The law of respecting the ruler by the ruled without opposing or questioning the rule still exist in India today

Sedition - the infamous draconian law of Britishers to muzzle the voices of patriots, still exists today and had rooted deep into the soils of India from the colonial era.

What is sedition?

The word sedition is derived from the Latin word Sedition which means a going aside.The Indian Penal Code defines sedition (Section 124A) as an offence committed when "any person 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".

The law in its wording distinguished between bringing into hatred or contempt, or exciting or attempting to excite disaffection towards the government established by law, and what is termed in the explanation as expressing disapprobation against the state (which is permissible).

Punishment for the offence of sedition

Sedition is cognizable (not requiring a warrant for an arrest), non-compoundable (not allowing a compromise between the accused and the victim), and non-bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.

A person charged under this law is barred from a government job. They have to live without their passport and must produce themselves in the court at all times as and when required.

Origin

Origin of sedition law in modern India

The law was originally drafted in 1837 by Thomas Babington Macaulay, the British historian-politician, but was inexplicably omitted when the IPC was enacted in 1860. It had figured as Section 113 of Macaulay’s draft penal code of 1837 but was omitted in the 1860 code.

Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.

The British Colonial government introduced section 124-A in Chapter VI of the Indian Penal Code (Of Offences against the State). The section was said to be introduced to deal with increasing Wahabi activities between 1863 and 1870.

The section was amended in 1898 to expand the scope of the law by including the terms hatred and contempt along with disaffection. It was one of the many draconian laws enacted to stifle any voices of dissent at that time.

The framework of this section was imported from various sources-the Treason Felony Act (operating in Britain), the common law of seditious libel, and the English law relating to seditious words.

Justice AP Shah, former Chief Justice of the Delhi High Court (2017) observed:
Sedition laws were enacted around the 17th Century in England in a bid to protect the Crown and the State from any potential uprising. The premise was that people could only have a good opinion of the government, and a bad opinion was detrimental to the functioning of the government and the monarchy. It was subsequently introduced in the Indian Penal Code in 1870.

Pre independence
The initial cases that invoked the sedition law included numerous prosecutions against the editors of nationalist newspapers. The first among them was the trial of Jogendra Chandra Bose in 1891 (Queen Empress v Jogendra Chunder Bose), who was the editor of the newspaper, Bangobasi, criticizing the Age of Consent Act, 1891.

Section 124A had been introduced in the Indian Penal Code by the British to punish sedition as an offence against the state, and was used to arrest freedom fighters, notably Bal Gangadhar Tilak(Queen Empress v. Bal Gangadhar Tilak) and M K Gandhi, Annie Besant. Maulana Mohammad Ali, Maulana Shaukat Ali, and Shri Shankaracharya were tried jointly in 1921 at Karachi for sedition, at the height of the Khilafat movement. In 1922, Maulana Abul Kalam Azad’s trial for sedition became famous for his magnificent statement in which he hurled defiance at the rulers.

While the British Government was justifying enlarging the ambit of laws on sedition, the court in Kamal Krishna Sircar v. Emperor, refused to term a speech that condemned Government legislation declaring the Communist Party of India and various trade unions and labor organizations illegal, seditious. It was opined by the court that imputing seditious intent to such kind of speech would completely suppress freedom of speech and expression in India.

Post independence
Jawaharlal Nehru, India’s first prime minister after independence from Britain, was one of the fiercest critics of the law. he said the sedition law is highly objectionable and obnoxious…the sooner we get rid of it the better,

The issue of sedition was anxiously discussed during Constituent Assembly debates. On 29 April 1947, when laying out the Rights of Freedom, Vallabhbhai Patel—who went on to become the home minister of India—made an exception for seditious, obscene, blasphemous, slanderous, libellous or defamatory language.

The Communist Party of India leader, Somnath Lahiri opposed the use of the word seditious. As far as I know, even in England, a speech, however seditious it may be, is never considered a crime unless an overt act is done, Lahiri said.

The Constituent Assembly was unanimous in having the word ‘sedition‘ deleted from Article 13 of the draft Constitution. During the discussions Shri M. Ananthasayanam Ayyangar said:
If we find that the government, for the time being, has a knack of entrenching itself, however, bad its administration might be it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on. The word 'sedition' has become obnoxious in the previous regime.

We had therefore approved of the amendment that the word 'sedition' ought to be removed, except in cases where the entire state itself is sought to be overthrown or undermined by force or otherwise, leading to public disorder; but any attack on the government itself ought not to be made an offence under the law. We have gained that freedom and we have ensured that no government could entrench itself unless the speeches lead to an overthrow of the State altogether.

The members continued debating, coming back to the question of sedition intermittently. Finally, an amendment was moved to drop the word and not allow it to infringe upon the freedom of speech and expression.

