Apropos of the two separate decisions last week relating to sedition by the Supreme Court, AVINASH KUMAR YADAV and AMARTYA VIKRAM SINGH trace the evolution of the jurisprudence relating to the constitutionality and interpretation of the law of sedition, provided in Section 124A of the Indian Penal Code, in Indian courts.
HE law of sedition has always been one of the most contentious topics of constitutional law jurisprudence in India, with views ranging from calls for the complete abolition of the provision from our statute books to those advocating for retaining the sedition clause in its entirety with a more vigorous implementation. While many others have called for retaining the provision but keeping its implementation within defined legal limits, to strike a balance between national security and fundamental rights.
The Public debate over this issue was reignited last week when a three-judge division bench of the Supreme Court said in an order on May 31, 2021, in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. (W.P. (Cr.) No. 217/2021) that “there is a need to define the limits of sedition”. Later in the week, a two-judge division bench of the apex court, in the case of Vinod Dua v. Union of India & Ors., quashed an FIR (first information report) against the petitioner, journalist Vinod Dua, for the offence of sedition. In its judgment, the court made an observation that every journalist shall be protected from the charge of sedition taking into account the interpretation of the offence as propounded in the court’s landmark judgment in the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955).
Since the Supreme Court itself has recognized that there is a need to re-examine these laws, it is important to trace the jurisprudence by Indian courts that have contributed to the present-day conception of the law of sedition.
Genesis of Section 124A of the Indian Penal Code, and pre-independence jurisprudence
Many legal experts argue that the sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen. This version went through further modification through the IPC (Amendment Act), 1898, since when it has largely retained its form.
The first notable case for the offence of sedition was reported in 1891, in the case of Queen-Empress v. Jogendra Chunder Bose & Ors., (1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891. The publishers argued that the offence of sedition only penalised writing of seditious content and not the publication thereof, and also challenged the existence of the sedition law itself. They contended that penalising people for exercising their rights went against the original intention of the law.
The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The High Court had also emphasised upon the distinction between the terms ‘disapprobation’ (that is, legitimate criticism) and ‘disaffection’ (which refers to ‘any feeling contrary to affection’. The court concluded that since only disaffection is penalised, the offence of sedition does not take people’s rights away.
The next landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR 22 Bom 112. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling. This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.
About two decades later, Tilak was again tried for sedition in the case of Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of swarajya (‘self-rule’) for Indians. In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticise the civil services, arguing in court that the civil services and the British government were two distinct entities.
Also read: The Law of Sedition and Bal Gangadhar Tilak
A division bench of the Bombay High Court rejected Tilak’s contentions, holding that the civil services derived their authority from the State itself, and no such ground for such distinction existed. The High Court, however, clarified that only such criticism of the civil service that can be attributed to the state should be considered seditious.
The court, in this case, took a relatively liberal stance, rejecting the interpretation of ‘disaffection’ given by the single judge bench of the same court in Queen-Empress v. Tilak & Bal, which came out with the broad definition of disaffection as anything contrary to affection. This judgment had a positive impact on free speech, as the actual impact of the alleged seditious speech on the public was taken into account, while reading the intention of the accused.
Sedition jurisprudence in independent India
The case of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the first instance of a court in independent India adjudicating on the constitutional validity of section 124A of the IPC. Since India was now an independent republic, constitutional provisions assumed supremacy over British precedents. The then-Punjab High Court, in this case, recognised that section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Indian constitution.
Soon after, independent India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, among other things, sought to resolve the anomaly in the constitutionality of the sedition law as a result of the Tara Singh Gopi Chand judgment. It did so by introducing new grounds on which the right to freedom of speech and expression could be reasonably restricted.
In the original Constitution, the only grounds for limiting free speech enumerated in Article 19(2) were the security of the State, defamation, contempt of courts, and decency and morality. The Amendment Act introduced the new grounds of public order, relations with foreign states, and incitement to an offence, for restricting the freedom of speech and expression.
Now, invocation of the offence of sedition was not confined merely to acts undermining the security of the State or tending to overthrow the State; it merely had to be ‘in the interest of the security of the State’. Such wide-meaning terms gave greater discretion to the State invoke the offence of sedition.
The amendment was put to test within two years in the case of Debi Soren & Ors. v. The State (1954 CriLJ 758), in which the accused, an Adivasi leader, was booked for an inflammatory speech against the government. In its judgment, a division bench of the Patna High Court made a clear distinction between disapprobation and disaffection and held that only disaffection leads to public disorder. The High Court also confirmed the constitutionality of section 124A of the IPC, ruling that it does not violate Article 19.
The landmark Kedar Nath Singh judgment
Next, we arrive at Kedar Nath Singh, which is considered the most authoritative judgement of the Supreme Court on the interpretation of the sedition law. In this matter, a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of the sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress government.
The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement to violence or would result in public disorder. Since Kedar Nath criticised the Congress party and not the Indian State, and the speech in question did not lead to any incitement to violence, therefore it did not amount to sedition.
The court also noted that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause. The court upheld the erstwhile Federal Court’s interpretation of section 124A in Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38, in which its judgment batted strongly in favour of legitimate criticism of the government and against arbitrary restriction on the freedom of speech. The Federal Court had proffered that to constitute the offence of sedition, there needs to be a public disorder or at least a reasonable likelihood of public disorder.
Post-Kedar Nath Singh developments
In another important decision, in the case of Balwant Singh & Anr. v. State Of Punjab, 1995 (1) SCR 411, the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favour of an independent Sikh majority state in the wake of Indira Gandhi’s assassination. A two-judge division bench of the Supreme Court ruled in favour of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.
Taking into consideration the phrase ‘pernicious tendency’ discussed in Kedar Nath Singh, the court stressed that such tendency was to be ascertained by looking at the consequences of the impugned speech.
Courts, in recent times, have relied on the above interpretation in cases of sedition, with a few modifications. One such modification was observed about a decade back in the cases of Arup Bhuyan v. the State of Assam, (2011) 3 SCC 377 and Sri Indra Das v. State of Assam, (2011) 3 SCC 380, both of which were decided by the same two-judge division bench of the Supreme Court within seven days of each other. In both judgments, the court, adjudicating on charges of sedition and preventive detention, placed reliance on the ‘imminent lawless action’ test laid down by the U.S. Supreme Court judgement in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). As per this test, all speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action.
The Law Commission of India, in its Consultation Paper on “Sedition”, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period. This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.
Also read: Now, Mere Disagreement is Sedition
Hence, there is an imminent need to relook the invocation of sedition under section 124A, and ensure that the offence is used within defined legal limits, so as to strike a balance between national security and the fundamental rights of citizens.
(Avinash Kumar Yadav is a third-year undergraduate law student at the National Law University, Delhi. Amartya Vikram Singh is a third-year undergraduate law student at the Rajiv Gandhi National University of Law, Punjab. The views expressed are personal.)