Introduction to Sedition

Sedition can be defined as any conduct or language inciting rebellion against a lawful government. In India, sedition is defined through Section 124-A of the IPC, wherein the law penalizes bringing or attempting to bring hatred or contempt towards the government, and inciting or attempting to incite disaffection towards the government as established by law. The punishment is severe and extends from imprisonment for three years to life to which a fine may be added.

India's criminal law works to maintain the security of the society and the liberties and rights of individuals as they are some of the prime concerns of the constitution of India. According to Article 19 of the Constitution, citizens are granted freedom of speech and expression. However, this freedom is reasonably restricted by the Laws of Sedition which were originally enacted by the colonial government with the objective to suppress the Indian citizens to continue their tyranny. Hence, sedition laws have continually been a contentious issue, owing to the conflict between the rights guaranteed by the constitution and the pre-constitution laws still in force. This conflict places importance on the practice of regularly scrutinizing judicial interpretation of such laws due to the constantly evolving socioeconomic conditions.

It is for this reason that we find sedition law to be draconian in modern times, wherein true freedom of expression is the hallmark of a successful democracy. Thus, we contend that the law on sedition must be amended to reflect the same. This paper emphasizes the aforementioned through a historical analysis of the law on sedition, evaluating the interpretation and evolution of sedition law by the judiciary, studying international perspectives, and considering the misuse of sedition law

The Roots Of Sedition In India

The Law of Sedition was rooted in India as early as 1837 in one of the clauses of Macaulay's draft of Indian Penal Code. Yet, due to its contentious nature, it was not adapted into the IPC until 1870,(The Special Act (XXVII of 1870). This addition was initiated by the colonist regime of the British in an attempt to curb the nationalist fervour that was stirring in India at the time, as a tool of oppression.

This can be showcased in the famous case of Queen-Empress v. Bal Gangadhar Tilak, (1917) 19 BOMLR 211., In this draconian judgment, the scope of sedition was enhanced: the judge was quoted saying "the intensity of the disaffection is absolutely immaterial if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section", conveying that any disloyalty towards the British was capable of being held culpable under sedation.

This gives rise to the contention that sedition law in India finds root in dubious circumstances, largely as a weapon for the suppressive colonist regime, rather than a bulwark to support the current democratic structure of India. Additionally, Mahatma Gandhi, on being charged under sedition, said:
"section 124 A the prince among the political sections of the IPC is designed to suppress the liberty of the citizens. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection."

Yet, even after India gained independence, sedition remained as a crime against the state. This was not due to a lack of debate on the same. The fundamental rights sub-committee of the constituent assembly, headed by Sardar Vallabhai Patel, drafted an interim report on fundamental rights and presented it before the assembly on April 29, 1947(Constituent Assembly, Interim Report on Fundamental Rights, 1947). Initially, the drafting committee included 'sedition' as a limitation to the right to speech entailed in Article 13 of the first draft of the constitution
Somnath Lahiri, from the Communist Party, raised concerns on how sedition was used as a restriction on the liberty of the press by an 'alien and autocratic government'. He brought to light his objections by stating the importance of the political opposition's freedom to express its views for democracy to develop in its true spirit. C Rajgopalachari had an opposing view as he favoured an amendment that would make restrictions on sedition laws more stringent

However, Lahiri's opposition proved to be effective: the word 'seditious' was deleted from the proviso, granting liberty for the exercise of freedom of speech. After parliamentary debates, the draft of the constitution was tabled on February 21, 1948. As decided, Article 13(1)(A) guaranteed citizens the right to freedom of speech and expression.

However, under the provision of 13(2), the freedom to speech and expression would not affect any existing law and did not bar the state from making any laws related to matters like sedition, which offends or undermines the authority or foundation of the state. To this, KM Munshi advocated for an amendment to substitute the word 'sedition' with 'undermines the authority or foundation of the State'.

He further referred to the judgement of the Niharendu Dutt Majumdar And Ors. v Emperor AIR 1939 Cal 703, to highlight the importance of criticism of the government in a democracy. Additionally, Thakur Das Bhargava suggested adding the word 'reasonable' in Article 13 for the judiciary to interpret and ascertain the reasonableness of the facts on a case to case basis. This was done to limit the overreach of powers by the executive and legislative organs of the government to ensure the ruling government does not abuse sec 124A.

