In 1922, while appearing in court in respect of his three articles for Young India which resulted into his and Shankarlal Banker's imprisonment under the sedition section, Mahatma Gandhi referred to Section 124-A, Indian Penal Code, 1860 (hereinafter code for brevity) as the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.

Before going ahead with the purpose for which the offence of sedition was created, let’s look at the nature of this offence. It is cognizable as well as non- bailable which means that police can arrest anyone for this offence without a warrant and also bail in such matters can’t be claimed as a matter of right respectively. Section 124-A, Code wasn’t the part of original Code when it was enacted in 1860.

This provision was introduced only in 1870 when after a ‘Fatwa’ was issued by ‘ulemas’ of Deoband for the Muslims of Hindustan to do ‘jihad’ against the British Government for the purpose of gaining independence from the colonial rule. This is known as ‘Wahabi Revolt’. This provision was famously used against Bal Gangadhar Tilak and subsequently against other freedom fighters.

For an offence under section 124-A, Code, following elements are required to be fulfilled:

• A person must
  
  1. By his words, either spoken or written, or,
  2. By his signs, or,
  3. By his visible representation, or otherwise,
      
• Bring or attempt to bring
  
  1. into hatred or contempt, or
  2. excite or attempt to excite disaffection
      
• Towards, the Government lawfully estab­lished by law in India.

Such person is said to commit the offence of sedition. The punishment for this offence is im­prisonment for life, to which fine may be added, or impris­onment which may extend to three years, to which fine may be added, or fine. As per Explanation- 1 appended to this section, the expression disaffection includes disloyalty and all feelings of enmity. Furthermore, as per ‘Explanation-2’, comments expressing disapprobation of the meas­ures of the Government for the purpose of making their alterations by lawful means and without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

An example to the situation covered within Expalantion-2 could be protests against CAA-NRC, Farm laws as the ‘right to assemble peacefully without arms’ is a Fundamental Right under Article 19(1)(b), Constitution of India, 1950 and if it is done in a non-violent manner and if the Government takes back the laws against which such protests are being held, then, it won’t tantamount to disloyalty, enmity or disaffection.

Moreover, by virtue of Explanation-3, comments or slogans expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, also do not constitute an offence under this section.

It is important to note that the law of sedition is against the State. It has got nothing to do between any two individuals as such, and nor with a group of individuals. Matters become seditious in nature only when they are against the state. When someone challenges the sovereignty and integrity of the State, then it becomes seditious and hence, for an instance, if someone raises slogans ‘Pakistan Zindabad’ then it may not be seditious since such sloganeering is in support of a particular country and not against India.

Now, the need to discuss this issue as to whether section 124-A should continue in the Code or not is due to its rising misuse in the recent times. The Freedom of speech and expression as provided under Article 19(1)(a) is subjected to the restraints as provided under Article 19(2) such as interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

This Fundamental Right cannot be restricted on the ground of sedition; however, it is being invoked to eventually curtail it. Some recent incidents in the light of the above statement are as follows- sedition charge was invoked against the Karnataka school children for their anti-CAA play, Amulya L. Noronha, a 19-year-old student studying in Bengaluru, was arrested when she had stood on a stage and enthusiastically hailed Pakistan in her speech, arrest of Disha Ravi, a 21-year-old green activist from Bengaluru, several protesters in anti-CAA and farmer protests were also booked under sedition law and so on and so forth.

Recently, an organization named ‘Freedom House’ released its Freedom in the world report 2021 which gave 67 points out of 100 to India wherein 34 out of 40 were given in political rights and 33 out of 60 were given in civil liberties.

Let us analyze as to how our judiciary has interpreted section 124-A, Code vis-à-vis Freedom of Speech and Expression guaranteed under Article 19(1)(a) beginning with Tara Singh Gopi Chand v. State (1951 CriLJ 449) wherein Punjab & Haryana H.C. had ruled that section 124-A, Code is unconstitutional.

