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COMPARATIVE ANALYSIS OF SEDITION LAW IN PRE-INDEPENDENCE AND POST-INDEPENDENCE ERA

INTRODUCTION

Sedition is defined as the use of words, actions, and gestures in the oratory or written form that incites the general public against the government. It is a form used to express dissatisfaction against the present-established government.  Sedition law is not a law made by the legislature of India but was first brought into force by the British during their colonization of India. Despite that, sedition law is still used by the government to silence the voice of those who spread “hatred” for the government.

Sedition law is defined under Section 124A of the Indian Penal Code (IPC), 1860.[1] Although, it was not introduced in the original act of 1860 instead came to be known as a law in 1870.  Sedition law was used as a weapon by the British forces to silence the voice of freedom fighters, like Bal Gangadhar Tilak, Mahatma Gandhi, and all those who protested against them. The provision was organized around the English Treason Felony Act, of 1848 to manage nonconformists and rebellious activities.[2] But this law was autonomously used to stifle Indian voices of dissatisfaction. Ironically, this regulation is still being utilised today to curtail the criticisms of the government and to suppress the dissent of the people of India which is the real danger to our democracy.

SEDITION LAW IN THE PRE-INDEPENDENCE ERA

The basis of our Constitution indeed comes from the administration of British Rule in India. Our Indian Constitution still keeps up many laws that existed in the pre-independence era.[3] Many Indian laws still find their roots in the British enacted framework during their rule. One such law implemented to curb Indian Nationalists was the Sedition Law. This section was not originally a part of IPC in 1860 but was introduced in 1870 to prevent the rise of nationalist feelings among the Indians.

The first case under sedition law in the pre-independence era was Queen-Empress v. Jogendra Chunder Bose & Ors[4]. In this case, the editors of Bengali magazine were charged with the offence of criticizing the Age of Consent Act, of 1891. The editors argued that the sedition provision can only be invoked for writing rebellious content and not for publication and distribution of it. Further, they also challenged the validity of the sedition law.

The Calcutta High Court in its judgment held that distributors cannot be exonerated from their liability because they had not written the seditious content since the dissemination of the magazine by them was supposed to reach the target audience. On being questioned about the validity of the said law, the High Court laid out the difference between ‘disapprobation’ and ‘disaffection’. The former refers to the genuine analysis and legitimate criticism of the people and the latter alludes to any feeling which is opposed to affection. Since only disaffection is penalized, the Sedition law does not violate individuals’ rights.[5]

Another landmark case of sedition law was Bal Gangadhar’s case, he was tried under the sedition law twice. In 1897,[6] Tilak gave a speech at a Shivaji festival to spread violence against the British which led to the killings of two British officers. It was in this case, the apex court completely defined Section 124(A) of the IPC and applied that apart from expressing ‘disaffection’ towards the government, showing a feeling of ‘disloyalty’ would also be charged under the sedition law.[7]

In 1908,[8] Tilak was convicted of sedition once again for writing an article in the Kesari Newspaper which was a response to the killings of barrister Pringle Kennedy’s wife and daughter through a bomb blast by Khudiram Bose and Prafulla Chaki instead of the actual target.  Tilak wrote two articles, one of which expressed the consequences of British rule. He also wrote about the guilt felt by Bose because of the killing of two innocent women but also acknowledged the fact that there is a limit to the patience of mankind. In another article, he criticized the British government for not allowing storing and use of explosives.

It is clear that although the British government concurred sedition was expressing disaffection towards the government from time.-to time the interpretations of the sedition law changed. This law was used arbitrarily by the then government to assent to their power and discourage Indians to protest. The sedition law was purposely kept ambiguous by the Britishers to keep it open to various interpretations which surprisingly is still an issue today.

SEDITION LAW IN THE POST-INDEPENDENCE ERA

India’s sedition law has an engrossing journey. After being first introduced in 1870 by British Raj, it was used to dissent and silence India’s struggle for freedom. Later on, when India gained independence in 1947, it was highly debated whether to drop “sedition” from our Constitution. K.M Munshi, moved a proposal in the Constituent Assembly to remove the word ‘sedition’ from our Constitution since it was a law brought by the British to keep Indians at their toes. Upon the proposal of K.M Munshi, the word ‘sedition’ was removed from the Constitution but was still included in Section 124A of IPC.[9]

However, in 1951, the sedition law was re-imposed by the Indian government when Jawaharlal Nehru brought the 1st Amendment to our Indian Constitution. Not only was sedition law re-introduced, but new provisions stating that any expressions harming the ‘friendly relations with the state’ and ‘public order’ was also added. The Constitution framers while bringing the amendment took a considerable time framing it and Jawaharlal Nehru also agreed that section 124A, IPC had no place in our Constitution because of its past as well as the present and therefore, it should be removed from our constitution as quickly as possible. Despite being a strong opinion about the law, Nehru hesitated and the law was added to our Constitution.

