Analytical Study of Sedition Law in India and its Constitutional Validity

The article 'Analytical Study of Sedition Law in India and its Constitutional Validity' critically analyses the law of sedition and its various landmark judicial pronouncements.

It is a fact that every law prevalent in our society is created to regulate the conduct of the people some were inherited during the colonial period, whereas some are from the Indian regime. One such prominent provision which involves a lot of heated controversies and debates is section 124-A of the Indian Penal Code, which elucidates the concept of sedition. However, to date, the intention with which this provision was enacted by legislation remains unclear. It is pertinent to note that freedom of speech and expression is a two-edged sword as it aims to provide citizens enjoyment and simultaneously prohibits acts that might prove detrimental to basic intrinsic rights. Thus, this article aims to give the readers a clear understanding of the ambiguity and vagueness behind this section.

Introduction

The idea of freedom of speech comes from the liberal idea that there should be a space where the individual is free from social coercion. One such key line of thought is that the only good reason to impede an individual's freedom of action is that the action may harm others. In a comprehensive sense, in simple terms, it can be stated that the sphere which is free from coercion includes the liberty of conscience. It can be stated that a society where all sort of liberties is not respected cannot be termed a hassle-free society, irrespective of the form of government. Henceforth, the freedom of speech & expression plays a pivotal role in ensuring liberal democracy & society.

Sedition is an offence under Section 124 -A of the Indian Penal Code, which has attracted massive public criticism on the pretext that it violates the sacred right of speech and expression. It restricts individuals from engaging in any conduct or speech that may result in promoting violence or force against the government. In India, successive governments have used the Sedition Act to suppress dissent and opposition to their policies.

Historical Background

Sedition laws were introduced during the 17th century in England when the legislators believed that only good opinions about the government should stand since bad opinions were considered harmful to the government and the monarchy. The law was used by the British government to suppress freedom of speech and dissent, and as a result, numerous Indian nationalists were prosecuted and imprisoned under the law. The Act was originally drafted in 1837 by the British historian-politician Thomas Macaulay but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860. However, a few years later Section 124-A was inserted in the year 1870 by an amendment made by Sir James Stephen when there was a significant rise in the need for a unique provision to deal with this offence. In recent years, this provision has been constantly criticized for being misused by the government to suppress free speech.

Sedition laws in India

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”.

Unlawful Activities (Prevention) Act, 1967

Under Section 2 (o) of the said Act, advocating secession, questioning the territorial integrity of and creating or intending to create discontent against India are illegal activities under the Act. Section 13 punishes illegal activity with imprisonment extending to seven years and a fine.

Prevention of Insults to National Honour Act, 1971 

Section 2 of the said Act states that whoever in a public place or another place of public visibility burns, defaces, disfigures, disfigures, breaks, tramples or otherwise shows disrespect or contempt (including words, whether orally or in writing or by the act) the national flag of India or the Constitution of India or any part thereof, shall be punished with imprisonment for years which may extend to three years, or with fine, or with both.

Prevention of Seditious Meetings Act, 1911

The Seditious Meetings Act, introduced by the British to control dissent by criminalizing seditious meetings, remains on our statute books. Section 5 of the Act empowers the District Magistrate or Commissioner of Police to prohibit any public assembly in a declared area if such assembly is likely, in his opinion, to promote rebellion or disaffection with the Government or to disturb the public peace. This Act was specifically introduced to curb anti gatherings by nationalists and those opposed to the British government, whose continuation is completely unnecessary and undemocratic.

Code of Criminal Procedure, 1973

The Code of Criminal Procedure contains section 95, which gives the government the right to reasonably disclose material punishable under section 124-A. The section mainly requires the fulfilment of two conditions:

1. The Material is punishable

2. The Government proves its claim regarding the loss of the material

Chapter X of the Code of Criminal Procedure, 1973 deals with the maintenance of public order and peace and authorizes the police, judges and defence forces to destroy illegal assembly, by force if necessary, and restore public order. These preventive measures can prevent actions that can be considered uncontrollable.

Constitution of India

When the Constitution of India came into force, the constitutional validity of Section 124-A was challenged because it violates the fundamental right to freedom of speech and freedom of expression under Article 19 (1) (a) of the Constitution of India.[1] Article 19(1)(a) guarantees every citizen freedom of speech and expression. This means that every citizen of India is free to express his opinion. This freedom of speech and expression protects severe criticism of existing administrative structures, policies, practices, and management plans, and protection against proposals and recommendations for the development of other systems. Freedom under Article 19(1)(a) is not absolute.

Article 19(2) deals with the reasons for reasonable restrictions about Article 19(1)(a). Sedition is not mentioned in it as one of the reasons justifying reasonable restrictions. The question now arises as to whether Section 124-A of the Indian Penal Code imposes reasonable restrictions on the freedom of speech guaranteed by Article 19(1)(a). However, this conflict between sedition and freedom of speech is not of recent origin. The framers of the constitution also considered the dilemma of whether Article 19 (2) should use the word "sedition” but ultimately omitted it. It was noted that if they were to include it in Article 19(2), they would include it.

