Why should the colonial construct of sedition limit free speech in a democracy? Despite repeat judicial pronouncements against the existence of this law on our statute books, the 22nd Report of the Law Commission recommends its retention
15, Jun 2023 | CJP Team
Mahatma Gandhi was imprisoned for sedition, because his speeches incited people to protest and caused an uprising against the government. While on trial he refers to Section 124-A of IPC as ‘Prince’ of all sections which try to suppress the liberty of the citizens, as a classical law theorist he decides to disobey the law even if it is backed by sanctions because he believes the law and the larger system is not just and fair. In his words “I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips.” If the law in place is not just and fair, the citizens at the least must have the right to speak about this injustice irrespective of the fact that it causes an uprising.
Damodar S. Seth and Mahboob Ali Baig Sahib Bahadur in the Constituent Assembly Debates have voiced their concerns for limiting fundamental rights at length against sedition.
Quoting Damodar S. Seth “boon of fundamental rights is still beyond our reach and the making of this Constitution will prove to be of little value to this country.” Quoting Mahboob Ali Baig Sahib Bahadur “Fundamental rights are fundamental, permanent, and sacred and ought to be guaranteed against coercive powers of a State by excluding the jurisdiction of the executive and the legislature. If the jurisdiction of the executive and the legislature is not excluded, these fundamental rights will be reduced to ordinary rights and cease to be fundamental. That is the import, the significance of fundamental rights.”
It was amidst these sharp concerns voiced by India’s constitution framers that an amendment was made in the law, the word sedition from the limitations of freedom of speech and replaced it in the Indian Penal Code (124A) with the defining criterea ‘which undermines the security of, or tends to overthrow, the State’.
Replacing the words have in fact, however made no change to the restrictions placed on fundamental rights. The concerns of the constituent assembly members have not been addressed. The fact that fundamental rights are permanent and should not be curbed when they matter the most has been a gross oversight.
It was understandable if not justifiable that avaricious Imperial Forces employed the wide and expansive power of Section 124A ergo Sedition to smother and arrest the Flames of Dissent. There are numerous cases of our freedom fighters being charged with sedition. This saga does not begin and end with Mahatma Gandhi. It extends to Jogendra Chandra Bose, ‘Lokmanya’ Bal Gangadhar Tilak, Jawaharlal Nehru, Maulana Abul Kalam Azad, even Ganesh Savarkar and many others. One would have thought that after suffering such profound wounds in Sedition’s grasp, the Elected Constituent Assembly would repeal this barbaric statute. But, it still lives.
It must be emphatically said therefore, that, historically speaking sedition laws have caused harm to the country and its people during the vibrant struggle for independence. After the battle for a free and sovereign India, however, how is it that the law still remains. The question that rises again is India truly independent if its people are not truly free –to speak and act?
22ndh Law Commission report of Sedition (124-A, IPC)
Now, instead of responding to current judicial and political thinking, the most recent Law Commission Report recommends that the offence of sedition be retained in Indian penal law. This flies in the face of not just what a modern outward looking democracy should be doing. Section 124A of the IPC describes sedition, seeks to punish speech or writing that brings or tries to bring into hatred or contempt, or excites or tries to excite disaffection towards, the government established by law. Its validity was upheld by the Supreme Court as far back as 1962, but with the reservation that it would be a constitutionally permissible restriction on free speech, only if the offence was restricted to words that had a tendency to incite violence or cause public disorder.
What the Law Commission in 2023 fails to do is to consider how deep and far free speech jurisprudence has travelled since then. While retaining sedition cases in abeyance last year, the Supreme Court had, in 2022, observed that “the rigours of Section 124A of IPC are not in tune with the current social milieu”. At the time, the Union government, too, had decided to re-examine and reconsider the provision. Has not then the time come to consider the provision in the light of recent principles to test the validity of any restriction on fundamental rights, especially free speech? Given its overbroad nature, the sedition definition may not survive such scrutiny. The very existence of the statute offers immeasurable scope for its unjustified use, most often with a deliberate intent to suppress dissent and imprison critics.
