"A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes--will find that with small men no great thing can really be accomplished."- John Stuart Mill, On Liberty

John Stuart Mill in his book 'On Liberty'[1], questions the extent of control and limitations by a society on the thoughts, beliefs and actions of an individual. Mill called this social force tyranny of the majority and claimed it to be the primary manufacturer of conformity. Mill overstated the threat of the tyranny of the majority which uses criticism and ostracism to impose their living on individuals and understated the threat posed by governments; an important distinction which Mill does not address is the different ways in which freedom is curtailed by the governments.

Governments often use legitimized force and coerce individuals with force, and those who try to evade the dictates face imprisonment or even death. While Mill believed that a society has a right to exercise power over an individual if their actions harm others he held that the freedom to hold and express beliefs should be unconstrained. Mill's work encouraged the citizens to be critical of the government.

While the sedition law became increasingly futile in the metropole of Britain, a stark difference could be observed in the British colony of India. Sedition law was introduced by the British in 1837. It not only became a legal means to prosecute the revolutionary anti-colonial nationalist but also a weapon of surveillance for the colonial state to monitor not just what they were doing, but also what they were thinking, speaking and writing.[2]

Seditious words or deemed acts of sedition became a toolkit for nationalist politicians, journalists, writers and poets to replenish the nationalist cause in the late nineteenth century to showcase disaffection with the colonial rule. Sedition was added as a criminal offence of 'exciting disaffection' against the colonial government ten years after the code was introduced as a draconian measure to counter anti-colonial sentiments. The offence of sedition is defined in the code as:

"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."[3]

No distinction was made between criticism of colonial rule and acts of incitement. The amendment act of 1898 added the words 'bringing or attempting to bring into hatred or contempt'. But even this amendment failed to answer whether sedition penalizes the mere act of exciting the said feelings itself or aims at the exciting of these feelings only when it leads to incitement of violence or public disorder.[4]

In 1897, Balgangadhar Tilak's conviction marked the criminalisation of dissent. He was tried for his articles in 'Kesari' during the bubonic plague and speeches on Shivaji, which had claimed to incite murder of two British officials. It was ruled that a man was free to strongly condemn the government's attempts to suppress the plague.

However, it was sedition to make his readers hate the government. With this judicial interpretation the scope of sedition widened where 'disaffection' was equated with 'disloyalty', 'enmity', 'hatred' and 'contempt'. This section was used repeatedly against the nationalist leaders during the colonial rule. In 1922, Mahatma Gandhi famously denounced the law when he was tried for his articles which were published in 'Young India' magazine:

"Section 124A under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizens."
Despite widespread criticism and condemnation from courts and assembly members, who themselves were prosecuted during the nationalist movement, sedition remains a tool to curb dissent.[5]

During the Parliamentary debates Jawaharlal Nehru tagged Section 124A as highly objectionable and obnoxious and said that sooner we get rid of it the better. When the Constituent Assembly deliberated the scope and extent of restrictions that could be placed on free speech, the prominent exclusion from what eventually became Article 19(2) was the term 'sedition'.[6] It was dropped from the suggested amendment to Article 13 of the Draft Constitution.

Even after the Constituent Assembly expressly excluded sedition as a ground for the limitation of right to free speech and expression, the right was still being curbed under the guise of Section 124-A of the IPC. The validity of section 124-A with respect to the freedom of speech and expression was challenged time and again after the constitution came in force. Tara Singh Gopi Chand v. The State of Punjab[7] was the first case that challenged the constitutional validity of Section 124-A which held sedition as ultra vires to the Constitution of India.

The court relied on the principle that restriction on fundamental right shall fail in toto if the language restricting such a right is wide enough to cover instances falling both within and outside the limits of constitutionally permissible legislative action affecting such a right.[8] Likewise, Section 124-A was struck down as unconstitutional in Romesh Thappar v. State of Madras[9] and Ram Nandan v. State[10], which reinstated that right to freedom of speech and expression is paramount.

