Sedition Law in India

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Recently, the Chief Justice of India (CJI) has observed that the colonial law of sedition was used by the British to silence Mahatma Gandhi and Bal Gangadhar Tilak.

Background

• This observation came while the Supreme Court (SC) was hearing a petition filed by Major General (retired) SG Vombatkere who has challenged Section 124A of the Indian Penal Code (IPC) which deals with the offence of sedition.
  • In his plea, Vombatkere has challenged the constitutional validity of the sedition law on the grounds that it has a “chilling effect” on speech and poses an unreasonable restriction on the fundamental right of free expression.
    • Article 19(1)(a) of the Constitution guarantees Indian citizens’ freedom of speech and expression.

About Sedition Law

• The sedition law, enshrined in Section 124A of IPC, was introduced by the British government in 1870 to tackle dissent against colonial rule.
  • The original draft of the IPC, which was enacted in 1860, did not consist of this law and the Section was drafted by Thomas Babington Macaulay in 1970.
• Section 124A states:
  • “Whoever, 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 shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
• In the 19^th and 20^th centuries, the law was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters.
  • The first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
  • Other major examples of the application of the law include the trials of Bal Gangadhar Tilak, Mahatma Gandhi, Jawaharlal Nehru, Abul Kalam Azad and Vinayak Damodar Savarkar.
• Trials of Tilak and Gandhi
  • In 1922, Gandhi was arrested on charges of sedition in Bombay for taking part in protests against the colonial government and was sentenced to six years in prison. However, he was released after two years because of medical reasons.
  • Tilak faced three trials in cases related to sedition and was imprisoned twice. In 1897, he was charged with sedition for writing an article in his weekly publication called Kesari and was sentenced to 12 months imprisonment. In 1908, he was tried again for his writings and was represented by Mohammad Ali Jinnah.

Arguments For Section 124A

• 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.
• 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.
• Therefore, there is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements.
• The plea had contended that the provision which was used by the British against Mahatma Gandhi and Bal Gangadhar Tilak is still being “grossly abused” to stifle freedom of speech and expression of those who choose to express dissent against policies of the Governments in power

Arguments Against Section 124A

• Mahatma Gandhi called Section 124A “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
• Jawaharlal Nehru said that the provision was “obnoxious” and “highly objectionable”, and “the sooner we get rid of it the better”.
• It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
• Dissent and criticism of the government are an essential ingredient of robust public debate in a vibrant democracy.
• The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country. 
• There is no reason why India should not abolish this section.
• 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.

Supreme Court’s Earlier Stand

• The sedition law has been challenged several times over the last few years but it has managed to survive all of the challenges against it.
• In the landmark Kedar Nath versus Union of India case (1962), the SC upheld the constitutional validity of the sedition law while trying to curtail its misuse.
  • The Court upheld the law on the basis that this power was required by the state to protect itself.
  • However, it had added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace“.
  • It also added that unless accompanied by an incitement or call for violence, criticism of the government cannot be labelled sedition.
• The SC laid down that every citizen has a right to say or write about the government, by way of criticism or comment, as long as it does not “incite people to violence” against the government established by law or with the intention of creating public disorder.
• In September 2016, the SC had reiterated these necessary safeguards and held that they should be followed by all authorities.

Latest Ruling of Supreme Court 

• A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing their grievances about the governments Covid-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
• The ambit and parameters of the provisions of Sections 124A, 153A and 505 of the IPC 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation
  • Section 153 A: Punishes acts promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony.
  • Section 505: Makes the publication and circulation of content which may cause ill-will or hatred between different groups an offence.
• The court acknowledged the argument that the media was well within its rights to air critical programmes about a prevailing regime without attracting sedition.

Way Forward

• India, being the largest democracy in the world, has to ensure its essential ingredients of free speech and expression. The expression or thought that is not in consonance with the policy of the government of the day should not be considered sedition.
• The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. If a nation is not open to positive criticism, there would be no difference between the pre-and post-Independence eras.
• It is also essential to protect national integrity. 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, it should not be misused as a tool to curb free speech.

Source: IE