The Inherent Conflict Between 124-A And Article 19(2)

Mr. Justice P.N Bhagwati emphasized the significance of freedom of speech and expression in the landmark judgement of Maneka Gandhi v. Union of India 1978 AIR 597., by claiming 'Democracy is based on free debate and open discussion, for that, is the only corrective of government action in a democratic set up'. Such judgements and concepts gave rise to the conflict between sec 124-A and Article-19(1).

This is showcased in Romesh Thappar v. State of Madras, 1950 AIR 124. where the scope of the reasonable restrictions to freedom of expression laid out by Article-19(2) was challenged. The unclear wording of the reasonable restrictions left many wondering if sedition, under 124-A, can hold culpable people trying to express views and disaffection towards the state. This was finally resolved by the First Amendment to the Constitution in 1951, which amended Article-19(2) to clarify the scope of the reasonable restrictions. In this regard, six grounds were listed in Article-19(2) as 'reasonable restrictions' in contrast to the two grounds that existed pre-amendment.

Recent Judicial Interpretation Of Sedition Law

Section 124A falls under Chapter VI of the IPC. Initially, the court's interpretation of sedition was such that its implementation exceeded the reasonable restrictions laid out in 19(2). This can be said through the earlier mentioned case of Bal Gangadhar Tilak, However, the Supreme Court has now laid out certain caveats to safeguard us against the abuse of sedition law, discussed in the following cases.

Article 19(2) authorizes restrictions for the wider purpose of securing public safety or maintenance of public order. In the Lohia case acknowledged that the scope of 'public order' is categorized under different parts. Public order was defined as an 'aggravated form of disturbance which affects the day-today life of the general public, The Superintendent, Central v Ram Manohar Lohia 1960 AIR 633.', a very ambiguous and open-ended interpretation. Most importantly, it laid down a strict test of proximity between speech and consequence, stating that 'The restrictions imposed by the Legislature must have a proximate connection and nexus with public order and should not be far-fetched and remote in the chain of its relation with public order'.

Along similar lines, the landmark judgement in the Kedarnath upheld the constitutionality of 124-A. However, and more importantly, it curtailed the earlier meaning of sedition and added safeguards to its application by making 'intention or tendency to create disorder, or disturbance of law and order, or incitement to violence' a requisite to constitute sedition. Thereby, the court upheld the law on the grounds of it being a requirement of the state to protect itself while limiting the application of sedition. Justice B. P. Sinha also said that 'if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.' This statement holds to be crucial in the current day where sedition is maliciously misused to violate the principle of Article 19(1-A), covered later in this essay.

Other judgements have also worked to limit the scope of sedition law and ensure it does not become violative of Article 19. An apt example of this is the Sanskar Marathe v The State Of Maharashtra And Anr (1998) 4 LLN 205. Trivedi faced the wrath of sedition for allegedly insulting the constitution and the national symbol by his drawings satirising corruption among India's politicians. The Bombay High Court rightly held that the cartoons were in the nature of mere satire: there was no incitement to violence, tendency or intention to create public disorder. The court also held that 'Comments expressing disapproval or criticism of the government with a view to obtaining a change by any lawful means, is not seditious under Section 124A.'

Through this, the court reaffirmed the safeguards laid down in Kedarnath. More importantly, the court issued guidelines to police personnel in the form of preconditions for prosecutions under sec 124A as 'Words, signs, or representations that bring the government into hatred or contempt, or must cause, or attempt to cause disaffection, enmity or disloyalty to the government.'

This highlights that the motive of the court was to stop the abuse of sedition and to stop its abuse as a tool of terror to suppress freedom of speech in India. Somnath Lahiri, in the Constituent Assembly debates, predicted the events, as seen in the Trivedi case, by stating 'if at any time in the future if a member of the Socialist party criticized the government, the ruling government would be able to put members of the socialist party behind bars, thereby making the government despicable.

International Perspectives On Sedition:

When deciding on the matter of defining freedom of speech, India should also look at other countries. While these examples, not wholly legally binding, hold persuasive value and can guide India in dealing with its own sedition law. For example, England - the country that first introduced the concept of sedition into the Indian legal sphere - in 2009 decided to repeal its sedition law. This was established by The Coroners and Justice Act 2009.

