Starting on 5 May, the Supreme Court will start the final hearing in the bunch of petitions challenging the legality of the sedition law
It survived for seven decades despite multiple petitions challenging its constitutionality; it survived three near-deathblow judgements; and, it survived despite its proven history of abject misuse. Now, Section 124A of the Indian penal code (IPC) — which defines and makes sedition a punishable offence — is set to face fresh scrutiny. Starting on 5 May, the Supreme Court will start the final hearing on the bunch of petitions challenging the legality of the sedition law.
On 1 December 1948, while arguing against the inclusion of ‘sedition’ as a reasonable restriction on the freedom of speech and expression, KM Munshi, who was one the most prominent members of India’s Constituent Assembly, said that sedition by its definition has been very simple but “in practice, it has had a curious fortune”.
He argued how a century and a half ago holding a meeting or conducting a procession was considered sedition. He explained how the sedition law “was sometimes so widely construed” that in a particular case, criticism of a district magistrate was argued to be taken as act sedition.
Munshi went on to argue that “now that we have a democratic government a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State. Therefore, the word sedition has been omitted.”
On 15 July 2021, Chief Justice of India (CJI) NV Ramana called sedition “a colonial law that suppresses freedoms”. CJI Ramana, while highlighting the fact that sedition was an invention of colonial rulers that was used against MK Gandhi and BG Tilak, pointed out the extremely low conviction rate and asked the government why it had not considered repealing this law along with the hundreds of other archaic laws it had expunged from the statute books.
Between December 1948 — when our Constituent Assembly decided against including sedition in the Constitution — and July 2021 — when the topmost judge of India’s apex court raised fundamental questions on the relevance of the sedition law — India had seen 14 prime ministers and 48 chief justices. Each one of them was constitutionally empowered to strike down this often-misused law.
In the last seven decades, thousands of sedition cases on frivolous grounds have been registered against people. In most cases, its application was challenged. And, in most of these cases, respective courts raised serious concerns regarding the misuse of this law.
But the law survives; it continues to thrive, continues to be used, and is often misused.
Now, as the Supreme Court is set to decide its fate, brief scrutiny of the landmark judgements shows that the arbitrariness of the sedition law and its adverse impact on free speech have been acknowledged by our courts on multiple occasions.
After the commencement of the constitution, three high court judgements declared the sedition law unconstitutional and void till its legality was restored by a Supreme Court judgement in 1962.
Tara Singh Gopi Chand was the first case related to sedition in independent India that came for adjudication before the Punjab and Haryana High Court. The court declared the sedition law as void, as it said: “There can be no dispute that Section 124A is a restriction on the freedom of speech and expression which is guaranteed to all citizens by Article 19 of the Constitution.”
In the Sabir Raza case dating back to 1958, the Allahabad High Court made an important observation. The judgement stated, “Disaffection towards the Government may be advocated. Exciting such a feeling towards the polity or organised form of Government established by the Constitution is punishable under the Section, but as in the case of public order, it is a far cry to say that the security of the State requires a restriction on exciting such a feeling.”
The judgement made it clear that the security of the State would be considered under the threat “only if there is a threat to the system of government established by the Constitution” and “it is threatened neither by a threat to change the persons holding the offices of the President, the Governor and the Minister nor by a mere exciting of a feeling of hatred, contempt or disaffection towards the system of government”.
The same year in the hate speech case titled Ram Nandan versus State, the three-judge bench of the Allahabad High Court held the sedition law as ultra vires of Article 19(1) of the Constitution.
However, in yet another hate speech case, the constitutionality of the sedition law was upheld, though the apex court issued riders on its application.
The case had its genesis in a political rally in Bihar where a man named Kedar Nath Singh who was a member of the Forward Communist Party, while criticising the Congress, said: “The people of India drove out the British from the country and elected these Congress goondas to the gaddi. As we drove out the British, we shall strike and drive out these Congress goondas as well.”
Giving a call for “revolution”, Singh said that “a revolution will come and in the flame of which, capitalists, zamindars and Congress leaders will be reduced to ashes, and on their ashes will be established a government of the poor and the downtrodden people of India”.
His speech attracted sedition charges and he was convicted for the same by the sessions court. The conviction was upheld by the Patna High Court. He appealed to the Supreme Court against the high court judgement. The apex court while upholding the validity of the sedition law put riders on its use by attempting to differentiate between which act amounts to sedition and which does not.
The court held, “However strongly worded, expressing disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence would not attract the penal offense.”
Starting from Tara Singh Gopi Chand judgement that dates to November 1950, to the recent case of a 22-year-old environment activist being charged with sedition for sharing a toolkit related to then ongoing farmers’ protests, on social media, the sedition law has been construed so widely that its scope of applicability has widened with each respective case.
In 2012, political cartoonist Aseem Trivedi was charged with sedition as he was accused of defaming Parliament, the Constitution of India, and the Ashok Emblem and attempting to incite hatred and disrespect against the government.
In this case, the Supreme Court issued certain guidelines to be followed by police while invoking Section 124 A of the IPC. The pre-conditions enunciated by the apex court was:
(i) The words, signs or representations must bring the government (Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the government and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder; (ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the government; (iii) Comments expressing disapproval or criticism of the government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A.
In the case related to climate activist Disha Ravi who was charged with sedition for allegedly editing a toolkit related to the ongoing farmer protest last year. The court held that “sedition cannot be invoked to minister to the wounded vanity of the government”.
The Supreme Court, on 3 June 2021, quashed the FIR registered against journalist Vinod Dua who was charged with sedition for his “critical remarks” against Prime Minister Narendra Modi and the Union government. The court held, “A citizen has a right to criticise or comment upon the measures undertaken by the government and its functionaries, so long as he does not incite people to violence against the government established by law or to create public disorder; and that it is only when the words or expressions have pernicious tendency or intention of creating public disorder or disturbance of law and order that Sections 124A and 505 of the IPC must step in.”
Sedition, which translates into Rashtradroh in Hindi, has been invoked on varying grounds ranging from “anti-national” sloganeering on a university campus to “objectional depiction” of Parliament by a cartoonist. However, the result in most of these cases has been similar, which is the acquittal of the accused persons.
Any act becomes an offence under Section 124A when it attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law.
In the Kedar Singh case, the Supreme Court held that the “government established by law is the visible symbol of the State and the very existence of the State will be in jeopardy if the government established by law is subverted. Hence the continued existence of the government established by law is essential to the stability of the State. That is why ‘sedition’, as the offense in section 124A has been characterised, comes under Chapter VI relating to offenses against the State”.
However, the court tried to distinguish “the government established by law” from the persons for the time being engaged in carrying on the administration. The judgement reads, “The expression ‘the government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration.” The court held that the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
In other words, disloyalty to the government established by law is not the same thing as commenting in strong terms upon the measures or acts of government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”
The law of sedition is under scrutiny once again. Recently a parliamentarian and her legislator spouse were arrested on sedition charges by Maharashtra Police as they announced that they would recite the Hanuman Chalisa in front of Maharashtra chief minister Uddhav Thackeray’s residence.
As the Supreme Court decides on the use and constitutionality of the sedition law, the past judgements will certainly have its bearing. While Section 124A managed to remain in our statute books for all these years, the judiciary has not been very supportive to its existence. Whether it succeeds in surviving this time too or is consigned to the pages of legal history will be decided soon.
The author is a journalist and researcher based in Delhi. He has worked with The Indian Express, Firstpost, Governance Now, and Indic Collective. He writes on Law, Governance and Politics. Views are personal.
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