International Journal of Law and Legal Jurisprudence Studies :ISSN:2348-8212:Volume 3 Issue 3 31
SEDITION LAW IN INDIA: A CONCISE ANALYSIS
Mr. NageshSawant,
Assistant Professor,
Symbiosis Law School, Pune
E-mail: [email protected]
Abstract:
In the backdrop of the recent controversies in Gujarat (Patel Quota Agitation), the
JNU Students Agitationand cases previously registered against many persons
including Mahatma Gandhi, BalGangadharTilak, BinayakSen1, Arundhati Roy2, Dr. E.
RatiRao3, Bharat Desai4, ManojShinde5, V Gopalaswamy (Vaiko)6. Many issues were
raised in relation to sedition law in India and its use by the Government.Many a time
it is alleged that the Central & State Governments use this law arbitrarily. Hence, an
attempt is made here to discuss important issues in relation to sedition law in India.
Keywords: Sedition,Freedom of Speech and Expression, Incitement to Violence
Introduction:
In a country like India, there is always a rift between the government and its people.
Many issues arise in day today life. Under the garb of welfare of the people, the
government introduces different kind of policies, schemes, plans etc. On the other
hand, there are resenting voices of people against the government alleging that the
policies, schemes, plans etc. are part of the ideological agenda of a ruling political
partywhich take away the rights of the people. Hence, the conflict is inevitable. In
1. Binayak Sen is a PUCL activist. He was arrested for helping to the underground moist group in
Chhattisgarhon May 14, 2007.
2. Arundhati Roy, a renowned writer, was booked on charges of sedition by Delhi police for their "anti-India"
speech at a seminar in Delhi in Oct, 2010.
3. Dr. E RatiRaowas arrested by police in Mysore accused of publishing the PUCL bulletin that is "favoring
Naxals and Muslims and is propagating that the police are killing innocent people in the name of
encounter". (See: http://www.thehoot.org/story_popup/-sedition-charges-despite-the-supreme-court-
8513)
4. The Times of Indias resident editor at Ahmadabad who faced charges along with a senior reporter and a
photographer, for questioning the competence of police officials and alleging links between them and the
mafia; (See: http://www.newslaundry.com/2016/02/16/a-quick-history-of-sedition-law-and-why-it-cant-
apply-to-jnus-kanhaiya-kumar/)
5. Manoj Shinde, an editor of Surat Samna was arrested by Ahmadabad police on publication of news
against the State Government.
6. V Gopalaswamy (Vaiko),a politician, was arrested by Tamil Nadu police alleging that he helped the LTTE.
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order to control the resenting voices, the government uses different means and
among that law is an importanttool and one of the laws is sedition law.
The offence under S. 124 A captioned as Sedition is closely allied to treason-an
offence against the state. Many personalities including the Father of the Nation and
several freedom fighters have tried and have been punished during the imperial rule
under the above section.7 But the things have undergone significant change after
independence. TheIPC provision is read with the constitutional provisions to see
whether the right to freedom of speech8 is exercised in permissible limits and whether
the action of the State against any person is just or not. This article covers different
issues in relation to sedition law in India.
Methodology
This article is purely based on the doctrinal method of research. The author has
referredliterature which includes books, journals, news articles and items, online
literature etc.
Observations:
In recent past, the ruling Central & State Governments in India applied the sedition
law against many persons by alleging that they are anti-national. We find that there are
different ideas of nationalism of different groups. Sometimes it becomes complicated
to recognize the true nature of nationalism. Hence, some important clarification is
needed to comprehend the topic in the right sense. When any person is considered to
be anti-national, the sedition law cannot be applied because there is fundamental
difference between the two important terms i.e. anti-national & anti-state. For that
purpose, first it is necessary to know what is meant by Nation and State. Nation is a
political term whereas State is an administrative term. A political term may have
multiple interpretations, but generally, state does not have multiple
interpretations.9Hence, the Sedition Law is applicable only when the act of a person is
anti-state and not anti-national.
Next important issue is about the concept of sedition. The Supreme Court of India in
Nazir Khan v. State of Delhi10 discussed the meaning & objects of sedition. The court
opined that sedition is a crime against society nearly allied to that treason and it
frequently precedes treason by a short interval. Sedition in itself is a comprehensive
th
7. Ratanlal &Dhirajlal, the Indian Penal Code, 34 Edi, 2014, P. 262
8. Article 19 (1) (a) of the Constitution of India provides for the right to freedom of speech & expression for
citizens.
