Free speech has always been an issue for debate in India. Irrespective of the framing of the Constitution, people have always deserved and demanded their right to free speech. Prior to independence, there was a wave of slavery where people did not even know that they had or they deserved certain rights. It was just a certain class which enjoyed all rights. With the gradual change of time and advance of freedom, we obtained certain fundamental rights which were mentioned in the Constitution.


Slowly, the interpretation of these fundamental rights evolved and got widened on a case-to-case basis on the strength of judicial interpretation. One out of these fundamental rights is the Fundamental Right to Freedom of Speech and Expression. Although it has been made quite clear that none of the fundamental freedoms are absolute in nature, the freedoms have been given a broad interpretation by the Courts. With this broadened interpretation, people have faced various issues regarding free speech as there is always someone or some group/s which object to someone else's point of view on a particular issue. This has led to an alarming rise of sedition cases in India. According to Section 124A of Indian Penal Code,

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, a 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.

The most remarkable and landmark case regarding sedition is the case of Kedar Nath Singh v. State of Bihar[1]. In this case, the Supreme court clearly stated that the section 124A cannot be interpreted literally and it needs to be interpreted by the judges, hence the two essential conditions necessary to establish the crime of sedition are:

the acts complained of must be intended to have the effect of subverting the Government by violent means; and
the acts complained of must be intended, or have a tendency, to create disorder or disturbance of public peace/ law and order by resort to violence and must incite violence.

In 2007, there again came up a case of sedition namely Dr.Vinayak Sen v. State of Chhattisgarh[2]. In this case, Dr. Sen was charged of allegedly helping Naxalites in a specific rural area through letters sent from one of his patients in the jail. He was sentenced to life imprisonment for this reason specifying disaffection towards Government as his offence. However, as a paediatrician and a human rights activist, he received massive global recognition irrespective of the charges of sedition made against him.

Subsequently, there was the case of Sanskar Marathe v. State of Maharashtra wherein a famous cartoonist namely Aseem Trivedi was accused of sedition because of his anti-corruption campaign cartoons. Although he was arrested and was kept in judicial custody, the Court did not find him guilty of sedition on the ground that mere criticism of the Government cannot be termed seditious in nature.

This was a case where the Court applied the rule of harmonious construction between Article 19(1)(a) of the Constitution and Section 124A of the Indian Penal Code. After applying the harmonious construction and interpreting the object and purpose of the provisions, it was held by the Court that publishing one's own opinions in the form of cartoons and expressing criticisms about the Government does not amount to sedition.

The new database showed that six sedition cases were filed during the ongoing farmers' agitation, 22 after the Hathras gangrape, 25 amid the protests against the Citizenship Amendment Act in 2019 and 27 after the Pulwama terror attack and those charged with sedition included Opposition leaders, students, journalists, academics and authors.[3]

On a recent hearing at the Patiala House Court, Umar Khalid, Kanhaiyya Kumar and Anirban Bhattacharya along with seven others were granted bail in the 2016 sedition case. This has been a situation where these people have turned out to be heroes for a certain class of youngsters despite having spent some time in the Tihar Jail. This was a time when sedition seemed to clash with free speech not only on legal, but also on moral grounds.

If we look at the history of sedition, we shall be able to understand that it was a suppressive law framed by the Britishers to keep the Indians quiet who dared to raise a voice again the British Government. Even after independence, this law exists in equal severity and cases of sedition are constantly being filed against people irrespective of the judicial precedents set by the Courts. Apart from just making our Government look authoritarian, it is also demeaning the power and sanctity of the judiciary. On one hand, we talk about democracy and judge-made law whereas, on the other hand, we fail to respect the power of dissent existing as a limb of democracy and we also fail to understand the value of a judicial precedent.

Apart from sedition, this restraint on freedom of speech and expression has also affected journalistic freedom. In Gujarat, Dhaval Patel, editor of a Gujarati news portal, was booked and arrested on May 11, 2020, for sedition for allegedly publishing a speculative report on the possible change in leadership in the state due to criticism over the rising COVID-19 count.[4] On reading this sentence clearly, we can easily see the words speculative and possible.

The content of the report was merely an opinion and even this could not be accepted from a journalist. This shows how these restraints are diminishing the quality of journalism in our country and affecting creativity in their field. It is high time that we realise the true value of democracy and free speech in this nation.

The ruling elite, regardless of their political affiliations and adherences, always want to suppress and stamp out free dissent and criticism of the government as it exposes the flaws and shortcomings of the very same ruling elite. Regardless of the name of the political party or leader, the aim and objective always remains the same, which is to remove all forms of speech which is not directly in line with the ruling narrative. The right to free speech and expression, one of the paramount hallmarks of a healthy democracy, includes in it the right to criticize one's own government and to dissent from the ruling narrative.

Times has come when the parliament should seriously ponder on this issue touching upon basic tenets of constitution. While there exists a fine line between freedom of speech and expression and licence to insult however, the law enforcement agencies and political class must be sensitized about this valuable right of free speech and they must restrain themselves from filing spree of cases even when such expression or speech falls within ambit of right to freedom of speech and expression as guaranteed by our constitution.

End-Notes:

1. AIR 1962 SC 955
2. MCRC No 1184 of 2007
3. Ibid.
4. https://www.theweek.in/news/india/2020/06/23/stop-criminalising-free-speech-protect-journalism-pucl.html

Written By:

1. Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.
2. Somya Mishra working with Diwan Advocates &
3. Abhigyan Choudhary working with Diwan Advocates.