This Case Summary is written by Ritunjay Singh & Shruti Parashar, students of Dr Ram Manohar Lohia National Law University

“If I were to remain silent, I’d be guilty of complicity.”― Albert Einstein

When people censor the government, then democracy is in the right hands, but if they are punished for the same, the nation is heading towards doom because in a democracy the sovereignty lies with the people and not the government. To say that there must be no criticism of the government or that we are to stand by it, right or wrong, is not only unpatriotic and servile but morally despicable.

Sedition increasingly has become a law which is being used to curb every kind of dissent. Many nations have abrogated this colonial law and have called those nations out which curb free speech and expression in its name. For example, Britain itself abolished sedition as a criminal offence in 2009 as it was considered to be a relic of an era where freedom of expression was not considered a right as it is now. According to Claire Ward (The then Parliamentary Under Secretary of State at the Ministry of Justice), “The existence of these obsolete offences in this country has been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom” We are noticing a similar trend in the way this law is being misused. Opposition leaders, Intellectuals, activists, Journalists, authors, students have all been forced to face charges. Before moving any further, we need to look at its history a bit. We also need to understand the circumstances in which this law was brought in and whether or not it’s time to scrap this law. 

Sedition law finds its origin during the British rule in India. Many believe that the only motive behind bringing such a law was to curb the voices which opposed the crown in power during the Indian freedom movement. This law belongs to the time when the divine right of the King and the principles of a feudal society were not questioned. And it is not much surprising that during those times a lot of criticisms were curbed, and legit voices were crumbled down. From the great freedom fighters Bal Gangadhar Tilak, Annie Besant, Maulana Azad to Mahatma Gandhi, all have been tried under this law. Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen. This law was based on UK’s Treason Felony Act 1848 and was added to mainly prevent the Wahabi uprising. After much discussion in the Constituent Assembly the word “sedition” did disappear from the constitution when it was adopted on 26 November 1949, but section 124A stayed in the IPC.

According to the IPC 1860, Section 124A Sedition is defined 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 for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added.”  Also, sedition is a non-bailable offence which makes it even harsher and the punishment varies from three years imprisonment to imprisonment for life. The irony lies in the fact that the British bought Sedition as a non-cognizable offence while independent India made it a cognizable offence in 1973.

Let us understand through a series of reasons as to why sedition needs to be done away with as a law or at least its ambiguity and vagueness demands a serious reconsideration. First and foremost, the restrictions for the right to freedom of speech and expression have already been laid down under article 19(2) of the Indian constitution. In stark difference to the sedition law which strives to primarily curb voices that goes against the government, article 19(2) imposes reasonable restrictions on the freedom of speech and expression in the interest of the security of the State. The latter makes sense as the security of state refers to serious and aggravated forms of public disorder, example rebellion, waging war against the state whereas the former by its very nature questions thoughts and expression that opposes the government in power. 

At the extreme, even tendencies to peacefully overthrow an incapable government is not a crime because it is a fundamental right of every citizen in the country to overthrow a kind of government which is incapable, corrupt and which acts against the common interest of people without violence, by persuading the people, by exposing its faults in the administration, its method of working etc.

Also, the claim that Section 124A of the IPC has its utility in combating anti-national, secessionist, terrorist activities and Maoist insurgencies fails miserably on two grounds. First being a reminder of the other existent laws those have been specifically drafted to deal with such anti-national, terrorist activities and Maoist insurgency. Laws like NSA, PDA, UAPA and AFSPA have been given enough power to protect the integrity of our state. These are some of the harshest laws that exist in any democracy in the world and yet the proponents argue that we need a parallel law like sedition to deal with the same kind of cases. Maybe the reason lies under the fact that any government feels more autonomous when it holds the power to protect itself against any criticism. 