The Supreme Court in the landmark judgment of Kedar Nath Singh v. State of Bihar[11], overruled Romesh Thappar and upheld the constitutional validity of Section 124-A. The Court interpreted that the state machinery is an essential part of maintaining peace and stability. The court went on to elaborate that Section 124-A must be construed to only penalize statements that have a tendency or intention to incite public disorder or accompany serious threat or violence. The court believed that statements which fall under section 124-A would disrupt public order. It drew a line on its scope and application by stating:

"In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt."[12]

The judgment brings out far-reaching implications on the extent of liberty of free speech and expression. The question now arises is that who decides what is to be termed as seditious or not? The arbitrariness and non-uniformity in the judicial interpretations have become a tool to silence and terrorize ordinary citizens who are raising their voice against the government. The paper aims to explore the scope of Article 19(1)(a) and the failures and effort to expand the domain of free speech and expression with respect to sedition.

Constitutional Extent of Free Speech and Expression

"The freedom of speech and expression is regarded as the first condition of liberty. It occupies a preferred position in the hierarchy of liberties, giving succor and protection to all other liberties. It has been truly said that it is the mother of all other liberties. Freedom of speech plays a crucial role in the formation of public opinion on social, political and economic matters. It has been described as a 'basic human right', 'a natural right' and the like..."[13]

Freedom of expression forms Article 19 of the Universal Declaration of Human Rights. It guarantees freedom of speech, freedom of press and grants individual and communities the right to express their views without the fear of retaliation, censorship or punishment. A democratic society hinges on the people to express themselves without any interference.

It provides a platform to discuss, exchange and debate ideas. Right to free speech and expression influences everything from newspapers to social media posts and even allow the voters to make educated choices. It underpins other human rights as well. It holds government to international human rights standards, call for advocacy and even allows people to tell their stories.

The Preamble to the Constitution of India resolves to secure for the citizens of India, liberty of thought, expression and belief. Article 19(1)(a), a fundamental right, guarantees citizen of India, the 'right to free speech and expression'. This is instrumental for a 'marketplace of ideas', 'speech promoting democracy', 'watchdog theory', 'speech promoting the truth', and 'individual autonomy'.[14] However, a fundamental right cannot be absolute and thus a few reasonable restrictions are imposed in the interest of public order, decency or morality, incitement of offence, etc.

Laws restricting the freedom of speech must pass the test of reasonableness and the action under that law must be in accordance with the law.[15]
Sedition has been held as a 'reasonable restriction' on the grounds of 'public order' and 'security of the State'.[16] Additionally, the phrase 'in the interest of public order' which had been added in Article 19(2) through the first constitutional amendment is seen as an attempt to validate the interpretation by Justice Fazl Ali, who stated that 'public order' is allied to the 'security of the state'.[17] The insertion of the words "in the interest of" before public order in Article 19(2) was seen as providing a wide amplitude of powers to the state for the curtailment of free speech.

This has consequently been seen as a validation to the law of sedition. However, it is difficult to comprehend that a mere disturbance of public order could attract a charge for an offence against a state. The Ram Manohar Lohia case[18] distinguished between 'public order' and 'security of state'. And thus subsequently, there is a requirement of proof of disturbance of public order if incited by a seditious act.

In Ram Manohar Lohia case[19], the Supreme court of India laid down the first test that deals with reasonableness under Article 19 (2), i.e., the 'Test of Proximity'. The Court followed the standards laid down in State of Madras v. VG Row[20], stating, "the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, [and] the prevailing conditions at the time". This added second component to the test i.e., 'proportionality'.

This test ensures that restrictions imposed are not excessive in nature, and balance between legal right and prohibition. Thus, limitation imposed on the enjoyment of rights on an individual should not be arbitrary or excessive beyond what is required in the interest of the public.[21]

It can be observed that when a law violates Article 19(1)(a) by the virtue of it not deriving authority from Article 19(2), then it is not difficult for the judiciary to strike it down.[22] However, in most case the nature of restriction sought is often vague. Thus, the test of reasonability plays a pivotal role towards a substantive safeguard of free speech.

