Revisiting the Colonial Relic of Sedition in India - A Legal Analysis

I. Introduction

In 1775, Samuel Johnson correctly said, "Patriotism is the last refuge of the scoundrel." The offense of sedition appears to be the government of India's last resort for suppressing opposition. An examination of the rule of sedition shows how the supreme political weapon in a democratic society, popular opinion, is used to maintain state control. Since its inception in 1870, the statute of sedition has been used to silence expressions of opposition, agitation, and criticism of the government. Though Indian courts have traditionally upheld freedom of speech, they have a mixed track record. The provision's ambiguous invocation has brought it into question and into the attention of the public, but no attempt has been made to get it repealed by the government.

II. History of sedition law in india

The rule of sedition, as established by Section 124A of the Indian Penal Code, has a long and illustrious history. Thomas Macaulay was the man behind the implementation of sedition in India. The section was introduced and implemented for the first time in the IPC (Amendment) Act of 1870 but has its roots in clause 113 of the 1837 Draft Indian Penal Code. Many authors are also of the opinion that the law for sedition was introduced, ostensibly to deal with revolution and dissent against colonial rule especially after the 1857 nationwide revolts, which was the first of its kind. During Gandhi's conviction, he said that some of India's most beloved patriots had been convicted² under Section 124A. In colonial India, sedition is associated with nationalism. An amending Act of 1898 later replaced this clause with the current Section 124A.

The first known state sedition trial is Queen-Empress v. Jogendra Chunder Bose, in which Bose, the editor of the newspaper ‘Bangobasi,' wrote an article condemning the ‘Age of Consent Bill,' claiming that it was a challenge to religion and had an oppressive relationship with Indian citizens.

This discourse and dispute over the sedition law was exemplified by one of the most prominent sedition trials in Indian history, namely the case of Bal Gangadhar Tilak, who was charged three times under the constitution.³ The British government alleged in Queen Empress v. Bal Gangadhar Tilak⁴ that Tilak's speeches on Shivaji's killing of Afzal Khan caused the assassination of two British officers in Pune. This trial was judged by Justice James Strachey, who equated "disaffection" with "disloyalty." He understood "feelings of disaffection" to include hate, enmity, disdain, anger, contempt, and any other kind of animosity against the government.⁵

Gandhi was taken to court in 1922 for his writings in the Young India journal. Gandhi famously condemned the law against sedition in court, referring to S.124(A) as the "prince of the political sections of the Indian Penal Code intended to curtail the citizen's liberty."

III. The law of sedition v. Freedom of speech

Three landmark decisions on sedition laws were handed down in the 1950s. Ram Nandan v. The State, ⁶ Sabir Raza v. The State,⁷ and Tara Singh Gopi Chand v. The State,⁸ were the three cases. In the two cases, the Tara Singh Decision and the Sabir Raza Decision, the courts held that S.124A of the Indian Penal Code had been unconstitutional as a result of the implementation of the Indian Constitution.

In the first case to deal with the constitutionality of the impugned section, it was held that “Section 124-A, Indian Penal Code, is ultra vires of Article 19(1) of the Constitution, both because it is not in the interests of public order and because the limitations levied by it are not fair restrictions,” by the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh.⁹

However, in the case of Kedarnath Das v. State of Bihar,¹⁰ The Hon'ble Supreme Court overturned the Hon'ble High Court's ruling, holding Section 124-A to be intra vires. The five-judge decision explained the rule on sedition by declaring unequivocally that “a individual has the freedom to say or write whatever he wants against the government, or its measures, in the context of critique or comment, so long as he does not provoke people to violence against the government founded by law or with the intent of causing public disorder.”¹¹

In the case of Shreya Singhal & Ors. v. Union of India,¹² the Supreme Court echoed these required protections, emphasising the difference between ‘advocacy' and ‘incitement,' and how prohibitions under Article 19(2) should be strictly construed to exclude ‘innocent expression.'

More recently, in Kanhaiya Kumar v. State (NCT of Delhi),¹³ the petitioner, who was convicted under section 124A of the Indian Penal Code, applied to the Delhi High Court for bail. “While claiming the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, one must keep in mind that Part-IV Article 51A of the Constitution comprises Fundamental Duties of Each and every Person, which represent the other half of the very same coin,” the Court said in deciding the case.

Thus, while the court has repeatedly established the constitutionality of the impugned section, the relationship between Section 124-A of the Indian Penal Code and Article 19 of the Indian Constitution continues to be strained and complicated. Article 19(1)(a) of India's Constitution grants freedom of speech and expression, stating that "all people shall have the right to freedom of speech and expression." ¹⁴

“Freedom of speech goes to the core of the fundamental right of an organised freedom-loving community to ‘impart and obtain knowledge about the popular interest,” the Supreme Court said in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors.,¹⁵ emphasising the value of freedom of speech. This dilemma was even acknowledged in Indramani Singh v. State of Manipur,¹⁶ wherein Section 124A was found to be partially void and partially valid. Exciting or attempting to cause mere disaffection is illegal, but the prohibition imposed by law in India under Article 19(2) on inciting hate or contempt for the government is applicable.

IV. Conclusion

Many incidents have occurred in recent years as a horrifying example of totalitarian governments suffocating opposition under the guise of sedition. First, in Bidar, Karnataka, sedition charges were filed against a teacher and a woman whose 6-year-old child participated in a school play against CAA-NRC.¹⁷ Second, 50 students from the Tata Institute of Social Sciences in Mumbai were charged with raising slogans in support of Sharjeel Imam, an activist, for allegedly giving provocative speeches at Aligarh Muslim University¹⁸ and third, 50 students from the Tata Institute of Social Sciences in Mumbai were charged with raising slogans in support of Sharjeel Imam.¹⁹

These instances are in contravention of the Supreme Court ruling in 1962 that clearly stipulates that an act of speech is only considered sedition if it incites or threatens to incite disturbance or violence. And where the requirement is not reached, the government continues to threaten citizens with sedition.

As a result, the term "sedition" is highly nuanced and should be used with caution. It's like using a cannon that shouldn't be used to kill a rodent, but the arsenal needs cannons, often as a threat and sometimes for firing. However, by repeatedly invoking this legislation in recent years, the government has provided us with the response. Any suggestions that laws like sedition have no place in a the largest democracy of the world have certainly fallen on deaf ears.

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