Historiography of the concept of sedition-
The commission provides us with a definition of seditious intention provided by Sir James Charles-
“A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Her Majesty, her heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite Her Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst Her Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects”
The origin of sedition laws has been dealt with at length. It was introduced by the British since colonial rule was oppressive. A law that had been introduced under colonial rule to keep India subject to outside control, is not a law a democratic country needs, even with amendments made. The law has been abolished by UK itself, why are we still following a law that has a colonial and repressive legacy?
It is clear that origin of such a law was within a monarchic system of government. Then, questioning the ruler had a different connotation from the rights of sovereign people to question those who govern them. That then is the clear distinction between a monarchy and a democratic government. A democratic government gets its legitimacy from the reasoned and unfettered right of the people to both choose their leaders and voice their opinions. It has been defined as the government for the people, by the people, of the people. Democratic systems emphasise citizen participation, including the right to vote, freedom of speech, assembly, and other civil liberties. In a monarchy, in stark contrast, or any other oppressive form of rule these rights have no consideration. The sedition laws were put in place, so people don’t rise against an oppressive nature of the government. If the government is truly democratic in nature, subject to the people’s right to vote for change, why then the need for sedition laws? How can you guarantee freedom of speech but also restrict it where it matters the most?
India’s Constitutional Courts & sedition
Article 19(1) of the Constitution of India guarantees freedom of speech and expression to all individuals. However, article 19 (2) of the Constitution, places “reasonable restrictions” on the right to speech in the interests of India’s security and sovereignty, friendly relations with foreign states, public order, decency, or morality in relation to contempt of court, defamation, or incitement to an offence. The word sedition was replaced with the use of the sentence “which Undermines the security or tends to overthrow the state.” The replacement did not make much of a difference. The Supreme Court in the Kedarnath Judgement answered the question of whether the S.124A of the IPC was in violation of Article 19(1) or came under a reasonable restriction under Article 19(2).
In the case of Balwant Singh v. State of Punjab (1995), the Supreme Court emphasised the importance of free speech and expression while also emphasising that the offence of sedition must be read narrowly. The court ruled that criticising the government or authorities, no matter how forcefully phrased, does not necessarily constitute sedition unless they promote violence or have a direct tendency to undermine public order.
In the case of Arup Bhuyan v. State of Assam (2011), the Supreme Court emphasised that mere sloganeering or raising of anti-government political slogans does not inherently constitute to sedition. The necessity of distinguishing between the right to criticise and the act of instigating violence or causing public disorder was emphasised by the court.
In the Shreya Singhal case (2015), the court emphasised that freedom of speech and expression is a basic right that should be maintained and only limited in extraordinary circumstances. They emphasised the need of applying sedition laws narrowly and cautioned against using them to repress legitimate dissent or criticism of the government. The decisions emphasised the significance of establishing a balance between national security and fundamental rights, notably in the context of sedition statutes. In his concurring opinion, Justice Nariman emphasised that sedition is a serious offence that should be understood narrowly and should not be used to restrict lawful speech of unpopular or critical ideas. He emphasised that sedition should be limited to activities that promote violence or public unrest. In his majority opinion, Justice Misra emphasised the importance of free expression and its role in a democratic society. He held the view that, even though it was distasteful to some, expression of opinion could not be criminalised unless it posed a clear and present risk to public order.
However, the way narrowed justification of the law on sedition has been set by the Courts, is far from how it has been used. Section 124-A is grossly misinterpreted by the police and other governmental authorities. The fact also that it is a non-bailable offence makes the situation worse for a democratic country.
How the 22nd Report breaks from Jurisprudence
In the 22nd report of the Law Commission, there has been a serious misinterpretation in the case of Kedarnath case. The report states that a strict proximity test and a tendency test needs to be applied to check whether Section 124A of the IPC will be applicable or not. However, the only test mentioned in the Kedarnath case is the tendency test without subtests, departing from the proximity requirement in Indian public order jurisprudence. The report also overlooks the case of Shreya Singhal v Union of India, which emphasized the importance of discussion and advocacy and limited the application of the tendency test.
