Introduction
Mahatma Gandhi described Section 124A as possibly the most powerful political section of the Indian Penal Code, meant to curtail citizen liberty. Affection is not something that can be manufactured or managed by law. If you don't like someone or a system, you should be able to voice your displeasure to the utmost extent possible, as long as you don't plan, encourage, or inspire violence.
Even after 75 years of independence, this is the most abused and misused sedition law that still exists in the penal laws, even though it was England who created this law but themselves abolished it back in 2010 via Section 73 of Coroners and Justice Act 2009, which came into effect from 1 January 2010.
Indonesian courts ruled sedition unconstitutional. Likewise, South Korea abolished its sedition law in 1988. According to the Australian Law Reform Commission’s recommendations, the term sedition was replaced by “urging violent offences. The same goes for many other countries.
The question at Hand: Even after 75 years of independence, is it necessary to keep the British-imposed Sedition Law?
In order to prevent abuse, or at least reduce the punishment term, it should have been abolished long ago. A petition challenging the constitutional validity of Section 124-A of the IPC as a violation of Articles 14, 19(1)(a), and 21 of the Constitution was filed by former IT Minister Arun Shourie and NGO Common Cause.
The argument is that although the Supreme Court upheld the provision in Kedar Nath V. State of Bihar in 1962, the law has changed and the matter requires reconsideration. A bench led by Justice UU Lalit is also hearing the petition and Intervention Applications challenging Section 124-A of the IPC’s constitutional validity.
Regardless, a bench headed by Chief Justice NV Ramana and comprising Justices AS Bopanna and Hrishikesh Roy, while issuing notice on a petition filed by Army veteran Major General SG Vombatkere (Retired) and the Editors Guild of India challenging Section 124A of the IPC for being "vague" and having a "chilling effect on free speech," stated emphatically that: After 75 years of freedom, is it still necessary? After 73 years of independence, he said it's regrettable that these kinds of regulations are still in place.
CJI was perplexed by the fact that the government is repealing a large number of legislations, stating his concern of the government as to why they aren't investigating this further.
Most brilliantly, CJI NV Ramana waxed eloquent to observe in simple, straight, and suave language as well as powerfully, pragmatically, and penetratingly that If we were to look back to the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to cut down a tree instead of a forest. This provision has that effect.
The court went on to say, "Our concern is a misapplication of the law and lack of executive responsibility." “A factionist can use these types of (penal) laws to incriminate the other group of people”, according to CJI Ramana, who also added that if a specific party or group of individuals does not want to hear a voice, they will use this law to implicate others.
After 75 years of independence, CJI NV Ramana asks: “Is it necessary to keep the sedition law that the British used to suppress our freedom movement?”
Sadly, the executing agency and particularly the authorities misuse it, the CJI clarified. Consider 66A, which was revoked but people were arrested. These provisions are abused but no one is held accountable.
Let me get to the point. It is time to update the draconian sedition law enacted by the British more than 150 years ago. After more than 75 years of independence, I wonder why no serious attempt has been made to amend the sedition law. Why aren't those in uniform who abuse the law, like Lt Col Prasad Shrikant Purohit, who was jailed for nearly 9 years for his alleged involvement in the Malegaon bomb blast case without even a charge sheet, held accountable and severely punished? Laws will be less misused if those who misuse them are held accountable and severely punished, not just temporarily suspended for public consumption!
It has frequently been misapplied, but what a supreme irony that this draconian Section, which even Mahatma Gandhi, our nation's father, despised, describing it as "prince among the political sections of the Indian Penal Code designed to suppress the citizen's liberty," continues unabated. Worse, our political class has never thought it necessary to update this draconian Section with adequate safeguards to prevent abuse, let alone repeal it. I agree that national interest is paramount and no citizen is above it, but that should not be a reason to arm the police to use this most abused Section against anyone who criticises the current government, as seen in anti-terror laws like UAPA.
In 1870, the draconian offence of sedition was imported into Indian law as Section 124A of the IPC to perpetuate British colonial rule and crush the birthright of Indian citizens to criticise the British government in any manner which could brew the slightest amount of discontent against them! This section was amended in 1891 to include explanations.
In brief, let’s take a look at what Section 124 A talks about.
A person who brings or attempts to bring into hatred or contempt the government established by law in India may be sentenced to life imprisonment with fine or to fine and imprisonment for life with fine.
- Disaffection includes disloyalty and enmity.
- Disapproval of the government's measures without inciting hatred, contempt, or disaffection is not an offence under this section.
- Disapproval of government administrative or other action without inciting hatred, contempt or disaffection is not an offence under this section.
Sedition is libel (defamation) of the established authority of law, i.e. the Government. The intent of sedition is clear: to incite hatred, contempt, or disaffection against the Indian government through words, signs, or visual representations, or any other means specified in the definition. Life without parole for sedition is unjust.
