By: Prem Vishal
“The censorial power is in the people over the government and not in the government over the people.” Here, regarding sedition James Medison emphasizes that sedition is like the government censoring the people but here people should have censorial power over the government because the sovereignty lies with the people not with the government. Sedition 124A of the Indian Penal Code (IPC) drafted by Thomas Macaulay in 1937 was included in the IPC in 1970. Sedition was not part of the original draft of the IPC which was enacted in 1960, section 124A states following, “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 the law in India shall be punished with imprisonment for life, to which a fine may be added; or with imprisonment which may extend to the three years, to which a fine may be added, or with fine.
Sedition in India is a cognizable (not requiring a warrant for an arrest), non-compoundable (not allowing a compromise between the accused and the victim), and non-bailable offense. Sedition was primarily used to curb the Nationalist feelings from getting developed, to curb the Nationalist movement for freedom. From Mahatma Gandhi to Jawaharlal Nehru, Bal Gangadhar Tilak to Abdul Kalam Azad, all were charged with sedition. Bal Gangadhar Tilak was tried many times in cases related to sedition. Firstly, for writing an article in the Kesari, his weekly Publication justifying the killing of Afzal Khan by Shivaji during the Bubonic plague in 1897 that ultimately resulted in the killing of Walter Charles Rand by Chapker brothers. Walter was a British officer appointed as plague commissioner of the city, who misused his post and looted innocent Indians and humiliated women.
British press quickly drew equivalence and criticized The British government for not taking any action against Tilak and soon Tilak was in jail. Again, for the second time, he was booked on the sedition charges when Khudiram Bose hurled a bomb on a caravan of British officers mistakenly killing two European women. Tilak wrote in his article, “This no doubt, will inspire many with hatred against the people belonging to the party of rebels. It is not possible to cause British rule to disappear from this country by such monstrous deeds but rulers who exercise unrestricted power must always remember that there is also a limit to the patience of humanity.”
Gandhi was also arrested on charges of sedition and sentenced to six years of imprisonment for taking part in a protest against the colonial government in 1922. Mahatma Gandhi termed sedition 124A as the “prince among the political section of the Indian Penal Code designed to suppress the liberty of the citizen.” In the constituent assembly, while laying out the rights of freedom, Sardar Vallabhbhai Patel made an exception for “sedition, obscene, blasphemous, slanderous, libellous or defamatory languages. Finally, an amendment was moved to remove the word sedition from the list of the grounds of reasonable restriction over the rights of freedom.
Then, in 1950, the Supreme Court in two of its judgments sided with the government and asked the editor of Organiser (a magazine run by Rashtriya Swayamsevak Sangh) to clear provocative content and banned Crossroads (a pro-communist weekly published from Bombay.)
In the famous case of ‘Kedarnath versus the state of Bihar,’ a landmark verdict was given by a constitutional bench of the Supreme Court where it not only upheld the constitutionality of Section 124A of IPC but also attempted to restrict the colonial-era law’s scope for misuse by trying to demarcate the difference between which acts amounted to sedition and which one does not.
Again, in the case of ‘Shreya Singhal versus Union of India’ (2015) where she challenged the constitutional validity of section 66A, of the IT Act 2000. SC ruled this section 66A unconstitutional and said, “The distinction between ‘advocacy ‘and ‘incitement’ is grounded in the idea of proximity and immanence.”
After so many arguments regarding sedition, the real question remains the same that, “Do we need this section?” in our IPC. There are several arguments in favour and against the law. In its favour, it is said that Section 124A of the IPC had its utility in combating anti-national, secessionist, and terrorist elements. It protects the elected government from attempts to overthrow the government with violence and illegal means. If contempt of court invites penal actions, contempt of government should also attract punishment. Many districts in different states face a Maoist insurgency and the rebel groups virtually run parallel administrations. These groups openly advocate the overthrowing of state governments by revolution. After so many arguments in the favour of the legitimacy of this law, its misuse cannot be ignored. Some of the misuses of the law include, nineteen years old Amulya Leone cases; Pathalgadi movement; nine years old child’s lines in a play have sent a mother and a teacher to jail for sedition; Protest against the Kudankulam nuclear power project in 2012-13; the case of 22 years old climate change activist Disha Ravi.
According to the National Crime Records Bureau (NCRB), the conviction rate in sedition cases was 3.3% in 2019. However, the process often becomes the punishment as lower courts refuse to grant bail or examine the charges thoroughly. The law commission’s 2018 consultation report on sedition called for a rethink or repeal of the sedition law stating that “Dissent and criticism are essential ingredients f a robust public debate on policy issues as part of a vibrant democracy.”
If we look at the global pictures, the UK, New Zealand, Australia, Indonesia, the USA all have either junked the sedition law or have amended it to reflect the idea of freedom of expression in modern society. So, India should either abrogate this colonial law or should make sedition law a non-cognizable (will need a warrant before arresting any person) offense so that the persons are not arrested at the drop of a hat and also a bailable offense to ensure the rights of the individual.