Sedition: An Unresolved Controversy

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This article is written by Tasneem Hussain Legal content writer at Lawyers Troop

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Abstract

One of the most controversial colonial laws that still remains a part of our democratic nation is the law of Sedition. It has been provisioned under Section 124A of the Indian Penal Code, 1860. The objective of this paper is to understand this law and its impact in both pre-independence and post-independence era. The main focus shall remain on the issue of the need of such a law in a democratic nation. We shall be discussing its constitutional validity. 

Sedition in the Colonial Period

The threat of Indian Nationalism movements was intensifying in the minds of the colonizers. The fear of the Wahhabis was also threatening the British¹. In order to quash all these activities, Section 124A was inserted in 1870 in the Indian Penal Code, 1860. 

It stated that “Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.” This structure was drawn from the Treason Felony Act, 1848² which prevailed in England.

Although the first case under this section was filed in 1891³, it became infamous when charges were filed against Bal Gangadhar Tilak in 1897⁴. Bal Gangadhar Tilak had written an article in a newspaper invoking the masses to overthrow the British Empire by giving the example of Shivaji, the Maratha warrior. The word “disaffection” was interpreted and its scope was broadened by Justice James Strachey. He paralleled disaffection with disloyalty and included every form of hatred against the Government in its scope⁵. 

Another important judgement was that of Queen Empress v. Ramchandra Narayan⁶. It was held that mere attempt to incite disaffection shall be treated in the same manner as the attempt to excite hatred towards the Government. 

In order to strengthen the position of British, they further introduced laws like the Dramatic Performances Act, 1876. It was watchdog of the Indian theatre in order to check on any seditious activities. Also, in order to curtail the Press in India, the Vernacular Press Act, 1878 was established. It prohibited the use of any other language other than English in publications.

The Federal Court and the Privy Council were of contrary opinion regarding sedition. The Federal Court, in the case of, Niharendu Dutt Majumdar v. King Emperor⁷, held that incitement to violence is an essential element of sedition without which no such offence can occur. On the contrary, Privy Council overruled this judgement in 1944 in Sadashiv’s case⁸. It held that incitement to violence is not a proof required by the Indian Penal Code regarding the effect of the words.

These laws were used to suppress any forms of dissent. In the further years, the charges of sedition and similar laws were slapped on several freedom strugglers such as Bal Gangadhar Tilak, Mahatma Gandhi, Annie Besant⁹ and Bhagat Singh.

Constituent Assembly Debate 

In the debates of the Constituent Assembly¹⁰, a proposal was made to limit the freedom of speech and expression which was originally subjected to certain restrictions imposed by the Federal Law to preserve public safety and peace¹¹. This limitation was proposed to be extended to the grounds of “libel, slander, defamation, offences against decency or morality or sedition or other matters which undermine the security of the State.”¹² However, the Constituent Assembly decided against adding the term “sedition” as a restriction to freedom of speech and expression. 124A still remained a part of the Indian Penal Code.

Constitutional Validity of Sedition Post-Independence

Section 124A of the Indian Penal Code, 1860 has reserved its space in post-independent India. The issue of the validity of such an atrocious law in a democratic nation is widely debated upon. 

In the case of Romesh Thappar v The State of Madras¹³, a petition was filed by the printer, editor and publisher of a journal called ‘Cross Roads’. His journal was banned under a legislation of the State of Madras on the grounds of public safety. The Court held that the restriction was not reasonable and was out of the scope of Article 19(2). Although there were no charges of sedition in this case, it becomes important in order to discuss the reasonability of restrictions of Article 19(1)(a). Fazal Ali, J. gave a contradicting judgement stating that sedition tends to create public disorders and therefore the said legislation was valid.

The landmark judgement on the subject of 124A was that of Kedarnath v. State of Bihar¹⁴. The issue before the court was whether Section 124A of the Indian Penal Code, 1860 was constitutionally valid. Charges were filed against Kedar Nath who in one of his speeches termed CID officers as “Dogs”. 

The Supreme Court deliberated upon the conflicting views of the Federal Court and the Privy Council in the judgements of Niharendu¹⁵ and Sadashiv’s¹⁶ case respectively. In case the Privy Council’s view was considered, then the said section would be in violation of Article 19(1)(a) as it provides scope for dissent without inciting offence or other grounds under Article 19(2). However, if the Federal Court’s judgement was considered, then Section 124A would not be ultra vires of the Constitution of India. 