One of the first cases under Sedition law was Romesh Thappar v. State of Madras,[10] wherein the State of Madras banned the circulation of a leftist journal based on ‘public safety’. However, it was held by the court that such a ban violated the Right to free speech and Expression since this provision also includes the propagation of ideas that can only be achieved through its circulation.

The landmark case in which the Supreme Court for the first time took the constitutional validity of Sedition law was Kedarnath v. State of Bihar.[11] This was the case in which the Supreme Court upheld the validity of Section 124A of IPC. The Court yielded that even though criminalization of sedition law limited Article (19)(1)(a) i.e., the Right to Free Speech and Expression, it was a valid restriction that is necessary for the proper functioning of the country. However, it was also clarified by the court that criticism of the government does not amount to sedition unless something said or done incites violence. It also held that exceptions to the sedition law will only be valid if public order is endangered. But it is often contended by the critics that Kedarnath’s judgment does not guide the fact that who chooses if there is the promotion of brutality.[12]

The most recent development under Sedition law was in the year 2022 the case of S.G Vombatkere v. Union of India[13] where the Supreme Court is re-examining the law and has put the law on abeyance till the judgment. However, Supreme Court has initiated the process of re-examination of the law and is in its final stage.

ANALYSIS

Sedition is a colonial law indirectly giving rise to dictatorship and believing that the “King” is the supreme authority. In today’s cutting-edge world, curbing free speech through sedition is not welcomed. Sedition should be abrogated and healthy criticisms must be pursued to keep the power of the government in check and prevent arbitrary laws. It is necessary to nurture an environment of dialogue and also bear the necessary sentiments of the people to create a healthy relationship between the government and individuals.

Sedition law not only curbs the freedom of the general public but also puts a hold on the opinions of the press. Criminalizing sedition defeats the purpose of the lives laid down by our freedom fighters. Repealing the law can have a positive impact on the future of our country and the citizens would feel safe expressing their opinions. We have completed 75 years of independence from the British rule but with such colonial laws still in place makes us wonder whether we are still stuck in the pre-independence era.

CONCLUSION: WAY FORWARD

Several countries like Australia, Ireland, and Canada have abolished the laws in the recent past. Even the UK, the origin of sedition law in our country has also abolished the law citing that people had the right to express their opinions in today’s world. A few suggestions to regulate the sedition law while maintaining the security and integrity of our country are as follows:-

  • The criticism of the laws made by the government should not be counted as sedition since the laws are made for the people, it is, therefore, their right to protest against something which violates their rights.
  • One of the changes that can be done under sedition law is to reduce the scope of the law and only includes those issues which harm the sovereignty and integrity of our country.
  • The law also requires clarification as to issues causing “disaffection” and “disapprobation” towards the government. In simple words, sedition law must be clearly defined and must not include something according to the whims and fancies of the government.
  • The general public must be made aware of the law as well as its arbitrary rule to keep the ruling parties in check.

Author(s) Name: Mahek Choudhury (South Calcutta Law College, Kolkata)

Reference(s):

[1] Act 45 of 1860

[2] Basu Chandola, ‘The sedition law: the past, present and future(India Matters,27 MAY, 2022) <https://www.orfonline.org/expert-speak/the-sedition-law-the-past-present-and-future/ > accessed 11 May 2023

[3] Shariq Us Sabah, ‘Sedition law: Crushing Dissent in India since 1833’ (CJP, 7 Sep 2018) <https://cjp.org.in/sedition-law-crushing-dissent-in-india-since-1833/#:~:text=Interestingly%20the%20Sedition%20law%20drafted,19th%20and%20early%2020th%20centuries.> accessed 11 May 2023

[4] (1892) ILR 19 Cal 35

[5] Avinash Kumar Yadav and  Amartya Vikram Singh, ‘Decoding the history of Sedition law in India(The Leaflet, 8 June 2021) <https://theleaflet.in/decoding-the-history-of-sedition-law-in-india/> accessed 11 May 2023

[6] Queen Empress v. Bal Gangadhar Tilak [1897] I.L.R. 22 Bom. 112, 151

[7] Act 45 of 1860

[8] Emperor vs Bal Gangadhar Tilak [1916] 19 BOMLR 211

[9] Dinesh Singh Chauhan, ’Decoding the history of Sedition law in India’(Legal Service India) <https://www.legalserviceindia.com/legal/article-6227-decoding-the-history-of-sedition-law-in-india.html> accessed on 11 May 2023

[10] 1950 AIR 124, 1950 SCR 594

[11] 1962  AIR 955, 1962 SCR Supl. (2) 769

[12] Malavika Parthasarathy, ‘ Sedition Law in India: A Timeline’ (SCO Observer, 27 April 2022) <https://www.scobserver.in/journal/sedition-in-india-a-timeline/> accessed on 11 May 2023

[13] WRIT PETITION(C) No.682 OF 2021