is attracted only if there is an imminent threat to public order or there is actual incitement to violence- ingredients that are invariably absent in most cases.
• Sedition law has been a long-standing debate in the country as it has been often used to curb free speech or dissent against the government in power. In this context, we will look at the historical aspects of the sedition law and its utility in current times. 

Relevance:
Mains: GS II-

• Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
• Functions and responsibilities of the Union and the States.
• Comparison of the Indian constitutional scheme with that of other countries.
• Important aspects of governance.

Historical Background of the Sedition Law

• Sedition laws were enacted in 17th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
• The law on sedition is a hangover from India’s colonial past. It was originally drafted by Lord Thomas Babington Macaulay in 1837 but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860.
• Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.
• It was then used as a tool to oppress the freedom movement and suppress all forms of dissent by Indians against British rule. 
• The law was first used to prosecute Bal Gangadhar Tilak in 1897.
  • The case led to Section 124A of the IPC (which deals with sedition) being amended, to add the words “hatred” and “contempt” to “disaffection”, which was defined to include disloyalty and feelings of enmity.
  • In 1908, upon conviction for sedition in another case, and imprisonment, Tilak reportedly said, “The government has converted the entire nation into prison and we are all prisoners.”
  • Gandhi, too, was later tried for sedition for his articles in Young India, and famously pleaded guilty.
• Twice in the Constituent Assembly, some tried to include sedition as a ground for restricting free speech. But this was vehemently and successfully opposed for fear that it would be used to crush political dissent.

Current Status of Sedition Law

Sedition is a crime under Section 124A of the Indian Penal Code (IPC).

Section 124A IPC:

It defines sedition as an offence committed when “any person 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”.

Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.

Punishment for the Offence of Sedition:

• Sedition is a non-bailable offence. Punishment under Section 124A ranges from imprisonment up to three years to a life term, to which a fine may be added.
• A person charged under this law is barred from a government job.
• They have to live without their passport and must produce themselves in the court at all times as and when required.

The Relevance of Sedition Law

• Freedom of speech often poses difficult questions, like the extent to which the State can regulate individual conduct.
• Since an individual‘s autonomy is the foundation of this freedom; any restriction on it is subject to great scrutiny.
• The constitution of India prescribes reasonable restrictions that can always be imposed on this right in order to ensure its responsible exercise and to ensure that it is equally available to all citizens.
• These restrictions are mentioned under Article 19(2) of the Constitution of India i.e. interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
• Sedition law helps the government to curb the secessionist movement and other atrocity propaganda.

Arguments in favour of Sedition Law

• Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements
• It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State
• If contempt of court invites penal action, contempt of government should also attract punishment
• Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution
• Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.

Arguments against Sedition Law

• Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
• Sedition leads to a sort of unauthorised self-censorship, for it produces a chilling effect on free speech.
• It suppresses what every citizen ought to do in a democracy- raise questions, debate, disagree and challenge the government's decisions.
• Sedition systematically destroys the soul of Gandhi’s philosophy that is, the right to dissent.
• Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition. The right to question, criticize and change rulers is very fundamental to the idea of democracy.
• The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. There is no reason, why should not India abolish this section.
• Jawaharlal Nehru, in Parliament, clarified that the related penal provision of Section 124A was “highly objectionable and obnoxious and the sooner we get rid of it the better”.
• The terms used under Section 124A like ‘disaffection’ are vague and subject to the different interpretation of the whims and fancies of the investigating officers.
• IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting national integrity. There is no need for Section 124A.
• The sedition law is being misused as a tool to persecute political dissent. A wide and concentrated executive discretion is inbuilt into it which permits the blatant abuse.
• In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.

