Introduction
Freedom of speech and expression occupies a central place in almost all contemporary democracies. Likewise, it forms one of the most important pillars of our democracy. We use language, gestures and other forms of conduct to construct the world around us, to shape our personalities and to make ourselves intelligent to others. Democracy and free speech are concomitant to each other. Not all communicative acts ought to be protected under the garb of free speech. In consequence, it becomes important to understand what shall and shall not be protected without tainting democratic values. This article seeks to deal with one such provision which thwarts free speech and expression and which has been brought into the limelight repeatedly. Regrettably, the wide wording of Section 124A was and is continued to being used by our government to curb dissent and to repel any form of political accountability.
In recent times, we have witnessed a massive spurt in instances of sedition. These cases have soared in India and suppressed the ideals of free speech. Earlier this year, several anti-CAA and anti-NRC protesters were arrested for sedition. In fact, a sedition case was filed against a 19-year-old citizen for chanting “Pakistan Zindabad.” An editor of a Gujarati news portal was also charged under Section 124A for allegedly publishing an article suggesting that the chief minister could be replaced owing to the handling of the COVID-19 crisis.
Frequent invocation of sedition law has become one of the most worrisome issues because free speech is imperative for maintaining democracy. It is manifestly clear that sedition runs against the concept of free speech. The right to dissent is systematically being obliterated by the threat of sedition. Due to its unforeseen ubiquity, it becomes imminent to understand the jurisprudence of this criminal provision.
Origin of 124A: Sedition
The crime of sedition was originally conceived in England during the rule of the king in order to protect the king and other monarchs from public criticism. Sedition was inserted in the IPC in the form of Section 124A in 1870 which originally read as:
“Whoever excites..or…attempts to excite feelings of disaffection to the Government shall be punishable with transportation for life.” Followed by a proviso “Disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government remains lawful.”
Colonial Interpretation
To get a better understanding, there are three important cases from the colonial saga that merit consideration. In the first case that came before the Calcutta High Court, Pehteram CJ in Queen Empress v. Jogendra Chunder Bose and Ors differentiated disapprobation from disaffection. He observed:
“Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey lawful authority of the Government, or to subvert or resist that authority, if an when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact produced by them”
It was held that merely intending to create disposition was enough to bring charges under this provision. It was not worth contending whether there was actual harm that followed such speech or writings. Since this version of sedition did not suffice the purpose, the judges in the Bal Gangadhar trial were forced to widen its scope. It was observed by Justice Strachey that “if any writing was found to be attributing to the government every sort of evil and misfortune suffered by the people, or dwelling on its foreign origin and character or imputing to it base motives or accusing it of hostility or indifference to the welfare of the people.” Accordingly, merely exciting the feeling of enmity was held sufficient to successfully bring a charge for sedition. Thereafter, the Bombay High Court in Pratod Case proceeded to criminalise any attempt to persuade Indians not to love their British rulers.
Thus, an overwhelmingly broad interpretation of Section 124A prevailed in the colonial era. The criminal charge of sedition was in most cases used by the British to incarcerate leaders at the vanguard of the freedom struggle like Gandhi, Raja Ram Mohan Roy and others, and to suppress the voices of the nationalist newspapers.
Post-Colonial Approach of the Indian Courts
The provision for sedition was heavily denounced in the Constituent Assembly debates as the founding fathers had themselves been prey to its misuse by the British. It was believed that the insertion of Article 13 had made the provision repugnant to freedom of speech embedded in Part III of the Constitution and was thus a dead law waiting to either be struck down by the courts or repealed by the First Legislature. The dissent of Jusitce Fazl Ali in Brij Bhushan wherein Section 124A was addressed by him in great detail assumes special significance. In his dissent, he redefined sedition as an offence insofar as the impugned words incited disturbances against public tranquillity or tended to do so, which he then linked with undermining the security of the State.
Even though it was conspicuous that the majority believed that section 124A was unconstitutional in Brij Bhushan and Romesh Thappar, they were unable to strike it down merely because that issue was not in consideration before them in the cases they were adjudicating. As a result, sedition survived the early cases litigated before the Supreme Court. Interestingly, after a while, some clarity was brought by The High Court of Punjab in Tara Singh Gopi Chand v. State, wherein it stated that,
“A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.” It allowed curtailment of freedom of speech and expression not compatible with the Constitution. The section must be held to have become void.”
However, simultaneously, the Patna High Court failed to subscribe to this view of the Punjab High Court and instead promoted Ali’s dissent from Brij Bhushan. In Kedar Nath, the Supreme Court had occasion to clear the conundrum over sedition. The bench ruled that
“Every state, whatever its form of Government has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to Public” The bench upheld sedition, noting that “any law which is enacted in the interest of public order may be saved from the vice of Constitutional invalidity and was constitutional valid.” Yet again, the court failed to test sedition on the anvil of Section 19(2) and to further create a strict test for its applicability. It was only in Balwant Singh v. State of Punjab that the court stressed on the tendency test which required the words spoken or written to have the tendency to create public disorder, and subsequently acquitted the accused of the charges of sedition.
More recently, in the landmark case of Shreya Singhal v. Union of India, Justice Nariman followed the proximity test noted by the same court in Ram Manohar Lohia and struck down Section 66A. Differentiating between incitement and advocacy, he stated “mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in”.
The Shreya Singhal judgement thus provides a much needed impetus to the growth of free speech and expression. Undoubtedly, it will play a key role in assisting the courts in prospective litigations.
Concluding Remarks
It is well known that India was a laboratory for British Legislators and sedition law is one of the experiments incorporated into our criminal law. Unlike the United States, India does not advance the absolute right theory. Nevertheless, looking at the snowballing charges of sedition in the present era, it is paramount that the Supreme Court takes note of this grim subject and conclusively bursts the clouds of nebulous information. This is of utmost importance considering the fact that it has been ten long years since the United Kingdom has permanently written it down. Simply opposing the government cannot be equated with sedition. Free speech and expression forms the very essence of democracy. Any restriction or threat to restrict the same must be required to qualify strict standards.
Research work and article by Anshritha Rai and Mudit Ahuja.