Sedition Law and the Debate

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TOPIC: General Studies 2

• Indian Constitution- significant provisions
• Functions and responsibilities of the government
• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
• Important aspects of governance, transparency and accountability

In News: A legal opinion sought by the Centre on a Law Commission report on the British era sedition law has stated that “Section 124A – sedition as interpreted by the Supreme Court is necessary”. In short, it is unlikely that the IPC section on sedition is diluted or scrapped.

What is Sedition?

Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life. The Indian Penal Code in Section 124A lays down the offence:

“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.”

History of Sedition law:

The law was originally drafted by Thomas Macaulay. Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly. Previously, it was used by the British to target nationalist leaders. Bal Gangadhar Tilak, charged twice under the law, was sentenced to six years imprisonment from 1908 to 1914 at Mandalay (present-day Myanmar). Mahatma Gandhi was also charged under the section for his articles in Young India. He famously called the defamation law the “prince” among criminal laws which thwarted free speech in the country.

In 1962, the Supreme Court, while curtailing the extent of its application, upheld its constitutionality. Then Chief Justice BP Sinha, in the Kedar Nath case, observed: “Every state, whatever its form of government, has to be armed with the power to punish those who by their conduct, jeopardise the safety and stability of the state, or disseminate such feelings disloyalty as have tendency to lead to the disruption of the state or to public disorder.”

Since then, the courts in the country have repeatedly observed that the section cannot be used to curb criticism of the government, and can only be used as a measure for maintaining public order. Nevertheless, successive governments have been accused of misuse – the UPA during the Anna Hazare protests in 2012, had charged anti-corruption cartoonist Aseem Trivedi. The present government’s accusing of student leaders Kanhaiya Kumar, Umer Khalid and Anirban Bhattacharya has also been criticised.

Turn of events:

• In September 2016, the Supreme Court had reiterated that a larger bench had already provided necessary safeguards that should be followed by all authorities, and “every magistrate is bound by what it said in the Kedar Nath case”.
• In August last year, the Law Commission submitted a “consultation paper” to the Centre on the need for changes in the law, pointing out that even the United Kingdom abolished sedition laws ten years ago saying the country did not want to be quoted as an example of one using such draconian laws.
• A report in the Indian Express said – while a final decision on whether to dilute the law or not is yet to be made public, but various stakeholders including state governments and law enforcement agencies, have expressed the need to retain the law without changes.
• Supreme Court Steps In: In a landmark judgment (Shreya Singhal v Union of India, 2015), the Supreme Court eventually struck down the restrictive provision of Section 66A of the Information Technology Act, 2000. The Supreme Court minutely examined the content of Article 19(1)(a) and the extent of restriction that could fetter this invaluable right. It held that we have the echoes of the test of “clear and present danger” enunciated by the U.S. Supreme Court in our laws as well. It was in this context that our Supreme Court held that Section 66A would not pass muster “as it has no element of any tendency to create public disorder which ought to be an essential ingredient of an offence that it creates.”

What is then, Right to Dissent?

The Supreme Court observed that “dissent is the safety valve of democracy”. Therefore, right to dissent and the right to not agree becomes very important aspect of any democratic institution. Citizens’ have right to disagree with, denounce, and decry a situation or state of affairs that is unjust and oppressive.This pluralism of views and liberty to express any thought process within constitutional boundaries is one of the salient features of a democracy.

• Recently, while hearing a petition on the ban of protest on the Jantar Mantar in New Delhi, the SC held that Right to peaceful protest is the fundamental right guaranteed under the constitution. However, this particular right is also subject to reasonable restrictions in the interest of sovereignty and integrity of India, as well as public order.
• A distinguishing feature of any democracy is the space offered for legitimate dissent, which cannot be trampled by any executive action. Thus, the Court recognises that legitimate dissent is a distinguishable feature of any democracy.

Sometime, protest strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to:

• Express dissent and grievances
• Expose flaws in the governance
• Demand accountability from state authorities as well as powerful entities

Tool of oppression

The other major issue with the law on sedition is how it is processed in the legal system. The NCRB’s Crime in India report 2016 shows that out of 34 cases of sedition reported that year, there was only one conviction, two acquittals, while 31 cases are still pending trial. In fact, between 2014 and 2016, a total of 179 cases were lodged under the sedition law.

However, by the end of 2016, no charge sheet had been filed in over 80% of cases. The trial could only begin in 10% of cases. So, in most cases, the sedition law becomes a tool of oppression, where the police don’t even file a charge sheet and people just spend time in prison. People, on whom frivolous charges of sedition have been applied, are punished with jail for a long period without a trial.  This doesn’t mean that a law on sedition has no utility today.

All laws can be misused. An argument can be made that the law on sedition, if applied, as interpreted by the Supreme Court, with its recommended safeguards, does act as a bulwark around the integrity of the Indian nation and discourages elements which seek to incite violence to cause public disorder and overthrow elected governments. The problem is, this is not how the law has been historically applied. The problem is the misuse of the law by an overly sensitive government and the illegal and arbitrary actions that often accompany its application.

Conclusion:

• The course of democracy anywhere in the world is defined by events that test the resilience of democracy and also add to it. The philosophy of dissent and democracy has also inspired our freedom movement and defines India’s constitutional democracy, which is predicated on the people’s right to call state power to account, albeit within the constitutional framework.
• The problem of misuse of the section can be rectified by educating the law enforcement agencies and a probable suggestion is to impose penalties on the law enforcement officers who maliciously invoke sedition against journalists, members of opposition etc.
• Instead of ad hoc attempts to put in place loose safeguards and guidelines, the government would do well to review such outdated penal provisions. Legislation exists to deal with unlawful activities and armed movements. There is no need to criminalise words spoken or written, however strong and provocative they are in their criticism of the state.

Note: Freedom of Speech

• • The constitution under Article 19(1)(a) provides for freedom of speech and expression and also under Article 19(2) provides for reasonable restrictions on such freedom.
  • Like other fundamental rights, it is not absolute and is subject to;
    • Sovereignty and integrity of India
    • Security of the state
    • Friendly relations with foreign states
    • Public order
    • Decency or morality or in relation to contempt of court

• Defamation or incitement to an offence

Mind-map: Irrelevance of Sedition

Connecting the dots:

1. Do you think that difference between dissent and sedition is diminishing day by day? Critically comment.
2. What do understand by sedition? Do you think it is high time to reconsider the utility of IPC provisions related to sedition? Critically examine.
3. Acts of sedition can be serious internal security threat to the country. However, the very concept of sedition needs a closer review with respect to its interpretation, scope and misuse by the state. Discuss.