INTRODUCTION
Lord Fitzgerald defined sedition as a crime against society that is closely related to treason. It includes all practices that disturb the tranquility of the state, such as those done through words, deeds, or writing[1]. The law against sedition, referred to as the “colonial relics” or the “draconian law” by critics, is mentioned in section 124A of the Indian Penal Code[2]. This law has been a topic of discussion, with many criticizing the government for retaining a law that was used by the British to suppress the freedom struggle during colonial times. Even Pandit Jawaharlal Nehru, the then Prime Minister of India, called section 124A “highly objectionable” and “obnoxious” and demanded its removal as soon as possible during a speech on the first constitutional amendment in 1951. However, despite this criticism, the Sedition law is included in the newly passed Bharatiya Nyaya Sanhita under Section 150, albeit with a different name.
HISTORICAL BACKGROUND
The sedition law was originally drafted by Thomas Macaulay in 1837, but it did not make it into the Indian Penal Code of 1860. Section 124A was later added to the IPC in 1870 through an amendment introduced by Sir James Stephen. Some scholars believe that this amendment was made to suppress the growing Wahabi Movement.
The first sedition case was filed against Jogendra Chunder Bose in 1891 for criticizing the government in an article published in the Bengali magazine, Bangobasi, for raising the age for sexual intercourse. However, the case was dropped after the accused apologized.
Bal Gangadhar Tilak was the first person to be convicted twice under sedition charges in 1897 and 1908. Other prominent freedom fighters, including Mahatma Gandhi and Jawaharlal Nehru, have also been convicted under this law. During his pleading, Mahatma
Gandhi declared “I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section.[3]“
SEDITION UNDER INDIAN PENAL CODE
During the Constituent Assembly Debates, Vallabhbhai Patel proposed that “seditious language” should be considered an exception to “freedom of speech and expression”[4]. However, his proposal was rejected after K.M. Munshi pointed out that sedition had colonial origins and therefore should not be included in the Indian constitution[5].
The offence of sedition is present under “offences against the state” in chapter IV of Indian Penal Code[6], specifically under section 124A. According to this section, sedition refers to
Anyone who, through spoken or written words, signs, or visible representations, attempts to incite hatred or contempt towards the Government established by law in India. Disaffection, which includes disloyalty and any feeling of enmity, is also considered as sedition.[7]
Sedition is a non-bailable offence under which a person once convicted would be given imprisonment of a minimum of three years and a fine that can extend to life imprisonment including a fine or just fine.
In the case of Tara Singh Gopichand v State[8], the constitutional validity of Section 124A was first challenged. The East Punjab High Court declared this section unconstitutional since it violates the fundamental “right of freedom of speech and expression”. However, in 1951, the First Constitutional Amendment was introduced, adding Article 19(2)[9] as a reasonable restriction to “freedom of speech and expression”. The aim was to protect “the integrity and sovereignty of India and to maintain public order”. Despite this Constitutional Amendment, the Allahabad High Court, in the case of Ram Nandan v State of Uttar Pradesh[10], declared Section 124A as ultra vires.
Finally, in the landmark case of Kedar Nath Singh v State of Bihar[11], the Supreme Court upheld the constitutional validity of Section 124A. The court stated that “the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental rights.” However, the court limited its application to acts involving “intention or tendency to create disorder or disturbance of law and order or incitement of violence.”
Despite the judgment given in the Kedarnath case[12], the government still uses Section 124A of the Indian Penal Code[13], to suppress critics who try to speak out against their actions. They have been using this section to silence voices that criticize them. Journalist Vinod Dua’s sedition case[14] is an example of this. An FIR was filed against him for criticizing the government’s faulty COVID-19 management on a YouTube channel. However, the Supreme Court quashed the case against him in a two-judge bench, stating that his statement did not incite violence or create public disorder, which is a necessary ingredient for conviction under sedition in the Kedarnath case[15].