Case Laws
Queen v Jogendra Chandra Bose, ILR 19 Cal 35
The first case to use Section 124A of the IPC was Queen Empress v Jogendra Chandra Bose (Bangobasi). The alleged seditious matter was published in the weekly vernacular newspaper 'Bangobasi'.
In this case, the owner, editor, manager, and printer of the newspaper 'Bangobasi' were charged with sedition. Several articles in this newspaper slammed the Age of Consent Bill, which had only been passed a week before. The articles went on to accuse the British of using brute force to conquer and Europeanise India, harming its economy. The 4 accused were all tried.
In Queen v Jogendra Chandra Bose, ILR 19 Cal 35, Sir Comer Petheram, Chief Justice of the High Court of Calcutta, defined disaffection as a feeling opposite to affection, i.e. dislike or hatred. Simple disapprobation. A person who uses spoken or written words calculated to create a disposition not to obey the lawful authority of the government, or to subvert or resist the authority, is guilty under this section. It was also held that his words must have caused some disturbance or dissatisfaction in order to be used to create such feelings and that they must have been used with the intent to do so. But the jury couldn't agree. Meanwhile, the accused apologised and the case was dismissed.
Queen v Balgangadhar Tilak, ILR 22 Bom 112
Strachey, J. agreed with the above ruling of the above-mentioned case i.e. Queen v Jogendra Chandra Bose, ILR 19 Cal 35 and held that a man must not incite enmity against the State. On the other hand, it held that disaffection in the context of sedition means hatred of the state. Most people would agree that the best term to use to describe disloyalty towards the state is disloyalty. Except in cases of punishment, the degree of discontent is irrelevant. To excite or attempt to excite feelings of dissatisfaction is a crime. It was upheld by the Privy Council that Tilak was found guilty under Section 124-A.
Niharendra Dutta Majumdar v Emperor, AIR 1942 FC 22 at 26
"The first fundamental duty of every government is the preservation of order," Sir Maurice Gawyer said in Niharendra Dutta Majumdar v Emperor. That some have performed this duty well does not absolve others of their obligation to perform it poorly. It is the state's response to those who, in order to attack or subvert it, try to disturb its peace, cause public disorder, or incite others to do so. Words, deeds, and writings that have this intention or tendency are sedition. The offence is based on the reasonable expectation or likelihood of public disorder. The acts or words complained of must either incite disorder or satisfy reasonable men.
The Privy Council overruled this decision in Emperor v Sadashiv Narayan Bhalerao (1947) 74 IA 89. (PC). In this landmark case, the Privy Council ruled that public disorder is not an essential ingredient of sedition in India. Thus, merely inciting or attempting to incite feelings of disaffection, hatred, or contempt will not be sufficient to constitute seditious conduct in India, regardless of the outcome.
Kedar Nath v State of Bihar, AIR 1962 SC 955
The Supreme Court decided the constitutional validity of Section 124-A in Kedar Nath v State of Bihar, AIR 1962 SC 955. In this landmark case, Kedar Nath Singh, a member of the Forward Communist Party of Bihar, was found guilty of violating Sections 124-A and 505(b) of the IPC. He called Congressmen "goondas" and "tyrants" and said they were in power due to the people's mistake and should be driven out like the British. He also stated that the Forward Communist Party would expose Congress's wrongdoings and targeted Vinoba Bhave's land redistribution efforts. While the Constitution Bench of Chief Justice BP Sinha, Justices AK Sarkar, JR Madholkar, N Rajagopala Ayyangar, and SK Das upheld the Section's constitutionality, they narrowed its meaning, application, and scope to only those activities that intend or tend to cause public disorder or disturb public peace through violence. The Court made Section 124-A of the IPC more compatible with the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.
The executive has repeatedly misused its unbridled power to prosecute even innocent people for sedition, as in the case of Binayak Sen, who spent years in jail for no fault of his own but was eventually acquitted by the Supreme Court. Binayak is a doctor, civil rights activist, and national vice-president of the People's Union for Civil Liberties.
In December 2010, the Chhattisgarh government charged him and others with aiding Maoist rebels. No credible evidence supported the serious charges against Binayak, and senior, eminent and veteran criminal lawyer Ram Jethmalani fought his case for free, convinced of his innocence and proved to be so! Before independence, sedition punished every speech or action that caused discontent with the British Crown. The Supreme Court's post-independence judgments have made sedition a civilised offence only punishable by tumult or grave public disorder.
Analysis By the Bench
This draconian Section should have been repealed or at least amended immediately after independence to prevent police from using it to harass innocent citizens! But sadly, even after more than 68 years of independence, no safeguard has been put in place, and it continues unabated and unchanged in the name of protecting national interest!