Supreme Court's Verdicts and Observations on Sedition

• The Supreme Court highlighted debates on sedition in 1950 in its decisions in Brij Bhushan v the State of Delhi and Romesh Thappar v. the State of Madras.
  • In these cases, the court held that a law that restricted speech on the ground that it would disturb public order was unconstitutional.
  • It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
  • Thus, these decisions prompted the First Constitution Amendment, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.
• In 1962, the Supreme Court decided on the constitutionality of Section 124A in Kedar Nath Singh v State of Bihar.
  • It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
  • It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
• In 1995, the Supreme Court, in Balwant Singh v State of Punjab, acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabaad” and “Raj Karega Khalsa” outside a cinema after Indira Gandhi’s assassination.
  • Instead of looking at the “tendency” of the words to cause public disorder, the Court held that mere sloganeering which evoked no public response did not amount to sedition, for which a more overt act was required; the accused did not intend to “incite people to create disorder” and no “law and order problem” actually occurred.
• On March 3, 2021, the Supreme Court dismissed a Public Interest Litigation (PIL) against former Jammu and Kashmir Chief Minister Farooq Abdullah demanding he be charged with sedition.
  • The Supreme Court said, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.” The Supreme Court also imposed a fine of Rs 50,000 on the petitioners for making an unsubstantiated charge of sedition.

The law and its application clearly distinguish between strong criticism of the government and incitement of violence. Even if the letter is considered hateful, or contemptuous and disdainful of the government, if it did not incite violence, it is not seditious. Unfortunately, Indian courts have, especially recently, repeatedly failed to appreciate this distinction.
The broad scope of Section 124A means that the state can use it to chase those who challenge its power, and the mere pressing of sedition charges ends up acting as a deterrent against any voice of dissent or criticism.

Law Commission of India on Sedition Law

• In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
• In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which ‘disaffection’ should not be tolerated.
• In August 2018, the Law Commission of India published a consultation paper recommending that it is time to re-think or repeal Section 124A of the Indian Penal Code that deals with sedition.
• In the recent consultation paper on sedition, the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.
• A legal opinion sought by the Centre on a Law Commission report on the British era sedition law has stated that “Section 124A – sedition as interpreted by the Supreme Court is necessary”. 

The disutility of the sedition law

Way Forward

1. Role of Judiciary:
   • It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution. Section 124A should not be misused as a tool to curb free speech.
   • The argument used against the scrapping of the sedition law is that the Supreme Court has repeatedly observed that the mere possibility of misuse of a provision does not per se invalidate the legislation.
   • Democracy has no meaning without freedoms and sedition as interpreted and applied by the police and governments is a negation of it.
   • Hence, before the law loses its potency, the Supreme Court, being the protector of the fundamental rights of the citizens has to step in and evaluate the law.
   • It needs to be examined under the changed facts and circumstances and also on the anvil of ever-evolving tests of necessity, proportionality and arbitrariness.
   • The higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech.
   • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
2. Role of Parliament:
   • It is only Parliament that revoked a law like POTA [The Prevention of Terrorism Act, 2002], which was draconian and flagrantly misused.
   • All these laws have always been upheld by the judiciary. It is only the parliamentarians when they get a push from the public, who swing into action. 
   • A strong will of Parliament holds the key to get rid of this draconian colonial-era law that has been used only to suppress dissent.
   • Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon.
   • However, the section should not be misused as a tool to curb free speech. The SC caveat, given in the Kedar Nath case, on prosecution under the law can check its misuse.
   • The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
   • The word ‘sedition’ is extremely nuanced and needs to be applied with caution. It is like a cannon that ought not to be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.
3. Civil society must take the lead to raise awareness about the arbitrary use of the Sedition law.

Conclusion:

• It is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy. Dissent is the lifeblood of democracy.
• But today when the stench of fascism looms large, exercising this constitutional right can get one branded as anti-national, thrown behind bars or a lynch by mob waiting outside to teach you a lesson.
• Clearly, dissent, criticism of the government, questioning politicians, all of which are fundamental to democracy, have come to be treated as sedition by the police and a section of the magistracy in the prevalent political order.
• Such terrorising of critics and protesters endangers the very idea of democracy. A law that has especially come in handy for the self-proclaimed nationalists of our times to suppress dissent is the archaic colonial-era sedition law.
• Of course, it is essential to protect national integrity. However, the expression or thought that is not in consonance with the policy of the government of the day should not be considered sedition.