The second reason daunts even more. Had it been so that this law would have been any useful in controlling the terrorist or the anti-national activities, there would have been at least some merit in holding it. But the past record of the government itself displays the reality. Realities like sedition cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropping from 33.3% to 3.3% for the same period.It’s not one or two cases that question the merit of sedition, but a series of frivolous cases rising every now and then. In 2019, An FIR under many charges including sedition was filed against the 49 celebrities who had written an open letter to the Prime Minister against the increasing cases of mob lynching in the country. The allegations were that those letters “tarnished the image of the country and undermined the impressive performance of the prime minister” besides “supporting secessionist tendencies”. In the same year in Jharkhand’s Khunti district, some 10,000 Aadivasis who were part of the pathalghadi movement were charged under Sedition. The protest movement was started by tribals as a resistance movement to assert their rights, including the right to sovereign territory guaranteed by the Indian constitution. Last year, a Karnataka School’s play on CAA and NRC led to a sedition charge against the authorities and the parent of a student who just went to attend the play. Among many charges was one that said, “The dialogues used in the play were an insult to the PM”. This is just a blatant abuse of power.

One of the most recent judgements on sedition by the Supreme Court is the case of Padmashri recipient journalist Vinod Dua. An F.I.R was filed against the journalist in Himachal Pradesh by a BJP leader. In this case, the BJP leader seemed to disagree with the accused’s views posted on his YouTube channel where he can be seen criticizing the honourable Prime Minister. When the matter was referred to the SC, Dua told the Supreme Court that criticism of the government was not in itself seditious unless it instigated violence. He added “Moreover, if I criticise the PM, that does not come under criticism of the government.” The Supreme Court quashed the F.I.R saying, “Every journalist will be entitled to the protection under Kedar Nath Singh [sedition] judgement.”

Many sedition cases registered since Independence have failed to withstand judicial scrutiny. The Punjab-Haryana High Court in Tara Singh Gopi Chand v the State, struck down Section 124A of the Indian Penal Code, which defines sedition, holding it to be unconstitutional as it was contrary to the freedom of speech and expression guaranteed under Article 19(1) (a). Eight years later, in Ram Nandan case, the Allahabad HC held that Section 124A imposed restrictions on the freedom of speech which was not in the interest of the public and declared it ultra vires. 

In the landmark Kedar Nath case, the Supreme Court upheld the constitutional validity of the sedition law. Justice Sinha however, explained, “Comments, however strongly worded, expressing disapprobation of the 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 the government, or its agencies, so as to ameliorate the condition of the people…”

The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia case is one of the most important free speech judgements in the Supreme Court’s history. It marked a decisive break with a jurisprudence that the court had developed in the 1950s.By actively requiring the state to demonstrate the proximity between speech and violence or disorder, the court ensured that the word “reasonable” in Article 19(2) was not rendered entirely meaningless. The Court also said that the fear of violence should not be far-fetched or hypothetical.

Unless and until a criticism has some inherent tendencies to bring hatred towards the state (as has also been laid down by the SC)every citizen is entitled to the rights of Freedom of speech and expression. A criticism in a democracy might range from opposing some policies of a government to questioning its credibility to hold on to power.The different cases presented above and the gazillion others ranging between them do not have any insidious tendency underlying. Henceforth, it would be an utter mockery of a democracy to silent those voices in the name of sedition. The issue remains unaddressed that can any government under any circumstance charge individuals under sedition just because it believes that those words can lead to violence.

The haunting concern is, where do we draw that boundary between euphonious statements and those which are antagonistic prima facie but true criticisms and then those which might lead to some small resistance and protests but were not spoken or written with the slightest such intent and finally those which are inherently insidious to give rise to hatred and violence in society. Most governments holding such a miraculous power would charge all the cases but one under sedition. The reason lies underneath the kind of dictatorial set up that we are morphing into. We seem to be receding speedily on the scale of tolerance every other day.

Hence to hold the pillars of democracy and strive to live to the aspirations of the kind of nation that we have always wanted to be, we need to act towards this law to end the vagueness and arbitrariness that it entails. Superficial guarantees of fundamental rights and lawful discouragement of legit speech and expression cannot co-exist in the biggest democracy of the world.