With the recommendation of the 22nd Law Commission to retain Section 124 A of the Indian Penal Code (IPC) dealing with the offence of sedition while making the punishment stricter by enhancing the minimum jail term from three years to seven years, the debate on the desirability of colonial-era sedition law in modern times has become more intense.

Being one of the most controversial topics of constitutional law jurisprudence in India, there has always been a great discussion and debate on this issue. There have been different views ranging from calls for the clause to be completely repealed from our statute books to those advocating for the sedition laws to be retained in their entirety with stricter application.

Many others, however, advocate for retaining the clause but limiting its application to established legal boundaries in order to achieve a balance between the security interests of the country and the fundamental rights of the people.

This article explores the definitional and historical aspects of sedition laws in the IPC. Further, it dives deep into the different interpretations by the courts before and after the independence of India. In addition to this, it also casts a focused critique on the increased use of sedition laws in recent times and its effect on fundamental rights and provides a way forward.

Introduction
Sometimes the line between positive criticism and sedition is so thin that it may be tripped up by a single word. The freedom of speech-along with the freedom to express one's opinions and beliefs-was considered by the forefathers of our constitution to be one of the most central aspects of free India. However, to their dismay, the unnerving trend of stifling freedom by the very machinery which was made guardian to protect and unleash the horses of freedom would make them turn in their grave.

The remarks of the former Chief Justice N.V. Ramana on the relevance of the "colonial-era" sedition laws that "the use of sedition is comparable to handing a carpenter a saw to chop a piece of wood, and then having him use it to clear the entire forest"[i] along with a number of recent rulings by the highest court has prompted a heated discussion about the unsettling trend of the state authorities of using so-called sedition laws to silence political opponents.

To this end, On May 11, 2022, the Supreme Court urged the Union government and the state authorities to refrain from applying the sedition laws and keep all previous cases under Sec. 124A of IPC[ii] on hold till the subject is thoroughly reconsidered.

Therefore, this paper aims at analyzing definitional and historical aspects of Sec. 124A including the jurisprudence of Courts in colonial and independent India as well as the recent developments on the issue. It further goes on to analyze its desirability in independent India and provides a way forward.

Definitional and Historical aspects of Sedition Laws in the IPC

Definition of Sedition

Sec. 124A of IPC defines sedition 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, 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"[iii]. However, it is interesting to note that the word "sedition" has been mentioned nowhere in the Section, still the Indian Penal Code (The Code) made the punishment for the same cognizable, non-bailable, and non-compoundable in nature.

Requisite elements of sedition

The most important factor in classifying an act as seditious is that it must be carried out by an individual or group of individuals by use of a gesture, sign, spoken word, or written word. However, no case for sedition lies without any such clear indication that can be linked back to the accused.

The roots of the foregoing legal principle can be traced back to the draconian history of IPC when Bal Gangadhar Tilak was sentenced to death in the infamous case of Queen-Empress v. Bal Gangadhar Tilak.[iv] To serve the needs of the authoritarian British government, Justice Ames Strachey came up with a repressive interpretation of Section 124-"The offender must have an intentional desire to instill in the minds of the people hatred, contempt, or disaffection towards the government."[v] It is interesting to note that Justice Ames Strachey's failure to define "intentional desire" provided the British government with another tyrannical tool to stifle political opponents.

In addition, it is clear from a cursory reading of Section 124 of the IPC that the act or the statement itself deduces the goal. The Section compares and contrasts the effective arousal of disaffection feelings and the futile endeavor to do so.[vi] This means that any effort to incite hatred, whether successful or not, is illegal. Moreover, when a person utters something allegedly seditious then his intention is interpreted in a free and fair manner the whole statement must be considered rather than just the offending part.[vii] Also, the government in question must have been constituted by law, and the alleged seditious words or actions must have induced hatred and a tendency to incite disaffection and violence against the legally established government.[viii]

On top of that, the Section provides three explanations that explicitly exclude "disapprobation" of the measures of the government or administrative or other actions of the government which doesn't excite or attempt to excite hatred, contempt, or disaffection from an offence under this Section.