Sedition: A Tool for Suppressing Free Speech

The Constituent Assembly debates depict that India's founders were aware about the misuse of penal laws such as sedition.[23] And the recognition to promote free speech stems to distinguish a nation from a colonial rule to a democratic republic. However, a paradox can be observed where there is a continued reluctance to recognise absolute right to free speech and expression. While the country has a well-developed jurisprudence around free speech, it lacks traditions promoting it. A distinction between an act of free speech and sedition has been blurred by the state.

According to the National Crime Records Bureau (NCRB) data, the number of cases filed under Section 124-A of the Indian Penal code between 2016 and 2019 rose BY 160% while the rate of conviction dropped by 3.3% in 2019 from 33.3% in 2016.[24] Sedition in India is a cognizable, non-compoundable and non-bailable offence whose punishment range from a fine to three years or life imprisonment. While the rate of conviction is low but the process itself becomes a punishment.

A person charged with sedition must live without their passport, barred from government jobs and must produce themselves in courts bearing the legal fee. It has become a useful tool of oppression in the hands of the local policemen and leaders who can shut down a dissenter. What is peculiar is that a charge sheet is filed only in a smaller number of cases depicting that it has become a means to stifle dissent.

Freedom of speech and expression are being eroded and mauled due to subjective interpretation of the law. The recurrent use of the law against sedition rose in 2012, during the India Against Corruption movement. Amongst the first few members to be charged under sedition was cartoonist Aseem Trivedi, who drew India's national emblem of the four Sarnath lions of King Ashoka as blood-thirsty wolves.[25] There was no justification or proof on how a cartoon could incite or have a tendency to incite violence. The case was foisted by the government in order to hush the anti-corruption crusade.

Student leaders are often targeted for their outspoken criticism of the government. IN 2016 Kanhaiya Kumar, Umar Khalid, Anirban Bhattacharya and others were targeted during a 'poetry reading' session. The accused were charged with offences such as sedition, criminal conspiracy, rioting, etc. under the IPC. However, on a probe ordered by the Aam Aadmi Party government it was revealed doctored videos of attack outside the JNU campus with false testimonies from university guards was nothing more than a political gimmick. Despite the Supreme Court's ruling in Balwant Singh v. State of Punjab[26], which held that mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless condition is met, student leaders and activists are arrested for mere sloganeering.

In October 2020, a Delhi based Malayalam language journalist, Siddique Kippan including three others were charged under sedition and the stringent Unlawful Activities Prevention Act (UAPA) for raising funds for terrorist acts. The four men were on their way to cover the gangrape and murder of a Dalit girl by four upper caste Thakur men in Western Uttar Pradesh. The reporter was only trying to do his duty but was alleged to disturb communal harmony, incite communal violence and spread terror.

The conspiracy to claim 'communal trouble' and links to The Popular Front of India (PFI) however, no evidence has forth come for such grand claims. The UAPA came in handy for the UP government to chill speech and coverage of its handling of the Hathras gangrape.[27] Similarly, media houses and journalists were slapped with sedition during the farmers protest. Rajdeep Sardesai of India Today, Mrinal Pande of National Herald, Zafar Agha of Quami Awaz; Paresh Nath, Anand Nath and Vinod K. Jose of The Caravan Magazine are a few names against whom FIR has been lodged for doing their job.[28]

Cases of sedition are often invoked against show-piece dissenters for the rest to fall in line. Six cases of sedition during the farmer's protest, 25 during the anti-CAA protests, 22 after the Hathras gangrape; 27 after the Pulwama attacks were registered.[29] Continuous use of the law to slam peaceful speech is a violation of India's international human rights sanctions. The courts have been unable to clearly direct the law and have deliberately kept it vague.

Conclusion
"If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter"- George Washington

A basic problem in the Indian legal system is that the rights guaranteed in the Constitution had originally been devised by an alien government with an objective which is no longer valid; a controversy which centers the law of sedition revolving around colonial continuity. A constitutional provision is 'never static, it is ever-evolving and ever-changing and therefore, does not admit of a narrow, pedantic or syllogistic approach'.[30] An analysis of judgement regarding sedition depicts deficiency in the judicial understanding of sedition. A shift can be seen on how the reasonable restriction of 'sedition' has become a ground for restricting free speech.

