The primacy of freedom of speech and expression is widely recognized as a fundamental requirement for personal liberty. It holds a privileged status among various freedoms, providing support and safeguarding all other liberties. It has been accurately stated that it serves as the foundation for all other freedoms. Freedom of speech plays a pivotal role in shaping public sentiment and influencing perspectives on social, political, and economic issues.
The Preamble to the Indian Constitution is committed to ensuring the freedom of thought, expression, and belief for all Indian citizens. This commitment is further reinforced by Article 19(1) (a), which guarantees the fundamental right to free speech and expression. This right plays a crucial role in fostering a “marketplace of ideas,” enabling speech that promotes democracy, upholds the watchdog theory, encourages the pursuit of truth, and respects individual autonomy. However, it is important to note that fundamental rights are not absolute, and therefore, certain reasonable restrictions can be imposed in the interest of public order, decency, morality, prevention of incitement of offence, and so on.
The restriction of sedition has been deemed as a “reasonable restriction” based on the grounds of maintaining “public order” and ensuring the “security of the State.” Furthermore, the inclusion of the phrase “in the interest of public order” in Article 19(2) through the first constitutional amendment is viewed as an attempt to validate the interpretation put forth by Justice Fazl Ali. He asserted that “public order” is closely linked to the state’s “security.” The addition of the words “in the interest of” before “public order” in Article 19(2) was perceived as granting significant powers to the state to limit free speech.
Sedition centralizes the freedom of individuals and it emanates from the State only. The State then decides what should be the acceptable form and content of the criticisms it faces. How then can it be a free and unprejudiced freedom to speak against the policies of the Government when the Government itself decides what would be their validity?
Decoding the Definition of Sedition Law in the Indian Penal Code (IPC): A Comprehensive Analysis
Section 124A of the IPC defines sedition 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, the government established by law
in India, shall be punished with imprisonment which may extend to three years, to which a fine may be added, or with fine.”
In simpler terms, according to the IPC, anyone who intentionally tries to generate hatred, contempt, or disloyalty towards the government can face punishment under the sedition law. Sedition in India is a cognizable, non-compoundable and non-bailable offence whose punishment range from a fine to three years or life imprisonment. 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.
Controversial misuse of the law
Section 124A of the IPC is frequently and unfairly misused rather than being appropriately applied. It has become a convenient tool for the State to undermine dissent and suppress any kind of opposition by unjustly invoking charges under this section. The recent instances of using this law against media persons, activists, human rights champions, journalists, cartoonists, and others have demonstrated that it is being used to silence voices that express views different from what the State desires to hear. People such as Vinod Dua have been booked under sedition for criticizing the government allegedly stating the lack of testing facilities during COVID-19 and that the Prime Minister had garnered votes through acts of terrorism. The Court held that the statements made in the respected circumstances can at best be termed as an expression of disapprobation of the actions of the government and its functionaries so that the prevailing situation can be addressed quickly and efficiently. They were not made with the intention of inciting violence or public disorder. Hence, they would be covered as an exception to sedition.
This pattern of misuse reveals a tendency to stifle free expression and discourage individuals from expressing opinions that challenge or question those in power.
Political vendetta is another alarming aspect of the Sedition law’s misuse. Charges of sedition have been filed against opposition leaders or members of rival political parties, indicating misuse of the law for settling political scores or suppressing political opponents. This undermines the credibility of the law and raises questions about its impartial application.
Court rulings on sedition
The Indian Courts, on multiple occasions, have dealt with the interpretation of Section 124A and have laid down the conditions where a speech could be considered seditious. One notable case is Kedarnath Singh v. State of Bihar1, where the Supreme Court provided clarification on the conditions under which a speech could be considered seditious.
In the Kedarnath case, the Supreme Court narrowed down the scope of sedition, stating that it should be limited to activities involving incitement to violence or an intention or tendency to create public disorder or disturb public peace. The court’s ruling emphasized that mere criticism of the government or expressing unpopular opinions should not automatically be considered seditious unless they meet the aforementioned conditions. This landmark judgment helps provide clarity on the interpretation of the sedition law in India. It highlights the importance of differentiating between legitimate exercise of free speech and acts that genuinely pose a threat to
1 1962 AIR 955
public order or incite violence. The Kedarnath ruling serves as a reference point for subsequent cases involving charges of sedition and has played a significant role in guiding courts in their assessment of seditious speech or acts.
The Supreme Court’s Stance: Examining the Judiciary’s position
The Supreme Court of India has played a pivotal role in defining and interpreting the legality and applicability of Section 124A of the IPC, commonly known as the sedition law. Over the years, the court has pronounced significant judgments that have shaped the understanding of sedition and its constitutionality. Let’s explore some of the key rulings that have influenced the court’s stance.
The legal debate surrounding Section 124A began in 1958 when the Allahabad High Court, in the case of Ram Nandan vs State of Uttar Pradesh2, declared Section 124A as ultra vires and in violation of Article 19(1) (a) of the Indian Constitution, which guarantees the right to freedom of speech and expression. However, in 1962, the Supreme Court addressed the constitutional validity of Section 124A in the landmark case of Kedar Nath Singh vs State of Bihar.
In the Kedar Nath Singh (supra) case, the Supreme Court established that for an act to be considered seditious under Section 124A, the spoken or written words must have the potential to incite violence or cause public disorder. The court’s ruling emphasized that mere criticism of the government or its policies does not constitute sedition. This judgment effectively overruled the Allahabad High Court’s decision and set the legal precedent for sedition cases in India.