On February 17th, 2021, Kishore Wangkhemcha and Kanhaiya Lal Shukla[16], two journalists, filed a petition in the Supreme Court questioning the constitutionality of the sedition law. Additionally, nine other petitions that challenged the constitutionality of Sedition were also tagged along with this case. Since May 5th, 2022, the court has been considering whether to transfer the case to a 7 Judge bench because the said provision was upheld constitutional by a 5-judge bench in the Kedarnath case[17]. However, on May 9th, 2022, the government declared its intention to reconsider the law of sedition. Therefore, on May 11th, 2022, the SC ordered that ‘no coercive action’ be taken in sedition cases that remain pending while the Union re-examines the law[18].
SEDITION UNDER BHARATIYA NYAYA SANHITA
297th report of the Law Commission had recommended incorporating the essence of the Kedarnath case[19] judgement into section 124A and increasing the punishment given under this provision from 3 years to 7 years. The newly adopted Bharatiya Nyaya Sanhita has accepted these recommendations. According to Section 150 of Bharatiya Nyaya Sanhita,
Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine[20]
Although it does not use the word “Sedition”, it contains the very essence of the provision in a stricter manner. BNS has increased the minimum punishment from three years to seven years and has removed the provision that allowed a person convicted of sedition to get away with a fine only. Instead of “disaffection towards the Government established by law” provided in IPC, BNS uses the phrase “secession or armed rebellion subversive activities, encourages feelings of separatist activities, or endangers sovereignty or unity and integrity of India”. BNS also states that subversive activities can be incited even by “electronic communication” or by “use of financial means”.
CONCLUSION
In comparing Section 150 of Bharatiya Nyaya Sanhita[21] and Section 124A of the Indian Penal Code[22], we can conclude that BNS has not repealed or restricted the prominence of the Draconian sedition law, but has instead expanded its scope, making it even more stringent. This shows that the government is not yet ready to remove the colonial relics of the legal system, as no government would want to give up the power to silence people who criticize them. In the name of protecting the country’s sovereignty and integrity, sedition laws are used to suppress citizens’ “right to freedom of speech and expression”. Governments often use this law to imprison journalists, activists, and parliamentarians who question or criticize them. Many countries such as New Zealand, Singapore, and Ghana have already repealed the sedition law. Even the United Kingdom, the country that introduced sedition in Indian laws, repealed it in 2009. The Indian government should follow the example of these countries and repeal the sedition laws to protect the democratic values of our country.
Author(s) Name: Ankita Maurya (Guru Ghasidas Vishwavidyalaya, Bilaspur, Chhattisgarh)
Reference(s):
[1] K I Vibhute, P S A Pillai’s Criminal Law (14th edition, LexisNexis 2022)
[2] Indian Penal Code, 1860
[3] ‘Explained: What were Gandhi’s, Nehru’s and Tilak’s views on sedition law’(Oneindia 13 May 2022)
<https://www.oneindia.com/india/explained-what-were-gandhis-nehru-s-and-tilak-s-views-on-sedition-law-3407657.html> accessed on 26 December 2023
[4] Constitution of India, 1950 art 19(a)
[5] Constitution of India, 1950
[6] Indian Penal Code, 1860
[7] Indian Penal Code, 1860 s 124A
[8] 1951 CriLJ 449
[9] Constitution of India, 1950
[10] AIR 1959 All 101
[11] Crl 169/1957
[12] Crl 169/1957
[13] India Penal Code, 1860
[14] Vinod Dua v Union of India & ors WP (Crl) 154/2020
[15] Crl 169/1957
[16] S.G. Vombatkere v Union Of India WP (C) 682/ 2021
[17] Crl 169/1957
[18] ‘Constitutionality of Sedition’(Supreme Court Observer)<https://www.scobserver.in/cases/sg-vombatkere-v-union-of-india-constitutionality-of-sedition-case-background/> accessed on 27 December 2023
[19] Crl 169/1957
[20] (PRS Legislative Research) <https://prsindia.org/files/bills_acts/bills_parliament/2023/Bharatiya_Nyay_(Second)_Sanhita_2023.pdf > accessed on 27 December 2023
[21] Bhartiya Nyaya Sanhita, 2023
[22] Indian Penal Code, 1860
