The term ‘sedition’, according to Wikipedia, states, “In law, sedition is overt conduct, such as speech and organization, that tends toward insurrection against the established order”. But looking at the situation that is prevalent in the country currently; ‘sedition’ may be merely pari passu to being ‘intolerant’. To put it in simpler terms, if an ideology does not agree with the conformations laid down, it may be termed as ‘sedition’ or ‘seditious activity’.
The history of the word “sedition” can be traced down to the Elizabethan era, where raising voice against the church (which may be now read as State) would amount to blasphemy. During those times witchcraft and alchemy were considered to be seditious in nature and the punishments that followed were brutal, violent, and, cruel. Many of the punishments and executions were witnessed by hundreds of common people and were often termed as mere “entertainment” and “exciting days”, but now with the advent of changing circumstances the word has a different connotation.
As mentioned in the preceding paragraph, the term is being confused with not only intolerance but also anti-nationalism.
As they say, all good things come with a limitation. If we consider the current state of affairs, the clouds of right wing political principles loom over the citizens and one needs to be cautious regarding the same.
No doubt that the law of sedition is an archaic one which goes back to the days when our freedom fighters were fighting against the tyrant and despotic Britishers and other colonial oppressors.
In the light of the current state of affairs, the word has lost its literal meaning due to various political interpretations. Most of the people in this country are seeking to abolish this law, taking into consideration the Constitutional Rights which have been guaranteed under Article 19 (1) “Freedom of Speech” with a reasonable restriction envisaged under Article 19(2). In India, we have our own cases of seditious activities, which to a certain extent curbs one’s fundamental right of freedom of speech. In the recent past there have been incidents, such as, cartoonist Aseem Trivedi being arrested in Mumbai under IPC Section 124A, section 66 A of Information Technology Act and Section 2 of Prevention of Insults to National Honour Act. This Kanpur-based artist has been accused of putting up banners mocking the Constitution through his artwork. Arundhati Roy too, was sought to be charged with sedition for advocating independence for the disputed Kashmir region and commenting on the same.
To elaborate, the term Sedition is described in Section 124A of the Indian Penal Code as given hereunder.
“Section 124A. Sedition
124A. Sedition — 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.
Explanation 1- The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 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.
Explanation 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.”
If we dig deeper into the time when The Judicial Committee of the Privy Council was framing the Penal Code, Section 124A of the Indian Penal Code was then corresponding to Section 113 of the Macaulay’s Draft Penal Code of 1837-39, but interestingly, the said section (i.e 124A presently) was omitted from the Indian Penal Code when enacted in the year 1860 and the reason was unidentified. At a later stage, after much debate and discussion, the said Section was enacted by Sir James Stephen. (As discussed in detail in one of the landmark judgments of Kedar Nath Singh Vs. State of Bihar, AIR 1962 SC 955)
Does it mean one cannot criticize the Government or its policy? Or any wrong decision taken by the Government? If the word used in the said section was to be interpreted in toto, then the basic concept of Democracy would be undermined. A good democracy is built where people can debate and formulate opinions freely without any coercion whatsoever.
In the light of the legendary case of Kedar Nath Singh –Vs- State of Bihar; (supra), the Hon’ble Apex Court very aptly pointed as well as raised the question as to whether Section 124A and Section 505 of the Indian Penal Code have become void with the enactment of the Constitution. The Apex Court further discussed the coexistence between Freedom of Speech on one hand and seditious writing and/or speeches on the other. In the celebrated judgment of Kedar Nath (supra), the Apex Court further discussed many other celebrated cases including that of Romesh Thapar Vs. State of Madras AIR 1950 SC 124.
To quote the observations of Hon’ble Justice Patanjali Shastri in Romesh Thapar’s case (supra) “…Thus, very narrow and stringent limits have been set permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realization that freedom of speech and of the press lay at the foundation of all democratic organizations for without free political discussion no public education, so essential for the proper functioning of the process of popular government is possible.”
Hence, it can be inferred that without a sufficient amount of freedom of speech and freedom of press, no democracy would endure and exist. The Constitution Bench in Kedar Nath’s case further opined that if a certain provision of law construed in one way would make them consistent with the Constitution and another interpretation would render them unconstitutional, the Court would incline in favour of the former i.e. a harmonious connection with the Constitution (paragraph 26 of the Kedar Nath Case).
The Apex court was accurate to take into consideration the Indian Constitution as the Magna Carta. From the discussion in Kedar Nath’s case, it may be deduced that the Apex Court has time and again pointed out that any speech or any other form of expression that could lead to the government being ousted, and/or, incite people to oust the government, may come within the four corners of Sedition. Otherwise importance should be given to the Indian Constitution. However, there is a thin line of difference between the two concepts (Sedition and Freedom of Speech) and on this distinction the law is gravely misrepresented and hence misused by people who are in power as per their whims and fancies.
Thus, contemplating the era of modernization and technology at its climax, other democracies in the world have already done away with this law, keeping in mind the evolving society and modernization. In the year 2009, the United Kingdom repealed this age old law, thus staying up-to-date with the evolving time and society. In the year 1977, the Law Commission of England expressed its views, that the common law offence of sedition was appalling and superfluous.
Lord Denning, in his 1984 book Landmarks in the Law, expressed his concern extra judicially, stating that the definition of sedition was “found to be too wide. It would restrict too much the full and free discussion of public affairs… So it has fallen into disuse for nearly 150 years,” thereby absolutely shortening the outmoded and unfortunate nature of the offence which was (is) being used over a period of time.
The United Nations has recently criticized the new amendment in the Sedition law in Malaysia to counter terrorism, citing it to be bad and thus curbing the legitimate use to freedom of speech. Unfortunately in India, archaic laws are still being used, such as Section 377 and Section 124A of the Indian Penal Code, thus raising serious questions and qualms amongst the citizens, and, making us cynical – will India ever nurture into a modern state in this era of transformation?
Edited By : Kaushik Gupta, Lawyer, Calcutta High Court
Author : Soumi Guha Thakurta
Soumi graduated from Department of Law, University of Calcutta. She is an advocate at Calcutta High Court . She likes to study and research.