The Article is written by Dev Agarwal, a student of Heritage Law College.
The debate regarding whether sedition laws should stay or should go away from our penal code has been going on since quite a few times now. The history of the provision of sedition in the Indian Penal Code dates back to the year 1870 when this section was inserted in the Code with the intention of diminishing the voice of freedom fighters and dissenters of the British rule. Some notable freedom fighters who were charged with this provision includes Bal Gangadhar Tilak was charged with sedition for a speech which he made in 1897, Mahatma Gandhi was also charged under the same section in 1922. However, in the Constituent Assembly, Sardar Vallabhbhai Patel and C. Rajagopalachari wanted a restriction in the seditious speech and not a complete removal of it, C. Rajagopalachari, who was himself an ardent believer of liberty vouched for a soft core version of seditious, this clearly shows why Indian State needed it. Section 124A of the Indian Penal Code provides that “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, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”
If one is to give a plain reading of the provision, it will be understood that by merely saying anything against the Government of India (or State Governments) one can be charged under this section. However, it is not true. It is well settled that criticism of the democratically elected government or its policies or the agencies of the Government does not amount to sedition.
What is sedition then?
In Kedar Nath Singh vs State Of Bihar [1962 AIR 955, 1962 SCR Supl. (2) 769], the Supreme Court of India laid down certain guidelines as to what may be considered as sedition, it was a liberal judgment as it held that just by criticizing the government, one cannot be charged under sedition or defamation. In order for a person to be charged under this section, it was necessary that the actions of a person charged under the provision lead to some sort of violence, the Court also observed that creating hatred, contempt or disaffection towards the government by resorting to violent means amounts to sedition. If a person says “Pakistan Zindabad” it is not sedition but if one says “Bharat Murdabad” then this amounts to sedition as there is an element of hatred against the State of India. Slogans like. “Pakistan Zindabad or China Zindabad” will amount to sedition only in that circumstance when the nation is a declared enemy of India or during wartime with that particular nation. One of the most necessary elements to decide what statements or actions amount to sedition is hatred or disaffection for the government as provided in the Code. It is necessarily out of hatred that an individual will seek to do something violent in nature with the only aim to destroy the country or bring in the so-called “revolution”. Thus, it becomes a very important and difficult task for the lawmakers and judiciary to determine and set parameters for such determination of hatred for the nation, in which the current provision is not sufficient.
Arguments from the other side There are two major arguments which generally appears from the individuals who feel that sedition should not be present in a liberal democracy like India,
- SEDITION LAWS ARE DRACONIAN AS THEY WERE MADE BY THE BRITISH
This argument is perhaps the vaguest argument ever made and shows the ignorance of people who neither understand law nor have any idea of it. The argument is often supported by citing the examples of decriminalization of adultery and consensual sexual conduct between adults of the same sex, the narrative which is put forward is that since the two were draconian, made by British and violated Fundamental Rights enshrined in the Constitution, it had to go which is true but just because something was legislated by British, that does not mean it has to go. The Indian Penal Code itself was legislated by British and there are hundreds of such Acts which were made by British and going by the logic of this argument, India should scrap all of them
- SEDITION IS VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION
This argument is substantial as it does violate Article 19(1)(a) of the Constitution which empowers Freedom of Speech and Expression to citizens of this country, however in Kedar Nath Singh vs. the State of Bihar, the Supreme Court held that Freedom of Speech and Expression can be restricted on the grounds of public order as provided in Article 19(2) thus the Freedom of Speech and Expression is not absolute and can have reasonable restrictions. Freedom of Speech and Expression must have a limit.
In a country like India where the population is very volatile and individuals are sensitive on issues like religion, there has to be a restriction on freedom of speech and expression, because if this is not limited and individuals exercise it in such a way which causes riot and communal clashes, then the entire society will be uprooted in no time. Politicians, religious leaders, certain movements, political parties also add as to why it should not be absolute in nature. For example, tomorrow if a politician or a religious leader is heard announcing the destruction of another religion, this will cause a riot. Thus the idea behind limiting the Freedom of Speech and Expression in both the cases is to ensure no violence occurs and even if it does it is punishable under the law.
There must be changes to the sedition laws, the legislature may amend the existing provisions in accordance with the guidelines of the Supreme Court laid down by it in various cases as to what shall be considered as sedition. According to Lord Acton, “Power corrupts, and absolute power corrupts absolutely”. There is no denying to the fact that various governments in power have misused this provision to shut down dissenters but then again if we demand that the entire concept of having sedition laws should be scrapped then it is not a prudent thing to ask for. In a country like ours, which has witnessed betrayal from our own people right from ancient India to modern India. The idea of not having sedition laws risks our own liberty and sovereignty and perhaps our identity. Hence, John Pournelle rightly said “Freedom is not free. It is bought at a high price. It can be squandered cheaply.”
- Harshvardhan, ‘The Great Repression’: The history of sedition in India, National Herald India, 01 March 2020, https://www.naticom/reviews-recommendations/the-great-repression-the-history-of-sedition-in-india#:~:text=The%20history%20of%20sedition%20law,of%20the%20Indian%20freedom%20movement.&text=Though%20the%20law%20was%20inducted,Vern20Nationalismacular%20Press%20and%20rising
- Abhinav Chandrachud, History of sedition, The Frontline, 16 September 2016, https://frontline.thehindu.com/the-nation/history-of-sedition/article9049848.ece
- Kedar Nath Singh vs State Of Bihar [1962 AIR 955, 1962 SCR Supl. (2) 769]
- Soli J. Sorabjee, Sedition law should stay, but its interpretation must be specific and not wide-ranging as in British era, Times of India, 19 February 2016, https://timesofindia.indiatimes.com/blogs/toi-edit-page/sedition-law-should-stay-but-its-interpretation-must-be-specific-and-not-wide-ranging-as-in-british-era-2/