Full story of sedition and Section 124A, IPC

The sedition law is now facing some piercing questions from the Supreme Court.

 Full story of sedition and Section 124A, IPC

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• The story: India's sedition law is a colonial era law, which is often allegedly used to quell protests and to quieten criticism. Since it carries a maximum punishment of life imprisonment, and the police can arrest individuals without a warrant, it is quite a draconian law!
• Recent developments: The sedition law was amended after Independence, but made more stringent and not scrapped. Recent trends in the Supreme Court show that it is inclined towards a comprehensive review of this law now.
• History: The sedition law in India was not a part of the primary Indian Penal Code (IPC), 1860, but was introduced late in 1870. The UK also repealed the law in Britain in 2009.

1. Under Section 124A of IPC, the "offence of sedition" is committed when any person by words or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law.
2. Three explanations prescribe that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.
3. Sedition is a cognisable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.

• How the Brits used it: It was used to silence nationalist voices and demands for freedom. The long list of India’s national heroes who figured as accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh and Jawaharlal Nehru.

1. Bal Gangadhar Tilak was the first person to be convicted of sedition in colonial India. The British government brought the charge alleging articles carried in Tilak’s Marathi newspaper Kesari would encourage people to foil the government’s efforts at curbing the plague epidemic in India. In 1897, Tilak was punished by the Bombay high court for sedition under Section 124A and was sentenced to 18 months in prison. Later, Section 124A was given different interpretations by the Federal Court, which began functioning in 1937, and the Privy Council that was the highest court of appeal based in London.
2. In Niharendu Dutt Majumdar Vs King Emperor, 1942, the Federal Court held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence.” But this proposition was overturned by the Privy Council in King Emperor Vs Sadashiv Narayan Bhalerao, 1947. The Privy Council lent credence to the law laid down in Tilak’s case and ruled that incitement to violence was not a pre-requisite for the crime of sedition.

• Sedition law after Independence: After 1947, “sedition” was dropped from the Constitution in 1948 after discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word “sedition” that was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression. The word “sedition” was erased from the Constitution, and Article 19(1)(a) gave absolute freedom of speech and expression. But the Section 124A continued to stay in the IPC.
• Nehru's action: In 1951, Jawaharlal Nehru brought in the first amendment of the Constitution to limit the freedom under Article 19(1)(a) and enacted Article 19(2) to empower the State put curbs in the form of “reasonable restrictions” on right to free speech.
• Indira's action: She made Section 124A a cognisable offence in the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonial-era 1898 Code of Criminal Procedure. Now, sedition was made a cognisable offence authorising the police to make arrests without a warrant.
• Important cases: Sedition law was tested for the first time in the then Punjab high court in 1951 in "Tara Singh Gopi Chand Vs The State". The high court held that Section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision. This prompted Nehru to bring the amendment.

1. But in 1954, the Patna high court, in "Debi Soren & Ors Vs The State", upheld the validity of Section 124A, holding that the law does not violate Article 19.
2. Four years on, the Allahabad high court declared Section 124A void in the case of "Ram Nandan Vs State", and held that the government must be ready to face a strong opposition apart from popular approval or disapproval.

• Kedar Nath case: The confusion was settled by the Supreme Court by its judgment in Kedar Nath case in 1962. It upheld the validity of the sedition law under IPC, holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. But it also defined the scope of Section 124A and held that Section 124A only penalised words that reveal an intent or tendency to disturb law and order or that seem to incite violence. It underlined that the presence of a pernicious tendency to incite violence is a pre-condition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.
• Recent cases: In the "Balwant Singh & Anr Vs State of Punjab" case, 1995, the SC dropped sedition charges against two men who raised slogans in favour of an independent Sikh majority State outside a cinema hall in the aftermath of the assassination of former PM Indira Gandhi. The court ruled in favour of the accused, pointing out that acts did not amount to sedition since the slogans did not lead to any disturbance, and was not likely to incite any violence in the minds of the target audience. Then, by two judgments in 2011, the Supreme Court unambiguously stated yet again that only speech that amounts to “incitement to imminent lawless action” can be criminalised. In "Indra Das Vs State of Assam" and "Arup Bhuyan Vs State of Assam", the SC held that mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence. The Law Commission of India, in its consultation paper on sedition, published in August 2018, also observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
• Summary: Data from National Crime Records Bureau (NCRB) show a rise in sedition cases and those under the stringent Unlawful Activities (Prevention) Act but a steady dip in convictions. It is clearly time for a detailed review, as the CJI NV Ramana pointed out in July 2021.

 

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