The Sedition law in India dates back to British era, where sedition law was incorporated a tool to crack down on the rebellions against the government. Sedition in layman terms means inciting people to rebel against authority, and sedition law in India has been legislated, to incorporate this basic idea. Throughout, its history sedition law has been used by the Sate both pre- and post-Independence to suppress the voice of citizens who had been raising issue against the same. The courts thus had to play an active role, so that this act of the executive and the legislature had minimum effect, at least in practicality.

Even before the Independence with whatever autonomy the British legal system used to function it had tried to address certain issues with respect to the Sedition law in undivided India. In Niharendu Dutt Majumdar and Ors. vs. Emperor,1 the court had taken a reasonable view with respect to sedition, and held that sedition would mean that there would be an act of lawlessness done by the accused at some point. So, if there is no act regarding this, there could be no offence under sedition.

Similarly, courts also played an active role even after the Independence and even recently, the Supreme Court has been taking active steps to render the Sedition Law unconstitutional. This all has shown that active steps are being taken to make this law invalid as both the government and the courts have recognised the issues with respect to the sedition law in the country and thus are working in a right direction, or so as it seems.

Pre-independence
The first known registered case under the section was in Calcutta High Court in 1891; Queen Empress v Jogendra Chunder Bose. Bose's article, published in his own Bengali magazine Bangobasi, criticized the Age of Consent Act, 1891. The Act was described as "forced Europeanisation" and a gag on Hindus, who were described as legally incapable and prevented from rebelling against the Act.

The authorities put forth a claim that Bose had incited rebellion; in his instructions to the jury, the Chief Justice William Comer Petheram explained the meaning of "disaffection" as "a feeling contrary to affection, in other words, dislike or hatred" and linked it with disobedience towards the government.Bose was nevertheless released on bail, and the case was dropped.

The sedition trial of 1897 against Lokmanya Tilak is historically famous. Tilak, a lawyer by training, was also politically active in support of independence. He established and published two dailies—Kesari in Marathi and Mahratta in English; both being published from Pune. In 1894, Professor R. P. Karkaria presented his paper on the Maratha king Shivaji to the Royal Asiatic Society in Bombay. This turned into an annual celebration commemorating the anniversary of Shivaji's coronation.

Three years later, Tilak published reports of this celebration, as "Shivaji's Utterances"; this essay doubled as an attack on the colonial government. Justice Arthur Strachey, who presided over Tilak's case, widened the understanding of Section 124A. Under Strachey's definition, the attempt to excite "feelings of enmity" against the government was also a form of sedition. Tilak was found guilty by the jury and sentenced to 18 months of rigorous imprisonment. Tilak again faced charges against sedition for two Kesari articles, titled "The Country's Misfortune" (12 May 1908) and "These Remedies Are Not Lasting" (9 June 1908).

Once again Tilak was found guilty under the newly drafted section 124A, and sentenced to six years of imprisonment in Burma. Despite the verdict, this trial, according to historian Mithi Mukherjee, "marked a fundamental discursive rupture in the history of empire and paved the way for mass anticolonial movements under the leadership of Gandhi.In 1922, Mahatma Gandhi's three articles for Young India resulted into his and Shankarlal Banker's imprisonment under the sedition section. While appearing in court, Gandhi referred to Section 124A as the "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".

Post-independence
In 1951, the Punjab High Court ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech. The Government of India appealed to the Supreme Court of India, which in 1962 ruled that speeches against the government or political parties were not illegal while upholding it as applicable to separatism by persuasion or force; this pronouncement had the effect of diluting the law.

During the 21st century, various notable authors, creative professionals, activists, and politicians have been charged with sedition under Section 124A. Cases include the then Vishva Hindu Parishad (VHP) general secretary Praveen Togadia (2003), Simranjit Singh Mann (2005), Binayak Sen (2007), author Arundhati Roy (2010), cartoonist Aseem Trivedi (2012),[20] student activist Rinshad Reera (2019), climate activist Disha Ravi (2020).

Problems with the sedition laws

As per the Kedar Nath judgment in 1962, the sedition law was supposed to be applied in rare instances where the security and sovereignty of the country is threatened. However, there are growing instances to show that this law has been weaponised as a handy tool against political rivals, to suppress dissent and free speech. As per the latest data presented by Article 14, as many as 25 sedition cases were filed after the anti-Citizenship Amendment Act protests, 22 after the Hathras gang rape, and 27 after the Pulwama incident. In all, 96 percent of the sedition cases filed against 405 Indians over the last decade were registered after 2014.

