Temporary Suspension of The Sedition Law: National Implications

INTRODUCTION

Affecting a substantial blow supporting free speech, the Supreme Court of India, earlier this year, suspended the operation of IPC Section 124A i.e., Sedition, while allowing the Central Government to review this British-era established Statute. By the virtue of this action, “the criminal trials, appeals and court proceedings pending under this provision have been kept on hold” a three-judge bench headed by the Chief justice of India, N.V. Ramana ruled. However, if the court holds the opinion that no prejudice would be caused to the accused,” adjudication with regard to other legal provisions, if any, will move forward.^[1]

After numerous applications were filed by journalists Kishorechandra Wangkhemcha, Kanhaiya Lal Shukla, and Trinamool Congress MP Mahua Moitra, the Supreme Court agreed to hear a new challenge to the provision. A seven-judge panel was to assess if the Kedar Nath decision^[2] was made correctly in this case. The petitioners contended that other laws, including harsh anti-terror statutes like the Unlawful Activities Prevention Act, can handle the narrow Kedar Nath definition of sedition.

The three-judge bench, comprising Chief Justice N.V. Ramana and Justice Surya Kant and Justice Hima Kohli, effectively suspended Section 124A of the Indian Penal Code in a brief ruling in the case of S.G. Vombatkere v. Union of India.^[3]

WHAT DOES THIS MOVE SIGNIFY?

It was explicitly made clear by the Apex court that it expects the Union to exercise restraint in registering FIRs, carrying out investigations, or using coercive measures under Section 124A while the colonial legislation was being “reconsidered.”

The Supreme Court’s ruling and the Union’s “clear” position that the provision had been misused and needed to be “re-examined” were taken into consideration when the court ordered that those accused in new cases were free to approach courts with their cases. These efforts were part of the PM’s attempt to not only scrap outdated laws but also to reduce unnecessary compliance burdens. This added a fail-safe to safeguard civil liberties against any future misuse of Section 124A while it was under the Union’s scrutiny. The Union of India was granted the freedom to order States and authorities to issue such directives that stop the misuse of the sedition statute. Upon interpreting the clause to indicate that it only applies to “acts including intention or inclination to produce disruption, disturbance of law and order, or encouragement to violence“, the court upheld it.

The courts have observed the non-obedience to the limitation imposed by the Constitution Bench in 1962, upon what actually constitutes sedition.^[4] In reality, the police have been filing charges against anyone who has criticized the government by using strong language applying the broad term of sedition. Furthermore, the Undertrials charged under Section 124A can effectively use the order to seek bail. Hence, the court’s temporary ruling seems to strike a balance between citizens’ civil liberties and the security and integrity of the state.

HISTORICAL AND LEGAL PERSPECTIVE OF ‘SEDITION’

The legislation against sedition was included in Thomas Macaulay’s proposal of the Indian Penal Code, but it was not included in the final version that was adopted in 1860. Furthermore, through Special Act XVII, sedition was added to the list of crimes covered by section 124A of the IPC in 1890. The present provision of Section 124A of the Indian Penal Code^[5] defines sedition as:

“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…”

It is worth noting the three explanations given under the aforementioned provision:

1. ‘Disaffection’ comprises disloyalty and the feelings of hostile emotions or enmity;
2. The Disapproval of administrative or other actions of the Government without exciting or attempting to excite hatred, contempt, or disaffection does not constitute an offence under this section;
3. Comments expressing disapprobation of the Government’s measures with a view to obtaining their alteration by legal means do not constitute an offence under this section.

To quell political disagreement during the Independence struggle, the clause was frequently invoked. Several Cases involving Section 124A of the IPC from before India’s independence include those involving Bal Gangadhar Tilak, Annie Besant, Shaukat and Mohammad Ali, Maulana Azad, and Mahatma Gandhi.^[6] The most famous sedition trial of this period, Queen Empress v. Bal Gangadhar Tilak,^[7] took place in 1898.

