The Sedition Paradox: Analyzing the balance of sedition laws with respect to fair criticism and fundamental right to freedom of speech and expression

This article is written by Abhay Saxena & Rucha Joshi, students at Rizvi Law College, Mumbai

IntroductionFrom several months, all one has been hearing about with regards to the voices raised against the government is “that falls under sedition, this is sedition, this is anti-nationalism” and etc. speeches and tweets have been now slapped with sedition charges that puts us in a jeopardy, where does freedom of speech ends and where does sedition starts? Is there a clear drawn line between the two which perhaps with vast vocal platforms seems to fade away? Historically, when kings represented the god, so, to speak ill against was seen as speaking ill against the god. Slowly as the time passed Kings and Queens were replaced by elected democratic governments who framed their own laws for sedition to protect their authority.

Origin of the term sedition– The word sedition come from late 1300 from English records. Initially it originated from Latin term ‘Seditio’ meaning “discord” from sed meaning “apart” and “initio” meaning “a going.” Sedition according to Oxford dictionary means actions or speech inciting rebellion.

India and its take on sedition with respect to law

A time graph:– The Indian Penal Code framed originally in 1837 by the First Law Commission included the definition of sedition in section 113, it was similar to that of section 124(A) of the ongoing Indian Penal Code. However after some amendments the final draft of Indian Penal Code was enacted in 1860 with section 113 being omitted.As the Britishers  ruled India for a very long time(1757-1947),they also wanted to change/influence/replace  the Indian culture with theirs So in order to save and revive the Muslim culture  with a mission to eliminate non- islamic practices Wahabi Movement that started under the leadership of Sir Saiyid Ahmad in 1820’s which started  posing a serious challenge to Britishers around 1860’s.So in response to Wahabi movement sedition was re-introduced in the Indian Penal Code around 1870 with the insertion of Article 124-A.The Britishers used sedition as a defence and tried hushing the voices of freedom fighters. The first very case of sedition ever witnessed was that of Bal Gangadhar Tilak, who was slammed of sedition for the articles he published in his newspaper Kesari reflecting this opinion on how poorly the 1897 plague was handled by the British. He was sentenced to 18 months imprisonment. Not only just Tilak but Mahatma Gandhi too faced sedition charges for writing three politically sensitive articles in weekly Journal “Young India.”  He was sentenced to 6 years of jail term.

Indian laws regarding sedition Sedition  and it’s punishment defined under section 124A of India Penal Code states Whoever, by words either spoken or written or by signs or by visible representation or otherwise brings or attempts to excite dissatisfaction towards the government established by law in India shall be punished with imprisonment which may extend to three years, to which fine may be added or with fine.Explanation1-The expression “dissatisfaction” 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 dissatisfaction do not constitute an offence under this section. Explanation 3-Comments expression disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or dissatisfaction do not constitute an offence under this section.

Freedom of speech and expression vs sedition- Article 19(1)A of the Indian constitution says that all citizens shall have the right to freedom of speech and expression. But Article 19(2) says that nothing in sub clause (a) of clause (1) shall prevent the operation of any existing law or prevent the state from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. This is the reason why sedition law hasn’t been scrapped in India. The supporters of sedition law argues that on grounds of sovereignty and integrity of nation, public order, incitement to an offence the reasonable restrictions like sedition law is mu st. But the considering the misuse and selective approach in using of sedition laws the question arises is sedition law reasonable or unreasonable restriction?

The misuse and view of courts on the same: 

Various political happenings this year, be it Anti-CAA protests (amulya Leona norhona case) people vocalising (writing letters to the PM modi) about growing communal hatred and mob lynchings reporters asking for heavy questions, they were all slapped with sedition charges by the government to silence them all and crush dissent, this lead the court to be more wary and cautious about the sedition laws and its usage in the right sense, in cases such as Kedarnath Singh vs State of Bihar judgement in 1962, the supreme court said that there is a need to provide some parameters on the unrestricted use of sedition by the government as it may result in encroachment of personal liberty. In Balwant Singh vs State of Punjab(1995) the court ruled that merely shouting “Khalistan Zindabad” is not sedition as it didn’t lead to violence directly.  Recent case of BJP leader Kapil Mishra, who due to a statement made by him with regards to anti-CAA stirred a violent reaction off people but no case was made against him, in spite of such a reaction. Similar case was of BJP leader Anurag Thakur who in Delhi election campaigning rally said, “ The traitors of nation should be shot dead” is still free of any sedition charges .Not only these cases, but there are several such instances where the government has shown selectivism in filing sedition cases and filed cases to crush dissent.

Abolishing of sedition laws in England– Britishers introduced sedition laws in India.But in 2009 in England  sedition was abolished through the Corners and Justice Act,2009 under Gordon Brown’s labour government.Three offences were abolished:the offences of sedition,seditious libel,the offence of defamatory  libel and the offence of obscene libel.The then Under secretary of state at Ministry of Justice said-“Sedition and seditious and defamatory libel are arcane offences-from a bygone era when freedom of expression wasn’t seen as the right as it is today.”

Conclusion– From all the above things described above it can be clearly seen that sedition laws in India which was introduced by Britishers was first used to crush voice of freedom fighters and then it was selectively  misused by the ruling governments  since  post independence to crush the dissent and voice of the people. The britishers themselves have abolished this draconian law in 2009 and we are still keeping it.And also if we carefully analyze the wordings of sedition law it can be seen it is an open ended law and not clearly defined.It is a common sense that if a particular law states that whoever by words spoken or written brings or attempts to bring dissatisfaction towards the government established by law,is bound to be misused by the government.It is well said that power corrupts but absolute power corrupts more.The present sedition law in India is some sort of absolute power given to the government.And also as mentioned by the courts in in Kedarnath Judgement “There is a need for certain parameters to be clearly defined on what constitutes and what not constitutes sedition.”So the parliament should make amendments to clearly define sedition.Dissent is something which is called as an essence of democracy.Therefore  it would be better in the interest of freedom of speech and expression  and democracy of the sedition should be abolished as it was done in England in 2009.

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