DECODING THE HISTORY OF SEDITION LAW IN INDIA

-Written By Khushi Sheikh

1. INTRODUCTION

Nations strive to strike a delicate balance between safeguarding citizens and upholding democratic values amid geopolitical challenges. This challenge is particularly crucial in India, a vast and diverse country celebrated for its cultural heritage and thriving democracy. Despite facing various security threats, India has enacted national security laws to address issues ranging from terrorism prevention to maintaining public order.

India, marked by internal and external concerns, has implemented laws to counteract terrorism, preserve peace, curb provocative behavior, and safeguard personal information. These legal measures, including sedition and national security laws, aim to protect the nation's integrity, sovereignty, and public order, establishing a necessary legal framework.

Yet, there is a growing concern that these laws, if misused or flawed, could unintentionally compromise the very liberties they seek to protect, fostering a false sense of unease among the population. The term "sedition" has been a contentious point of discussion, evoking notions of rebellion and threats to the established order. The concept of sedition has evolved within the Indian context, reflecting the country's historical struggles for independence and the ongoing challenges in maintaining internal cohesion.

To grasp the complexity of India's current situation, it is crucial to understand sedition and its implications within the broader context of national security regulations.

2. Emergence of sedition law in India

Sedition in the Indian context has a rich and intricate history deeply intertwined with the nation's quest for independence from colonial rule. Its definition, referring to any action or expression that stirs up unrest or violence against the established authority of the government, has evolved over time. During the era of the British Raj, sedition laws were a potent tool wielded to quell dissent and undermine nationalist movements, with the law itself being introduced in 1870.

A pivotal moment came in 1948 when the term 'sedition' was nearly expunged from the Constitution. K. M. Munshi's amendment during the Constituent Assembly discussions aimed to remove the word from Article 13(2) of the Draft Constitution. Consequently, 'sedition' vanished from the Constitution on November 26, 1949, and Article 19(1)(a) granted absolute freedom of speech and expression. However, Section 124-A persisted in the Indian Penal Code, 1860.

The narrative took a turn in 1951 when Jawaharlal Nehru introduced the first amendment to the Constitution, limiting freedom under Article 19(1)(a) and introducing Article 19(2) to empower the state to impose reasonable restrictions on free speech. While the current Article 19(2) doesn't explicitly mention 'sedition,' it allows restrictions if the sovereignty, integrity, or security of the state is threatened.

Section 124-A of the Indian Penal Code, 1860, is the primary clause addressing sedition in India. Its wording, "Whoever brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India," [1]has been subject to scrutiny. Critics argue that its expansive and unclear language leaves room for arbitrary interpretation, leading to instances where legitimate dissent is construed as seditious.

The misuse of sedition laws has had tangible consequences, with activists, journalists, and dissenting voices finding themselves accused of sedition. This has a chilling effect on free speech and stifles democratic discourse, as the fear of sedition charges may deter individuals from expressing their viewpoints openly. The abuse of sedition laws not only undermines democratic ideals of free speech and dissent but also serves as a tool to silence political opposition, eroding the very foundation of a democratic society.

The recent resurgence of public discourse on the issue of sedition gained momentum last week, spurred by a pivotal pronouncement from a three-judge division bench of the Supreme Court on May 31, 2021, in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. Anr. v. The State of Andhra Pradesh Ors. [2]The court underscored the imperative to delineate the boundaries of sedition, igniting a renewed debate.

3. Pre independence judgements related to sedition law

Delving into the historical antecedents of sedition cases, the pre-independence era saw a seminal episode in 1891, the Queen-Empress v. Jogendra Chunder Bose Ors.[3] The editors of a Bengali magazine faced sedition charges for their critique of British Government policies, particularly pertaining to the Age of Consent Act, 1891. The publishers contended that sedition laws exclusively targeted the act of writing seditious content, not its publication. They challenged the very existence of sedition laws, arguing that penalizing individuals for the exercise of their rights contradicted the original intent of the legislation.

The Calcutta High Court, however, dismissed the notion that publishers could evade legal responsibility merely because they hadn't penned the seditious content. Emphasizing the distinction between 'disapprobation' (legitimate criticism) and 'disaffection' (defined as feelings contrary to affection), the court concluded that sedition, penalizing only disaffection, did not infringe on people's rights.

A subsequent landmark case, Queen-Empress v. Bal Gangadhar Tilak Keshav Mahadev Bal,[4] saw Tilak tried for sedition due to alleged incitement through his speeches, leading to the killing of two British officials. The Bombay High Court, concurring with the definition of 'disaffection' from Jogendra Chunder Bose, held that any 'bad feelings' toward the government constituted a criminal offense, virtually disallowing legitimate criticism. The court prioritized the intention of the offender in sedition matters, presuming it based on content, audience, and circumstances of the seditious speech.

In Emperor v. Bal Gangadhar Tilak[5], two decades later, Tilak faced sedition charges again for advocating 'self-rule' for Indians. The Bombay High Court, in a division bench, rejected Tilak's argument distinguishing between the civil services and the British government, stating that criticism of the civil service should only be deemed seditious if attributable to the state. This more liberal stance factored in the actual impact of the alleged seditious speech on the public, thereby considering the accused's intention with a nuanced approach, positively influencing the landscape of free speech.

4. Post independence judgements related to sedition law

The landmark case of Tara Singh Gopi Chand v. The State[6] marked the inaugural instance of an independent Indian court scrutinizing the constitutional validity of Section 124A of the IPC. Given India's newfound status as a sovereign republic, constitutional provisions took precedence over erstwhile British precedents. The Punjab High Court, in this pivotal case, astutely acknowledged that Section 124A undeniably imposed a constraint on the freedom of speech and expression. Consequently, it invalidated the provision, asserting that it contravened the fundamental right of freedom of speech and expression enshrined in Article 19 of the Indian Constitution.