After much opposition and deliberation, while the word ‘sedition’ was dropped from Article 13 of the draft Constitution, Sedition under section 124 A of the IPC continued to be a statutory offence as Article 372 of the Constitution provides that any existing law in force in India as on 26 January 1950 would continue to be in force in India unless explicitly modified or repealed by the legislature.

Then, in 1950, two Supreme Court judgments led the government to introduce the much-maligned first amendment. The first case involved objectionable material in Organiser, a magazine run by the Rashtriya Swayamsevak Sangh; the second was against a magazine called Cross Roads, for criticizing the government.

After independence, section 124A IPC came up for consideration for the first time in the case of Romesh Thapar v. The State of Madras. The Supreme Court declared that unless the freedom of speech and expression threaten the 'security of or tend to overthrow the State', any law restricting the same would not fall within the purview of Article 19(2) of the Constitution.

In 1950, The Punjab High Court in Tara Singh Gopi Chand v. The State declared section 124A IPC unconstitutional as it violates the right of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution observing that ― a law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about.

The constitutional validity of section 124A IPC came to be challenged in the case of Kedar Nath Singh v. The State of Bihar. The Constitution Bench upheld the validity of section 124A and kept it at a different pedestal. The Court drew a line between the terms, 'the Government established by law' and 'the persons for the time being engaged in carrying on the administration'

In another progressive judgment, the Supreme Court in 1995 in the Balwant Singh v State of Punjab case set aside the charge of sedition concerning anti-India slogans raised—Khalistan Zindabad…Hindustan Murdabad. The verdict opined that mere casual slogans did not affect public order in terms of provocation to violence does not constitute sedition.

Supreme Court’s role in defining sedition

The Supreme Court, in its interpretation of Section 124A, clearly says that it has to be against the state, not against the government. This means it’s not wrong to criticize a political party. When one criticizes the constitutional state of India, that is when he invites the charge of sedition and even there the Supreme Court clearly says that there has to be a direct incitement to violence.

Even though chances of conviction in such cases are a rarity, it has served as an effective tool of harassment and intimidation, wielded to silent dissenters

The Supreme Court of India, in a landmark judgment of Kedar Nath Singh v. State of Bihar (1962) upheld the constitutionality of the law., but had ruled 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 other words, the Court upheld the constitutionality of the sedition law, but at the same time was curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

Justice A P Shah (2017), while delivering the M N Roy Memorial Lecture, explained the Kedar Nath judgment further:

The Court upheld the constitutionality of sedition, but 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.

Sedition law in other countries

Many countries like Australia, Canada, Hong Kong, Scotland, Spain, Mexico, US, etc. too had sedition laws but were either repealed or amended but yet brought the criticism of the common citizens, many leading to mob violence. In the UK sedition and seditious libel (as common law offences) were abolished by section 73 of the Coroners and Justice Act 2009 (with effect on 12 January 2010).

How is the sedition charged?

So then why does the police pursue sedition cases almost willy-nilly? The answer lies in the now-familiar refrain: in India, the process is the punishment.

The offence of sedition, under law, is cognizable (a policeman can investigate and arrest without the oversight of a magistrate) and non-bailable (you are not entitled to bail as a matter of right). So if a case is filed against you, the police have the power to arrest you. Under the law, you are to be produced before a magistrate within 24 hours. The police inevitably blow the offence out of proportion and seek custody of the accused so that they can be investigated, and the magistrate inevitably grants such custody. The police now have 90 days to file a charge sheet. While the accused is entitled to apply for bail, given the magnitude of the allegations and the police’s claims that evidence is still being unearthed, often bail is denied.

If a charge sheet is not filed within 90 days, the accused is entitled to bail by default. If it is filed, the magistrate then scrutinizes whether a case is made out under law. This three-month period of imprisonment would be enough to drain the accused of financial resources (cost of engaging lawyers as well as professional revenue foregone), not to mention their spirit. Carrying a maximum sentence of imprisonment for life, the charge of sedition is one of the gravest.

At best, the charge is quashed, and the accused is acquitted. Else, there is a long-drawn trial that might drag on for years. On the other hand, the police are seldom made accountable for their actions.

Constitutionality of Sedition in India

The first case that tackled the constitutionality of Section 124-A was Ram Nandan v. The State of U.P. The Allahabad High court held that S.124-A of the IPC is ultra vires as it violates Article 19(1) (a) of the Constitution. 124-A was said to restrict freedom of speech and struck at the very roots of the constitution.

However, this was overruled in the case of Kedarnath Das v. The State of Bihar. The court, in this case, held that this section should limit acts involving intention or tendency to create disorder or disturbance of law and order or incitement of violence. However, if this section is used arbitrarily, it violates Article 19.