The Supreme Court further reinforced its stance in subsequent cases, such as Balwant Singh and Anr vs State of Punjab3 (1995), Bilal Ahmed Kaloo vs State of Andhra Pradesh4 (1997), and Common Cause vs Union of India5 (2018). In these cases, the court reiterated that sedition charges cannot be invoked solely based on raising slogans or expressing dissenting views, unless there is evidence of incitement to violence or actual occurrence of violence.
In recent times, several cases have reignited the discussion on sedition and its constitutionality. One such case is Kishorechandra Wangkhemcha vs Union of India6 (2021). Manipur-based journalist Kishore Wangkhemcha was arrested in 2018 for criticizing the Manipur government in
2 AIR 1959 All 101
3 1976 AIR 230
4 (1997) 7 SCC 431
5 (2017) 9 SCC 499
6 (2021) 6 SCC 177.
a video on social media. Similarly, Vinod Dua vs Union of India7 (2021) involved veteran journalist Vinod Dua facing charges of sedition for presenting a critical analysis of the government’s response to the COVID-19 pandemic.
Another notable case is Rajat Sharma vs Union of India8 (2021), in which former Jammu and Kashmir Chief Minister Farooq Abdullah’s remarks on the abrogation of Article 370 were deemed potentially seditious by the petitioner. However, the Supreme Court ruled that expressing a point of view that differs from the government’s decision cannot be considered seditious.
The Galwan Valley Clashes case (Zakir Hussain vs UT of Ladakh9, 2021) involved the filing of an FIR against individuals for making objectionable remarks against the armed forces amidst the tensions between India and China. The petitioner argued that the police had no authority to file the FIR without a complaint from a District Magistrate.
The Hon’ble Supreme Court of India in May 2022 suspended the operation of a provision of sedition. The Court ordered the re-examination of the provision and till then no fresh cases under the provision had to be filed. Those already booked under the sedition law, and are in jail could approach competent courts for appropriate relief and bail.
Unravelling the Controversy: Exploring the Backlash Surrounding the 279th Law CommissionReport”
Recently, the 279th Report on the ‘Usage of the Law of Sedition’ was published by the Law Commission of India. The report suggests the continuation of the existing colonial-era provision of sedition in the law and proposes an increase in the prescribed punishment from three years to seven years. Additionally, the report attempts to provide clarity by defining the term “tendency” as a mere inclination to incite violence or cause public disorder. This definition contradicts established legal principles and previous interpretations, potentially undermining years of jurisprudence on the matter.
- The Report rejects the idea of repealing the sedition law based on its colonial origins, stating that being a colonial legacy is not a valid reason for its It justifies the
7 2021 SCC OnLine SC 414
8 (2021) 5 SCC 585
9 2021 SCC OnLine CAT 15915
102021 SCC OnLine Del 1249
law’s historical usage during the colonial era by explaining that a foreign government could not tolerate even mild criticism due to perceived threats.
- According to the Report, Section 124A of the IPC aims to punish the harmful inclination to incite violence or create public disorder while disguising it as the exercise of the right to freedom of speech and The Report recognizes India as a democratic country where individuals have the freedom to engage in constructive criticism of the government in a manner that promotes a healthy democratic environment.
- The Report shows a lack of understanding regarding the colonial era and colonialism as a system of It overlooks the misuse of laws in India, including sedition, and the chilling effect on freedom of speech and expression. It fails to address these crucial issues and their impact on democratic values and individual rights.
The Law Commission suggests that the manner in which the sedition law is employed depends on who holds power — oppressive under a colonial government, but necessary and proportionate in a democratic government. However, by advocating for the retention of the sedition law, it raises concerns about the resilience of democracy to withstand criticism. This stance raises doubts about the ability of democracy to tolerate dissent and calls into question the strength of democratic values in the face of criticism.
According to the National Crime Records Bureau (NCRB), the conviction rate in sedition cases remains low. In 2020, the conviction rate was 33.3%, while in 2019 it was 3.3%, in 2018 it was 15.4%, and in 2017 it was 16.7%. Instances such as the arrest of journalist Siddique Kappan, who reported on the Hathras rape and murder case, highlight the State’s efforts to suppress unwanted criticism perceived as a potential threat to its regime. This misuse of the law echoes colonial times when dissent was suppressed out of fear of government disaffection and potential uprisings.
Law Commission reports play a significant role in court deliberations regarding the constitutionality or amendment of a law, especially when a purposive interpretation is sought. These reports should consider the perspectives of all stakeholders involved, avoiding a biased narrative that benefits a specific entity. A comprehensive analysis of the sedition law, taking into account various viewpoints, would contribute positively to Indian jurisprudence. However, a one- sided and inadequately researched report can be detrimental to all parties involved, causing more harm than good. It is crucial for such reports to provide a balanced and well-researched analysis for the benefit of the legal system and society as a whole.
Conclusion
The Supreme Court has taken a significant step by suspending the application of Section 124A of the IPC, acknowledging the need to strike a balance between the security interests of the state and the civil liberties of its citizens. While sedition should still be recognized as an offense, it shall be
emphasized that it should only be employed in extreme cases when there is a genuine threat to the security of the state, rather than being invoked simply in response to government criticism. This decision reflects a commitment to protect the rights of individuals while ensuring the integrity and stability of the nation. Implementing legal safeguards to prevent arbitrary enforcement and ensure accountability is crucial. It is also important to raise awareness and promote education on the significance of freedom of expression. The judiciary and lawmakers have a vital role to play in preventing misuse and protecting democratic values.
Authors: Ms. Shivee Pandey Sinha, Managing Partner, Sinha & Partners, Advocates & Solicitors, Ms Tanya Gangwar, a 2nd-year student at Gujarat National Law University, Gandhinagar.