Subsequently, independent India's inaugural Parliament swiftly enacted the Constitution (First Amendment) Act, 1951, aiming to rectify the constitutional quandary stemming from the Tara Singh Gopi Chand judgment. This amendment introduced new grounds for the reasonable restriction of the right to freedom of speech and expression.

In the original Constitution, Article 19(2) delineated limited grounds for curtailing free speech, including the security of the State, defamation, contempt of courts, and considerations of decency and morality. The Amendment Act augmented this list by adding grounds such as public order, relations with foreign states, and incitement to an offense.

The amendment broadened the scope of invoking the sedition offense, extending it beyond acts directly undermining the security of the State or seeking to overthrow it. The revised language stipulated that it merely had to be 'in the interest of the security of the State.' This expansive terminology vested the State with increased discretion in invoking the charge of sedition.

The efficacy of this amendment was swiftly put to the test within two years in the case of Debi Soren Ors. v. The State,[7] where an Adivasi leader faced charges for delivering an inflammatory speech against the government. The Patna High Court, in its adjudication, drew a lucid distinction between disapprobation and disaffection, asserting that only the latter could lead to public disorder. Importantly, the High Court affirmed the constitutionality of Section 124A of the IPC, emphatically ruling that it did not transgress the provisions of Article 19.

5. Landmark Kedarnath Singh Judgement

Proceeding to the pivotal case of Kedar Nath Singh v. State of Bihar[8], widely acknowledged as the Supreme Court's most authoritative judgment on the interpretation of the sedition law, a five-judge Constitutional bench underscored the constitutional validity of Section 124A while elucidating its precise standing within the Indian legal framework. Kedar Nath Singh, a member of the Forward Communist Party of Bihar, found himself charged with sedition for delivering disparaging speeches against the ruling Indian National Congress government.

The apex court, in its discerning judgment, unequivocally asserted that Section 124A should not serve as a tool to quell free speech. Instead, it emphasized that the provision could only be invoked if there existed clear evidence demonstrating that the seditious speech in question directly incited violence or had the potential to lead to public disorder. Notably, since Kedar Nath's criticism was directed at the Congress party rather than the Indian State, and the speech failed to incite violence, it did not meet the threshold for sedition.

Crucially, the court articulated that the presence of a pernicious tendency to incite violence constituted a prerequisite for invoking the sedition clause. In affirming the stance taken by the erstwhile Federal Court in Niharendu Dutt Majumdar v. King Emperor[9], the Supreme Court aligned itself with a robust defense of legitimate criticism against arbitrary constraints on freedom of speech. The Federal Court had previously emphasized that for the offense of sedition to be established, there must be either an existing public disorder or, at the very least, a reasonable likelihood of such disorder.

In essence, the Kedar Nath Singh judgment solidified the jurisprudential foundation for interpreting sedition laws in India, emphasizing the imperative link between seditious expression and its potential to incite violence or disturb public order.

6. Post Kedarnath Singh Developments

In a consequential legal pronouncement, the case of Balwant Singh Anr. v. State Of Punjab [10]assumed significance as the accused faced prosecution for sedition due to advocating for an independent Sikh-majority state following the assassination of Indira Gandhi. A two-judge division bench of the Supreme Court ruled in favor of the accused, reasoning that since the uttered speech failed to disrupt public order and lacked the potential to incite violence among the targeted audience, Balwant Singh's actions did not meet the threshold for sedition.

Drawing from the nuanced concept of 'pernicious tendency' elucidated in Kedar Nath Singh, the court underscored that the evaluation of such tendency should hinge on examining the consequences emanating from the impugned speech.

Recent jurisprudential developments have seen courts relying on this interpretation in sedition cases, with certain modifications. Notably, a decade ago, the Supreme Court, in the cases of Arup Bhuyan v. the State of Assam[11] and Sri Indra Das v. State of Assam[12], both adjudicated by the same two-judge division bench within seven days of each other, introduced a nuanced perspective. In both judgments, the court, while deliberating on sedition charges and preventive detention, referenced the 'imminent lawless action' test articulated by the U.S. Supreme Court in Brandenburg v. Ohio. According to this test, all speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action.

Addressing the evolving landscape, the Law Commission of India, in its Consultation Paper on "Sedition" issued on August 30, 2018, observed that retaining the offense of sedition is imperative for safeguarding national integrity. However, it cautioned against misuse, advocating for a careful review of the application of sedition under Section 124A. The Commission emphasized the need to ensure that the offense is invoked within well-defined legal limits, striking a delicate balance between national security imperatives and the fundamental rights of citizens.

7. Conclusion

The wording of Section 124-A of the Indian Penal Code, 1860, seems excessively broad, potentially stifling any critique of the Government of India. The expansive interpretation and severe penalties associated with this law render it draconian, encroaching upon the constitutionally guaranteed freedom of speech and expression (Article 19(1)(a) of the Constitution of India) and challenging democratic principles. Despite India's progress, the sedition law poses a hindrance to further development, prompting recent calls for its reconsideration by the Supreme Court.

A thorough examination of this provision is essential, considering its impact on the public and the potential infringement on individuals' freedom of speech. Additionally, the law's implications for journalists' rights and livelihoods warrant careful consideration.

While complete abolition may not be the solution, the Supreme Court's recent stance suggests a need for a nuanced approach. Modifying the scope of Section 124-A is crucial to prevent overreach and provide clarity on actions falling within its purview. Precise definitions and well-defined terms, coupled with proportionate punishments, would mitigate arbitrary enforcement and ensure that the sedition law acts as a reasonable restriction rather than a suppressive force on freedom of expression.