Why in News?
Four petitions are currently in the Supreme Court challenging the constitutionality of the law; the latest was filed by the PUCL on July 16.
When was the sedition law introduced in India?
- The sedition law which is enshrined in Section 124A of the Indian Penal Code (IPS) was introduced by the British government in 1870 to tackle dissent against colonial rule.
- The original draft of the IPC, which was enacted in 1860, did not consist of this law.
What is Section 124A?
- Section 124A states the following, “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 a fine may be added; or, with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”
- A blog published by the Library of Congress (LOC) notes that in the 19th and 20th centuries, the law was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters.
Examples of Sedition: –
- Over the years, various people have been booked under this provision of the IPC, including author Arundhati Roy for her controversial remarks on Kashmir, Hardik Patel (who is facing sedition cases related to the 2015 Patidar quota agitation) and more recently, climate activist Disha Ravi, Kanhaiya Kumar, Umar Khalid, journalists Vinod Dua and Siddique Kappan among others.
When was sedition law used against Gandhi and Tilak?
- According to the LOC blog, the first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
- Other prominent examples of the application of the law include the trials of Tilak and Gandhi. Apart from this, Jawaharlal Nehru, Abul Kalam Azad and Vinayak Damodar Savarkar were also charged with sedition.
- In 1922, Gandhi was arrested on charges of sedition in Bombay for taking part in protests against the colonial government.
- He was sentenced to six years in prison but was released after two years because of medical reasons.
- Before Gandhi, Tilak faced three trials in cases related to sedition and was imprisoned twice.
- He was charged with sedition in 1897 for writing an article in his weekly publication called Kesari and was sentenced to 12 months imprisonment.
- He was tried again in 1908 and was represented by MA Jinnah. But his application for bail was rejected and he was sentenced to six years.
Supreme Court’s Stance: –
- The hearing in the SC on the first petition filed by two journalists — KishorechandraWangkhem and Kanhaiya Lal Shukla — was to begin on July 12, which was predictably adjourned as the government sought two more weeks to file a response despite having been issued a notice on April 30.
- The push-back from the executive to the judicial admission that the interpretation of sedition given in Kedar Nath Singh (1962) requires reconsideration is obvious, as the law has allowed successive governments to suppress political dissidence at will.
- The point of attention is this judicial act of “reconsideration” and its possible consequences.
- Originally defined as the act of inciting disaffection, which included feelings of enmity, hatred, contempt and disloyalty against the government, Section 124A was read down in Kedar Nath.
- The court ruled that unless an act of disaffection imports the tendency to result in disorder through incitement of violence against the government, the charge of sedition cannot be upheld.
- The criticism against Kedar Nath is that it laid down an ambiguous test where the speech is measured on the parameter of its “tendency” to result in public disorder, through incitement of violence against government, without clarifying how the tendency of a speech was to be gauged.
- Restricting oneself to a criticism of the existing doctrinal test would mean that while the use of a subjective word like “tendency”, prone to multiple interpretations, is a problem, the interpretation of the offence of sedition as the act of incitement of violence against the government, is not.
- Incitement to violence against the government cannot be protected as free speech, it can only be subjected to a clear judicial test to delineate other forms of expression against the government which fall short of incitement to violence.
- Based on this abstract idea, the call for abolition of the offence of sedition is posed against a lacuna in the law which would allow for incitement to violence against government to be covered under protected speech.
- Consequently, the demand to nullify the law criminalising sedition can be perceived as protecting the right to incite violence against the government.
- Counterposing the two weakens the demand for abolishing the law of sedition. To enter the question of the constitutionality of the law of sedition through this abstract idea of inciting violence against the government, creates a false dichotomy between freedom of expression and the right to resistance and debilitates the actual grounds on which the law should be assessed.
Way Forward: –
- Sedition was not an offence against public order or security of state. It was deliberately constructed as one to withhold the challenge of constitutionality.
- With the law of sedition granting the executive the power to persecute expressions against itself in the name of public order and security of state, the court can no longer raise questions but will have to resort to measures.
- Attempts to read down the law or institute procedural mechanisms to forestall its arbitrary enforcement will not take away this power to persecute.
- Anything short of abolishing the offence of sedition will not help the restitution of the constitutional right to free speech.
Value addition: –
- In admitting a petition by General (Retd) Vombatkere on July 14, the Chief Justice of India asked the Attorney General representing the government “if the colonial law is still necessary after 75 years of independence”.
- The American free speech test laid down in Brandenburg v. Ohio (1969) which calls for expressions to be penalised only where there is incitement to “imminent lawless action” is often cited as the ultimate standard to protect speech and has already been adopted as the threshold for upholding the right to free expression by the Indian Supreme Court in Indra Das (2011) and Shreya Singhal (2015). Subjecting sedition to the Brandenburg standard, hence, would answer the problems emanating from the 1962 test.
If the legal challenge is efficacious, the SC will declare the law unconstitutional but if the court resorts to an alternative and instead reads down the law to a stricter and more limited interpretation of the offence, would that resolve the crisis of free speech that the law of sedition has currently posed in India?