Insights into Editorial: It is Time to Render Sedition (Section 124A of IPC) Unconstitutional
14 October 2015
Some state governments in India have been using ‘Sedition’ as a tool to silence or discipline critics.
What is sedition?
‘Sedition’ is an offence incorporated into the Indian Penal Code (IPC) in 1870. Section 124A of the IPC defines sedition and says:
- 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, the government established by law; or
- whoever by the above means excites or attempts to excite disaffection towards the government established by law, has committed the offence of sedition.
According to the law, disaffection includes disloyalty and all feelings of enmity. However, disapprobation of the measures or administrative action of the government to obtain their alteration by lawful means is not an offence.
The law also says that there should be no attempt to excite hatred or contempt or disaffection. In other words, even if the impugned speech or article or cartoon seeks to obtain the alteration of the wrong governmental decisions, if they excite hatred, contempt or disaffection towards the government, the author of the speech and others are liable to be charged with sedition and punished.
How is it being used by the governments?
- A number of litigations in 1950s and 1960s, and the amendments made to Article 19 of the Constitution have widened the scope of sedition.
- In recent years, sedition has been frequently invocated to deal with free speech and expression. Some recent cases are indicative of a high level of intolerance being displayed by governments towards the basic freedom enjoyed by citizens.
Originally, it was enacted to silence the Indian people by the colonial rulers. After independence, it was retained by the democratic government in free India. Sedition was not a part of the original Indian Penal Code (IPC) enacted in 1860. It was introduced in 1870.
Difficulty in its interpretation:
Pre independence era:
- In the pre-Independence era, a number of landmark cases on sedition were decided by the Federal Court as well as the Privy Council. These two high judicial bodies had taken diametrically opposite positions on the meaning and scope of sedition as a penal offence.
Views of the federal court:
The Federal Court in Niharendu Dutt Majumdar Vs. King Emperor (1942) FCR 48 , held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”. The court was of the view that sedition implies resistance or lawlessness in some form. However, the federal court held that if there is no incitement to violence, there is no sedition.
Views of the privy council:
- The Privy Council was of the view that acts like incitement to violence and insurrection are immaterial while deciding the culpability of a person charged with sedition. It said that since the IPC defines the offence of sedition, unlike the English Law, which doesn’t define it, one needs to go by that definition only.
- In King Emperor V. Sadashiv Narayan Bhalerao (1947 ) case, the Privy Council held that the Federal Court’s statement of law in the Niharendu Majumdar case was wrong. The Privy Council overruled the decision of the Federal Court and held that excitement of feelings of enmity to the government is sufficient to make one guilty under Section 124A of the Code.
Queen Empress Vs. Bal Gangadhar Tilak (1897) was the first case wherein the law on sedition under Section 124A in the IPC was explained. Strachey J. stated the law in the following terms;
- “The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”
Post independence era:
The Constitution bench of the Supreme Court explained the amplitude of sedition for the first time in 1962 in the case of Kedarnath Vs. State of Bihar ( 1962 ). The court adopted the view of the Federal Court of India that the gist of the offence of sedition is “incitement to violence” or the “tendency or the intention to create public disorder”. So, as per the Constitution Bench of the Supreme Court, a person can be charged with sedition only if there is incitement to violence in his speech or writing or an intention to create disorder.
- Despite the fact that sedition was a colonial law meant to suppress the voice of Indian people, the law enforcement agencies today have been using it against artists, public men, intellectuals criticising the governments.
- It appears that the government and its agencies are following the law enunciated by the Privy Council and not by the Supreme Court in Kedarnath. It is also being said that the governments in free India continue to use it for the very purpose for which the colonial government used it.
Democracy has no meaning without freedoms and sedition as interpreted and applied by the police and governements is a negation of it. Hence, before the law loses its potency, the Supreme Court, being the protector of the fundamental rights of the citizens has to step in and evaluate the law and may declare Section 124A unconstitutional if necessary.