Sedition Law: Deactivation of the ‘colonial baggage’

The Supreme Court on May 18 issued interim order curbing the functionality of archaic sedition law under Section 124A of CrPC which was inserted in 1870 by an amendment in Indian Penal Code in 1870 by Sir James Macauley and 152 years have expired since its introduction in British India’s judicial system.

This order will render all appeals, pending trials and proceedings in abeyance so on and so forth till the government has reconsidered its provisions. The bench comprised Chief Justice of India NV Ramana, Justice Surya Kant, Justice Hima Kohli who also asked of the Central as well as State governments to not register any FIRs, go on with any investigation or take coercive measures by invocation of Section 124A of IPC till further orders are passed by the court. However, cases under other sections shall proceed provided that the Court is satisfied that it would not be prejudicial to the accused. The order also called for the relief to the undertrials under said section and allowed such parties to approach the concerned Courts who will be tasked to examine such relief sought while taking into account the present order along with the clear status on this law by the Union of India.

In a series of contentions and counter- arguments, it was put before the Court that the cognisable offences cannot be let go as unregistered according to the law, therefore the government shall be willing direct the States and Union territories to follow the guidelines issued in Vinod Dua case of 2021, also taking responsibility that the registration of fresh cases happens only under the supervision of Superintendent of Police, submitted along with written reasons for such charges. In the Vinod Dua case, the Supreme Court has laid down, “ A citizen has a right to say or write whatever he likes about the govt… so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”

The petitioners’ counsel, Kapil Sibal, a senior leader of India’s opposition Congress party and a lawyer for the petitioners, objected to the Centre’s request and urged the court to “go ahead with the matter”: “It’s for the judiciary to decide whether a law is constitutional or not. We can’t wait for what they (legislature, executive) will do.”

He told the Supreme Court that there were over 800 sedition cases pending across the country and that over 13,000 people were in prison. According to data provided by the website Article14, the majority of sedition cases launched against 405 Indians for criticising politicians and governments over the last decade occurred after Prime Minister Narendra Modi entered power in 2014.

As against the petitioners’ appeal to put a permanent pause on the sedition law, Solicitor General of India, Tushar Mehta contended that since the determination of gravity of each case shall be subjected to the discretion of the Court and further judicial review, Section 124A should not be stuck down or stayed along with the fact that “to pass any other order would virtually amount to staying the statutory provision, constitutionality of which is upheld by the Constitution, as of now.”

In the Kedarnath Singh Judgement, the Supreme Court while upholding Section 124A had attempted to prevent its misuse by laying down what amounts to sedition and what does not. The Centre reassured the bench earlier that it is “fully cognizant of the various views” on the concerned law and “has decided to re- examine and reconsider the provisions of Section 124A”. The bench issued the orders after observing that the government has agreed with the prima facie view expressed by the Court that the “rigours of 124 IPC isn’t in tune with current social milieu and was intended for what when the country was under colonial regime”. The government’s affidavit stating the Prime Minister’s belief in getting rid of the “colonial baggage” in view of Azadi Ka Amrit Mahotsav paved way for this awaited reconsideration process.

The sedition law has lately cracked the whip on protestant youth leaders, further inflaming the debate on sustainability of section 124 A in present day and age. Delhi High Court in the case of environment activist Disha Ravi’s case has clarified that the citizens cannot be put “behind bars simply because they chose to disagree with the state policies” and “the offence of sedition cannot be invoked to minister to the wounded vanity of the governments.” The bench mentioned Attorney General KK Venugopal who also had “on an earlier date of hearing, given some instances of glaring misuse of this provision like in the case of recital of the Hanuman Chalisa”.

The Queen v. Jogendra Chandra Bose case (1891) in Bangabasi was the first sedition trial. For a long time, there has been a heated dispute over the misuse of Section 124A and whether or not it should be declared unconstitutional. The law which had never been considered enduring even in the colonial era has almost verged on being unreasonably cruel to democracy itself. The data by NCB further presents a gruelling picture. Considering the conviction rate under the sedition law, although the number of arrests for sedition has increased, just 2.25 percent of those arrested have been convicted. Only nine people were convicted in the 399 cases that were filed between 2014 and 2020. Charge sheets were only filed in 169 of the instances reported, according to the ministry of home affairs data. This indicates that the sedition law is not a very effective incarceration tool. In the last seven years, 2,862 citizens have been charged with sedition for protesting against the farm bills, Covid-19, Hathras gang rape, citizenship, and being critical of the government, according to the Article 14 archive. The amount of sedition prosecutions filed each year has increased by 28% since 2014. The Apex Court in the present order stated that it is “cognizant of the security interests and the integrity of State on one hand, and civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898 and pre-dates the Constitution itself, and is being misused”.

As per the Section 124 A of IPC, “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.” What’s more worrying is that after you’ve been arrested for sedition, it’s incredibly difficult to gain bail because the trial process can take a long time. As a result, innocent people are harassed, and others are afraid to speak out against the government. The Kashmiri students in Hubli are an example of how difficult it is to obtain bail in a sedition case, as they were granted default bail after 100 days in police prison.

