What exactly is sedition? Why successive governments defended Section 124A

On Monday, the Centre informed the Supreme Court that it has decided to review the sedition law. The government requested the top court to await the outcome of its exercise and not proceed with hearing the petitions filed against the sedition law.

According to reports, the Centre has also said that Prime Minister Narendra Modi has expressed clear and unequivocal views to protect civil liberties, and respect human rights and believes that outdated colonial laws have no place in India, celebrating the 75th year of Independence.

The U-turn came after the Centre defended the controversial law before the Supreme Court on Saturday, and asked a three-judge bench of the Chief Justice to dismiss the petitions that have challenged its constitutional validity.

In a written note, the BJP-led central government said the 1962 constitution bench Kedarnath Singh vs State of Bihar case judgment of the Supreme Court examined all aspects of the sedition law and upheld its constitutional validity. The note said that the judgment must be treated as a binding precedent that has withstood the test of time.

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The Centre also said that a three-judge bench could not examine the validity of the law. The Constitution Bench has at least five judges who decide the constitutional validity of any law. On Tuesday, the Chief Justice’s bench was likely to hear the case.

The legal challenge to the sedition law hasn’t come for the first time. Even previous governments have defended the sedition law despite growing opposition to it arising out of cases of misuse. So much so that the Supreme Court asked the Centre last year why it was not repealing a provision the British used to silence people like Mahatma Gandhi to suppress the freedom movement.

NOT A SEPARATE ACT

What we call the sedition law is not a separate Act by Parliament. In the form of Section 124A, it’s part of the Indian Penal Code (IPC) that covers all substantive aspects of criminal law in India. Section 124A was originally drafted in 1870 by Thomas Macaulay, the man credited for bringing English education in India. The word “sedition” itself is, however, not mentioned in the IPC section.

RAJDROH, NOT DESHDROH

In the popular narrative, sedition is taken as “deshdroh” or an anti-national act. But, in the law, sedition is “rajdroh” or an anti-government act. It’s not a crime against the country or nation.

THE PUNISHMENT

Here is what the law 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, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment which may extend to three years, to which a fine may be added; or, with fine.”

WHY WAS THE LAW BROUGHT?

Its primary objective was to deal with “increasing Wahabi activities” in India during those times as they posed a challenge to the British government.

WAS IT TO BE PERMANENT?

Not really. It was expected that an Independent India might not have that sedition law. The original constitution that was adopted in 1950 did not recognise the sedition law and gave the right to free speech complete protection in the chapter on the fundamental rights. But the first amendment brought in 1951 introduced restrictions that validated the sedition law.

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IS CREATING DISAFFECTION A CRIME?

Creating disaffection toward the government is at the core of the sedition law in India. But the job of Opposition parties is to oppose and criticise the government. In a democratic setup, the right to speech and expression under Article 19(1)(a) is as valuable as the right to life guaranteed under Article 21 of the Indian constitution.

And why just politicians? Ordinary citizens also criticise the government, and that should be fine.

The Supreme Court once said that expression of dissatisfaction against the government ought to be allowed as it functions in the same way as safety valves work in a pressure cooker to ease out the pressure.

WHEN CRITICISM BECOMES SEDITION?

The use of words or actions intended to encourage people to be or act against a government is sedition in the law. The courts have said that when there is no violence, the sedition law should not be invoked. But the words can be linked to violence anytime. It is tricky to know when the government actually fears violence or is just using the law to discipline an opposite viewpoint.

MISUSE AND CRITICISM

The sedition law was hugely misused in the pre-Independence era. Several top freedom movement leaders, including Mahatma Gandhi and Jawaharlal Nehru, were booked. Mahatma Gandhi described it as the “prince among the political sections of the IPC designed to suppress the citizen's liberty.” Nehru called it “highly objectionable and obnoxious” which “should have no place in any body of laws that we might pass”. Nehru said, “The sooner we get rid of it, the better.”

KEDARNATH SINGH JUDGMENT

The Supreme Court has been dealing with the sedition law for some time now. And the judges have often referred to the Supreme Court’s 1962 Kedarnath Singh vs State of Bihar case judgment. Here is what had happened:

While convicting Kedar Nath Singh, India’s top court had upheld the constitutional validity of the sedition law but also attempted to restrict its scope for misuse by saying it’s a constitutionally valid restriction on the right to freedom of expression only when the words are intended to disturb public peace by violence. Mere criticism of the government cannot be labelled sedition.

Kedar Nath Singh was a member of the Forward Communist Party. At a rally in Bihar in 1953, Singh had essentially said this: “The dogs of the CID are loitering around. We will strike and throw out these Congress goondas.” Ironically, Singh later joined the Congress and died in 1996.

KHALISTAN ZINDABAD CASE

After Prime Minister Indira Gandhi’s assassination, two persons had raised slogans of “Khalistan Zindabad” and “Raj Karega Khalsa”. The Supreme Court later dismissed the sedition charge. “Raising some slogans only a couple of times by the two lonesome appellants, which neither evoked any response nor any reaction from anyone in public, cannot attract the provisions of Section 124A,” the court had said.

