Sedition Law vis-a-vis Freedom of Speech and Expression

I. Introduction

The British Government introduced the Indian Penal Code in India after the Revolt of Independence in 1857 with the aim of codifying the country's criminal law under the same title. Though the Code³ developed by Lord McCauley, originally had no mention of the law of sedition, the section dealing with the provision of sedition was introduced by an Amendment to the Constitution in 1870⁴ and section 124A under Chapter IV of the Code was added. Notably, the word “Sedition” does not find any mention in Section 124-A of the Indian Penal Code or in the Defense of India Rule⁵. It is only found as a marginal note and is not an operative part of the section but merely provides the name by which the crime defined in the section will be known.

Mahatma Gandhi referred to this section as “the prince among the political sections of the Indian Penal Code (IPC) designed to suppress the liberty of the citizens”

Section 124A, without defining the word Sedition, laid down that “whoever, by any words, spoken or written, any visible signs or representation brings or attempts to bring into hatred or contempt or excites or attempt to excite any hatred or disaffection against the Government established by law with imprisonment for life along with fine or for a period upto three years along with fine.⁶” Thus, the section covered the crimes that came under the law but never properly defined the word “sedition. The section was introduced mainly for the purpose of introducing a section that would make any act or action of bringing or attempting to bring hatred or contempt towards the establishment of the Government punishable.

After Independence from British Rule, the word “sedition” was removed from the Constitution in the year 1948 as it was found to be in violation of the fundamental right of freedom of speech and expression u/a 19(1)(a), which provided the citizens with the absolute right of speech. However, the law of sedition was kept intact under the Indian Penal Code 1860.

The first ever case on Sedition was the Queen Empress V Jogendra Chandra Bose also known as the ‘Bangobai case’ under which the publisher of the paper, Jogendra Chandra Bose, was accused of inducing disaffection through his writings against the Age of Consent Bill. The section was used frequently to suppress the dissenting voice of people against the rule and act of the British against Indians. Prominent leaders such as Bal Gangadhar Tilak and Gandhiji were also accused under this law. Bal Gangadhar Tilak was accused for his speeches that allegedly incited violence and resulted in the death of two public officers, whereas Gandhiji was convicted for his demands of ‘self-rule’ or ‘Swaraj’ and the wake-up call for all the revolutionaries in his daily newspaper ‘Kesari. It was in this case that the scope of Sedition was further broadened by stating that “disaffection” was equal to “disloyalty” and the meaning of “feeling of disaffection” was extended to enmity, dislike, hostility, and any form of showcasing ill towards the government.

The section 124A of the Indian Penal Code 1860 initially read 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 Her Majesty or the Government established by law in British India, shall be punished with transportation for life or any shorter term, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.--The expression 'disaffection' includes disloyalty and all feelings of enmity. Explanation 2.--Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.--Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.”

Post-Independence, some amendments were made in the section, resulting in the words ‘Her Majesty’, ‘British India’, ‘British Burma’ and ‘Crown Representative’ being omitted by the amendment Act XXVI of 1955.The amendment also substituted the words ‘imprisonment of life’ in place of ‘transportation for life’ or any other shorter term.

II. Sedition in independent india

The law thus stayed in operation in independent India. In 1950, the Supreme Court, through two of its judgement, prompted the Government to bring the First Amendment to the Indian Constitution. The apex Court ruled against the Government in both cases and stated that public order was not enumerated as an exception under Article 19(2)⁷, which provides for reasonable exceptions to free speech and expression. The court, in its decision, held that the freedom of speech and expression could be curtailed only if it was aimed solely at undermining the state’s security. The then PM of India condemned the sedition law, brought the first amendment to the Constitution, and granted the state the right to impose “reasonable restrictions” on free speech.

Later in the year 1973, the Indira Gandhi Government, through the new Code of Criminal Procedure⁸, made section 124A a cognisable offence and gave the power to the police to arrest anyone accused under section 124A. This move made sedition a cognisable offence for the first time ever in independent India and gave more power to the law. The most alarming point of the law under this section is the language of the section, which is extremely vague. The section defines sedition as “any act which either brings or attempts to bring into hatred or contempt or excite disaffection towards the Government. ” The section has nowhere defined or provided any specification about which acts, if performed, would be considered as sedition. This vague definition has allowed the Government to bring any act or agitation by the people under the definition of sedition and has acted as a weapon in the hands of the Government to curb any public protest.