The parliament's notable response, through Justice Minister Claire Ward was as follows:
"Sedition and seditious and defamatory libel are arcane offences The existence of these obsolete offences in this country has been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries"

Other countries such as South Korea, Scotland, New Zealand, Kenya and Indonesia have also abolished this law from their statutes, chiefly owing to the abuse of the law of sedition, through the judiciary or a legislative change. For example, a commission was constituted in New Zealand to examine the constitutionality of the law on sedition. The commission, while recommending the abolition, also expressed concern over retaining the law as it gave the executive an opportunity to abuse it no matter the safeguards placed.

Furthermore, India has also ratified the ICCPR, which sets forth internationally recognized standards for the protection of freedom of expression. Yet, in India, the arbitrary slapping of sedition charges are wholly inconsistent with this commitment. Hence, this is in contravention of Article-51(c) of the Constitution obligating the State to 'foster respect for international law and treaty obligations.'39 Highlighting yet another reason for doing away with 124-A.

On the other hand, countries that have chosen to retain their laws have worked to limit the scope of sedition to uphold the fundamental right of freedom of expression. To illustrate, the USA has adopted the rigorous test directed towards sedition as being constituted when inciting or producing imminent lawless action as evolved by the United States Supreme Court in these decisions are unequivocal in their fierce endorsement of the right of freedom of speech and provide a bulwark against executive abuse of powers.

It highlights to India that it is possible to interpret 124-A in a manner where abuse is restricted. The USA does this through narrowly defined restrictions and a strong regime of accountability for the political executive.

The cases of Arup Bhuyan v State of Assam, 41 (2011) 3 SCC 377. and Shreya Singhal v Union of India, (1982) 2 SCR 272. progress towards establishing a similar test for deciding protectable speech

Yet, as the recent cases of Bidar and Kanhaiya show, these tests do not prevent the misuse of sec 124-A. Perhaps, after looking at the persuasive aspect of England's view on sedition and the failings of India to follow the USA in using the judiciary to impose restrictions on the law of sedition, India should follow other common law countries in abolishing this draconian law of the colonial regime through legislative change.

Bringing Out Legislative Change
The constitution must be understood as a transformative document, as seen in several post-colonial constitutions. The main concept of transformative constitutionalism lies in its emancipatory pursuit in the convection that large scale social change within a political system is possible through the process and instrumentality of the law.

This theory would entail that the bare text of the constitution must be interpreted with pure positivism that acknowledges the reality of the hierarchical structures and power relationships within the society.

While decriminalising homosexuality in Navtej Singh Johar v Union Of India (2018) 10 SCC 1, the transformative value was invoked by acknowledging the wrongs to correct the course for the future. The court found that pre-constitutional legislation has no legal presumption of constitutionality. In light of the recent social and legal development, it is imperative that the courts adjust the old legal system to adopt the needs of this new society. What we had earlier held to be constitutional with safeguards and riders is no longer constitutional.

At the present stage of our social and political development, it is an obligation of the courts to adopt the needs of the new society. The doctrines and institutions will have to be modified and some laws will have to be set aside. Section 124A neglects the central principle in a constitutional democracy: of every state action to be measured against reasonable limiting principles laid down by the founding document.

In regards to the contextual origin of the law, and political development ever since, it is imperative for the legislature to examine the applicability of the law. As seen in other post-colonial countries like South Africa, where the law of sedition has been abolished, the Indian legislature must repeal the law as it violates the sanctity of democracy.

After a careful analysis of all the aforementioned facts of Sedition Law, it is not surprising that the judgment in the Kedarnath case does not live up to the expectations of many. One may even contend the court lapsed in its duty as sentinel qui vive of dissent in a democracy, as it had the opportunity to do away with this draconian law, but chose to retain it.

As considered earlier, the broad scope of section 124A gives the State the power to terrorize individuals challenging its power and the mere pressing of sedition charges ends up acting as a deterrent against any voice of dissent or criticism. Hence, perhaps a re-examination of this law is necessary to truly enjoy the fundamental hallmark of our constitution: freedom of speech.