The Supreme Court held reliance on the Federal Court’s decision and upheld the validity of Section 124A. It held that incitement to violence is fundamental in order to attract the said provision. This was upheld in the case of Balwant Singh v. State of Punjab¹⁷, where the accused had raised slogans such as “Khalistan Zindabad” and “Raj Karega Khalsa”. The accused were acquitted from these charges as incitement to violence was missing to sustain the charges.

Though this interpretation by the Supreme Court narrowed the scope of sedition, it still remains one of the most controversial affairs in democratic India. The controversies arise due to various reasons such as low conviction rate, debate over the reasonability of this restriction, and the need of such a law in the framework of India.

Conviction Rate

There are numerous cases that are filed under sedition every year. The recent instances give us a poor image of how charges of sedition are slapped against those who rise in dissent; Whether it be the recent instance where 49 renowned personalities were charged of sedition because they wrote an open letter to the Prime Minister expressing their concerns or that of a school play where a drama against the Citizenship Amendment Act was staged.

The conviction rate in the cases of sedition remains low¹⁸. In 2018, out of the ninety cases that went for a trial, only two were convicted. As per the reports, from 2016 to 2018, only four cases resulted in conviction.

Author’s Opinion

Sedition is a law that has attracted the attention of the people for several reasons. The intention behind this law in the colonial period was to crush any political upheaval against the British Government. It was meant to suppress the freedom struggle. However, post-independence this intention has been moulded. It is no longer to create suppression but rather to ensure safety of the State. But this does not change the fact that this law has been severely misused.

The constitutionality of the law has been under constant debate. Apart from its constitutionality, the need of such a law in a democratic nation is persistently in question. This issue throws light on the provision of Article 19(2) of the Constitution of India. It provides grounds for the reasonable restrictions that the State can impose on the freedom of speech and expression. With already having such a provision, what is the need for a special law like Section 124A?

The text of Section 124A is also a reason for concern. It makes it a crime against the “Government established by law in India”. Due to this, it is perceived as a law which can be used to quash dissent against the Government. Mere criticism of the Government is given the name of sedition. Any word uttered against the Government can be your ticket to jail. Although the Supreme Court have interpreted this section and has narrowed the scope of it, the nature of the cases that are filed has not seen drastic changes. Loyalty towards the nation and loyalty towards the Government are often synonymized.

Another problem is the nature of the law. It is a cognizable offence¹⁹. This puts the Police in a power to arrest without warrant. It creates a problem as various cases go unregistered and the arrested ones are subjected to Police brutality. Such cases linger for a long period of time and result in infringement of the Right to freedom of speech and expression. The moment a false case of sedition is filed, the right gets affected.

Sedition is perceived as a shield by the State which guards their own security along with that of their province. However, rather than using it as a shield, it is often misused as a weapon to silence the voices of the criticism. The law may have been held constitutionally valid, but this has not reduced the probability of its misuse. 

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1. R. Sammadar, Emergence of the Political Subject, 45 (2010)
2. 11 & 12 Vict. c. 12
3. Queen Emperor v. Jogendur Chandra Bose, (1892) 19 ILR Cal 35
4. Queen Empress v. Bal Gangadhar Tilak, (1897) ILR 22 Bom. 112
5. A History of the Infamous Section 124A, Atul Dev, The Caravan
6. ILR (1898) 22 Bom. 152
7. 1942 FCR 48
8. Emperor v. Sadashiv Narayan Bhalerao, (1944) 46 BOMLR 459
9. Annie Besant v. The Advocate General of Madras, (1919) 21 BOMLR 867
10. Constitutional Assembly Debate, December 7, 1948
11. An Analysis of the Modern Offence of Sedition, Nivedita Saksena & Siddharta Srivastava, Manupatra
12. Constitutional Assemble Debate, December 7, 1948
13. 1950 SCR 594
14. 1962 SC 955
15. Niharendu Dutt Majumdar v. King Emperor, 1942 FCR 48
16. Emperor v. Sadashiv Narayan Bhalerao, (1944) 46 BOMLR 459
17. Criminal Appeal No. 266 of 1985
18. 2017 Report, National Crime Records Bureau
19. Code of Criminal Procedure, 1973, Section 2(c)