III. The increase in the number of sedition cases in india

According to the data recorded by the Ministry of Home Affairs and National Crime Records Bureau, there has been a rapid increase in the number of sedition cases post the coming in power of the present Government in 2014. According to the report of the news website “Article 14”, there has been a 28% increase in the number of sedition cases post-2014⁹. The report states that between 2014 and 2022, the authorities have filed more than 500 cases implicating more than 7000 people, showing an increase of 28% in the number of cases filed each year. Such a rise in cases raises an assumption that the law has been used to silence critics and dissenters, including journalists, activists, students, and politicians. The law has also been used to target individuals who criticize the ruling government or its policies.

As per the data of 2020, the highest number of sedition cases were filed in Manipur at 15; this was followed by Assam, which saw a total of 12 cases being recorded, followed by Karnataka at 9 cases, Uttar Pradesh recording 7, Haryana at 6 and Delhi at 5 cases.

Some of the notable cases of Sedition are -

• Case filed against Disha Ravi¹⁰ who had shared a “toolkit” for supporting the farmers’ protest.
• Case filed against a journalist, Kapan Siddique, who was on his way to report the Gangrape of a 19-year-old lady at Hathras and alleged relation with the PFI¹¹.
• Cases were also filed against activists Sudha Bharadwaj¹², Vernon Gonsalves¹³, Varavara Rao¹⁴, Hany Banu¹⁵, late Father Stan Swamy¹⁶, Arun Ferreira, Rona Wilson, Mahesh Raut and Sudhir Dhawale, for speeches at an Elgaar Parishad meeting ahead of the violence in Bhima Koregaon on the occasion of the bicentennial anniversary of the 1818 battle.

A change in the mindset was observed post-2010 and two Private Member Bills were introduced in the Parliament, the first in the year 2011, which was introduced by D Raja, the Rajya Sabha MP from CPI and the other was introduced in the year 2015 by Shashi Tharoor the Lok Sabha Mp from Congress. Both the bills aimed at curtailing the meaning of the word “sedition” and who could be arrested under the law. A recommendation was also made by the Law Commission in 2018 suggesting that the word ‘sedition’ should be substituted.

IV. Law commission on sedition

The Law Commission of India dealt with Sedition for the very first time in 1968. Then in the year 1971 and recently in the year 2018.

The 39th Law Commission’s report of 1968 dealt with sedition in respect of the penalty which the section imposed. The report observed that the prescribed punishment of life imprisonment was too grave and not proportionate to the object it sought to achieve.

The 42nd Law Commissions report of 1971 emphasized on the need to include mental element as an ingredient to the crime of sedition. It also recommended including the other two organs, Judiciary and Legislature along with the Government against whom disaffection can be committed.This report restricted the maximum punishment to 7 years imprisonment along with fine.

Thus, the report recommended taking measures that balance free speech and misuse of sedition charge. The Law Commission’s 42nd Report in the year 1971 had further supported the idea to expand the scope of Sedition to include Constitution, Legislature and Judiciary.

V. Supreme court on sedition law

The Court in 1962 upheld the law of Sedition in the Kedar Nath¹⁷ case where it stated: "Continued existence of the Government established by law is an essential condition of the stability of the State. That is why ‘sedition’ comes under Chapter VI relating to offences against the State. Hence any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute.” The Court, thus, in this case made an attempt to limit the law only to acts that incited violence or attempted to cause public disorder or cause disturbance to public peace.

There have been several cases post the Kedar Nath that have tried to limit the scope of Sedition. These cases include judgements like Balwant Singh v State of Punjab (1995), Bilal Ahmed Kaloo v State of Andhra Pradesh (1997) and Common Cause v Union of India (2018) have limited the scope of sedition. The apex court through these cases that charges of sedition cannot be brought just for criticising the government or its policies but any seditious act must have implicit in them the idea of subverting government by violent or illegal means.

VI. Freedom of speech and expression

In a democratic country, freedom of speech and expression forms a major role in forming public opinion on all aspects of a country. The right to speech and expression has been described as a human right as well as a natural right, with many International Organisations declaring it as a fundamental right. The Constitution of India¹⁸ also recognises the right to freedom of speech and expression as a Fundamental Right under Article 19(1)(a) and if violated, the individual can directly approach the Supreme Court.

Article 19(1)(a) states that all citizens of the country shall have the right to freedom of speech and expression. Thus, this right provides the freedom to a citizen to express himself through any medium like writing, word of mouth, printing, drawing etc. and also includes the right to propagate and publish opinions. However, this right is not absolute and the freedom of speech and expression is subject to reasonable restrictions, the provision which is mentioned under Article 19(2). These reasonable restrictions are put to ensure that the right is equally available to all citizens and ensure its reasonable exercise.