The explanation makes a clear distinction between inciting hatred or contempt for or encouraging or attempting to instigate disaffection against the government constituted by law and expressing disapproval of the State (which is permissible).[ix] Therefore, using strong words through legitimate ways to express disapproval of the Government's measures in order to improve or amend them does not fall within the scope of the Section. Similarly, statements that are strongly worded and express criticism of the government's actions without invoking feelings that lead to a desire to cause public disruption through acts of violence would not be punished.

In other words, disloyalty to a legally established government is not the same as strongly criticizing the actions or measures of the government or its agencies in order to improve the people's condition or secure the cancellation or alteration of those acts or measures through lawful means, that is, without inciting public disorder or the use of violence.[x]

Historical background of Sedition laws

The origin of sedition laws can be traced back to the enactment of the Press Act in 1799, which provided the British authorities with absolute power to censor the press or any other form of media to quell the nascent echoes of Freedom.[xi] However, the first attempt to materialize Sedition laws in precise terms was made by Thomas Macaulay in 1837 when he drafted the prototype of IPC[xii], nonetheless, it was inexplicably omitted when it was subsequently enacted in 1860. In due course-after being through up and downs in British machinery-it was again introduced by an amendment in 1870 by Sir James Stephen.

The main reason behind the reappearance of this Section in the IPC is attributed by many historians to the increase in Wahabi activities and mutinies against the British government.[xiii] At that time, the Britishers introduced sedition laws to suppress the voices against the government and strike terror in the heart of freedom fighters. However, it has remained popular to this day, and it is often used by the Indian Government to stifle criticism of its policies-no matter how well-intentioned.

During the drafting of the Indian Constitution, substantial time was devoted-as an attempt of erasing the colonial heritage from India's founding document-to the question of whether or not the term sedition should be included as an exception to the fundamental right to freedom of speech and expression.[xiv] One of the vehement critics of this colonial legacy was K.M. Munshi in his remark that "now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State�.

Therefore, the word 'sedition' should be omitted. As a matter of fact, the essence of democracy is Criticism of Government"[xv]. The founding fathers of our constitution followed the footsteps of K.M Munshi and omitted the term "sedition" outside the ambit of exceptions to the freedom of speech and expression.

However, to his dismay, the first PM of Independent India Pt. Nehru brought a very controversial amendment to the Constitution in 1951-amending Article 19(2)[xvi] of the Constitution to include the term "sedition". However, it is very interesting to note that initially, he himself was reluctant to introduce any relic of India's repressive past into the newly independent country and once stated that:
"Now so far as I am concerned that particular Section (124A IPC) 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.

The sooner we get rid of it the better." [xvii] Nonetheless, for whatever reason, he eventually abandoned the democratic principles and enhanced the sedition laws by adding nebulous terms like "friendly relations with a foreign state" and "public order" as justifications for placing "reasonable restrictions" on free speech and expression.[xviii]

Different interpretations of Sedition Laws

The fundamental problem with the sedition laws is that their vague provisions lead to conflicting interpretations. Therefore, expressions like "bring into hatred or contempt" and "attempt to excite disaffection" are left undefined, leaving room for a broad range of offenses. As a consequence of the same, the Governments at all times got an effective tool to stifle dissent thanks to the ambiguity generated by the different interpretations.

Study of pre-independence cases on sedition

The first notable case for the offense of sedition was Queen-Empress v. Jogendra Chunder Bose & Ors.[xix] (popularly known as the Bangobasi case). The issue, in this case, was whether the publication of seditious content in writing would be subject to Section 124 IPC or not. It was held that publishers could not be exempt from liability simply because they were not the original writer of the magazine. Since the publication and distribution of the magazine were intended to be read by the target audience, it will attract sedition charges. If the accused intended to excite rebellion or disturbance by any form of media, his act would doubtlessly fall within Sec. 124A even if such an act does not succeed in bringing out the intended result.

A distinction was also drawn between the terms:

"disapprobation" and "disaffection" that is "legitimate criticism" and "any feeling contrary to affection" respectively. The court also ruled that people's rights are neither violated nor diminished by the crime of sedition since only disaffection is punished. In Queen-Empress v. Bal Gangadhar Tilak[xx], which is also the first sedition conviction, the offence of sedition was redefined.

