SEDITION CHARGES CONSTANTLY EVOKED; BUT HARDLY STICK
– Pearl Maheshwari
Indore Institute of Law
Prior independence, the provision of sedition was propounded and inserted into the statue book by the British colonial rulers in order to suppress the revolutions carried out by the freedom fighters such as Mahatma Gandhi, Bal Gangadhar Tilak, Lala Lajpat Rai etc against the British Raj. It was a colonial-era-law of that time which intended to quash the voice of freedom. The British rulers in order to uphold their tyranny enacted such draconian law so as to stifle and restrain the voices of dissent that emerged against them during that period of time.
The offence of sedition is an offence against the state. It embraces all those practices, whether by words, deeds or writing which are mainly determined to disturb the tranquility of the state. Sedition has been explained as disloyalty in action which leads to a civil war, creates public disturbance, excites discontent or disaffection or ordinarily all the endeavors that promote public disorder. It is in force in India in the form of a penal offence.
Sedition was brought into Indian Penal Code in 1870, almost 10 years after the code was enacted. This section was amended in 1891 and explanations were added to it. Sedition is an offence defined under section 124A of IPC, 1860. As per this section:
“124-A.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.”1
The existing section of sedition under 124A of IPC was originally framed under section 113 of Macaulay’s draft Penal Code of 1837-39.
Sedition is a violent revolt against an established authority or government mainly in the form of defamation against the government. It is a type of conduct or a speech given that incites people to rebel against the authority of a state or monarch. The fundamental characteristic of sedition consisted in the betrayal and dishonesty of that faith and fidelity which were due from a subject to his sovereign as supreme head of state. It is an insurrectionary movement which involves all the attempts made by the meetings, speeches or publications that interferes with law and order of the state. Sedition is considered as a subversive act whose ultimate object is the violation of public peace though not aimed at direct and open violence against the laws. A seditionist is one who is involved in or fosters the interests of sedition and if convicted, he can face punishment up to life in prison.
History of sedition laws in India Before Independence
The history of offence of sedition in IPC holds one of the major conflicts in the judicial interpretations and enactments. In pre-Independence era, huge number of cases were decided and pronounced by Privy Council as well as Federal Court. These two highest judicial bodies at that time have taken absolutely opposite and different standing on the meaning and scope of sedition as a penal offence. The judges of the Federal Court were of the view that sedition implies resistance or disorder of some kind and has emphasized mainly on the point that if there is no incitement to violence or public disorder then there is no offence of sedition. On the other hand, Privy Council was of the view that while deciding the blameworthiness and culpability of a person charged with offence of sedition, it would be immaterial to take into consideration the acts like incitement to violence and insurrection.
Being a Victorian-era law, sedition law has been applied several times and has undergone several interpretations in number of cases:-
Queen v. Balgangadhar Tilak2
Bal Gangadhar Tilak, a leading advocate and freedom fighter of India, was charged with sedition on two of the occasions. He was prosecuted for the speeches rendered by him and for the seditious writings in his newspaper. He was convicted and sent to jail for six years.
In this case, the disaffection was mainly described as the absence of affection towards the government. Strachey J. stated that a man must not make or attempt to make others feel ill will or abhorrence of any kind towards the government. To constitute an offence under this section, it is not necessary that one must excite or attempt to excite mutiny or rebellion or any sort of actual disturbance towards the government. But it would be sufficient that one tries to excite feeling of hatred or contempt or certain other bad feelings towards the government.
Emperor v. Sada Shiv Narayan3
In this case, the Privy Council restated the law on sedition which was enunciated in Tilak’s case and held that if accused neither excited nor intended to excite any rebellion or forcible resistance against the authority of government but if he still attempted to excite the feelings of enmity against government then it would be sufficient to make him guilty under this section.
Post independence, there has been a huge debate regarding freedom of speech and expression and the offence of sedition. While interpreting the offence of sedition, K.M. Munshi said that a line must be drawn between constructive criticism of government which should be allowed and welcomed and incitement that leads to impairment of security or public interest or destroys the set-up of civilized life or aimed at the subversion or overthrowing of the government which should be restrained. After coming into force of the Constitution, the constitutional validity of offence of sedition was taken into account by the Supreme Court of India in many of the cases:
2 I.L.R. 22 Bom. 112
3 A.I.R. 1943 P.C. 82
Kedar Nath Singh v. State of Bihar4
The subject matter of case was that the accused was a member of the Forward Communist Party and had given a harsh speech against the government in power and rendered the speech in a violent language. It then became necessary to decide the constitutional validity of Section 124A which was questioned on the ground that the provisions of this section were in violation with the freedom of speech and expression. The plea was dissented by the court and the section was held to be constitutional. In order to make sure that section 124A did not infringe the fundamental rights, the explanation to the section was added by the Supreme Court stating that strong words expressing disapprobation of the measures of government with a view of obtaining their alteration or improvement by lawful means and comments on government action or criticism of public measures, however strongly worded, within the reasonable limits and consistent with the fundamental right of freedom of speech and expression would not constitute an offence under this section. It is only when the words having malignant or detrimental tendency or intention of creating public disorder or disturbance of law and order, the provisions of this section are attracted. In other words any written or spoken words etc. implicitly having an idea of subverting government through violent means have been made penal under this section.
