Section 124A of IPC defines Sedition as following:
“124A. Sedition —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, or with fine.
Explanation 1— The expression “disaffection” 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 disaffection, do not constitute an offence under this section.
Explanation 3 — Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
Sedition is a cognizable, non–bailable, and non-compoundable offence triable by court of session.
Time and again, its constitutionality has been upheld by the Indian courts. But then there have been many instances where this law has been proven to be oppressive. In this article we will discuss nature of the Law of sedition, its relevance in contemporary India, problems associated with this and the scope of this provision. We will also analyse whether it is oppressive and violating the fundamental rights of citizens.
MEANING AND NATURE OF LAW OF SEDITION IN INDIA
Sedition, in simpler terms means, disaffectionate behaviour towards government. Though it keeps space for criticism of governmental policies and action in the form of explanation 2 and 3, it still mandates an individual to be affectionate and loyal towards the government established by law. Section 124A makes expressing your disliking towards the government a criminal offence. But the question is why is it classified as a crime? According to Henry Hart, A crime is a wrong that attracts societal and moral condemnation along with legal punishment. But is that a comprehensive definition? Supreme Court has time and again defied this definition when it decriminalised homosexuality and adultery. This is because Supreme Court realised it is the autonomy of an individual over his body that prevails over societal condemnation as long as it is not causing any harm to the society. So the question that still prevail is what then makes sedition a criminal offence?
THE OPPRESSIVE NATURE OF THIS LEGISLATION
Personal and bodily autonomy comes under the purview of Article 21. Liking or disliking anything is an individual’s independent belief and emotions. On what grounds, then, is a government justified to impose upon its citizens to be loyal, and affectionate towards it? If a government imposes upon its citizens a particular way of thinking, i.e. , particularly, to be affectionate and loyal towards the government of the country established by law, This might end up being as oppressive as the regime of Hitler or the fictional ‘Big Brother’ of 1984, where the people are mandated to like the rulers.
Law Commission of India acknowledged the oppressive nature of this law in their Consultation paper on Sedition (para 6.10) and observed as follows:
“…blocking the free flow of information, ideas and knowledge renders a society ‘inhibited’ and ‘repressed’.”
While we see, we have adopted this legislation from the English law, the UK has itself abolished the law of sedition in 2009. But even after so many years of gaining independence, we are still following this regardless of its oppressiveness, futility and arbitrariness.
It was stated by a court of British era that:
“[Even] though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them, it is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.”
This shows that the law of sedition is not focusing on consequences of a seditious act, it is merely focusing on a person’s affection and disaffection. A government, by the means of this legislation is trying to make people to be loyal towards it and is trying to ward off the criticisms. The above judgment was delivered during the British era when Sedition was indeed a tool for suppression. However, even today this judgment is not overruled.
Before independence, this law was used to suppress the voices of revolutionaries like Mahatma Gandhi by charging them with sedition. Gandhi was charged under section 124A for his articles in Young India. Gandhi’s trial was a perfect example of how Britishers used Sedition to suppress the criticism against the government. Gandhi in his trial said:
“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.”
However, even after attaining independence, the Indian legislators did not do away with or even considered amending this law. The law of sedition is regardless of whether there is contemplation, promotion or incitement of violence or not. Mere utterance of disaffection is punishable. Likes and dislikes, affection and disaffection is a person’s autonomous belief and it is not possible to regulate it with a legislation. Even though being disaffectionate towards the government is not sedition, but if this is expressed by words, deeds, or gestures, this act may become seditious and may attract a criminal liability. So if a person expresses his emotions of disaffection towards the government, he may be charged with sedition. If a person can’t express what he feels, is it not a violation of an individual’s right to personal liberty, and of freedom of expression?
In contemporary India, if we see the example of JNU sedition row, there was widespread criticism alleging that it was BJP’s move to silence the political dissent. Many nationally and internationally prominent scholars criticized this move of the government. There were widespread protests against these arrests in many universities across the country. Human Rights organization ‘Amnesty India’ tweeted that our law of sedition should be repealed as it is contrary to international standards of freedom of expression.
Recently, Bombay High Court had considered possession of a literature book “War and Peace in Junglemahal” by Biswajit Roy as objectionable while dealing with a case of sedition. The court said that mere possession of such book and some CDs with incriminating title is objectionable. This is highly infringing on the liberty of the individual. The fact that a person possessing certain literature book may be held guilty for sedition creates a serious threat on the liberty of the people in the society. This being the case, this law is, in effect, arbitrary and oppressive.
Article 19(2) provides grounds for restraining the freedom of speech and expression. It states that state is free to impose reasonable restrictions if required for protecting sovereignty and integrity of India and the security of the states or other reasons like public order etc. But this law, as established earlier, doesn’t focus on consequences at all. This law focuses solely on the act. Mere expression of dissatisfaction, without causing or inciting any violence may also become punishable. Therefore, this law is not conforming to Article 19(2) and therefore violative of Article 19(1)(a). The Indian courts have time and again defended this Section 124A by taking respite of protecting public order under Article 19(2), but when we see the law in effect, mere possession of some literature books doesn’t pose a threat to public order. In JNU case, the law seems to have been applied merely to stop demonstration against the death penalty to Afzhal Guru which again amounts to suppression of the criticism. Hence the law of sedition is oppressive, arbitrary, violative of fundamental rights and it is of no use anymore in a democracy like India. We should take example from United Kingdom and look forward to removal of such oppressive laws so as to prevent the abuse of law in future and to ensure the freedom of speech for all the citizens in its truest sense. It was rightly said by a prominent English activist that:-
“Without free speech no search for Truth is possible; without free speech no discovery of Truth is useful; without free speech progress is checked, and the nations no longer march forward towards the nobler life which the future holds for man. Better a thousand fold abuse of free speech than denial of free speech. The abuse dies in a day but the denial slays the life of the people and entombs the hopes of the race.”
Author(s) Name: Naman Jain (National Law University, Jodhpur)