Concerned over enormous misuse of the colonial-era penal law on sedition, the Supreme Court asked the Centre why it was not repealing the provision used by the British to silence people like Mahatma Gandhi to suppress freedom movement.
Agreeing to examine the pleas filed by Editors Guild of India and a former major general, challenging the Constitutionality of Section 124A (sedition) in the IPC, a bench headed by Chief Justice N.V. Ramana said its main concern was the “misuse of law” leading to a rise in the number of cases.
It issued the notice to the Centre, which was accepted by Solicitor General Tushar Mehta.
What is sedition?
• The offence of sedition is provided under Section 124A of the Indian Penal Code (IPC).
• It states: 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 shall be punished with imprisonment for life, to which fine may be added.
• Sedition is punishable with life imprisonment and also an additional fine if the ruling dispensation thinks a person is inciting hatred against the establishment.
• As many as 229 cases on charges of sedition have been lodged across the country in a five-year period from 2015, Parliament was informed earlier this year.
• According to the data, 30 cases were lodged on charges of sedition in 2015 followed by 35 in 2016, 51 in 2017, 70 in 2018 and 93 in 2019.
• Bihar topped the list in 2015 with nine such cases followed by Haryana in 2016 with 12 cases, Assam in 2017 with 19, Jharkhand in 2018 with 18 and Karnataka in 2019 with 22 cases.
Sedition during pre-Independence era
• Section 124A of the IPC was extensively used to curb political dissent in India. In 1891, Jogendra Chandra Bose was charged with sedition for criticising the Age of Consent Bill and the negative economic impact of British colonialism.
• Bal Gangadhar Tilak was accused of sedition for publishing an article in newspaper Kesari invoking the example of the Maratha warrior Shivaji to incite the overthrow of British rule.
• Mahatma Gandhi was jailed under the charges of sedition. Gandhiji was arrested by the British police for writing articles in his weekly journal Young India.
Law Commission seeks omission of section
• The issue of revisiting ‘sedition’ has been taken up by the Law Commission in its reports. The Commission, in its 39th Report (1968) titled ‘The Punishment of Imprisonment for Life under the Indian Penal Code’ recommended that there are certain extremely anomalous situations where certain offences have been made punishable with severe punishment.
• The 267th Report of the Commission on Hate Speech (2017) distinguished between sedition and hate speech, providing that the offence of hate speech affects the state indirectly by disturbing public tranquillity, while sedition is directly an offence against the state.
• The report adds, that to qualify as sedition, the impugned expression must threaten the sovereignty and integrity of India and the security of the state.
Attempts to amend the law
• In 2011, a private member Bill titled the Indian Penal Code (Amendment) Bill, was introduced in the Rajya Sabha by CPI leader D. Raja. The Bill proposed that Section 124A IPC should be omitted. It was reasoned that the British government used this law to oppress the view, speech and criticism against the British rule. But the law is still being used in independent India, despite having specialised laws to deal with the internal and external threats to destabilise the nation. Thus, to check the misuse of the section and to promote the freedom of speech and expression, the section should be omitted.
• In 2015, Congress MP Shashi Tharoor proposed an amendment that only those actions / words that directly result in the use of violence or incitement to violence should be termed seditious.
Sedition in other countries
• The global trend has largely been against sedition and in favour of free speech.
• The UK abolished sedition laws in 2009 citing that the country did not want to be quoted as an example of using such draconian laws.
• Despite the conflicting views and the attempts by courts to narrow the scope of sedition, it survives as an offence in the US, though it is very narrowly construed and can even be said to have fallen into disuse.
• The recommendation of Australian Law Reform Commission was implemented in the National Security Legislation Amendment Act 2010 wherein the term ‘sedition’ was removed and replaced with references to ‘urging violence offences’.
Freedom of speech vs sedition
• Free speech is one of the most significant principles of democracy. The purpose of this freedom is to allow an individual to attain self-fulfilment, assist in the discovery of truth, strengthen the capacity of a person to take decisions and facilitate a balance between stability and social change.
• The Universal Declaration of Human Rights, 1948, in its Preamble and Article 19 declared freedom of speech as a basic fundamental right.
• Article 19(1)(a) of the Constitution of India guarantees freedom of speech and expression to all citizens.
• However, this freedom is subjected to certain restrictions namely, interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
• The relevance of Section 124A in an independent and democratic nation is the subject of continuous debate. Those opposing it see this provision as a relic of colonial legacy and thereby unsuited in a democracy. There is an apprehension that this provision might be misused by the government to suppress dissent.
• It is argued that amid growing concerns of national security, this Section provides a reasonable restriction on utterances that are inimical to the security and integrity of the nation.
• Balancing freedom of expression with collective national interest is one of the key ingredients of this law. Though it is argued that this law is a colonial vestige, Indian courts have upheld its constitutionality.
• In its consultation paper in 2018, the Law Commission said: “Berating the country or a particular aspect of it cannot and should not be treated as sedition. If the country is not open to positive criticism, there lies little difference between the pre- and post-independence eras. Right to criticise one’s own history and the right to offend are protected under free speech.”
“While it is essential to protect national integrity, it should not be misused as a tool to curb free speech. Dissent and criticism are essential ingredients of a robust public debate on policy issues as part of a vibrant democracy. Therefore, every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions.”