It is a sad commentary on our country's state of affairs! An outspoken critic of Section 124A, Prakash Karat, recently stated that it has no place in a liberal and democratic country like India. So nobody in our country openly shouts anti-India slogans like Pakistan Zindabad or Pervez Musharraf Zindabad! They have a point, but safeguards must be put in place, and if a cop is found to have purposefully framed an innocent person, they must be fired and imprisoned for a minimum of ten years to learn what it is like to be in jail!
"Musharraf Zindabad" or "Pakistan Zindabad" should not be a crime as long as no violence is incited or law and order is threatened. 'India Today' and 'Hindustan Times' all welcomed Gen Musharraf who personally masterminded the Kargil war in which we lost hundreds, if not thousands of soldiers and entered deep into Indian territory about 14-15 km to personally supervise the slaughtering of our soldiers. He then ordered Captain Saurav Kalia and 5 soldiers from the 4 Jat Regiment to be tortured for nearly a month, their eyes burned with hot iron rods, ears chopped off, fingers crushed, and even their privates were spared. However, India chose to lavishly honour Musharraf, recognised his illegal regime that gained power through a coup, and treated him like a God! Similarly, Pakistan has been attacking our Parliament, Red Fort, and other public places for over 30 years, openly patronising underworld dons. Our leaders say we can't change our neighbours despite Dawood Ibrahim's masterminding the 1993 Mumbai bombing that killed over 300, Hafiz Saeed's Lashkar-e-Taiba, Maulana Massod Azhar's Jaish-e-Mohammad and Syed Salaluddin's Hizbul Mujahideen. We must accept them. If we can tolerate an invader like Pervez Musharraf and hostile nations like Pakistan, why can't our government tolerate its own people?
It needs no repetition that our political class has been accused of mingling with terrorists and receiving funds from hostile countries like Pakistan! In the famous "Jain Diaries Case," some very senior political leaders of major political parties were named as receiving large amounts of unaccounted money via hawala from countries such as Pakistan! Hence their belief in 'talks and dialogue' with terrorists (who get training in hostile nations like Pakistan by ISI, army, etc. on how to destroy India), Pakistani invader generals like Gen Musharraf and not with rapists, murderers, or other ordinary criminals who never get such training and don't give a damn about India. So why is it that when they hold "dialogues" with "terrorists" or hostile nations like "Pakistan" and declare "ceasefire" for them, they never face "sedition" or any other anti-terror law, but an ordinary citizen suspected of harbouring terrorists or saying "Musharraf Zindabad or Pakistan Zindabad or Khalistan Zindabad" is subjected to such laws? When I visited Srinagar in 2005, a Kashmiri asked me this!
Concluding Observation
Clearly, this flagrant abuse of Section 124A and other anti-terror laws must end immediately, lest innocent citizens suffer for no fault of their own! It should either be repealed or amended so that innocent people like Binayak Sen and others like him don't have to go to jail for no reason! Even the Indian Law Commission in its 42nd Report in 1971 strongly recommended reducing the maximum punishment under Section 124-A from life imprisonment to seven years!
Sadly, even after more than 50 years, the Law Commission's landmark recommendation remains unimplemented! The Indian Law Commission had rejected repealing the section in its 39th report (1969).
Let me also state that I believe the maximum sentence should be five years. Section 124-A should also be amended to reflect the landmark Kedar Nath Singh case. The Section should be amended to include the words both intend and tend to create public disorder or disturb public peace by inciting violence.
Affection, contempt, hatred, and disapprobation are undefined terms that need to be defined to reduce the scope for wide discretion that has often been abused. Section 124-A of the IPC requires an act that disturbs public peace, not just a threat to public order or security. An exception should be made for the truth of a statement or allegation.
Suppression of sedition should be obtained in writing from an officer not below the rank of Joint Commissioner or Inspector General, who should also state the reasons for the same! If all of these safety measures are included in Section 124-A, I am confident that gross abuse of this section will be prevented, and anyone who threatens the unity and integrity of our great nation will be held accountable. However, if the punishment is not reduced from life to at least seven years, at least some safety clauses can be inserted to check its arbitrary misuse, and those police cops who are found to be misusing it must be dismissed from service and given a minimum jail term to deter future misuse.
In a free and liberal democratic country like ours, there must be some checks and balances imposed on such oft-abused Sections and laws as they cannot be allowed to punish its own citizens!
One hopes the CJI NV Ramana led Bench will ensure that sedition is no longer used as a potent weapon to harass, harangue, and humiliate opponents on various pretexts, as we saw with Lt Col Prasad Shrikant Purohit who was kept in jail for nearly 9 years without even a charge sheet being filed against him. The judiciary should not be a bystander but rather speak out, as the CJI did recently against sedition! Then we'll be truly democratic! No one should dare to take for granted the personal liberty of any citizen and hold it to ransom without being held accountable in any way, as we see in so many cases! Then we will see the rule of law!