VII. Sedition vis a vis freedom of speech and expression

The Constitution of India was enacted in the year 1949, which granted the people of India certain fundamental rights provided under Chapter III, which were available to all in order to protect them from the arbitrary functioning of public authorities. The Fundamental rights are mentioned under Articles 12 to 35, and though all are equally important, mention must be made of three rights without which no democratic country can exist. These rights are often called the “Golden Triangle” by the Judiciary, as they are essential to provide protection to all the citizens of the country. The three Articles constituting the “Golden Triangle” are Article 14, which talks about the Right to Equality, Article 19, which talks about the five freedom provided to the people of India and Article 21, which talks about the Rights and Liberty of all.

However, the enactment of Article 19(1)(a) in the presence of Sedition law mentioned under IPC section 124A created complexities as Article 19(1)(a) provided the right to every person of freedom of free Speech and Expression. The validity of section 124A of the IPC in the presence of Article 19(1)(a) was thus discussed in three landmark Judgements: Romesh Thappar V Madras, Tara Singh V Gopi Chand¹⁹ and Ram Nandan V State²⁰.

The first case to consider Section 124A IPC after independence was the Romesh Thappar²¹ case. The Supreme Court, in this case, observed that an act would fall under the reasonable exception to freedom of speech and expression if the exercise of such freedom would result in threatening the security of the State or overthrowing the Government. As a result, an amendment was brought in Article 19 (2), and the words “friendly relation” and “Public order” were added to the article. With the introduction of this amendment, those acts which had the tendency to threaten public order or friendly relation to the state were not given the protection under freedom of speech and expression.

In Tara Singh V Gopi Chand, Punjab and Haryana High Court declared section 124A as void as it contravened Article 19(1)(a).

The Allahabad High Court, in the case of Ram Nandan also held section 124A as unconstitutional and void.

In the Kedarnath Singh V State of Bihar case, the constitutional validity of the sedition law under IPC section 124A was finally proved. The constitutional Bench that heard this case put the sectional on a different pedestal and the court in this case distiguished between ‘Government established by the law’ and ‘the persons for the time being engaged in carrying on the administration.’ It asserted that the Government established by law is a visible symbol of the State, therefore, the existence of the sedition law is a necessary condition for the stability of the State. The Courts thus laid down that the fair criticism of the Government policies and actions irrespective of how hardly worded, if not made with the tendency to incite violence would not be considered as a seditious act.

Later, in the case of Shreya Singhal V the Union of India, three tests were laid down by the Supreme Court of India to test the freedom of speech and expression. These three tests were-

i) Debate, ii) Advocacy and iii) Incitement. Debate and Advocay are the essence and soul of Article 19(1)(a) and therefore, till the acts are within these two, the right of freedom of speech and expression would be available. But, as soon as the act falls under the definition of incitement, the person is not protected under 19(1)(a) and the case is treated under reasonable restriction under 19(2).

VIII. Conclusion

Thus through the above discussion, we see the impact of the sedition law on freedom of speech and expression in India. The paper has reviewed the history and context of sedition law in India and analyzed its use in recent times to understand its implications on democratic values. The research has found that sedition law, if not regulated, can be used to suppress dissent and undermine the democratic principles of freedom of speech and expression.

The paper has also pointed out the important role played by media and civil society organizations in challenging the use of sedition law to promote democratic values and protect the fundamental rights of citizens.

The paper also highlights that the sedition law should not be misused to target individuals who express dissenting opinions and that there is a need for an open and democratic society that encourages debate and discussion.

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IX. References

• Basu, S. (2020). Sedition law in India: Need for re-evaluation. Economic and Political Weekly, 55(7)
• Bhardwaj, S. (2021). Sedition Law in India: An Instrument of Controlling Dissent. Indian Journal of Law and Society, 12(1)
• Dhawan, R. (2019). The Sedition Law in India: An Analysis. Journal of Politics & Governance, 7(2)
• Gandhi, M. (2021). Sedition Law in India: A Study of Its Misuse. South Asian Journal of Law and Human Rights
• Lohani, R., & Roy, S. (2021). Sedition Law in India: A Critical Analysis. International Journal of Law and Social Sciences,
• Menon, V. (2021). Sedition Law in India: A Colonial Legacy or a Modern Necessity?. Journal of Contemporary India Studies, 11(1).
• Mookherjee, M. (2020). Sedition Law in India: An Instrument of State Oppression. Journal of Indian Law and Society, 11(1).
• Sharma, S. (2021). The Sedition Law in India: An Obsolete and Misused Law. Journal of Legal Studies, 26(1).
• Singh, V. (2019). Sedition Law in India: An Overview. Journal of Indian Law and Society, 10(1).
• Arun, T. (2021). Sedition Law in India: An Instrument of Political Repression. Asian Journal of Political Science, 29(2).

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