The Court agreed with the definition given in Jogendar Chunder Bose's[xxi] case that "Disaffection means simply the absence of affection. It means hatred, enmity, dislike, hostility, contempt, and every form of ill-will to the Government."[xxii] It was further stated that disloyalty is possibly the finest term to encompass all conceivable manifestations of negative attitudes toward the government and that no degree of disaffection is relevant to the application of Section 124.

To this end, the High Court skilfully muzzled the scarce semblance of fair criticism. However, the onslaught of the High Court was not stopped there and stated further that a sedition accusation might be filed even if the alleged actions had no practical effect. Again, a second sedition case was brought against Bal Gangadhar Tilak in 1917.

The court ruled that in sedition cases, the offender's aim takes primacy and may be inferred from the statements' substance, audience, and context. The court, however, adopted a more lenient stance this time, dismissing the idea of "disaffection" as something opposed to affection and considering the actual effect of alleged seditious utterances on the public when determining the accused's purpose.[xxiii]

Jurisprudence on sedition laws in Independent India
In the post-independence era, the constitutional validity of sedition laws has been subject to review several times. The first attempt in independent India to remove the relics of the draconian era from the pages of IPC was Tara Singh Gopi Chand v. The State[xxiv] in which the Supreme Court recognized that the "Sec. 124A was indisputably a restriction on the freedom of speech and expression which is guaranteed to all citizens by cl. (1) of Article 19[xxv] of the Constitution".

The Section was declared void on the ground that it is infringing the right to freedom of speech and expression[xxvi]. However, as stated previously, an amendment was made in the constitution to rectify the anomaly in the constitutionality of the sedition laws introduced by the Tara Singh Gopi Chand's decision.

The amendment added two new grounds to restrict freedom of speech and expression.[xxvii] The amendment made the invocation of the offense of sedition subject to two new terms, "public order" and "relations with foreign states", in addition to the acts previously listed in Article 19(2). Such wide-meaning terms gave great discretion to the State for invoking sedition laws. Shortly after a period of two years, following the implementation of the said amendment, the aforementioned section was contested in the Debi Soren & Ors. v. State.[xxviii]

The High Court's ruling in the foregoing case established a definitive differentiation between the concepts of disapprobation and disaffection, concluding that solely the latter, which results in public disorder, falls under the purview of Sec. 124A. The High Court, however, has ruled that Sec. 124A does not violate Article 19 of the Constitution. The next landmark case in line which further substantiate the constitutionality of sedition laws was Kedar Nath Singh v. State of Bihar[xxix].

The Apex Court in this case clarified the correct position of sedition laws in India taking into consideration various erstwhile Federal Court[xxx] and Privy council's[xxxi] interpretations of Sec. 124A. It also drew a clear line between the scope of a citizen's fundamental right guaranteed under Article 19(1)(a)[xxxii] of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interests of, among other things, state security and public order.

The court established that Sec. 124A could not be used to limit free expression because its application is confined to conduct containing the intent or tendency to cause unrest, disturbance of law and order, or incitement to violence. It was also observed that there should be the presence of a "pernicious tendency" to incite violence as a pre-condition to invoke the sedition law.

In this case, two cases involving consideration of the fundamental right of freedom of speech & expression and certain laws enacted by some states restricting free speech was taken into account[xxxiii] and noted that "criticism of government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State."[xxxiv]

It was strongly emphasised in the judgment that:
"A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder".

In another important decision after Kedar Nath Case, the Apex court ruled that "since the speech in question didn't lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, it, therefore, did not amount to sedition"[xxxv].

The crux of the above analysis with special reference to Kedar Nath's Judgement [xxxvi] is that the court has upheld the constitutionality of sedition in the past, but has limited its application to "acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence." It distinguished these acts from "very strong speech" or the use of "vigorous words" which were strongly critical of the government. It means that the Sedition law wouldn't stand the test of constitutionality if it were to be given a wider interpretation. [xxxvii]

Recent developments
A new trend has emerged in recent years. There is a large increment in cases registered under sedition laws and most of them are against the opposition, students, journalists, authors, and academics. Sedition laws have evolved as a technique for instilling in citizens a sense of cooperation with the government's policies. The administration has frequently used the sedition statute to repress protesting voices in order to protect its own interests.