ASEEM TRIVEDI CASE

The law has survived despite criticism, including in 2012 when cartoonist Aseem Trivedi was arrested for sedition. Several Opposition leaders, including BJP’s LK Advani, Shiv Sena founder Bal Thackeray and anti-corruption activist Arvind Kejriwal, who later formed Aam Aadmi Party and became Delhi chief minister, demanded an amendment to the sedition law. The UPA government referred it to the Law Commission.

Then in March 2014, a group of 60 Kashmiri students was booked for sedition in Uttar Pradesh. The UPA was in power at the Centre, and the Samajwadi Party ruled Uttar Pradesh.

RECENT COURT ORDERS

From time to time, India’s judiciary, particularly the top court, has rejected sedition charges. Here are a few prominent cases from 2021 itself.

• In February, a Delhi court granted bail to environment activist Disha Ravi, saying the government cannot jail citizens simply because they disagree with state policies. “The offence of sedition cannot be invoked to minister to the wounded vanity of governments.”
• In March, the top court dismissed a petition that sought sedition charges against former Jammu and Kashmir chief minister Farooq Abdullah and fined the petitioners. “Views different from the government’s cannot be termed seditious.”
• In May, the Supreme Court stopped the Andhra Pradesh Police from acting against two TV news channels. “It is time we define the limits of sedition.”
• In June, the top court quashed the sedition case against Vinod Dua. “Every journalist is entitled to protection of the Kedar Nath judgment”.
• In July, the top court asked the Centre why it was not repealing the provision.

Following this, several eminent personalities such as Kapil Sibal, Dia Mirza, S Irfan Habib and Pritish Nandy demanded abolition or amendment to the sedition law.

The sedition law is misused repeatedly and should be scrapped. https://t.co/5w33Ugvav5 — Dia Mirza (@deespeak) June 2, 2021

Wonderful news. The sedition law itself should be junked. It’s a relic of colonial times. Not apt for an independent India.

Supreme Court cancels sedition case against journalist Vinod Dua, says 1962 order protects every journalist from such charges https://t.co/r98Z8R7Axy — Pritish Nandy (@PritishNandy) June 3, 2021

DEFENCE BY GOVERNMENTS

Sedition cases have risen, but the conviction rate is negligible. However, no government since Pandit Jawaharlal Nehru’s has seriously tried to abolish the sedition law. This is because the law allows the government to suppress anarchy and chaos.

Some might argue that countries like the UK have done away with the sedition law. So, why cannot India do the same? The answer could be that those countries don’t face the problems of separatism and Naxalism that India does. But there is a thin line between criticising the government and trying to destabilise it.

ALSO READ | Centre defends sedition law in SC, says no need to revisit the Kedarnath judgement

The courts have to interpret the law in terms of Article 19, which guarantees the right to freedom of speech and expression but also provides riders. The riders are that you have to allow the government to function. You can protest, agitate against the government and criticise its policies, but you cannot jeopardise its functioning.

THE CURRENT CASE

The Supreme Court is considering petitions against the sedition law filed separately by former army officer SG Vombatkere, the Editors Guild of India, TMC MP Mahua Moitra, NGO PUCL, and some journalists. The court has said its main concern is the "misuse of law" leading to a rise in cases.

Shameful how Solicitor General wakes up every morning & comes to court only to stall hearings and buy time for GoI in the most urgent cases.
He says he still needs more time to file a reply! Hilarious if it were not so tragic. — Mahua Moitra (@MahuaMoitra) May 5, 2022

Today’s India has no place for colonial-era Sedition law. My challenge comes up in SC today.
GoI has asked for yet another extension. Hope Hon’ble CJI decides matter once & for all in next 2 days. pic.twitter.com/srbonmBcBd — Mahua Moitra (@MahuaMoitra) May 5, 2022

Attorney general KK Venugopal has told the court that the misuse of the provision has to be stopped by laying down guidelines. On the other hand, senior advocate Kapil Sibal, appearing as the lead counsel for petitioners, said the court can ignore the 1962 judgment in the light of subsequent developments in the fundamental rights jurisprudence.

WHAT’S NEXT?

So, what comes next? During the course of the hearing, the court can refer the matter to a larger bench, go for amendments or even scrap the law. It can also wait for the outcome of the government’s review of the law.

The Centre earlier said that it remains a good law from the perspective of all constitutional principles, including the test of Articles 14 (right to equality), 19 (freedom of speech), 21 (right to life and liberty). It also said that while the abuse of a provision would not justify its scraping, the solution would be to prevent the misuse on a case-to-case basis. Now, the government has agreed to review the law.

The Law Commission under the present government in 2018 said in its consultation paper. “Every irresponsible exercise of the right to free speech and expression cannot be termed seditious.” It seems the government is finally paying heed.