The report has also grossly overlooked the judicial statements made by judges, with regards to sedition laws after Kedarnath. In a recent remark, the present chief justice, Justice D.Y. Chandrachud emphasised the importance of defining the limits of sedition, expressing worry over the indiscriminate application of the sedition statute in India. The judge notably addressed concerns about the use of sedition charges against persons who expressed their dissatisfaction with the government’s handling of the COVID-19 epidemic, including those seeking medical assistance and supplies during the pandemic’s second wave (The Vinod Dua Case). While hearing a petition filed by two television networks against the Andhra Pradesh government, Justice L. Nageswara Rao expressed concern about the sedition statute being used to silence the media. In a recent decision, Justice U.U. Lalit dismissed a sedition prosecution against journalist Mr. Dua, defending journalists’ right to criticise the government’s policies, even harshly, in order to improve or modify them through legal means.
In addition, Chief Justice N.V. Ramana stated in July 2021 that Section 124A (sedition) of the Indian Penal Code may be outmoded. The then Chief Justice acknowledged the public desire for judicial review of how law enforcement officials utilise the sedition statute to limit free expression and imprison journalists, activists, and dissenters. This remark demonstrates the court’s awareness of the matter and readiness to resolve the issues highlighted.
Overall, the words of several Supreme Court justices indicate a growing realisation of the need to study the sedition legislation and ensure that its use does not restrict free speech and expression, particularly in situations involving journalists, activists, and dissenters.
The Law Commission Report completely overlooks these observations and findings of India’s Constitutional Courts post-Independence.
Section 124A of the Indian Penal Code, 1860, aims to subdue and remove the last forms of resistance in society. Such a proclivity contradicts the inherent principles of democracy. The existence of such a provision in a modern country like India looks to be superfluous. The clause is harsh because of the severity of the penalty. The continuance of such a clause limits freedom of speech and expression, which is ostensibly a basic right granted by Indian Constitution Article 19(1)(a). To keep up with the changing needs of society, India’s sedition laws must evolve and alter.
Misuse of the sedition law
There have been multiple instances of misuse of sedition laws in India, to silence dissent and give greater power to the government. Here are some instances of the misuse of sedition laws in the country-
- In 2020, journalist Vinod Dua was charged with sedition after a complaint by a local BJP leader in Himachal Pradesh, and the charges were based on his critical remarks against the central government in a YouTube video. The Supreme Court later quashed the sedition charges against Dua, emphasising the importance of protecting free speech.
- Sedition accusations (apart from the draconian UAPA) against activists in Bhima Koregaon case: Several activists and intellectuals were detained in Maharashtra in 2018 in connection with the Bhima Koregaon violence case. Sudha Bharadwaj, Varavara Rao, Arun Ferreira, Vernon Gonsalves, and Gautam Navlakha were among them. They were charged with sedition, among other things, but the arrests prompted condemnation, with many claiming that sedition laws were being used to persecute dissenting voices.
- Sedition charges were filed against several farmers protesting new agricultural laws near Delhi in 2021, based on allegations of violence and inciting public disorder. Critics argued that using sedition laws against peaceful protesters violated their right to free expression and assembly.
- Cartoonist Aseem Trivedi faced sedition charges: In 2012, cartoonist Aseem Trivedi was charged with sedition for his cartoons that purportedly mocked and criticised corruption in India’s political system. Although the charges were eventually dismissed, the case raised worries about the misuse of sedition laws to pursue political satirists and artists.
- Sedition charges against Amnesty International: Amnesty International India was charged with sedition in 2016 for organising a human rights event in Jammu and Kashmir. The allegations were widely condemned as a violation of free expression and an attempt to muzzle critics.
- Students charged with sedition at Jawaharlal Nehru University (JNU): In 2016, sedition charges were filed against numerous students at Jawaharlal Nehru University in Delhi for allegedly raising anti-national slogans. The charges generated widespread condemnation, with many claiming that the application of sedition statutes was harsh and disproportionate in this case.
These are just but a few instances of the misuse of sedition laws to silence anyone and everyone who have tried to express their discontent with the law in place. The question remains, how can we call ourselves a democracy when people cannot raise their voice against an unjust law or criticize the functioning of the government?