Be it Disha Ravi in the Toolkit case[xxxviii] during Farmers Protest in which the apex court strongly stated that the government can't put citizens "behind bars simply because they chose to disagree with the state policies" and "the offense of sedition cannot be invoked to minister to the wounded vanity of the governments" or arrest of NDTV Journalist Vinod Dua for criticizing the government's response on COVID-19[xxxix] or sedition charges against students of Jawaharlal Nehru University and J&K Chief Minister Farooq Abdullah[xl] or authors like Arundhati Roy. These examples demonstrate the misuse of the provision.

The jurisprudence on the law of sedition is very clear that mere sloganeering and other such activities are not enough and it has to be accompanied by violence and public disorder. However, when sedition charges are slapped during the time of FIR, the question that whether the interpretation of the Section is in line with the Supreme Court's interpretation or not, does not concern the police authorities.[xli]

And by the time one is exonerated of sedition charges, the damage is already been done to the person. To sum up, the process of trial is itself a punishment where a person is already considered guilty & has to face a media trial. The slapping of sedition charges is itself a deterrent against any voice of dissent or criticism.

An independent database on Article 14 reveals that there is a 28% increase in the number of sedition cases registered during 2014-20 as compared to the 2010-14 period.[xlii] A review of the data released by NCRB[xliii] shows that a total of 356 cases of sedition were registered and 548 persons were arrested between 2015 and 2020. However, only 12 persons arrested in seven sedition cases were convicted.

It also shows an increase in the arrest rate from 2014 to 2020 by 163% while on the other hand conversion rate from cases to conviction has been merely 3%. The abysmally low rate of conviction clearly demonstrates the misuse of the law as a tool to create fear amongst the citizens and suppress any form of opposition. It shows that penal provisions are being used to frighten or harass anyone who rejects the government's decision.

The Indian government is imprisoning political activists, human rights defenders, and civil rights workers indefinitely under the bogus pretense of sedition or anti-national activity in order to instill fear and servility. Once Justice A P Shah in a lecture remarked that "Today, sadly, in this country I love, if anyone holds a view that is different from the government's acceptable view, they are immediately dubbed as antinational or desh-drohi.

This marker of anti-national is used to intimidate and browbeat voices of dissent and criticism, and more worryingly, can be used to slap criminal charges of sedition against them."[xliv] This is despite the attempts made by the Judiciary to limit the scope and restrict the understanding of sedition to an act of incitement of violence.

Recently, while dealing with the petitions challenging the constitutionality of Sec. 124A, the Apex Court directed that "all pending trial, appeals, and proceedings with respect to the charges framed under the said Section be kept in abeyance".[xlv] The State and Central governments were urged to restrain from registering any FIR under the impugned Section till the court decides its constitutional validity.

However, there is no blanket ban on registering FIRs and affected parties can approach the concerned court for appropriate relief. This is a historic order and a great development in the view that the center "has also decided to re-examine and re-consider the provisions of Sec. 124A".[xlvi] These developments demonstrate that the Judiciary is cognizant of the view that these laws were intended for a time when this country was under a colonial regime and now it is not in tune with the ethos of democracy.

There needs to strike a balance between the security and integrity of the State and the civil liberties of the citizens. However, the 22nd Law Commission's Report[xlvii] recommending the retention as well as widening of the scope of sedition, and adding a higher quantum of punishment has gone contrary to this decision of the SC which put the law in abeyance.

Conclusion
Sec. 124A of the Code was enacted by the colonial to subdue and remove the last forms of resistance in society. Such a proclivity contradicts the inherent principles of democracy in an independent India. The existence of such a provision in a modern country like India looks to be superfluous.

The clause is harsh because of the severity of the penalty. The continuance of such a clause limits freedom of speech and expression, which is ostensibly a fundamental right granted by the Indian Constitution under Article 19(1)(a)[xlviii]. To keep up with the changing needs of society, India's penal laws must be evolved and altered.

If we want to develop the democratic foundations of our country in light of the evolving reality around us, there must be no room for sedition. Dissent, criticism, and differences of opinion are necessary for any democracy to function. The witch-hunting of anyone who questions the current leadership harkens back to medieval periods and totalitarian dictators. It is high time to bring in a new era of free expression.