Balwant Singh v. State of Punjab5
After the assassination of Indira Gandhi, two Sikhs raised anti-slogans in Chandigarh. These slogans included – “Khalistan Zindabad”, “Raj karega Khalsa” and “Hinduan nun Punjab chon kadh ke chhadange, hun mauka aya hai raj kayam karan da” [We will drive Hindus out of Punjab and establish our rule]. Instead of the disturbance and annoyance created by these slogans, the Supreme Court acquitted both of them because these slogans did not imminently incite the violence. The court observed that such casual raising of the slogans by appellant cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government and it also didn’t stimulate any response from any person of Sikh community or any other reaction from the people of any other communities and the people remain unaffected and carried on with their normal activities. Thus a person can be punished for the offence of sedition only if there is any menacing and forthcoming incitement to violence in pursuance of his conduct or action.
In brief, the Supreme Court has tried to indicate that the sedition charges will only stand
4 A.I.R. 1962 S.C. 955
5 1995 (1) SCR 411
when it is being used to incite the mob which leads to a violent action. Just shouting out words in a public place does not amount to sedition unless and until this leads to immediate incitement of violence. Mere words and phrases spoken, no matter how much dissatisfactory, do not amount to a criminal offence unless the above mentioned condition is met.
Recent cases indicating changes in the concept of sedition 1.) Sedition turmoil going on in JNU:-
What had happened in JNU which leads to a huge sedition uproar?
Sedition is in the air and a lot of hot air has been generated after the JNU incident.
Kanhaiya Kumar, a young student leader from Jawaharlal Nehru University (JNU) is the latest victim of sedition charges. He is the current president of Jawaharlal Nehru’s University Student’s Union and also a leader of All India Student Federation (AISF), the student wing of Communist Party of India (CPI).
The 28-year-old student was arrested on 12 February, 2016 and charged with sedition charges by Delhi police for allegedly raising anti-Indian slogans in a student rally. Marking the death anniversary of Afzal Guru, the rally was called in order to protest against the hanging of Mohammad Afzal Guru, a Kashmiri who was convicted and hanged in Delhi’s Tihar jail in 2013 for his alleged role in Indian Parliament attack, 2001. Two more students, Umar Khalid and Anirban Bhattacharya were arrested on the same charges and remanded to 14 days judicial custody.
A case was registered against Kanhaiya on 13 February, under sections 124A and 120B of IPC. He, however, denied the charges and said that he was neither shouting any slogan nor saying anything against the integrity or solidarity of nation. He claimed that he didn’t say anything that was seditious and insisted that he had full faith in the Constitution of country.
Kanhaiya Kumar’s arrest led to huge students protests both at the university as well as in many cities across the country. His arrest has triggered a public debate around the country regarding freedom of speech and expression.
Why JNU’s Kanhaiya Kumar did not commit sedition and won’t get convicted for it?
In 1962, the Supreme Court in Kedar Nath case had already added a caution that sedition
charges must be surely accompanied by violence or direct incitement to violence. Raising anti-Indian slogans do not amount to incitement of violence.
In recent years, local authorities and state have used sedition laws to intimidate peaceful protestors and to silent the criticism. Kanhaiya Kumar finds himself in exalted company of many Indians who have been slammed by charges of sedition which includes Assem Trivedi, Simranjeet Singh Man, Arundhati Roy etc. but the charges could not stand against them due to the absence of inciting violence against the nation.
Noted writer Arundhati Roy and Hurriyat leader Syed Geelani were booked on charges of sedition for their “anti-India” speech at a seminar on Kashmir titled “Azaadi-the only way” in 2010 but the charges were lastly dropped because merely criticizing the government do not cause the threat of violence against the nation.
