Ever since its inception in the Macaulay‘s Draft Penal Code, 1837, the law of sedition has enjoyed consistent political and jural limelight. Initially covered under section 113 of the draft, sedition was not included in the Indian Penal Code when it was enacted in 1860. This came as a surprise to many jurists and academicians. Sir Barnes Peacock, the first Chief Justice of the Calcutta High Court, in his letter to Henry Maine described it as a “mistake” and “an oversight on the part of the committee not to substitute for section 113.” To correct this “mistake,” sedition was included as an offence under section 124A of IPC through Special Act XVII of 1870.
This section, as inserted in 1870, punished anyone who by words, signs, visible representation, or otherwise excited or attempted to excite feelings of disaffection towards the Government established by law. Further, in 1898, it was amended to also punish anyone who brought or attempted to bring into hatred or contempt the Government established by law.
Even though, the British Jurists and courts opined that Section 124A covered only ‘the intention to resist by force or an attempt to excite resistance by force’ and that it penalised disaffection and not disapprobation, the section soon became a useful weapon in the British arsenal to curb political dissent in India.
This power to exploit section 124A came from the usage of words such as “disaffection” and “hatred”, which still constitutes the essence of the dispute surrounding this section. The British lawmakers used such words without any substantial attempt to define their scope and restrictions in the law itself and left the interpretation of these words to the courts. It was, however, practically impossible to precisely define the ambit of these words that are generally used to describe abstract feelings.
One of the initial attempts at the interpretation of these words can be found in Queen Empress v. Bal Gangadhar Tilak, 1898, when Justice Strachey described sedition as hatred, enmity, hostility, contempt, ill-will and any kind of disloyalty towards the Government.
Further, in Queen Empress v. Ramchandra Narayan, 1898, the ‘attempt to excite feelings of disaffection towards the Government’ was defined as, “equivalent to an attempt to produce hatred towards the Government as established by law, to excite political discontent, and alienate the people from their allegiance” However, the court also clarified that every act of disapprobation of Government did not amount to disaffection under section 124A, provided the person accused under this section is loyal at heart and is “ready to obey and support Government.”
Following the various court judgments that tried to find a definitive interpretation of section 124A IPC, the ambiguity of the words used in it came to light. This ambiguity was carried over to the post-independence era, where it became a point of serious opposition by the Constituent Assembly. Sedition was not acceptable to the forefathers of the Indian Constitution as a restriction on the freedom of speech and expression. It was seen as “a shadow of colonial times that should not see light of the day in free India.” Consequently, the Constituent Assembly unanimously deleted the word “sedition” from Article 13 of the draft Constitution. However, its position in the Indian Penal Code was retained in its original form under section 124A.
This gave birth to the main point of dispute surrounding sedition in the post-independence era. Section 124A of IPC imposes a direct threat to Article 19(1)(a) – the right to freedom of speech and expression guaranteed as a Fundamental Right by the Constitution.
This conflict was majorly addressed when the constitutional validity of section 124A of IPC was challenged in Kedar Nath Singh v. State of Bihar, 1962. The Supreme Court upheld its constitutional validity and drew a distinction between the terms, “the Government established by law” and “the persons for the time being engaged in carrying on the administration” observing:
'Government established by law' is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why 'sedition', as the offence in Section 124-A has been characterised, comes, under Chapter VI relating to offences against the State. Hence any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
Simultaneously, the Supreme Court also struck a balance between the right to freedom of speech and expression and the power of the legislature to restrict such right. In the words of the Supreme Court:
“…the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo non of a democratic form of Government that our Constitution has established. … But the freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”
Following this judgment, public disorder has been considered as a necessary ingredient of section 124A IPC by the courts.
In Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India, 1986, the Supreme Court outlined the four important purposes of free speech and expression:
- self-fulfilment of an individual,
- discovery of truth,
- participation of individuals in decision-making, and
- reasonable balance between stability and social change.
The Supreme Court has consistently pronounced in its various judgments that the right to freedom of speech and expression is not absolute. It is subject to reasonable restrictions covered under Article 19(2) and other laws like section 124A of IPC. Pursuant to this, the Supreme Court in S. Rangarajan v. P. Jagjivan Ram, 1989, held that the right to freedom of speech and expression can be restricted if there is danger to the society and public order.