Subsequently, in 1962, the Supreme Court in Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955) had to decide the issue as to whether the law of sedition violates the freedom guaranteed under Article 19(1)(a). 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 from very strong speech or the use of vigorous words strongly critical of the government.

In 1995, the Supreme Court, in Balwant Singh v. State of Punjab 1995 [(1) SCR 411], held that mere sloganeering which evoked no public response did not amount to sedition. In this case, three men were raising slogans after the assassination of former Prime Minister Indira Gandhi. In Nazeer Khan v. State of Delhi (AIR 2003 SC 4427), it was held that a person has a right to have his own political theory or a belief therein and in furtherance of his such theory, if he says let us fight together, then it won’t tantamount to sedition since he is just influencing people to incline towards such theory.

In Shreya Singhal and Ors. v. Union of India (AIR 2015 SC 1523), giving priority to the Fundamental Right under Article 19(1)(a), the Supreme Court struck down Section 66-A, Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a). The Court further held that the section was not saved by virtue of being a 'reasonable restriction' on the freedom of speech under Article 19(2). Later on, in Anuradha Bhasin v. Union of India ( 2019 SCC OnLine SC 1725), the court ruled that freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19 (1) (a) and Article 19 (1) (g).

Recently, the Supreme Court has agreed to hear a plea challenging the legal validity of Section 124-A, Code. The sedition law has been challenged by two journalists -- Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla on the grounds that the law violates the fundamental right of speech and expression.

After such challenge, the debates as to whether the time has come to repeal section 124-A, Code have again gained the momentum and below are the arguments in support as well as against such British-era draconian law:
Arguments in support of continuation of the law of sedition:

• On the ground of its misuse, the law can’t be scrapped rather the proper and effective implementation of the Kedar Nath judgement(supra) is the need of the hour
• In case if it is repealed and thereafter attempts are being made to overthrow the lawfully established government by means of violence or force (unlawful), then how the offenders will be tried and punished in absence of any law making such acts punishable since if an act isn’t a crime, then how can be the culprits be put to justice.

Arguments in favor of abrogation of the law of sedition:

• Sedition law has the tendency to curtail the right guaranteed under Article 19(1)(a) without any just and fair cause and hence, it produces a chilling effect on free speech.
• It tends to create fear in the minds of the (innocent) citizens of prosecution and being languished away in prisons for unreasonable long durations if they raise questions, debate, disagree and challenge the government's decisions.
   
• In 2018, the law commission in a ‘report on sedition’ had observed:
  While it is essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinized to avoid unwarranted restrictions.
   
• According to the National Crime Records Bureau (NCRB), between 2016 and 2019, the number of cases filed under Section 124-A, Code increased by 160% while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016. Moreover, out of 96 suspects arrested under the charges of sedition in 2019, only two men have been convicted, and no woman.

One must understand that criticism of the government doesn’t always tantamount to the criticism of the nation. Also, one must keep in mind that such slogans must not hurt anyone, must not be of such nature which may cause unrest or could be manipulated. However, at the same time, the authorities need to be educated and aware that only for political gains or personal interests, such provision mustn’t be invoked as this offence do has the tendency to ruin the lives of several innocent persons by subjecting them to media trials as well as social discrimination.

Indian media needs to be much more cautious while reporting such cases of alleged incidents of sedition as the media trials including debates on futile issues tend to manipulate society’s mind and its role should be limited to only provide information to the people to enable them to form their opinions instead of coming up with its own opinions and decisions. Anyone who disagree or shows dissent to the policies, schemes, measures taken by the Government or any administrative action is quite often labelled as anti-national which behavior has the tendency to strike at the roots of the freedom of speech and expression.

Broadly speaking, there is a need to maintain a balance between the ‘Fundamental Right’ guaranteed under Article 19(1)(a) and the law of sedition as the very essence of free democracy is based upon this delicate balance and this responsibility can be dispensed with by the courts as the higher judiciary should use its supervisory powers to sensitize the magistracy and police to the constitutional provisions protecting free speech.

Award Winning Article Is Written By: Mr.Anurag Agarwal

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