Further, the data provided by National Crime Records Bureau indicates that sedition cases have risen from 47 in 2014 to 93 in 2019, a massive 163 percent jump. However, the conversion rate from cases to conviction is a mere 3 percent. This shows that the police and related state authorities are using the sedition laws indiscriminately to create fear amongst the citizens and silence any criticisms or dissent against the regime.

Legal flaws and spurious interpretation

Legally speaking, one of the main problems with the sedition law is that it is poorly defined. The terms "bring into hatred or contempt" or "attempt to excite disaffection" can be interpreted in many ways and this empowers the police and government to harass innocent citizens who are across the fence from them. Due to its poor definition, sedition law can be used spuriously by the police to falsely accuse individuals as it does not clearly state which acts are seditious and provides a broad outline of what can be classified as seditious.

This issue was recently highlighted by Justice D.Y. Chandrachud while restraining the Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124A (sedition) of the Indian Penal Code (IPC). Justice Chandrachud remarked, "Everything cannot be seditious.

It is time we define what is sedition and what is not." In another important case (PIL filed against Farooq Abdullah, the former Chief Minister of Jammu and Kashmir), Justice Chandrachud stated, "Expression of views which is dissent and different from the opinion of the government cannot be termed seditious." Similarly, Delhi High Court's ruling in the Disha Ravi case clearly stated that the government cannot put citizens "behind bars simply because they chose to disagree with the state policies" and "the offence of sedition cannot be invoked to minister to the wounded vanity of the governments." These rulings by the judiciary clearly diverge from the interpretation of the sedition law by the executive and show how the law is being indiscriminately misused by them.

Antithetical to freedom and democracy

Freedom of speech and expression is the hallmark of a democracy that is being compromised due to the sedition law. A democracy requires citizens to actively participate in debates and express their constructive criticisms of government policies. However, the sedition laws have empowered the executive branch of the government to use the ambiguously defined provision as an instrument to regulate public opinion and indiscriminately wield power.

The sedition law has become a tool to instill a sense of compliance towards government policies in the citizens. There have been many instances where the government has used the sedition law to suppress protesting voices to protect its interests. The arrests of the NDTV journalist Vinod Dua for criticising the government's response to COVID-19 and the 22-year-old Disha Ravi in the Greta Thunberg toolkit case for tweeting in solidarity with the farmer's agitation in India has raised many questions about freedom of speech and expression in India. When journalists are censored through the sedition law, it impacts democracy. The sedition laws reduce government accountability as the government is able to ignore its critics and in turn charge them with sedition.

Comparative Analysis Of Sedition Under IPC And BNS

The major key difference between the elements of sedition under IPC section 124A and the proposed Bhartiya Nyaya Sanhita section 150 is that under IPC section 124A, sedition focuses on inciting hatred, contempt, or disaffection towards the government through words, signs, and visible representation. The penalties for such include imprisonment for life, up to 3 years, or a fine.

Whereas the BNS section 150 has a broader aspect, addressing not just the incitement or disaffection towards the government but also secession, armed rebellion, subversive activities, and separatism. It includes a wider range of actions that cause sedition as compared to that under IPC, words, signs, visual representation, electronic communication, and financial means. The criteria for punishment under BNS are more intense as it includes imprisonment for life, or up to 7 years or fine.

The modifications in the definition of sedition under BNS reflect the more stringent approach to protecting national interest and unity. Moreover, the BNS aims for a comprehensive framework to address the threat. Whereas in IPC the focus was narrower as it was centered on the concept of disaffection towards the government. BNS also includes crimes related to mob lynching and hate crimes under sedition law.

Earlier the words that were causing action for the sedition act were very harsh and required some major Action but under BNS the mere words themselves will be constituted under sedition law for having participated in anti-national activities. Section 150 of the new bill criminalizes "act endangering the sovereignty and integrity or the unity of the nation". New BNS 2023 there is no provision mentioning the offence of sedition or the new law avoids the use of the word sedition but a similar nature offence can be found in section 150 of new BNS 2023.