9. The Indian Express dated March 25, 2016 Why 85 Yrs after his hanging, Bhagat Singh remains relevant, P.
7
10. (2003) 8 SCC 461
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term and it embraces all those practices, whether by word, deed, or writing, which are
calculated to disturb the tranquility of the State, and lead ignorant persons to
endeavour to subvert the Government and laws of the country. The objects of
sedition generally are to induce discontent or dissatisfaction, to create public
disturbance, or to lead to civil war; and the very tendency of sedition is to incite the
people for insurrection or rebellion.
To apply Section 124 A of the Indian Penal Code, the two essentials are required:
1. Bringing or attempting to bring into hatred or contempt or exciting
orattempting to excite disaffection towards the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written,or
(ii) by signs, (iii) by visible representation.
In addition to the above law, the Parliament of India by the Constitution (Fortieth
Amendment) Act incorporated the Prevention of Publication of Objectionable Matter
Act, 1976 in the Ninth Schedule. Objectionable matter has been defined as that which
incites disaffection towards the government or to commit any offence or to interfere
with the production and distribution of essential commodities or seduction of any
member of Armed Forces, defamation of the President, Vice-President, Prime
Minister, Speaker, or Governor of a State. Restrictions imposed on any of these
grounds could not be challenged on the ground of unreasonableness. Also with the
inclusion of fundamental duties11 by the Forty-second Amendment, the implication
that nobody should exercise his freedom of speech and expression so as to violate the
fundamental duties, and it is likely that the courts may be inclined to give a
harmonious interpretation to the restrictions imposed on the exercise of the right for
the enforcement of the fundamental duties, as they have done in the case of
fundamental rights and the directive principles of State Policy. 12
The first part of Section 124 A is discussed in many cases and the Courts discussed
where the provision can be made applicable. In the landmark case of Queen-Empress v.
BalGangadharTilak,13 the court said that if the offender tried to excite feelings of hatred
or contempt towards the Government that is sufficient to make him guilty under this
sedition. Further the Court said thatexciting feelings of hatred or contempt leads to
11. Article 51A of the Constitution of Indiacasts duties on the citizens to abide the Constitution and respect its
ideals and institutions, the National Flag and the National Anthem and more important i.e. to uphold and
protect the sovereignty, unity and integrity of India.
12. Shukla V.N., the Constitution of India, Edi. 11th , 2008, P. 144
13. (1897) 22 Bom 112
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incitement to violence. It means if there is no incitement to violence the case does not
fall under Section 124 A.
The Father of Nation was also arrested under the same law. During the trial, Gandhiji
said Section 124 A, under which I am happily charged, is perhaps the prince among
the political sections of the Indian Penal Code designed to suppress the liberty of the
citizen. Affection cannot be manufactured or regulated by law. If one has no affection
for a person or system, one should be free to give the fullest expression to his
disaffection, so long as he does not contemplate, promote, or incite to violence.14 It
is clear from the arguments made by Gandhiji thatmere promotion of disaffection
towards the Government is not an offence and everyone has this right.
Post-independence, the Constituent Assembly had proposed to incorporate sedition
law to limit freedom of speech &expression in the Constitution of India15 but K.M.
Munshihad strongly opposed the idea & said, A hundred and fifty years ago in
England, holding a meeting or conducting a procession was considered sedition. Even
holding an opinion against, which will bring ill-will towards Government, was
considered sedition once. Our notorious Section 124-A of Penal Code was sometimes
construed so widely that I remember in a case, a criticism of a District Magistrate was
urged to be covered by Section 124-A. But the public opinion has changed
considerably since and 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 civilized life is based, or which
is calculated to overthrow the State.16It is crystal clear from the above argument that
freedom of speech includes criticism of Government; it cannot take action against any
person under the sedition law unless it is apparent on the record that criticism leads to
incitement and threat to the State. Even in todays time, the concern expressed by a
lawyer and an active participant in the Indian independence movement is relevant.
