The recent decision of the Supreme Court of India asking the Government not to make use of the sedition law till a decision is taken regarding its validity. The Supreme Court, 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 has come while the apex court was seized with the matter regarding the Constitutional validity of the provision and the centre made it a bit complicated first by supporting the law and then showing its intent to review the law. The afterthought came probably recognizing and realizing the public sentiment and the wider misuse of the law by party in power and the enormous power it provides to the state.
However, controversy is not new to the sedition law all over the world and more so in India during the last few years. The most recent being the use rather than the abuse of this provision of law by various governments to throttle any form of criticism. In response to the query of the Supreme Court, the Government of India has sought time to amend the law and get back with its position. In a relatively defiant posture, the Union law minister has caustically remarked about the ‘Laxman Rekha’ between various organs of the government clearly indicating the importance of the principle of separation of power. However, for the time being, the law is in limbo but the moot point is whether it will rise like the proverbial Phoenix or the case against Ranas will be the swansong of this section of the Indian Penal Code.
THE LAW AND ITS GENESIS
The Sedition law is a colonial creation and found its mention in 1870 as a special provision in the Indian Penal Code. The creation of law has clearly found its meaning in the expression that wanted to protect the interest of colonial administration by snuffing out any sort of opposition either through expression or act. The provision was extensively used to curb political dissent during the Independence movement. Several pre-independence cases involving Section 124A of the IPC are against celebrated freedom fighters, including Bal Gangadhar Tilak, Annie Besant, Shaukat, and Mohammad Ali, Maulana Azad, and Mahatma Gandhi. It is during this time that the most notable trial on sedition — Queen Empress v. Bal Gangadhar Tilak — took place in 1898.
Section 124A defines sedition as: “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, or excites or attempts to excite disaffection towards, the Government established by law shall be punished with imprisonment for life, to which fine may be added…” Part of punishment came through an amendment as the previous one mentioned of exile for life.
The provision also contains three explanations:
The expression “disaffection” includes disloyalty and all feelings of enmity;
Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section.
Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
THE JUDICIAL INTERPRETATION
This law came into question as early as 1950 in the case of Romesh Thaper v. State of Madras where Justice Patanjali Shastri clearly underlined its limitation and quoting debates of the Constitution Assembly mentioned that it’s a colonial legacy and needs to be tempered with same. In the following years, several High Courts too were in favour of toning down the law. The major criticism of Section 124A is that it restricts our “freedom of expression” and is antithetical to the democratic norms. As a result, critics have asserted that this legislation of the Indian Penal Code is an infringement of the country’s Constitution. It was decided in a landmark judgment of Kedar Nath v. State of Bihar (1962), that Section 124A was constitutionally valid. However, the five-judge Constitutional Bench of the Supreme Court while validating the constitutionality of the Act underlined that it should be limited in its application to acts involving the intent or inclination to create public disorder, disruption of law and order, or provocation of violence among other things. In fact, this attests the famous statement of Gandhiji which emphasized that freedom of expression includes the right to criticize the government when it does not incite any violence. However, cases like Dr. Binayak Sen v. State of Chhattisgarh, Aseem Trivedi v. State of Maharashtra and Arun Jaitly v. State of Uttar Pradesh brought this section into sharp focus as there has been clear excess by the state.
The Supreme Court of India, in the case of Kishorechandra Wangkhemcha v. Union of India (2021), that would discuss the validity of Section 124A, criminalizes sedition. In connection with posts and cartoons that were posted on social media platforms, two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla have been accused of committing sedition in India. They have filed a writ petition challenging the constitutional validity of Section 124A, which criminalizes and punishes sedition.
The sedition law may have been repealed in U.K. and many other countries in Europe and may be a dead letter in U.S.A. in the presence of strong ‘freedom of expression’ rights but in the context of India to be my belief has some relevance. The stand of Government of India to have a review serves a larger purpose. First, it will allow the government to have a wider consultation including states, other stakeholders, and a comprehensive analysis. But what is important is that there must be a strong deterrence of its use in its present form. India has a different culture and political problem that includes terrorism and a lot of anti-State activities. The provision allows the elected government to protect itself from malicious, contemptuous, and unfair criticism. To quote a parallel if the top Court wants the sedition law to be repealed then first it should repeal the Contempt of Court Act. But the logic says ‘not to throw the baby with bath water’.
The author is the Dean, Department of Distance Education, National Law Institute University. The views expressed are personal.
The Sedition law is a colonial creation and found its mention in 1870 as a special provision in the Indian Penal Code. The creation of law has clearly found its meaning in the expression that wanted to protect the interest of colonial administration by snuffing out any sort of opposition either through expression or act. The provision was extensively used to curb political dissent during the Independence movement. Several pre-independence cases involving Section 124A of the IPC are against celebrated freedom fighters, including Bal Gangadhar Tilak, Annie Besant, Shaukat, and Mohammad Ali, Maulana Azad, and Mahatma Gandhi.