Law Optional (Offences against the State) by Rajnish Jindal

Model Answer

Question #1. Section 124A of the IPC dealing with sedition is unconstitutional insofar as it seeks to punish merely bad feelings against the government. It is an unreasonable restriction on freedom of speech and expression guaranteed under Article 19(1)(a) and is not saved under Article (19)(2) of the Constitution by the expression ‘in the interest of public order.’  10 marks (150 words)

Ans.

The sedition law in its present form owes its origin to the 1830s when codification of Indian laws started. Prior to codification, Indian laws were “a complex array of Parliamentary Charters and Act, Indian Legislation (after 1833), East India Company Regulations, English common law, Hindu law, Muslim law, and many bodies of customary law.”The Draft Indian Penal Code, 1837, by Thomas Babington Macaulay included a section on Sedition. This Draft’s Section 113 was similar in its framing to the current Sec. 124A of the Indian Penal Code (IPC). The punishment proposed was life imprisonment. However, the section was not included in the IPC when it was enacted in 1860 due to what was subsequently attributed to an “oversight”. Sec. 124A, which criminalises “disaffection towards the Government established by law” or sedition, was finally introduced through an amendment in 1870, by the then Law Member of the Governor-General’s Council, James Fitzjames Stephen.

The first case to be tried under the law of sedition in India was 20 years after its introduction in Queen-Empress v JogendraChunder Bose, 1891. The proprietor, editor, manager, and printer of the Bengali magazine, Bangobasi, were tried under the law for publishing an article criticising the British government’s Age of Consent Act that raised the age of consent for sexual intercourse. In this case, however, there was no conviction. The jury could not come up with a unanimous verdict. W. Comer Petheram, Chief Justice of the Calcutta High Court, said that “he would not take any verdict that was not unanimous in this case” and Bose was let out on bail.

As in England, so in India, the law was used extensively to curb political dissent. Bal GangadharTilak, a nationalist, teacher, and a key activist in the independence movement, was charged with sedition twice, and once more under the Criminal Procedure Code. In 1897, he was convicted by the Bombay High Court for publishing an article in Kesari, the Marathi newspaper he founded in 1888, invoking the example of Maratha warrior Sivaji to incite overthrow of the British rule. This judgment broadened the scope of disaffection towards the government to include “disloyalty”, which influenced an amendment to the IPC in 1898 to include disloyalty and feelings of enmity in the definition of disaffection. Tilakwas convicted of sedition once again in 1908 by the same court for his writings in Kesari.

What is sedition?Sedition is overt conduct, such as speech and organization that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, established authority. Sedition may include any commotion, though not aimed at direct and open violence against the laws. A seditionist is one who engages in or promotes the interest of sedition.

Section 124A of IPC: According to the section 124A, the charges could be put on whomever, 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.

He/she 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.”

The provision also contains three explanations:

• The expression “disaffection” includes disloyalty and all feelings of enmity;
• 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;
• 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.

Legal challenges to the existing provision for sedition: As early as 1950, the Supreme Court in RomeshThapar v State of Madras held that “criticism of the government exciting disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the freedom of expression and of the press.

Subsequently, two high courts— the Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State (1951), and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959) — declared that Section 124A of the IPC was primarily a tool for colonial masters to quell discontent in the country and declared the provision unconstitutional.

However, in 1962, the issue came up before the Supreme Court in Kedarnath Singh v State of Bihar (1962). In this case the Supreme Court had made it clear that ‘strong words used to express disapprobation of the measures of the Government with a view to their improvement or alteration by lawful means’ did not amount to sedition.This ruling puts the onus on law enforcers to come up with indisputable evidence of incitement to violence or disturbance of public peace.The court also issued seven “guidelines”, underlining when critical speech cannot be qualified as sedition.

Present scenario: As of 11^thMay 2022 this law has been put on temporary hold by Supreme Court of India citing re-examination.As pet the recent update, the Supreme Court (SC) has sent petitions against Section 124A (sedition law) to a Five-judge panel for review.