Reasoning of the Law Commission
The report emphasises that valid criticism of the government is permissible as long as it does not incite violence or support the disintegration of the country. However, since the Commission has prescribed the use of the tendency rule, this will hamper even very valid criticism since there is no objective test on what can or cannot incite people. While the Commission has, time and again in its report, made efforts to show that this classification is a reasonable restriction it is found to contradict itself by actually recommending stricter rules be put in place, while also preaching values of democracy. How can a nation be sovereign when it is not democratic in its true essence?
The Commission also and at length spoken about the “internal security” of India being in jeopardy and the need for a retention of the sedition law(s) which are a must to protect the “internal security of India.”
Now the moot question is – if any law in place, makes people want to jeopardize the internal security of their own nation, then should the law be changed/amended or should there be more restrictions put on the freedom of speech so as to snatch away the truly democratic element present in the society? As pointed out by senior counsel Kapil Sibal in an article in The Indian Express, over recent years, particularly since 2014, the sedition statute has been used to silence journalists, academics, political opponents, and students, particularly minorities, who attempt to address matters of national concern.
The Law Commission’s suggestions are designed to stifle even the most minor resistance and protests against the government’s unilateral and unjust policies. The report also goes on the blame the police for the misuse of the sedition laws. The report presents the police as an autonomous body responsible for the misuse, ignoring the role of the political class in influencing and pressuring police action.
The report then talks about countries like USA, UK, Australia and Canada in order to show that these countries although have abolished the sedition laws and have replaced them in counter terrorism laws. Are these examples of relevance? India too has not just a draconian Unlawful Activities (Prevention) Amendment Act, 2008 -UAPA- in place but several other “national security laws” who’s provisions not only exist but have been used also to stifle dissent and incarcerate citizens challenging a government democratically.
However, it is important to note that these examples are futile, since the law commission itself has through its recent report that contains recommendations also attempted not to limit or water down or repeal but actually strengthen the sedition law in India. By inappropriately giving examples of countries that have abolished sedition laws and ensured freer speech, the Law Commission’s report lacks cohesion or conviction.
India’s sedition laws have and are being used to silence journalists, activists and opposition parties and not to maintain the security of the state. The security of the state is only a cloak, the motive is simply this – ensure that a harsh law makes it hard or near impossible for people to able to criticise governmental policies.
While the Supreme Court issued a decisive decision in Kedarnath in 1962, clearly stating that the sedition law was only supposed to be used in rare cases where the country’s security and sovereignty were threatened, this has little bearing on the use of sedition charges by state authorities, particularly the police. As political polarisation and political distrust continue to be stoked and therefore are on the rise in the country, governments have increasingly used the abovementioned law as a handy tool against their political competitors, suppressing dissent and free expression.
Several recent Supreme Court and high court decisions have dramatically brought these features of misuse to the public’s attention, but with little or no deterrent effect on police and other state institutions.
Recommendations of the Law commission
The Law Commission in light of the fallacious reasons given by them have made the following recommendations with respect to sedition laws-
- The tendency test must be used in order to decide case related to sedition- The proportionality test, or the imminent danger test would be more effective if the country was only worried about the security of India and did not want to silence the journalists, activists and opposition parties.
- The procedural guidelines are established to prevent the misuse of the sedition laws, however they too are vague.
- The report presents a proposed amendment to Section 124A of the IPC. The suggested amendment includes adding the phrase “with a tendency to incite violence or cause public disorder” to specify the nature of disaffection required for the offense. It also suggests expanding the punishment options to include imprisonment for life, imprisonment up to seven years, or a fine
By increasing the punishment for sedition and adding the tendency rule, the Law Commission report belies its own claim at the report’s release that states that valid criticism is welcome. Even valid criticism is in essence curtailed through these recommendations. These recommendations if implemented will have a chilling effect on democracy, and the right to the citizens to speech when on issues that are crucial and key.
(This resource has been prepared by the CJP’s Legal Research Team with contributions by intern, Hansi Jain