Similarly, in Ramesh v. Union of India, 1988, the Supreme Court stated that while determining the impact of the words uttered, the test of a “reasonable, strong minded, firm and courageous” mind is to be applied; and not of a “weak and vacillating mind.”
In Shreya Singhal v. Union of India, 2015, the Supreme Court laid down three fundamental concepts to understand the reach of right to freedom of speech and expression:
a) discussion,
b) advocacy, and
c) incitement
Further, the court held that mere discussion or advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a):
“It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”
Based on the judgments of the Supreme Court and general logic, it can be understood that one cannot exercise the right to freedom of speech and expression in isolation. Speech and expression is a transaction between two or more individuals. As such, a mere protection of this freedom in isolation is not sufficient to protect the democratic fabric of the nation. It is important that a person’s right to speech and expression is protected when it is being transacted between two or more individuals as an exchange of information. While it is also important to maintain the integrity of the nation, it becomes crucial that a harmony is created among all the prongs of speech and expression, including access to information, transaction of information, and reasonable restrictions on such information transaction.
Sedition Laws in the International Sphere:
1. United Kingdom
The concept of sedition in United Kingdom first came forth in the Statute of Westminster, 1275. In the De Libellis Famosis case of 1606, the King’s Bench firmly established seditious libel in United Kingdom.
However, in 1977, the United Kingdom Law Commission referred to the judgment of the Supreme Court of Canada in R. v. Boucher and recommended that it was better to rely on ordinary statutory and common law offences than to have resort to an offence which had the implication that the conduct in question was political. As such, it recommended against the need for an offence of sedition in the criminal code.
Finally, in 2009, United Kingdom abolished sedition as an offence. The Parliamentary Under-Secretary of State at the Ministry of Justice of the U.K. reasoned that:
Sedition was an offence from a bygone era when freedom of expression was not seen the way it is seen in the modern world and that the existence of such obsolete offence in the U.K. had been used by other countries to justify their retention of similar laws which were being used to suppress political dissent and restrict the freedom of press.
This landmark step was quite ironical in the context of Indian law, as it placed U.K. outside the very bracket that it had placed India in, as its colonial master.
As already discussed, the law of sedition found its way into the Indian law through an enactment by the British. While the British found it appropriate to abolish sedition more than a decade ago, the political landscape of India shows no signs that the Indian Legislature might take a similar step in the near future.
Moreover, the religious, linguistic, and cultural barriers among the population of India and the demands of separatists present a very complicated and challenging picture even if the Legislature were to consider following the footsteps of the United Kingdom.
At present, the politico-legal scenario of India stands at crossroads between abolishing and strengthening the law of sedition.
Based on the data provided by the National Crime Records Bureau, 96 persons were arrested on the grounds of sedition during the year 2019, however, only 2 of those people were actually convicted by the courts. This stat hints at the potential misuse of the sedition law in handling the voices of dissent raised against the Government.
The Supreme Court of India has time and again upheld the constitutional validity of section 124A albeit with a narrow and careful interpretation of the words like “hatred”, “contempt” and “disaffection.”
2. United States
The United States Constitution prohibits the State from enacting any legislation that curtails the first amendment – right to expression. Despite this, sedition was made a punishable offence in the U.S. Sedition was first introduced as a punishable offence through the Sedition Act of 1798, which was repealed in 1820. However, in 1918, a new Sedition Act was enacted to protect American interests in the First World War, and it still survives as an offence in the U.S.
The United States Supreme Court in Schenck v. United States laid down the “clear and present danger” test for restricting freedom of expression. The court held that the freedom of speech would become subject to restrictions if it creates a clear and present danger of bringing about the substantive evils which the U.S. Congress has a right to prevent.
The Alien Registration Act of 1940 which penalised advocacy of violent overthrow of the government also made sedition an offence.