The rebellion of our country’s freedom warriors against colonial control is one of history’s most well-known examples of sedition. On two instances, Bal Gangadhar Tilak, a strong proponent of India’s freedom, was charged of sedition. It was initially given out in 1897 for comments that allegedly incited others to commit acts of violence, culminating in the deaths of two British officers. He was convicted guilty and released on bail in 1898, and in 1909, he was tried for seditious writing in his newspaper, Kesari, which he owned at the time.

Section 124 A was defined and implemented for the first time in 1897. According to the court, the incitement to violence and insurrection was unimportant in the view of the governing Privy Council when determining the blame of a person charged with sedition. This case demonstrated how to interpret the phrase “disaffection.”

The sedition law has been challenged on several grounds. Firstly, it significantly limits the fundamental right of free speech and expression of the individuals by labelling criticism against the government as sedition. It has been almost sinister to observe in a democracy like India that the colonial law that has continued to govern the sedition has been abolished in Britain itself.

The right to free speech and expression is a hallmark of democracy, but it is under threat because to the sedition statute. Citizens must actively participate in debates and express constructive criticism of government policies in a democracy. The executive arm of the government, on the other hand, has been authorised by the sedition laws to use the ambiguously worded provision as a tool to regulate public opinion and indiscriminately wield authority. The sedition legislation has evolved into a tool for instilling civilian obedience with government policies. Many times, the government has utilised the sedition law to silence protesting voices in order to defend its own interests.

This law was reimposed by the very controversial First Amendment that was passed by the government headed by the first Prime Minister Jawaharlal Nehru. While introducing the first amendment to the Constitution in 1951, Nehru had stated that, “Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.” This amendment further added to the sedition law the expressions, “friendly relations with foreign state” and “public order” as grounds for imposing “reasonable restrictions” on free speech, which exist till date in section 124A. Hatred, disagreement, enmity, disrespect, and any other type of ill will against the government are all examples of dissatisfaction with the government, as per the said section.

Besides these, heavily provisioned IPC and UAPA 2019 already have in place ample safeguards to shield against “disrupting the public order” or “overthrowing the government with violence and illegal meals”.

The section 124 A poses ambiguous definition of sedition; the words such as “disaffection” are vague enough for investigating officers to misuse it any apply whimsical interpretations. This issue was recently touched upon by Justice D.Y. Chandrachud while restraining the Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124A (sedition) of the Indian Penal Code (IPC). Justice Chandrachud stated, “Everything cannot be seditious. It is time we define what is sedition and what is not.”

This is not unexpected given the extensive use of this statute in recent years, not only against journalists but also against other nonviolent dissenters. The state has a helpful weapon in the shape of the legislation against sedition to maintain law and order in society. It cannot, however, be employed to quell discontent under the guise of putting criminals out of business. Any conduct that has the potential to provoke public disruption or distress through the use of violence is, of course, illegal.

While hearing a PIL filed against Farooq Abdullah, the former Chief Minister of Jammu and Kashmir, Justice Chandrachud remarked, “Expression of views which is dissent and different from the opinion of the government cannot be termed seditious.” Provided that the sedition law is too broad to be indiscriminately exploited by the law enforcement system to harass individuals with a voice to dissent, the courts have been attentive to the current scenario that calls for immediate legal and remedial action to rescue the aggrieved from capricious clutches of the Victorian-era law that ought to be buried with the colonial past.

The Supreme Court of India debated the constitutionality of Section 124A, which criminalises sedition, in the case of Kishorechandra Wangkhemcha v. Union of India (2021). Two Indian journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla, were charged with sedition in connection with posts and cartoons on social media platforms. They’ve filed a writ case contesting the constitutionality of Section 124A, which makes sedition illegal and punishable.

The supporters of sedition law actively advocate that Section 124A can be used to combat anti-national, separatist, and terrorist elements, among other things. It protects the elected government from attempts to overthrow it through violent acts and criminal means. Maintaining the legitimacy of the legally created government is a crucial prerequisite for a state’s coherence. If contempt of court leads to criminal prosecution, then so should contempt of government. When someone exercises their right to free expression, it does not mean that they are free to speak whatever they want to whomever. The right to vote has been restricted, which is unfortunate yet necessary. Abusers of freedom of expression are those who use it to separate people on the basis of religion or caste. In a democratic society, it is important to limit one’s freedom in order to protect the rights of others.

People must exercise their right to freedom of expression to the utmost extent feasible while still exercising it responsibly. Right to free expression is currently confined to speaking out against what is wrong.

While the government has finally given the green light, expectations are high on having a progressive definition of sedition to shake things up given the already intense political dialogue.

In a series of contentions and counter- arguments, it was put before the Court that the cognisable offences cannot be let go as unregistered according to the law, therefore, the government shall be willing to direct the States and Union territories to follow the guidelines issued in Vinod Dua case of 2021, also taking responsibility that the registration of fresh cases happens only under the supervision of Superintendent of Police, submitted along with written reasons for such charges. In the Vinod Dua case, the Supreme Court has laid down, “A citizen has a right to say or write whatever he likes about the govt… so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”