Is there any misapplication of sedition laws?

In numerous cases, reasonable doubt has been expressed about the possible misuse of sedition law. In one of his writings, Justice AP Shah warns about the basis of sedition law. The use of religion in electoral campaigns was challenged under Section 123 of the Representation of the People Act, 1951. The main argument expressed was that the use of open threats to

India’s commitment to secularism could be regarded as disloyalty. However, the claim was rejected and it was found that the candidate at best expressed the "hope" of creating a monolithic rather than actually eliminating minorities and thus threatened to eliminate other religions.

Constitutional Assembly Debates on Sedition

Draft of Article-13 dealt with freedom of speech and expression and was debated in the Constituent Assembly:

(1) Subject to the other provisions of this article, all citizens shall have the right-

a) To freedom of speech and expression.

(2) Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against the decency or morality or undermines the authority or foundation of the State. The Assembly debated against Draft Article 13 on the 1st and 2nd of December 1948 and the 16th and 17th of October 1949.

K.M Munshi

Regarding the content, it should be noted that two amendments are proposed. The word "sedition" appears in the original sentence. The original clause reads: "concerning to libel, slander, defamation, sedition or any other matter". The amendment seeks to delete the word "sedition". In addition, the amendment seeks to replace the words "undermining the authority or establishment of the state" with the words

The house will not allow me to do such a thing. Sir, the importance of this amendment is that it seeks to delete the word "sedition" and uses the much better phraseology, namely "which undermines or tends to subvert the security of the State". The aim is to remove the word sedition, which has a dubious and variable meaning, and to add words that are currently considered to be the core of the crime against the state.

This amendment, therefore, aims to use words that exactly correspond to the meaning of the word "Sedition" as understood by the current generation in a democracy, and therefore there is no substantial change in it. An effort is being made to remove from the article only the unambiguous word "Sedition". Otherwise, it would give the wrong impression that we want to retain Section 124-A of IPC or the meaning of what was once considered a good law.

Relation between Freedom of Speech & Sedition

The most common defence that can be found in most cases of sedition is whether the act was done in pursuance of Article 19(1)(a). But the most surprising fact is that even to date, many people are still unaware of Article 19(2), which states that a speech or an act should not be something which can provoke or incite others to act against the state. In simple terms, it can be stated that anything capable of disrupting the peace and harmony in the nation can’t be defended by using Article 19(1)(a). Any act that triggers others to destroy the nation's integrity will be termed sedition. Hence, in such cases, it can’t be termed as free speech.

Landmark Case Laws

Ram Nandan v. State of U.P [2]

In this case, the Hon'ble high court held that Section 124-A imposed restriction on the freedom of speech, which is not in the interest of the public and therefore declared Section 124A of IPC as ultra vires.

Kedar Nath Singh v. State of Bihar [3]

In this case, the constitutional validity of Section 124-A was challenged before the hon'ble Supreme Court based upon the argument that it conflicted with Article 19(1)(a) of the Indian constitution. However, the Supreme Court came up with an opinion that there is no offence of sedition unless the remarks spoken or written are likely to cause disturbance of public order or violence, setting aside the judgment of the Allahabad High Court. It cannot be considered a crime if the statements are not likely to cause violence.

Vinod Dua v. Union of India [4]

Through this landmark case, the hon'ble Supreme Court concluded that every activity which is intended or likely to cause or disrupt public peace & harmony by resorting to violence should be criminalized. Looking upon the facts of the case, the Supreme court concluded that the words used by Vinod Dua could best be described as the measures taken by the government and its officials to resolve the current crisis quickly and effectively. In addition, it went on to say that they were not created to irritate others or tend to create disorder by violence or disturb the public peace.

Conclusion

I would like to mention that democracy would become meaningless and can turn out to be a matter of question when the people are not granted the freedom to articulate their opinions. In today’s modern era, it is pertinent to note that every human has the basic right to speak and raise his voice since it is part and parcel of democracy. Hence, it can be stated that if a conflicting situation arises between the freedom of speech & expression and sedition, then the former should always prevail over the latter.

Even though our laws are quite laudable and although the judiciary system has been playing an imperative role in regulating peace and harmony in society by coming up with notorious judgements at frequent intervals but concerning its successful implementation in the longer run, it requires a lot of time to bring a visible reformative change in the society. In my opinion, freedom of speech is something which every individual inherits by birth, and hence it cannot be curtailed by any means.

References

[1] Tara Singh v. State of Punjab, AIR 1951 EP 27 

[2] Criminal Revn. 1727 of 1957

[3] 1962 AIR 955

[4] Writ Petition (Crl.) No.154 OF 2020

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