In subsequent cases, however, the United States courts have adopted a narrower interpretation of sedition. In New York Times v. Sullivan, 1964, the U.S. Supreme Court held that:
“Speech must be allowed a breathing space in a democracy and government must not be allowed to suppress what it thinks is ‘unwise, false or malicious‘.”
The dispute between sedition and freedom of speech and expression in U.S. is identical with that of India. This is consistent with the fact that the framers of the Constitution adopted the concept of Fundamental Rights from the Bill of Rights of the United States.
Further, the Drafting Committee of the Constituent Assembly adopted the concept of “independence of judiciary” and “judicial review” from the U.S. Constitution. Interestingly, both – the Supreme Court of the United States and the Supreme Court of India – have moved from a broader interpretation of the sedition law to a narrower interpretation more recently. Over the course of their history, both the courts have moved from striking a balance between the freedom of speech and the State’s power to exercise reasonable restrictions on it to empowering the individuals to exercise this freedom. However, they have also consistently maintained that this freedom is not absolute.
3. Israel
The principles of law followed by Israel are a mixed bag of legal principles adopted from the United Kingdom and the United States – a similarity that it shares with India. In fact, the offence of sedition defined under Chapter 8 Article 1 Section 136 of the (Israel) Penal Law, 1977, is a relic from the British Mandate period in Israel, “with its roots in the Common Law dating back hundreds of years.” (State of Israel v. Kahana, 1996)
The definition carries a wider ambit as compared to India and is specifically aimed at discouraging the criticism of the government, its administrative and judicial authorities besides the incitement of discontent, resentment, ill-will, and enmity in the population. It includes public incitement to racism and defamation of a particular group of people, even though the offense of public incitement to racism is separately defined in the Israeli Penal Code, while defamation of a segment of the population constitutes a separate offense under the Defamation Act.
Similar to India, the offense of sedition in Israel has been ambiguously worded by the Legislature and has been left to the interpretation of the courts. Words such as “hatred”, “contempt”, “disloyalty”, “discontent”, and “resentment” have not been explicitly defined, which has interfered with the consistent application of the criminal law and the citizens’ right to exercise the freedom of speech and expression.
The courts, however, in both India and Israel have adopted an identical stance of strong support towards the freedom of speech and expression while also advocating the implementation of reasonable restrictions on it. In their judgments pronounced by the Israeli courts in Kol Ha’Am v. Minister of the Interior, 1953; and State of Israel v. BenMoshe, 1968, they have clarified that:
“Freedom of expression is a supreme constitutional right. It is a fundamental freedom, providing for the self-realization of individuals and ensuring an interplay of opinions essential for clarifying public matters and preserving the democratic process. It is for this reason that freedom of expression has been described as the soul of democracy.” However, this freedom “is not an absolute, unrestricted right, but rather a relative one, subject to limitation and control with a view toward safeguarding important socio-political interests, which under certain circumstances are deemed preferable to those protected through realizing the principle of free expression.”
4. China
Although the Constitution of the People's Republic of China states that the "citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession, and of demonstration," China has been known to come down with an iron fist on protestors and on those who speak against the government. The 1989 Tiananmen Square protests are one such example, among the many others that have been taking place in numbers every year.
Understanding sedition in the light of Chinese law requires a careful look into the criminal law and Constitution of China, the legal and constitutional structure of China, and its politico-legal system. An analysis of these three prongs show that the Chinese concept of sedition law and the right to freedom of speech and expression as practically followed in its courts and political sphere is in stark contrast to section 124A of IPC and Article 19(1)(a) of the Constitution of India.
The law of sedition in China is camouflaged as the offence of “Inciting subversion of state power” under Article 105(2) of the 1997 revision of the People's Republic of China's Penal Code. ‘Subversion,’ as used in Article 105 of the Chinese Constitution, is a broader term that involves organized and conscious efforts to undermine, disrupt, and overthrow a regime and includes any speeches the Chinese regime deems capable of encouraging the people to “subvert” the Government or the socialist system. Any act that involves “organizing, scheming or acting to subvert the political power of the state and overthrow the socialist system” is categorized as a “national security crime.”
