ecently, Chief Justice of India N V Ramana has ignited a debate during a hearing concerning whether “sedition” should be an offence at all, and how to prevent its misuse or abuse, were it to remain. In June 2021, while hearing a case involving two Telugu news channels, the apex court called for renewed scrutiny of the “ambit and parameters” of the laws governing sedition, “particularly in the context of the right of the electronic and print media to communicate news and information”.
In the same month, charges of sedition brought against Vinod Dua’s remarks on the Prime Minister Narendra Modi in his YouTube news show, were struck down. The apex court observed “Every journalist is entitled to protection under the Kedar Nath Singh judgment”
Section 124A of IPC says “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 in India” shall be punished with jail terms ranging from three years to life imprisonment.”
Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war. It was Sir James Stephen who subsequently got it inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime. It was expected that an Independent India might not have that sedition law.
However, the Fundamental Rights Sub-Committee headed by Sardar Patel included sedition as a legitimate ground to restrict free speech. When Patel was criticised by leaders like K. M. Munshi and other members of the Constituent Assembly, he dropped it. But, Sedition remained as a criminal offence in the IPC.
Mahatma Gandhi, during his trial in 1922, termed Section 124-A as the “prince among the political sections of IPC designed to suppress liberty of the citizen”. He declared that “affection cannot be manufactured or regulated by law.
If one has no affection for a person or system, one should be free to give fullest expression to his disaffection so long as it does not contemplate, promote or incite to violence”. Bal Gangadhar Tilak was charged with sedition thrice, for his writings in Kesari. Tilak was charged for creating ‘disaffection’ against the British Raj.
In 1962, in a judgment in the Kedar Nath Singh vs State of Bihar case, India’s Supreme Court clarified that disaffection, however strongly worded, was not seditious unless it incited public violence.
Political cartoonist Aseem Trivedi was arrested in 2012 on charges of sedition. His drawings had satirised the rampant corruption in the UPA government. The charges were later dropped. In 2015, in the Shreya Singhal vs Union of India case, the apex court drew a clear distinction between “advocacy” and “incitement;” only the latter was punishable as sedition.
According to the National Crime Records Bureau (NCRB), 47 cases of sedition were filed in 2014. Chargesheets were filed against 16 accused while just one person was convicted.
Governments of opposition parties, including the Congress, have also indiscriminately invoked sedition charges against intellectuals, writers, dissenters and protesters. In fact, it was a Congress government that had made sedition a cognisable offence in 1974. Arundhati Roy, Aseem Trivedi, Binayak Sen and even those who opposed the nuclear plant in Kudankulam, Tamil Nadu and the expansion of the Sterlite plant in Thoothukudi were booked under Sec 124-A.
However, mere criticism cannot be called as sedition unless it has potential to encourage people to be violent. In a democratic setup right to speech and expression under Article 19(1)(a) is as valuable as right to life guaranteed under Article 21 of the Indian constitution. Expression of dissatisfaction against government ought to be allowed as it functions in the same way as safety valves work in pressure cooker to ease out the pressure. Government of the day uses it to suppress political dissent, constructive criticism of government and its policies thereby stifling democratic governance.
No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection. We must understand that no slogan by itself, howsoever provocative such as “Khalistan Zindabad” can be legitimately termed as seditious as per the Balwant Singh (1995) judgment of the Supreme Court.
We have the robust and independent judiciary which has to ultimately decide the executive actions otherwise every dissenting voice would have been termed as sedition. At present, India should not abolish the sedition law but it definitely needs to amend it. SC guidelines must be incorporated in Section 124A, IPC so that any ambiguity is removed. Upendra Baxi, in his article “Why India at 75 is ready for a sedition-less future”, argues that section 124-A needs to be wholly judicially repealed at the bar of the fundamental human right to free speech. Democratic legality thrives on the axiom that powers given by the law must be exercised for the purpose for which it is given and for no other.