The Supreme Court has decided to examine the validity of the offence of Sedition under section 124A of the Indian Penal Code. The court has issued notice to the Central government as well as the attorney General of India.
This is a significant move by the court, since the last time such a plea came up before the bench led by then CJI SA Bobde, in February, it was dismissed for want of cause of action.
A 3-judge bench of Justices UU Lalit, Indira Banerjee and KM Joseph will be hearing the plea filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh. These journalists have been charged for Sedition in their respective states for comments and cartoons shared by them on social media.
The petition states that section 124A infringes freedom of expression under Article 19(1)(a) and asserts that the restriction imposed under the section is not a reasonable restriction under Article 19(2) of the Constitution. It is further contended that the judgment in Kedar Nath Singh v. State of Bihar may have been correct 60 years ago, it no longer passes constitutional muster today.
The plea states that the law of sedition is no longer necessary as there are legislations in place dealing with safety and security, public disorder and terrorism such as Unlawful Activities (Prevention) Act, the Public Safety Act and the National Security Act. Thus, the need to employ section 124A is eliminated.
The petition further cites international law that India is bound by the International Covenant on Civil and Political Rights (ICCPR) which protects in Article 19 (Freedom of Expression) as a right of all individuals in the world. Section 124-A as a restriction of freedom of expression falls short of the requirements provided under International law in that it is neither “necessary” nor sufficiently “provided by law”, the plea states, as per Bar and Bench.
The petitioners also point out the misuse and abuse of the law stating that those merely exercising their democratic rights have faced penal sanction under the section which also points to the vagueness and uncertainty of the law. The plea also draws comparison between other post-colonial democracies that repealed sedition laws including the United Kingdom, who had introduced sedition in India in the first place. While New Zealand and Ghana have repealed sedition, Uganda and Nigeria have declared sedition to be unconstitutional.
Sedition law was upheld in Kedar Nath Singh v. State of Bihar by a 5 judge bench, thus any decision to subvert this precedent would have to be taken by a 7 judge bench or higher.
Looking back
Sedition in India owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices. Ironically, UK abolished sedition through the Coroners and Justice Act of 2009 stating, “sedition and seditious and defamatory libel are arcane offences – from a bygone era when freedom of expression wasn’t seen as the right it is today”.
Section 124A of IPC reads as follows:
[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.]
When MK Gandhi was imprisoned for sedition by the British, he told the court, “Section 124A under which I am happily charged is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”
Sedition is criticised as being a convenient legal tool to muzzle voices being raised against the establishment.
The misuse
The offence of Sedition has been misused by the Government in imprisoning those who differ from the Government point of view, thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. have been put behind bars with no scope for bail or quick hearing in Courts. One remembers such tall thinkers and activists as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Sudha Bhardwaj, Stan Swamy, Umar Khalid, etc. who have been arrested under Sedition/UAPA charges with no quick hope of redemption.
The misuse by the government has augmented in the past 6 years and the same is evident from the data collated by National Crime Records Bureau (NCRB) in its Crimes in India report released annually. In its 2019 report a conviction rate of mere 3.3% was found in sedition cases.
A comparison of data from 2015 until 2019 shows that there has been a 64% increase in sedition cases registered. The number of cases in 2015 is 30 while in 2019 it has escalated to 93. The numbers have also grown steadily over the years; in 2016 there were 35 cases, in 2017 – 51 cases and 2018 – 70 cases.
Further, if we consider a sum total of some of these parameters, a total of 279 cases have been registered between 2015 and 2019 and trial has been completed in 56 cases but only 5 cases have culminated into conviction.
Judiciary’s standpoint
As mentioned earlier, the apex court’s stand on the constitutional validity of sedition was decided over 5 decades ago in Kedar Nath Singh v. State of Bihar. Since then, the court’s have time and again had to decide which statements amount to sedition and which do not.
In early March, the Supreme court rejected a petition seeking action against former Jammu and Kashmir Chief Minister Farooq Abdullah over his views about the abrogation of Article 370 of the Constitution and withdrawal of special status of the valley. The Bench comprising Justices Sanjay Kishan Kaul and Hemant Gupta opined that disagreeing with the views and policies of the Government does not attract the offence of sedition.
In a panel discussion, organised by the Delhi High Court Women Lawyers Forum, Justice (retd.) Deepak Gupta of the Supreme Court opined that the “Right to dissent is a hallmark of democracy. Even if one party comes into power, it is not immune to criticism and right to dissent allows such criticism. Look at the conviction rate, it is so low. One’s reputation is destroyed even if one is not convicted.”
In February, 22-year-old climate activist, Disha Ravi was arrested for sedition, among other charges in connection with a toolkit that was allegedly created by pro-Khalistan groups to support the farmers’ protests and defame India as a part of a larger conspiracy. She was granted bail by a Sessions court in Delhi which observed thus, “The offence of sedition cannot be invoked to minister to the wounded vanity of the governments…Difference of opinion, disagreement, divergence, dissent, or for that matter, even disapprobation, are recognised legitimate tools to infuse objectivity in state policies. An aware and assertive citizenry, in contradistinction with an indifferent or docile citizenry, is indisputably a sign of a healthy and vibrant democracy.”
In another case, another Sessions Judge while granting bail to two accused of sedition held, “The law of sedition is a powerful tool in the hands of the state to maintain peace and order in the society. However, it cannot be invoked to quieten the disquiet under the pretence of muzzling the miscreants”.
Thus, the apparent misuse of the law warrants the court’s intervention and deep analysis to check whether this colonial era penal law can find place in penal laws of the 21st century as also in a democracy like India.
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