Steps taken forward

• The Supreme Court has agreed to hear fresh challenges against the provision after a batch of petitions were filed.
• This would involve a seven-judge bench considering whether the KedarNath ruling was correctly decided.
• Although the government initially defended the provision arguing that “isolated incidents of misuse” do not necessitate removal of the provision itself, it has now told the court that it is mulling a fresh review of the colonial law.
• The court’s intervention is crucial because in case it strikes down the provision, it will have to overrule the KedarNath ruling and uphold the earlier rulings that were liberal on free speech.
• However, if the government decides to review the law, either by diluting the language or repealing it, it could still bring back the provision in a different form.

Other interpretations

• In August 2018, the Law Commission of Indiapublished a consultation paper recommending that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with sedition.
• In its 39th Report (1968), the Law Commissionhad rejected the idea of repealing the section.
• In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the Constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which 'disaffection' should not be tolerated.
• In the recent consultation paper on the sedition,the Law Commission has suggested invoking 124A to only criminalize acts committed with the intention to disrupt public order or to overthrow the Government with violence and illegal means.

Way forward

• Numerous critics, students, former government employees including Indian Police Service and Indian Administrative Service officers, legal thinkers and judges, scholar, human rights and civil liberty advocates, journalists, and so on have commented against the sedition law, calling for it to be scrapped or undergo amendments.
• It should be amended as, Section 124A should be retained subject to three conditions:
• The first, that, the offender must be in a position of authority,
• Second, that, the offending words must be understood in context,
• And, third, they should have a tendency to actually cause violence or disorder.
• The following laws in India address the same aspects covered by the sedition law are;
  • Unlawful Activities Act
  • Public Safety Acts (such as the JK PSA)
  • National Security Act

These laws can be used according to the offences.

Conclusion: Developed Countries like UK, US and Australia had successfully repealed the law which was unconstitutional and affects fundamental rights of their citizens. There way of handling such laws can become an example for India to look into the provisions of the existing law in India, which can only be done by the judiciary effectively.

Question #2. What is waging war against the government? Is attack on Parliament treated as treason? Elaborate.  15 marks (250 words)

Ans.

All crimes are treated as offences against the State, or government, insofar as these acts/actions disturb the public tranquility, national integration and public order. But there are some criminal activities that are directed against the existence of the State itself viz. treason, sedition and rebellion.

Section 121 provides whoever, wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine.

Every State has the right of self-preservation similar to that of subjects. Accordingly, laws have been enacted to safeguard and preserve states since time immemorial. In monarchial forms of government, the right of preservation of the State was exalted into a sacred right, and so the violence against the States was considered an offence against the dignity and majesty of invisible God.

The Penal Code has incorporated the common law concept of preservation of State and has provided for the most severe punishment of the death sentence, life imprisonment and fine in case of offence against the State under section 121 of Indian Penal Code, 1860.

Ingredients of section 121 - To constitute the offence under section 121 the Indian Penal Code, 1860 the following ingredients must exist:

(i) accused must wage War, or

(ii) attempt to wage such war, or

(iii) abet the waging of such war,

(iv) against the Government of India.

This section applies to everyone, whether an Indian citizen or foreigner. Everyone who wages a war against the Government of India is subject to prosecution and punishment under this section.

Foreigners are liable on the principle of de jure gentium(allegiance and protection are reciprocally due from subject and sovereign) which admits the right of foreigners to enter the country only upon the tacit condition that as they rely upon its protection, they are also subject to its laws.

In view of the gravity of the offence contemplated under this section, the act of waging war, attempting to wage war and abetting the waging of war against the Government of India is treated on equal footing and the same punishment of death or imprisonment for life is prescribed in all the cases. In other words, the section deals with three stages of complicity in waging war against the Government of India, viz., abetment, attempt and actual war.

Parliament Attack Case [State (NCT of Delhi) v Navjot Sandhu @ Afzal Guru, AIR 2005]: The single most important factor which impels to think that this is a case of waging or attempting to wage war against the Government of India is the target of attack chosen by the slain terrorists and conspirators and the immediate objective sought to be achieved thereby. The battlefront selected was the Parliament House complex. The target chosen was Parliament – a symbol of the sovereignty of the Indian republic. Huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorists who were to indulge in fidayeenoperations with a definite purpose in view, is a clear indicator of the grave danger in store for the inmates of the House. The planned operations if executed, would have spelt disaster for the whole nation. The undoubted objective and determination of the deceased terrorists was to impinge on the sovereign authority of the nation and its Government. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not detract from the offence of waging war.