Prosecutions of people under Article 105(2) evidence that factual statements and assessments, even if accurate, valid and limited to advocacy of peaceful change, come within the scope of Article 105 (2). Therefore, according to the Chinese Government, individuals charged with national security crimes are involved in either subversion or sedition. As such, Article 105(2) has been used as a "catch-all" charge to target and imprison political activists, human rights activists and dissidents, thereby muting any voices that are raised in the name of free speech and expression.
A deeper dive into the legal setup of China shows that the constitutional system itself has been a cripple in the country. The legal convention and norms have established that the Chinese Constitution is not supposed to be directly recognized in Chinese courts, especially in criminal cases. Further, the International Covenant on Civil and Political Rights (ICCPR), a legally binding international treaty, which China signed in 1998 has still not been ratified by it. This prevents the Chinese courts in providing any protection to the right to free speech and expression. Contrary to the Supreme Court of India which has always been identified as the guardian of the Fundamental Rights every time they have been encroached upon by the State, the Chinese courts have sided with the Chinese Government in the name of prioritising state security over citizens’ constitutional rights.
There has been a call for drastic measures to the “Inciting subversion of state power” law in China. However, without a proper opposition party in the parliament and an almost dictatorial regime of the Communist Party, any changes seem unlikely in the near future.
5. France
In France, freedom of speech is protected by the 1789 Declaration of Human and Civic Rights, which is incorporated into the French Constitution, and Article 11 of the French “Declaration of the Right of Man and the Citizen”, which corresponds to Article 19(1)(a) of the Constitution of India. Further, it is also protected by the European Convention on Human Rights, to which France is a party.
Despite such protections, the freedom of speech in France is not immune from “reasonable restrictions”. It is considered only an “essential” right and not an “absolute” right. It is found on a similar footing as the right to freedom of speech and expression in India contained in Article 19, which also provides the “reasonable restrictions” that can be imposed on this freedom.
Article 10 of the French “Declaration of the Right of Man and the Citizen” states that:
“…no one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.”
Article 11 of the declaration expressly provides that:
“…any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”
Therefore, based on French law, freedom of expression can be limited in France for protecting privacy, protecting the presumption of innocence, maintain public order, and preventing defamation and insults. These limitations in France are formally referred to as “government censorship” which corresponds to section 124A of the Indian Penal Code. Even though the two concepts sound different, they yield similar legal consequences, practically.
Specifically, the concept of sedition contained in section 124A of IPC is a criminal offence and a person whose act qualifies as “sedition” is entitled to imprisonment. While in France “censorship” is exercised by the French Government and the French courts as both a precautionary and a corrective measure. The punishments for violation of censorship vary from fines to imprisonment, depending on the nature of the violation.
The French courts do not faced the dilemma that has been faced by the Indian Courts in laying down the precise interpretation of words such as “disaffection” and “hatred” as mentioned in section 124A of IPC.
The general outlook of the French courts towards “censorship” is narrower when compared to the outlook of Indian courts towards sedition. The highest court in France for civil and criminal matters, Cour de Cassation, established the general principle that “restrictions to freedom of expression should be interpreted narrowly.” In 1933, a decision by the highest French jurisdiction for matters of administrative law, the Council of State, established the principle that the restrictions imposed on the freedom of speech should be proportional to the harm expected from its misuse.
India Identifies With United States and Israel
Freedom of speech has often been referred to as “mother of all liberties”, “the first and foremost human right”, and “the first condition of liberty.” The position of the law of sedition in India, presently, is very similar to that of Israel and United States, with calls for strengthening the citizens’ right to freedom of speech and expression. The Apex Court in the three countries have adopted a narrower approach towards the interpretation of sedition laws in their recent judgments, providing more impetus to the demands of a more powerful democracy where free speech has always been one of the most significant principles.
As the politico-legal landscape of the world evolves, India identifies itself with U.S. in the present struggle for power between a powerful right wing and a conscious left wing; and with Israel in its struggle to resolve land disputes with its neighbours while keeping its present integrity intact. In this eternal struggle for power, and amidst the protests against the new laws and policies introduced by the Government, Section 124A of IPC will continue to enjoy the spotlight until the Supreme Court decides that it is time for the curtain to fall.
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