Simranjeet Singh Mann, president of Shiromani Akali Dal- Amritsar, was also arrested for raising pro-Khalistan slogans in the golden temple on 21st anniversary of Operation Blue Star and thus was booked under section 124A of IPC for making provocative speeches but was again not prosecuted as the investigations could not substantiate the charges against him. Aseem Trivedi, a cartoonist and free speech activist was also held guilty under section 124A for allegedly poking fun at the Constitution and national emblem by drawing cartoons but again the charges were dropped against him because the cartoons displayed were against the corruption prevailing in political system and not exhibited with the purpose of evoking violent actions against the government.
While going through all the cases mentioned aforesaid, it is almost certain that Kanhaiya Kumar won’t get convicted for sedition because merely raising anti-Indian slogans or speeches do not leads to inciting violence or creating public disorder.
Various views expressed over JNU incident
Senior advocate Raju Ramachandran emphasizes on the point that Delhi police has to prove that Kumar literally made an attempt to incite a mob against the government but if it failed to do so then the case has to be quashed at the threshold. In order to make Kanhaiya guilty of sedition, there must be an element of incitement of violence.
As per a senior criminal advocate Sushil Kumar, there is hardly any conviction in such cases because it is more of a political gimmick and the law is often misused to stifle free speech and expression. He says, “There is nothing seditious when a group of students protest over an incident which they believe to be wrong or debate over a judgment which
they feel to be erroneous. But if the spokesman motivates the crowd to pick up arms and attack the government then it would be termed as seditious”.
Justice Ajit Kumar Sinha, former judge of the Jharkhand High Court, stated that a simple protest cannot come under the law of sedition if it was held to criticize the government or any action of the government and not to break the country.
A major point that has been mainly affirmed by many of the experts over the JNU incident was that that the anti-Indian slogans are not always seditious as long as they are made with the tendency to criticize and not to overthrow the established authority or existing government.
Kanhaiya Kumar released on an interim bail
The Delhi High Court approved Kanhaiya Kumar’s interim bail for 6 months on 2nd March, 2016 on a conditional bond of Rs. 10,000. He was released on bail but has been asked to assure that he will not take part in any of the further ‘anti-national activity’ and he will be present whenever required for investigations regarding the speech delivered by him to commemorate the hanging of Afzal Guru. However, the police had argued against his bail by claiming that they have enough evidence of anti-national activities against him.
2.) Sedition charges against Hardik Patel
Hardik Patel is a leader of Patidar Anamat Andolan Samiti (PAAS) and is an Indian political activist who is campaigning for inclusion of Patidar caste in the Other Backward Class (OBC) category so that they can qualify for the reserved quotas in education and other government jobs.
Patel quota agitation leader Hardik Patel was slapped by sedition charges under IPC sections 124A (sedition), 121A (conspiracy to wage war against the government) and 120B (criminal conspiracy) in Surat on 19th October, 2015 for his alleged comments and remarks for instigating a community youth to kill policemen instead of committing suicide.
The charge-sheet filed by the cops against Hardik Patel contended that accused was involved in provoking Patel community youths to resort to violence in order to put an undue pressure upon the government so that their unconstitutional demand of quotas in educational and government jobs can be accepted. Sessions court in Ahmedabad rejected the bail application of Patel reservation movement leader Hardik Patel and he
is still in judicial custody facing charges of “waging war against the nation” and many others.
3.) Sedition charges against Kashmiri students
Around 67 Kashmiri students from Swami Vivekanand Subharti University in Meerut, Uttar Pradesh, who had cheered and supported Pakistan team against India and some of them shouted slogans such as “Pakistan Zindabad” in Asia Cup match were slammed with sedition charges under sections 124A, 153 and 427 of IPC. Their act triggered tension in the university.
Hours after the Uttar Pradesh police slapped sedition and other charges on 67 Kashmiri students of a private university in Meerut, the State government dropped the charge of sedition against them as the charges against them had caused dismay and outrage in political and legal circles and had also been criticized severely across the country.
However, the other charges such as promoting enmity between different groups
(Section 153A) and mischief (Section 427) under the IPC invoked against them stayed. The framing of sedition charge against the Kashmiri students was a gross abuse of law. It is evident and clear that sedition law applies only against those who incite violence
against the government of India and mere cheering for Pakistan, even if it is true does not attract the provisions of this section.
Sedition and Freedom of Speech & Expression in India
One of the constant and controversial judicial problems is balancing the treatment between sedition and freedom of speech and expression. It is mostly argued that along with the colonial laws like criminal defamation, laws on obscenity and blasphemy, sedition law also runs against freedom of speech and expression which is being guaranteed under Article 19(1) (a) of the Indian Constitution although it is not as such that sedition laws curb the freedom of speech and expression in India if it is so used in diligent and proper manner.
