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Sedition law and Supreme Court’s fresh directive

  • Published
    12th May, 2022
Context

The Supreme Court recently directed the Centre and states to keep in abeyance all pending trials, appeals, and proceedings with respect to the charge framed under Section 124A of the Indian Penal Code (IPC), till the central government completes the promised exercise to reconsider and re-examine the provision.

About

About the Sedition Law

  • The sedition law is enshrined in Section 124A of the Indian Penal Code (IPC).
  • Thomas Macaulay, who drafted the Indian Penal Code, had included the law on sedition; it was not added in the code enacted in 1860. 
  • Later in 1890, sedition was included as an offence under section 124A IPC through the Special Act XVII.
  • The punishment prescribed then, transportation “beyond the seas for the term of his or her natural life”, was amended to life imprisonment in 1955.
  • 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:
  1. The expression “disaffection” includes disloyalty and all feelings of enmity;
  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;
  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.

Sedition law during freedom Struggle:

  • The law was used to suppress the writings and speeches of Indian nationalists and freedom fighters.
  • The first application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.
  • Other prominent examples of the application of the law include the trials of Tilak (1897) and Gandhi (1922).
  • Jawaharlal Nehru, Vinayak Damodar Savarkar, and Abul Kalam Azad were also charged with sedition.

Legal challenges to IPC Section 124A

  • As early as 1950, the Supreme Court in Romesh Thapar 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.
  • Kedar Nath Singh versus State of Bihar (1962):
  • In Kedar Nath Singh versus State of Bihar (1962), 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.

Law Commission of India on Sedition Law

  • In August 2018, the Law Commission of India published 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 Commission had 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.

What is the fresh challenge to sedition law?

  • 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 Kedar Nath 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.

Sedition laws in other countries

  • In the United Kingdom, the sedition law was officially repealed under Section 73 of the Coroners and Justice Act, 2009, citing a chilling effect on freedom of speech and expression.
    • The common law on sedition, which is traced to the Statute of Westminster, 1275, when the King was considered the holder of Divine right, was termed “arcane” and “from a bygone era when freedom of expression wasn’t seen as the right it is today.”
  • In the United States, sedition is a federal felony under the Federal Criminal Code, Section 2384, and is now being used against rioters involved in the January 6 attack on the Capitol.
    • Despite the First Amendment that forbids any restrictions on free speech, “conspiracy to interfere directly with the operation of the government” and not just speech is considered sedition.
  • Australia repealed its sedition law in 2010
  • In 2021, Singapore also repealed the law citing that several new legislations can sufficiently address the actual need for sedition law without its chilling effects.
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