UNDERLYING CHALLENGES

1. According to Munshi at the Constituent Assembly the core of democracy is “criticism of government”. The sedition law suppresses this fundamental principle and criminalizes criticism and resistance. It completely destroys the foundation of a democratic republic and its Basic Structure.

2. Sedition law impacts the marginalized groups most. Law enforcement rarely adheres to the restrictions set forth in the Kedar Nath case. Even the most innocent actions of dissent have been faced with a charge of sedition in recent years due to increased use of the statute. The most marginalized groups in society have typically borne the brunt of such injustices.

3. Section 124A is a colonial remnant that is inappropriate in a democracy. It is a restriction on the lawful exercise of the freedom of speech and expression that is secured by the constitution.

4. The definitions of phrases used in Section 124A, such as “disaffection,” are ambiguous and open to the whims and preferences of the powerful authorities. There are provisions in the IPC and the 2019 Unlawful Activities Prevention Act that make “disturbing the public order” or “overthrowing the government by violence and criminal methods” illegal. These are adequate to safeguard national integrity and as such, there is no need to enforce Section 124A.

5. The rule against seditious speech is being abused to crack down on political opposition. It is designed with an expansive and focused executive discretion that allows for apparent abuse.

6. The International Covenant on Civil and Political Rights (ICCPR), which lays down universally accepted guidelines for the protection of freedom of expression, was ratified by India in 1979. However, abuse of the term “sedition” and arbitrary charging are at odds with India’s international obligations.

SECTION 124A IPC THROUGH THE JUDICIAL LENS

1. In Romesh Thapar v. the State of Madras,^[8] the Supreme Court ruled that criticizing the government does not constitute a legitimate justification for limiting press freedom or freedom of speech unless it jeopardizes national security or has the potential to overthrow the government. Justice Patanjali Shastri justified the liberal interpretation of the legislation by pointing out that the Constituent Assembly had deliberately left out the word “sedition” in the Constitution.

2. The provision was ruled unconstitutional by the Punjab and Haryana High Court, in Tara Singh Gopi Chand v. The State^[9] and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh^[10], deeming Section 124A of the IPC as the tool for colonial rulers to suppress criticism.

3. IPC Section 124A was affirmed constitutional in Kedarnath Singh v. State of Bihar,^[11] by the Supreme Court. It also made an effort to limit any scope for abuse. Therefore, it is impossible to classify criticism of the government as “sedition” unless it is coupled with incitement or calls for violence. The situations under which the allegation of sedition cannot be invoked are laid down in seven principles in the Kedar Nath Singh decision.

4. The decision in Balwant Singh v. State of Punjab,^[12] reaffirmed the requirement that the speech’s actual aim be considered before classifying it as seditious.

5. In Vinayak Binayak Sen v. State of Chhattisgarh,^[13] the court ruled that even if a person did not create the seditious statement, but rather simply spread it, he might still be found guilty of the crime.

6. The Allahabad High Judicial ruled in Arun Jaitley v. State of Uttar Pradesh,^[14] that criticizing the judiciary or a court decision would not constitute sedition.

7. The SC invalidated the sedition charges filed against a journalist in Vinod Dua v. Union of India,^[15] after the journalist criticized the Prime Minister’s management of the Covid-19 controversy and issued a warning against the illegitimate application of the law.

8. The Allahabad High Court in Inayat Altaf Shekh v. State of U.P.,^[16] stated categorically that “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans.”^[17] The ruling of the Allahabad High Court effectively illustrates the abuse of the sedition laws on unimportant matters like student sloganeering during an India-Pakistan cricket match.^[18]

CONCLUSION AND THE WAY FORWARD

The order delivered by the Supreme Court of India sends a strong message to government authorities who frequently use sedition legislation to suppress dissent and impair individual liberties. It is evident that the Central Government concurs with the court’s assertion that Section 124A of the IPC’s restrictions are not in tune with today’s social climate and were created with the colonial era in mind. The interim relief serves as a balancing act, where the court attempts to duly recognize the security interests and integrity of the state as well as the civil liberties of the people.