Article 19 (1) (a) of the Indian Constitution says that all the citizens have the right to free speech and expression that means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It also includes expression of one’s idea through any of the communicable medium or any type of visible representation such as gestures, signs or the like. But this right is not absolute and it is limited by ‘reasonable restrictions’ which is laid down in Article 19(2). These reasonable restrictions are in the interest of public order, security of the state, friendly
relations with foreign states, sovereignty and integrity of India, decency or morality or in relation to contempt of court, defamation or incitement to violence.
According to Mahatma Gandhi, “Affection cannot be produced or regulated by law. If one is having no affection for a person then he/she should be freely given the fullest opportunity and expression to his/her disaffection as long as he/she does not envisage, stimulate or provoke violence”.
The debate regarding the scope and constitutional validity of sedition law revolves around the question of limits granted in the course of legitimate protests and strikes, dissent and criticisms of government which is being restricted in the interest of public order. The constitutional validity of sedition law has been decided in many of the cases in post independence era as discussed above.
In Romesh Thappar6 case, the Madras government, after declaring the Communist party illegal, banned the left leaning magazine Crossroads for being excessive condemnatory and negative in respect of Nehru government. But the court found that the ban constituted a violation of right to freedom of expression which includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation and liberty of publication.
In Kedarnath Singh7 case, section 124A was held valid but if it is used arbitrarily then it would violate freedom of speech and expression guaranteed under Article 19 of the Indian Constitution.
The main assertion here is that criticizing government policies and their decisions within just and reasonable limit that does not lead to incitement of violence or hatred amongst the people or provoke them to rebel against government is consistent and compatible with freedom of speech and expression. Only when any speech or mode of expression amounts to an incitement to violence, such section should be brought in and the person should be strictly punished in accordance with law.
Citizens in India are free to criticize their government as it exhibits participatory democracy though freedom of speech has never been a cake walk or bed of roses in any democracy. The recent affair at JNU shows that the dissent has totally lost its ground and
6 A.I.R. 1950 S.C. 124
7 A.I.R. 1962 S.C. 955
that too in a democratic country. Our founding fathers have showed a love for dissidence but it’s really shocking that Indian government has little patience for the same.
With the help of various judgments given in the pretext of sedition laws, it can be affirmed that freedom of speech and expression cannot be encroached upon if there is no incitement to violence or intention of disrupting public disorder. Mere criticism against the government is not seditious in the eyes of law.
During the pre independence era, colonial government in India inserted section 124A in the code for the purpose of suppressing the dissenting voices from Indian media, intellectuals and freedom fighters. As the time passes, the law on sedition kept on interpreting by various judicial experts as per the time and need of the situation. Post independence, sedition is said to be made out when someone performs such an action that is likely to obstruct or destabilize the government or lead to disintegration of the country. The intention to commit violence must be real and credible but it should not be imposed to suppress political dissent which was mainly done during the British Raj but in today’s scenario if an act does not amount to violence then it will not be termed as crime of sedition under section 124A.
The colonial legacy like sedition law, which presumes popular affection for state as a natural condition and expects citizens not to show any type of enmity, hatred, contempt or hostility towards the government established by law needs to be charged and invoked with utmost caution and care because sedition charges have been frequently framed without having any regard to substantial evidences and thus as a result it leads to acquittal of accused due to lack of evidences.
Sedition laws as a part of framework of colonial laws should not be used by government as a weapon to curb the citizens’ freedom of speech and expression. The ability of citizens to freely express themselves as well as to constructively criticize or express dissent against the government would not be treated as seditious expression against the state.
In the modern era, merely shouting and raising slogans would not amount to sedition as it requires violent actions which would endanger the security of state. Criticizing the government or any of its decisions is not enough to formulate the charges of sedition unless and until it is accompanied with intention to overthrow the government or creates a situation which is a menace or threat to security of nation.
Sedition law should not be used as a convenient medium to stifle any form or expression of dissent or criticism. The alacrity with which government uses colonial laws to crush people with whose views they don’t agree with is completely unacceptable.
Freedom of speech and expression must be balanced with integrity and solidarity of nation. This right must be used in such a manner so as not to harm the integrity of state and any form of speech or expression does not lead to incitement to violent actions against state or hampers the security and safety of nation and if this right does not complies with the above mentioned conditions then it would lead to seditious expression against the state that has been made punishable under section 124A of IPC subject to the condition that the sedition law should not be allowed to limit the freedom of speech.