Prof. ChamanLal, an expert on Bhagat Singh, says An independent nation state has
to be different from a colonial state, but the present state establishment is behaving
more like a colonial state than an independent nation state. The present situation
proves the truth of Bhagat Singhs observation that if the system does not change,
then rule by colonial white or Indian native makes no difference. 17
14. Statement In The Great Trial Of 1922
See: http://www.gandhi-manibhavan.org/gandhicomesalive/speech3.htm (accessed on 17/03/2016)
15. By the Constitution (First Amendment) Act, 1951 and the Constitution (Sixteenth Amendment) Act, 1963
different grounds of reasonable restrictions inserted to restrict the misuse of the said right.
16. https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf (accessed on 19/03/2016)
17. Supra note 2
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Prof. UpendraBaxi believes that constitutionally sincere citizens agree on two things:
First, any assailant of unity, integrity and democratic sovereignty ought to be dealt
with according to the law; and second, intimidation and violence, especially aggression
or predation-moral vigilantism of any sort-have no place in any pursuit of rashtra
bhakti.18
In KedarNath Singh v. State of Bihar19, the Supreme Court made it clear that allegedly
seditious speech and expression may be punished only if the speech is an incitement
to violence, or public disorder. Further the court also stated that Section 124 A is
not unconstitutional and not violative to Article 19 (1) (a) of the Constitution.Thus,
words and speech can be criminalised and punished only in situations where it is
being used to incite mobs or crowds to violent action. Mere words and phrases by
themselves, no matter how distasteful, do not amount to a criminal offence unless this
condition is met.20Supporting the Indian Judiciary decisions, Prof. UpendraBakshi
said, Sedition should never be a way of governance of dissent. Our SC has ruled early
that every citizen has a right to discuss and dissent; only incitement to violent or
criminal action stands outlawed. Shouting slogans that are not anti-Indian, and
conducting and joining protest marches, are regarded by the court as an integral
aspect of freedom of speech and expression & democratic dissent.21 Hence, it is right
to say Freedom of speech is now seen as the touchstone of democracy, and the
ability of individuals to criticise the state is crucial to maintaining freedom.22
But the basic question can be raised that who will decide whether the speech is an
incitement to violence, or public disorder. There are many instances wherein
different political parties, NGOs, student organisation, labour unions, media etc.,
reject, disapprove & condemn the policies of the Government. In such situation, the
ruling party uses the government machinery to curb the dissenting voices and protects
its support groups. If it is an executive body to decide, what would be the criterions
and furthermore if the Courts in India dont accept the criterions applied by the
executive, what would be the responsibility of the Government.When the
Government implicates anyone under the sedition charges but could not prove in the
Court of law,a question arises what is liability of the Government. If we think about
compensation, it is not prescribed under the same provision of the law. For that
purpose, the accused need to urge before the court for compensation. The next
18. Upendra Baxi, How to govern dissent, the Indian Express, Feb. 27, 2016.
19. 1962 AIR 955
20. http://thewire.in/2016/02/13/a-short-summary-of-the-law-of-sedition-in-india-21472/ (accessed on
15/03/2016)
21. Ibid.
22. http://www.hindustantimes.com/world/sedition-law-in-uk-abolished-in-2009-continues-in-india/story-
Pkrvylv6J0T3ddY8uqvKsO.html (accessed on 15/03/2016)
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question is about the sufferings and the problems faced by the victim & victims
family. If any student is a victim of such false cases, what about his future.
Hence, it is not always necessary to invoke sedition law. The Governments can resort
to other provisions of law which are given under the IPC. For exampleoffences
against the state. The Government may take help to prosecute any person who
makesa statement or publish anything which may lead to violence. At the other side of
the issue involves different things. Further, why does the Government use sedition
law?Whydoes not the government register cases under the defamation law?The reason
may be that there are more chances that the accused person will be considered as an
anti-state as per sedition law. Such facility is not available under the defamation law. If
that the accused person is popular, has political influence or he is well recognised in
the society, its quite obvious that his support group agitate against the Government.
It may lead to scuffle between the Government and support group. There may be
agitations, attacks, loss of property so the question arises who will be responsible for
all this.But the Government always applies sedition law because the punishment is
harsh in nature as compare to other provisions of the IPC. On the contrary, some
countries abolished the sedition law or made it dysfunctional. The Parliament of India
should follow the footsteps of other countries like the UK, USA etc. in order to
prohibit the arbitrary use of sedition law and to protect freedom of speech &
expression of its people.