Sedition is slapped against an individual or a group protesting against the government. The problem is the misuse of law by an overly sensitive government and the illegal and arbitrary application of the law. The low rate of convictions further prove that it is just a medium to undermine the public interest in having access to opposing political views.[31]

It is time that the Indian legislature and judiciary reconsider the existence of provisions related to the law of sedition. These provisions remain as vestiges of colonial oppression and have proved to undermine the rights of citizens to dissent, protest or criticize the government in a democracy. It is a threat to free speech and expression which are the defining ingredients of a democracy.[32]

An inspiration should be drawn from the repeal of the law of sedition in England. In the light of the abovementioned observations, it is time that the Indian legislature and judiciary reconsider the existence of sedition. It remains a vestige of colonial oppression stand against the ethos of a liberal democracy.

End-Notes:

1. J.S. Mill, On Liberty, John W. Parker and Son, West Strand, 1859
2. Janaki Bakhle, Savarkar (1883�1966), Sedition and Surveillance: the rule of law in a colonial situation, Social History vol no. 35, 51-75 (2010).
3. Indian Penal Code, 1860.
4. R.K. Misra, Freedom of Speech and the Law of Sedition in India, Journal of the Indian Law Institute, Vol. 8, No. 1, 117-131 (1966).
5. Nivedita Saksena & Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7 NUJS L. Rev. 121 (2014).
6. Article 13 in the Constituent Assembly Debates. (1-2 Dec. 1948, 16-17 Oct. 1949).
7. Tara Singh Gopi Chand v. The State of Punjab, A.I.R. 1951 Punjab 27.
8. Ibid.
9. Romesh Thappar v. State of Madras, AIR 1950 SC 124.
10. Ram Nandan v. State, AIR 1959 All 101.
11. Kedar Nath Singh v. State of Bihar, 1962 AIR 955.
12. Ibid.
13. Ramlila Maidan Incident, re, (2012) 5 SCC 1.
14. Lawrence Liang, Free Speech and Expression, The Oxford Handbook of the Indian Constitution, (2017).
15. Supra Note 6.
16. Supra Note 7.
17. Brij Bhushan v. State of Delhi, AIR 1950 SC 129.
18. Ram Manohar v. State of Bihar, AIR 1966 SC 740.
19. Ibid.
20. State of Madras v. VG Row, AIR 1952 SC 196 [15].
21. Chintaman Rao v. State of Madhya Pradesh, AIR 1951 SC 118.
22. Supra Note 11.
23. Supra Note 5.
24. Crime in India 2019, National Crime Records Bureau, Ministry of Home Affairs, Statistics Vol.I. https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf
25. Madhavi Goradia Divan, Facets of Media Law, Ed.2, 48-49, 2013.
26. Balwant Singh v. State of Punjab, (1977) 4 SCC 452.
27. Mrudula Bhavani, Some Oxygen for Siddique Kappan, Please?, Outlook (2021).
    https://www.outlookindia.com/website/story/opinion-some-oxygen-for-siddique-kappan-please/382579
28. Police in 3 States File Sedition Case Against Tharoor, Journalists for Tweets on Farmer's Rally, The Wire (2021).
    https://thewire.in/media/up-police-files-sedition-case-against-tharoor-sardesai-mrinal-pande-and-others
29. Kunal Purohit, Our New Database Reveals Rise In Sedition Cases In The Modi Era, article 14 (2021). https://www.article-14.com/post/our-new-database-reveals-rise-in-sedition-cases-in-the-modi-era
30. Life Insurance Corporation of India v. Prof Manubhai D. Shah, (1992) 3 SCC 637.
31. Eric Barendt, Freedom of Speech, 170 (2006).
32. Superintendent, Central Prison v. Dr. Ram Manohar Lohia, AIR 1960 SC 633.