• Section 150 of the new Bill criminalises "acts endangering sovereignty, unity, and integrity of India".
• A key change in the draft Section 150 is to remove an old provision in which a person convicted of sedition could get away with a fine. Section 150 of the bill prescribes imprisonment for life or imprisonment which may extend to seven years, in addition to the fine, as punishment. So, in a way, punishment has been made more severe.
• The name sedition law will go away and will be replaced by the new name Bharatiya Nyaya Sanhita (Bill), 2023. Section 124 A will be replaced by Section 150.
• Words "disaffection towards the Government established by law in India" have been removed from the old Section 124A of IPC.
• It directly targets secessionism, separatism, and a call for armed rebellion – words like "contempt" or "hatred" against the Government of India removed.
• It also includes "electronic communication" and "use of financial means" as tools for perpetuating an act "endangering sovereignty, unity, and integrity of India."
• Earlier sedition law required very harsh words and some action like an example of uprising against the country. Under Section 150, merely words by themselves will attract the charge of having participated in anti-national activities.
• Terrorism offences, organised crimes and criminal activities added in the new Act.

Why is Sedition Unconstitutional?

In September 2021, Journalist Union of Assam ('JUA'), with the legal support of IFF, filed a petition before the Supreme Court, challenging the constitutional validity of Section 124-A of the IPC. The following grounds were raised in the said petition:

1. Violation of Article 19(1)(a) of the Constitution: In the 1962 case of Kedar Nath Singh vs Union of India, 1962 Supp (2) SCR 769, a five-judge bench of the Supreme Court upheld Section 124-A but narrowed its applicability to speech with the 'tendency' to incite violence. However, in Kedar Nath Singh, the Supreme Court did not define the term 'tendency' or establish a clear link between speech and its potential consequences. In their petition, JUA has argued that Section 124-A, as interpreted by Kedar Nath Singh, infringes upon the freedom of speech and expression as guaranteed under Article 19(1)(a) of the Constitution, as it criminalises speech unrelated to violence or public disorder, leading to a 'chilling effect' on speech.
    
2. Violation of Article 14 of the Constitution: Section 124-A prescribes a punishment scheme unlike other offences under the IPC. It allows judges to impose sentences ranging from (1) life imprisonment, with a possibility of a fine, to (2) imprisonment up to three years, with a possibility of a fine, or (3) just a fine alone. Unlike other offences, such as Section 304 of the IPC (culpable homicide not amounting to murder), Section 124-A lacks clear guidance for judges on how to classify cases and determine whether to sentence a convict to life imprisonment, three years' imprisonment, or impose just a fine. Consequently, this provision violates Article 14 by permitting arbitrariness through its sentencing framework.
    
3. Disproportionate Impact on Journalists: Section 124-A disproportionately affects journalists and individuals whose views vary from the position of the 'Government established by law'. Journalists, by the very nature of their job, face a higher risk of prosecution under Section 124-A. The chilling effect stemming from the threat of prosecution hampers journalists' ability to report and fulfil their role as the fourth pillar, necessary for efficient functioning of a democracy.

Conclusion
Laws against seditious speech have a long history and have drawn criticism and debate. Some claim that such laws are required to maintain a country's stability and integrity, stop the unrest, and shield citizens from divisive beliefs and provocation. They think it's acceptable to restrict some types of expression to preserve societal harmony and advance the greater good. On the other hand, detractors of sedition laws contend that they are easily abused and can be employed as a tool to silence political opposition and dissent. They argue that these rules may violate the fundamental right to free speech and limit people's capacity to criticise the government or express their thoughts.

Laws vary and evolve along with cultures. To make sure that these laws are in keeping with societal ideals and global human rights standards, legislators and legal systems must examine and update these laws regularly. Differentiating between genuine dissent and seditious speech is necessary to strike the proper balance between preserving national security and preserving freedom of expression; this is a complex task that demands careful study

Reference:

• Render sedition unconstitutional, The Hindu, Oct. 13, 2015, https://www.thehindu.com/opinion/lead/Render-sedition-unconstitutional/article10155199.ece
• Supreme Court refers pleas challenging validity of sedition law to 5-judge bench, THE INDIAN EXPRESS (Sep. 12, 2023), https://indianexpress.com/article/india/supreme-court-sedition-law-constitution-bench-cji-8936175/
• Sedition Law in India: A Timeline, SUPREME COURT OBSERVER, https://www.scobserver.in/journal/sedition-in-india-a-timeline/
• BNS and IPC (EBC bare act)

Written By: Sakshi