Why the draconian sedition law must go

  • Category
    Polity & Governance
  • Published
    7th Jun, 2021

The Supreme Court, in 'Vinod Dua', has held that every journalist is entitled to protection from sedition as defined in the Kedar Nath judgment. A national consensus on the removal of the provision is called for.

Context

The Supreme Court, in 'Vinod Dua', has held that every journalist is entitled to protection from sedition as defined in the Kedar Nath judgment. A national consensus on the removal of the provision is called for.

Background

  • NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent. Of the 96 people charged in 2019, only two could be convicted.
  • In the recent case, the Court relied on the Kedar Nath judgement in which the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder.
    • The Court concluded that statements made by Dua about masks, ventilators, migrant workers, etc. were not seditious and were mere disapprobation so that Covid management improves.
    • The same were certainly not made to incite people to indulge in violence or create any disorder.

Analysis

What is Section 124-A?

  • It defines sedition as an offence committed when "any person 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".
  • Disaffection includes disloyalty and all feelings of enmity.
  • However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.

Punishment for the Offence of Sedition:

  • Sedition is a non-bailable offence. Punishment under the Section 124A ranges from imprisonment up to three years to a life term, to which fine may be added.
  • A person charged under this law is barred from a government job.
  • They have to live without their passport and must produce themselves in the court at all times as and when required.

Section 124-A in India: history

  • Originally drafted in 1837 by Thomas Macaulay,it was not a part of the original Indian Penal Code of 1860 and treason was confined just to levying war.
  • It was Sir James Fitzjames Stephen who subsequently got it inserted in 1870 in response to the Wahabi movement.
  • Initially, the section only used the term “disaffection", which was interpreted by colonial judges to refer to acts or speeches that incited people to disobey the government.
  • However, once the British realized that clever Indian nationalists were taking advantage of the loophole in the law to frame incendiary speeches that made no mention of disobedience, they added the words “hatred" and “contempt", more or less turning the offence into one for capturing thought crimes.
  • Under the sedition provision, the colonial government persecuted nationalist politicians, journalists and press owners, as well as writers and poets.
  • Strangely, the Fundamental Rights Sub-Committee (April 29, 1947) headed by Sardar Patel included sedition as a legitimate ground to restrict free speech. When Patel was criticised by other members of the Constituent Assembly, he dropped it.
  • Immediately after the Constitution came into being, the Supreme Court struck down government restrictions upon a communist magazine called the Cross Roads, as well as the Rashtriya Swayamsevak Sangh magazine, The Organiser.
  • Immediately after that, the first Parliament amended Article 19(2) substantially, broadening its scope by including “public order" among the permissible grounds of restriction of free speech, while also narrowing its operation by adding the word “reasonable" before “restrictions".
  • Before the amendment to Article 19(2), the Punjab high court had already held that sedition was incompatible with free speech in a democratic republic, and had struck it down as unconstitutional in Tara Singh Gopi Chand case (1951).
  • After the amendment, the Allahabad high court did the same. Ultimately, the matter wound its way up to the Supreme Court, which handed down its decision in 1962.
  • In a landmark judgement in the Kedar Nath Singh vs State of Bihar case, five judges of the Supreme Court upheld sedition as constitutional.

Supreme Court’s observation in Kedar Nath Singh case

  • In this decision it was observed by the Supreme Court that for the stability of the state it is essential to recognize the activities against the state as an offence because the visible symbol of the state is the Government established by the law.
  • The very existence of the state will be in danger if the Government established by law is destabilized.
  • Hence any acts within the meaning of Section 124 A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
  • The court clarifies that it does not take away the fundamental right of right to speech and expression but is just a reasonable restriction which is essential for the security and sovereignty of the state.

After Effect of the Judgement

  • In 2011, while deciding a case under now-defunct Terrorist and Disruptive Activities (Prevention) Act (Tada), the court held that a member of a terrorist organization could not be convicted for mere membership, unless he had been involved in inciting people to lawless action.
  • Also, in the famous Shreya Singhal case (2013), the court distinguished between advocacy" and incitement", and held that only the latter could be punished consistent with Article 19(2).
  • In Shreya Singhal's landmark judgement, section 66A of Information Technology Act was struck down as it was considered as unconstitutional and vague, the court held that the section is so vague that neither the accused know what the offence is nor the authorities are clear on what the charges should be.
  • In another judgement of Binayak Sen v. State of Chhattisgarh (2011), he was accused of sedition against Chhattisgarh Government, as he was alleged to have supported the Naxalites thereby violating the provision of Chhattisgarh Special Public Security Act 2005.

Why the law must go?

  • Synonymous of anti-national: The law has become synonymous with being anti-national even when the law does not say that sedition is an act against the country or the nation.
  • Against the spirit of democracy: It is a colonial law, which entered Indian statutes in 1860, and is against the spirit of democracy. Many democracies, including Britain where this law originated, have scrapped it.
  • Misuse: As long as the Act remains on the statute book, there would remain chances of its misuse.
  • Mahatma Gandhi described it as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.”
  • Nehru had described it as “highly objectionable and obnoxious” which “should have no place in any body of laws that we might pass”. Nehru said, “The sooner we get rid of it the better.”

Conclusion

The sedition law has been in debate ever since it was brought into force by the colonial British rulers. Still, the law has survived in India through governments headed by from Nehru to the current political regime.

In 2018, even the Law Commission had recommended that the sedition law should not be used to curb free speech.  Now, the time has now come to review the Kedar Nath Singh case, which upheld sedition. The case’s broad and vague “tendency to disrupt public order" formulation has been replaced by a much tighter “incitement" standard.

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