Indeed, the time has come to reform the law and it is true that a law cannot be declared unconstitutional solely because it has been violated. The reasoning behind the Kedar Nath Singh ruling and the continued existence of Section 124A, however, have both grown unjustifiable in the context of sedition. The Supreme Court’s interpretation of fundamental rights has undergone a radical transformation since the judgment was issued in 1962. As an illustration, the Court recently overturned penal legislation due to, among other things, their imprecise language and the chilling impact the restrictions had on free speech.

The freedom to free speech and expression is a fundamental component of democracy, and India is the country with the largest democracy in the world. Sedition should not be associated with speech or ideas that are opposed to the current administration’s policies. It is improper to use Section 124A as a weapon to restrict free speech. The SC’s caution on legal prosecution in the Kedar Nath case can stop its abuse. It must be assessed in light of the new facts and circumstances, as well as against the constantly changing standards of arbitrariness, necessity, and proportionality.

The judiciary should make use of its oversight authority to educate the police and magistrates on the constitutional protections for free speech. The term “sedition” needs to be defined to exclusively refer to disagreements concerning India’s geographical integrity and national sovereignty. It must be made sure that the fundamental protections for individual liberty and freedom are not ineffective if we are to preserve our democracy. For such, a commitment to equality, justice, and fairness must underpin each of our penal laws.

^[1]Krishnadas Rajagopal, Supreme Court puts colonial sedition law on hold, THE HINDU (May 12, 2022, 01:24 PM) https://www.thehindu.com/news/national/sc-asks-centre-states-to-not-file-fresh-firs-in-sedition-cases/article 65403622.ece.

^[2]Kedar Nath Singh v. State of Bihar AIR 1962 SC 955.

^[3] S.G. Vombatkere vs Union of India 2022 SCC OnLine SC 609.

^[4] Supra note 2.

^[5] Indian Penal Code, 1860, § 124A, No. 45, Acts of Parliament, 1860 (India).

^[6]Apurva Vishwanath, Explained: What is the sedition law, and why Supreme Court’s fresh directive is important, THE INDIAN EXPRESS (May 12, 2022 10:59 AM), https://indianexpress.com/article/explained/sedition-law-explained-origin-history-legal-challenge-supreme-court-7911041/.

^[7]Queen Empress v. Bal Gangadhar Tilak (1917) 19 BOMLR 211.

^[8] Romesh Thapar v. the State of Madras 1950 AIR 124.

^[9] Tara Singh Gopi Chand v. The State 1951 CriLJ 449.

^[10] Ram Nandan v. State of Uttar Pradesh AIR 1959 All 101.

^[11] Kedarnath Singh v. State of Bihar 1962 AIR 955.

^[12] Balwant Singh v. State of Punjab 1976 AIR 230.

^[13] Vinayak Binayak Sen v. State of Chhattisgarh, 2011 SCC OnLine Chh 30.

^[14] Arun Jaitley v. State of U.P., 2015 SCC OnLine All 6013.

^[15] Vinod Dua v. Union of India, 2020 SCC OnLine SC 1209

^[16] Inayat Altaf Shekh v. State of U.P. 2022 SCC OnLine All 419.

^[17] Ibid.

^[18] Deepak Singh, Bridging the Gaps in the Sedition Stay Order: Analysis of S.G Vombatkere v. Union of India, SCC ONLINE (Jul 28, 2022), https://www.scconline.com/blog/post/2022/07/28/bridging-the-gaps-in-the-sedition-stay-order-analysis-of-s-g-vombatkere-v-union-of-india/.

YLCC would like to thank Harshima Vijayvergia for her valuable insights in this article.