India’s Sedition Law

In News

• Recently, the Union government sought more time to file a reply to a plea challenging the constitutional validity of the sedition charge under Section 124A of the Indian Penal Code (IPC).

About 

• Pleas are being filed in the Supreme Court by the Editors Guild of India and Major General (Retired) S.G. Vombatkere.
• The plea is about the Sedition law causing a ‘chilling effect’ on free speech and is an unreasonable restriction on free expression, a fundamental right (Article 19).

Case in Supreme Court

• Supreme Court’s Earlier Stand: The sedition law has been challenged several times over the last few years but it has managed to survive all of the challenges against it. 
  • In the landmark Kedar Nath versus Union of India case (1962), the SC upheld the constitutional validity of the sedition law while trying to curtail its misuse.
  • The Court upheld the law on the basis that this power was required by the state to protect itself. 
• Criticism of Government allowed: Supreme Court had added a vital caveat that “a person could be prosecuted for sedition only:
  • If his acts caused incitement to violence or 
  • intention or tendency to create public disorder or 
  • cause disturbance of public peace”.
  • It also added that unless accompanied by incitement or call for violence, criticism of the government cannot be labelled sedition.
• In September 2016, the SC had reiterated these necessary safeguards and held that they should be followed by all authorities.
• Indiscriminate use of the Law by the Government: A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens. 
  • The law was used against stakeholders for airing their grievances about the government’s Covid-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
• Section 124 A: The court acknowledged the argument that the media was well within its rights to air critical programmes about a prevailing regime without attracting sedition.
• Later, in April 2022, Supreme Court fixed May 5 for the final hearing of the petitions, stating that it will not bring any delay in the form of requests for adjournment. 
• In May 2022, the Centre stated that its draft reply is ready but is awaiting approval from ‘Competent Authority’.

Ambit of the provisions of Sections 153A and 505 of the IPC 1860

• Section 153 A: Punishes acts promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony.
• Section 505: Makes the publication and circulation of content that may cause ill-will or hatred between different groups an offence.

What is Sedition Law?

• Background:
  • Section 124A of the Indian Penal Code (IPC), which deals with sedition, was drafted by Thomas Babington Macaulay and included in the IPC in 1870.
• Definition:
  • It defines Sedition as every speech or expression that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
  • Section 124A states: “Whoever, 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.”
• Pre Independence usage: In the 19th and 20th centuries, the law was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters.
  • The first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
  • Other major examples of the application of the law include the trials of Bal Gangadhar Tilak, Mahatma Gandhi, Jawaharlal Nehru, Abul Kalam Azad and Vinayak Damodar Savarkar.
  • Trials of Tilak and Gandhi:
    • In 1922, Gandhi was arrested on charges of sedition in Bombay for taking part in protests against the colonial government and was sentenced to six years in prison. However, he was released after two years because of medical reasons.
    • Tilak faced three trials in cases related to sedition and was imprisoned twice. In 1897, he was charged with sedition for writing an article in his weekly publication called Kesari and was sentenced to 12 months imprisonment. In 1908, he tried again for his writings and was represented by Mohammad Ali Jinnah.
• Punishments: 
  • Either Life Imprisonment to which a fine may be added or Imprisonment up to 3 years, to which a fine may be added. 
  • Sedition is a cognizable and non-bailable criminal offence punishable with a maximum sentence of life imprisonment.
  • Cognizable: The investigation process (including the powers to arrest) can be triggered merely by filing an FIR, without a judicial authority having to take cognizance.
  • Non-bailable: The accused cannot get bail as a matter of right, but is subject to the discretion of the session’s judge.

Arguments in favour of Sedition Law

• Helps combat anti-national, secessionist and terrorist elements like Maoists, etc.
• Protects the elected government from coups giving it stability.
  • Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. 
  • These groups openly advocate the overthrow of the state government by revolution.
• Kedar Nath Vs State of Bihar (1962): The Court upheld the law to maintain territorial integrity but mandated acts (not just intent) of violence for its application.
• Sovereign countries, including the US, the UK, Canada, & other democracies, have such provisions in their penal code.
• NCRB: Few cases actually result in a conviction.

Arguments against Sedition Law

• Mahatma Gandhi called Section 124A “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
• Constraint on the legitimate exercise of Freedom of speech and expression (Art 19).
  • The provision which was used by the British against Mahatma Gandhi and Bal Gangadhar Tilak is still being “grossly abused” to stifle freedom of speech and expression of those who choose to express dissent against the policies of the Governments in power.
• The British, who introduced sedition law, have themselves abolished it in their country. 
• Misused as a tool to persecute political dissent.

Way Ahead

• There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements. It is also essential to protect national integrity.
• However, India, being the largest democracy in the world, has to ensure its essential ingredients of free speech and expression. The Law Commission has rightly said, “an expression of frustration over the state of affairs cannot be treated as sedition”. 
• Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon. However, it should not be misused as a tool to curb free speech.

Source: TH