The UK abolished Sedition law in 2009. It was abolished through the Coroners and
Justice Act, 2009 under Gordon Browns Labour government. Three offences were
abolished: the offences of sedition and seditious libel; the offence of defamatory libel;
and the offence of obscene libel.The then Parliamentary Under-Secretary of State at
the Ministry of Justice, Claire Ward said at the time of the acts enactment: Sedition
and seditious and defamatory libel are arcane offences - from a bygone era when
freedom of expression wasnt seen as the right it is today.
The New Zealand parliament also abolished sedition law by the Crimes (Repeal of
Seditious Offences) Amendment Act, 2007. The following reasons are given to abolish
sedition law in England & New Zealand:
Sedition is defined in vague and uncertain terms. This offends the fundamental
principles of criminal law.
In any case, it refers to a particular historical context (sovereignty residing in the
person of the King) which no longer holds. The law is archaic and must be done away
with.
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While certain political views may be unreasonable or unpopular, they cannot be
criminalised. This offends democratic values.
The definition of sedition offends fundamental freedoms of speech and expression
which are universally recognised.
In practice, the law is used to silence political opposition or criticism of the
government. This has a chilling effect on free speech.23
In the United States, Canada and Australia, the law is practically in disuse. Nigeria also
abolished its sedition law. The judgment of the Federal Court of Appeal, Nigeria in
State vs Arthur Nwankwo,24 struck down the part of Criminal Code of Eastern Nigeria,
saying:
The law of sedition which has derogated from the freedom of speech guaranteed
under this Constitution is inconsistent with the 1979 Constitution more so when this
cannot lead to a public disorder as envisaged under Section 41(a) of the 1979
Constitution.25
In Advocate Manuel. P.J. v. State26, the Supreme Court of India said that in appreciating
whether the act done by the accused by word either spoken or written or by signs or
by misrepresentation or otherwise one cannot shut ones eyes to changes in political
consumptions which have taken place over the course of time after the aforesaid
penal provision S. 124A was included in the I.P.C. and the declared objective of the
Government of the day. Very often, the demarcating line between political criticism
of the Government and those causing disaffection against the Government is thin and
waving. Further in ShreyaSinghal v. Union of India27 the Supreme Court, while dealing
with the validity of Section 66A of the Information Technology Act, said that the
open-ended and vague terminology in the penal provisions could be even
deceptive, for it might trap the innocent. If we apply same logic, the sedition law is
also deceptive. Hence, the question arises that why the Parliament of India did not
abolish the law.
Conclusion:
To conclude, the Parliament of India should follow the footsteps of the UK as it
vows the legal legacy form the same country. Many a time this demand was made but
23. supra note 7.
24. (1985) 6 NCLR 228
25. http://www.frontline.in/cover-story/a-case-against-the-sedition-law/article8299363.ece (accessed on
19/03/2016)
26. 2012 (4) KLT
27. (2015) [5 SCC 1]
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nothing has happened. On the contrary, the number of sedition cases is increasing. If
the Government continued to use such arbitrary law, it would be the great threat to
the right to freedom of speech & expression.
References:
Books:
1) Shukla V.N., the Constitution of India, Edi. 11th , 2008
2) Jain M. P., Indian Constitutional Law, Edi. 6th, 2010 (Reprint 2013)
3) Bakshi P.M., the Constitution of India, Edi. 12th, 2013
4) Ratanlal&Dhirajlal, the Indian Penal Code, Edi. 34th, 2014
Case Laws:
1) Advocate Manuel. P.J. v. State 2012 (4) KLT
2) KedarNath Singh v. State of Bihar1962 AIR 955
3) Nazir Khan v. State of Delhi (2003) 8 SCC 461
4) Queen-Empress v. BalGangadharTilak(1897) 22 Bom 112
5) ShreyaSinghal v. Union of India (2015) [5 SCC 1]
6) State v. Arthur Nwankwo(1985) 6 NCLR 228
News Paper Articles:
1) UpendraBaxi, How to govern dissent, the Indian Express, Feb. 27, 2016
Webiliography:
1) http://www.frontline.in
2) http://www.hindustantimes.com
3) https://www.nls.ac.in
4) http://thewire.in
5) http://www.gandhi-manibhavan.org
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