After all, the law must adequately ensure the liberty of thought and expression so that the executive power may not encroach upon an individual's field of opinion. In view of the controversy, an appeal to wholly do away with section 124-A, is the need of the hour. A law on sedition with such a wide scope is unnecessary and is being abused. The specific offences under Chapter VI of the IPC, such as Section 121, are sufficient to protect the state.

As Nehru said, 'Now so far as I am concerned [Section 124A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass.'

Supreme Court Decision on Sedition Law is Pragmatic but Many Questions Remain Unanswered

In a pragmatic decision, the Supreme Court has directed that all proceedings on charges u/s 124 A of the IPC be kept in abeyance until the government completes the re-examination of the sedition law. By this interim order, the apex court has given the message that civil liberties are to be balanced with the security of the state. Earlier, the Solicitor General placed draft guidelines before the court, signed by the Union Home Secretary, which said that an FIR involving sedition would be registered only if an officer of at least SP rank recorded in writing his satisfaction, in the light of Supreme Court's 2021 judgment in Vinod Dua case.

There are, however, a few important points emerging:

1. The Kedar Nath Singh judgment of 1962 was delivered by a five-judge bench. As per constitutional norms, it can only be reviewed or reversed by a larger bench of seven judges. Instead of forming a larger bench to decide the matter, the passing of an interim order by a three-judge bench may be against constitutional proprietary.
    
2. There is a big difference between sedition and treason. Criticising any government cannot be a crime against the nation. In Indian Republic, why should sedition exist in the law books when it has already been repealed in its country of origin, the United Kingdom?
    
3. In 1973, a 13-judge bench in the Kesavananda Bharati case upheld the constitutional norms of separation of powers. Chief Justice of India N.V. Ramana and Union Law Minister Kiren Rijiju are routinely talking about lakshman rekha for different organs of parliamentary democracy. The government has brought many laws with the speed of light, why cannot the sedition law be repealed by the government through an ordinance or a law passed by Parliament? It will bring glory to Parliament and stop unnecessary judicial activism in executive matters.
    
4. As and when the sedition law is repealed, it will have a prospective impact. In matters which are already registered, how can the judiciary or the government intervene in a retrospective manner?
    
5. Not too long ago, it was brought to the Supreme Court's notice that the state police continued to arrest people under Section 66 A of the Information Technology Act despite the top court striking it down in March 2015. As per Article 141 of the Constitution, Supreme Court judgments are supposed to be the 'law of the land'. The guidelines in the Kedar Nath Singh case put the onus on the police to distinguish between legitimate and seditious speech. However, the same needs to be incorporated in the respective law books. There are many other judgments of the Supreme Court wherein needful changes in the statute books have not been done. This is a big cause of confusion, coercion and corruption.
    
6. When Section 66 A was struck down, police started registering FIR under rigorous provisions of the IPC. In the wake of the the Supreme Court's interim order on Section 124 A, police may straight away invoke stringent provisions of UAPA where it is tough to get bail.
    
7. In the Kedar Nath Singh judgment, the Supreme Court had issued seven guidelines underlining when critical speech cannot be qualified as sedition. In the current matter of sedition, the Attorney General has suggested issuance of guidelines. There are several Supreme Court judgments and guidelines against frivolous FIRs and arrests. For instance, there are guidelines against hate speech but these are not enforced in letter and spirit. One reason for lack of enforcement is that there is no compilation or a statutory backup for all such guidelines. This is the root cause for police harassment and for which the much talked about police informs are needed.
    
8. In July 2021, Chief Justice of India N.V. Ramana aptly remarked Section 124 (A): "Use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself."
    
9. In a society where no distinction is made between sedition and treason, scrapping of law may not be enough to check false cases. If 124 A is scrapped, authorities may use some other draconian law to harass political opponents. Remedy lies in legal, police and judicial reforms - where bad laws are scrapped by the Union, laws are not misused by state police, and the judicial system keeps a smart vigil on false cases by way of early relief and punishment to those who misuse the law.
    
10. The Centre has not indicated any timeline for the review of sedition law. This would be an opportune time for the government to review all draconian laws. Besides being good for civil rights, this will encourage ease of doing business in India. Section 124 A has been challenged in the Supreme Court on the ground that it violates Articles 14, 19 and 21 of the Indian Constitution. If the government fails to repeal sedition, a larger bench of the Supreme Court ought to scrap section 124 A to make way for a New India.