End-Notes:

1. The Wire Staff, SC Asks Centre Why 'Colonial Era' Sedition Law Is Needed 75 Years After Independence, https://thewire.in/law/supreme-court-sedition-colonial-era-independence-section-124a.
2. Indian Penal Code  124A (1860).
3. Id.
4. Queen-Empress v. Bal Gangadhar Tilak, ILR (1897) I.L.R. 22 Bom. 112.
5. Atul Dev, A History of the Infamous Section 124A, (Feb. 25, 2016), https://caravanmagazine.in/vantage/Section-124a-sedition-jnu-protests.
6. Supra note 4.
7. Niharendu Dutt Majumdar v. King-Emperor, 1942 FCR 38.
8. Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769.
9. Siddharth Narrain, 'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India, Economic and Political Weekly 46 (2011).
10. Supra note 4.
11. Pamela Philipose, Backstory: Supreme Court's Observations on Sedition, Journalism Welcome But Don't Go Far Enough, https://thewire.in/media/backstory-supreme-courts-observations-on-sedition-journalism-welcome-but-dont-go-far-enough.
12. Arvind Ganachari, Nationalism and social reform in a colonial situation 54 (2005).
13. Girish Chandra Pandey, Revisiting the History and Nature of the Wahabi Movement (1826-1861), 76 Proceedings of the Indian History Congress 488-99 (2015).
14. 02 Dec 1948 Archives, Constitution of India https://www.constitutionofindia.net/debates/02-dec-1948/.
15. Constitutional assembly debate, December 1, 1948.
16. Ind. Const. 19, cl. 2.
17. Mekhala Saran, 'Sedition Law Is Highly Obnoxious': Here's What Nehru & Gandhi Had Actually Said, (May 11, 2022), https://www.thequint.com/news/india/sedition-law-is-highly-obnoxious-heres-what-nehru-gandhi-had-actually-said.
18. The Constitution (First Amendment Act), 1951.
19. Queen-Empress v. Jogendra Chunder Bose & Ors. (1892) ILR 19 Cal 35.
20. Supra note 4.
21. Supra note 19.
22. Queen Empress vs. Bal Gangadhar Tilak: An autopsy (2020), Indian History Collective https://indianhistorycollective.com/queen-empress-vs-bal-gangadhar-tilak-an-autopsy/.
23. Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211.
24. Tara Singh Gopi Chand v. The State, (1951 CriLJ 449).
25. Ind. Const. 19.
26. Supra note 15.
27. "Public order" and "relation with foreign states".
28. Debi Soren & Ors. v. State, 1954 CriLJ 758
29. Supra note 8.
30. Supra note 4.
31. King-Emperor v. Sadashiv Narayan Bhalero, 10 74 IA 89.
32. Ind. Const.  19, cl. 1(a).
33. Romesh Thappar v. State of Madras, 13 (1950) SCR 594; Brij Bhushan v. State of Delhi, 14 (1950) SCR 605.
34. Id.
35. Balwant Singh & Anr. v. State of Punjab, 1995 (1) SCR 411.
36. Supra note 7.
37. Narrain, supra note 9.
38. Disha A. Ravi vs State (NCT of Delhi) & Ors. 2021 SCC OnLine Del 822.
39. Vinod Dua v. Union of India, 2021 SCC OnLine SC 414.
40. Rajat Sharma v. Union of India, (2021) 5 SCC 585.
41. A. P Shah, Free Speech, Nationalism & Sedition, 52 Economic and Political weekly 16 (2015).
42. Our New Database Reveals Rise In Sedition Cases In The Modi Era - Article 14, (May 23, 2021), https://www.article-14.com/post/our-new-database-reveals-rise-in-sedition-cases-in-the-modi-era.
43. National Crime Records Bureau.
44. Id.
45. S. G. Vombatkere v. Union of India, 2022 SCC OnLine SC 609.
46. SC puts sedition trials on hold until Govt re-examines it, says affected can seek relief, India News, The Indian Express (May 11, 2022), https://indianexpress.com/article/india/supreme-court-sedition-section-124-a-centre-7910771/lite/.
47. Usage of the Law of Sedition, Government of India, Law Commission of India (April, 2023) https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/06/2023060150.pdf
48. Supra note 32.