It should also be noted that in 1951 there was an amendment made in Article 19(2) which included the expression in the interest of and public order. This amendment included the legislative restriction on freedom of speech and expression.

In Kedarnath Das v. the State of Bihar, the court was of the view that, the expression in the interest of public order has a wider connotation, and not only includes acts that are likely to disturb public order but, can also be interpreted to include Section 124 – A. It was further held that any act which is enacted in the interest of public order can be saved from constitutional invalidity.

The court also held that the right guaranteed under Article 19 (1) (a) is subject to the restriction under 19 (2) which comprises – First, security of the state. Second, friendly relations with foreign states. Third, public order. Fourth, decency or morality. Article 124 – A of the IPC is covered under the security of the state and public order since, the section penalizes any spoken or written words or visible representation which, have the effect of bringing or which attempt to bring in hatred or contempt or excite or attempt to excite disaffection towards the government established by law.

Previous Reports Of The Commission

The issue of revisiting ‘sedition’ has been taken up by the Law Commission previously as well. The Commission, in its 39th Report (1968) titled ―
The Punishment of Imprisonment for Life under the Indian Penal Code recommended that there are certain extremely anomalous situations where certain offences have been made punishable with severe punishment and it was suggested that ― offences like sedition should be punishable either with imprisonment for life or with rigorous or simple imprisonment which may extend to three years, but not more.

Further, in its 42nd Report (1971) titled ― Indian Penal Code, the Commission made three crucial suggestions to be incorporated in section 124A, IPC. They were:

Incorporation of mens rea in the section:
The scope of the section be widened, incorporating Constitution of India, Legislatures and the administration of justice (Judiciary), along with the executive Government, against whom disaffection would not be tolerated, and bridging the ‘odd’ gap between ‘imprisonment for life’ and ‘imprisonment which may extend to three years, or fine, by fixing the maximum punishment for sedition at ‘seven years rigorous imprisonment and fine’.

However, the Government did not accept the revision proposed by the Commission.

The 43rd Report of the Law Commission on ― Offences Against the National Security, (1971), also dealt with the ‘sedition’ as part of the National Security Bill, 1971. Section 39 of this Bill dealt with ‘sedition’, which was merely a reiteration of the revised section proposed by the 42nd Report (1971).

The 267th Report of the Commission on ― 'Hate Speech',(2017), distinguished between ‘sedition’ and ‘hate speech', providing that the offence of hate speech affects the State indirectly by disturbing public tranquillity, while the sedition is directly an offence against the State. The Report adds, that to qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and the security of the State.

Further, it is required to be noted that we have certain sets of established tests for understanding what speech amounts to sedition and what would be merely an expression of dissatisfaction or disaffection which may even be productive criticism or a necessary indication of problems in the state and society. Laws governing both hate speech and sedition must preserve the right to ‘offend’.

Is Being ‘Anti-national’ Sedition?
In today’s media discourse, the term sedition is often translated as desh-droh or opposition to the nation. This has led to a conflation of the terms seditious and anti-national in the popular imagination. Yet, there is a key difference between anti-national sentiment and actionable sedition—incitement to violence.

According to Justice Shah (2017):
The law … is quite clear on the distinction between strong criticism of the government and the incitement of violence, with only the latter being related to sedition. Thus, regardless of whether the JNU students’ slogans were anti-national, hateful, or an expression of contempt and disdain against the government, as long as they did not incite violence, it does not get covered under sedition.

So the real problem lies in how the law of sedition is used. The government many times uses sedition charges to crush the voices raised against them, and since it is the political face of the government which is suppressing the voices of the common citizens which violates the fundamental right of freedom of speech and expression, the sedition law becomes a handy tool for harassing people arbitrarily and rob of their basic fundamental rights granted by the constitution itself which regulates the government. Police and magistrates across the country use it on a whim without actually using the guidelines given by the Supreme Court of circumstances under which the sedition is to be charged.

This may be happening since there are no strict rules made in to use the given guidelines by police and government, making sedition a useless law curtailing the rights under article 19. Enraged by knowing that our basic rights are being snatched under the nose, there have been several instances of a mob - violence demanding justice from the government. In this, many hidden violence agitators can fill up the ears of citizens by giving provoking speeches like making the crowd take hand in physical violence, and making things worse.

Despite this, India continues to carry the colonial baggage of misery and oppression to its citizens. Unless India finds a way to put an end to this instrument of abuse, its citizens' fundamental right remains in a state of permanent-emergency.

Freedom of speech and expression, a cornerstone of the Indian democracy, has been put to a constant and continuous threat with the use of an archaic colonial law.

If a law is unjust, a man is not only right to disobey it, he is obligated to do so. - Thomas jefferson