In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code. The provision, which criminalises sedition, has been used by successive regimes, including by governments post-Independence, to suppress democratic dissent.
The sedition law is a colonial law.
Section 124 A of the Indian Penal code 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 in [India], shall be punished with [imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1. — The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2. — Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offence under this section.
Explanation 3. — Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
In India, what constitutes ‘Sedition’ is highly debated. As per the Indian Penal Code, for an act to be called “seditious”, it should have the following components:
- Any words, which can be either written or spoken or signs which include placards/posters (visible representation)
- Must bring hatred/contempt/disaffection against the Indian Government
- Must result in ‘imminent violence’ or public disorder.
The sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement.
Section 124A of the Indian Penal Code, 1860 (IPC), was absent from the original draft of Macaulay’s IPC in 1860 and was only introduced in the year 1870, piloted by James Stephen.
This version went through further modification through the IPC (Amendment Act), 1898, since when it has largely retained its form.
The first notable case for the offence of sedition was reported in 1891, in the case of Queen-Empress v. Jogendra Chunder Bose & Ors., (1892), in which the editors of a Bengali magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891.
The next landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR 22 Bom 112. In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials.
In this case, a single-judge bench of the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling.
This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.
About two decades later, Tilak was again tried for sedition in the case of Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of swarajya (‘self-rule’) for Indians.
In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticise the civil services, arguing in court that the civil services and the British government were two distinct entities.
A division bench of the Bombay High Court rejected Tilak’s contentions, holding that the civil services derived their authority from the State itself, and no such ground for such distinction existed. The High Court, however, clarified that only such criticism of the civil service that can be attributed to the state should be considered seditious.
The court, in this case, took a relatively liberal stance, rejecting the interpretation of ‘disaffection’ given by the single-judge bench of the same court in Queen-Empress v. Tilak & Bal, which came out with the broad definition of disaffection as anything contrary to affection. This judgment had a positive impact on free speech, as the actual impact of the alleged seditious speech on the public was taken into account while reading the intention of the accused.
Mahatma Gandhi was charged with sedition
Gandhiji had written three ‘politically sensitive’ articles in his weekly journal Young India, which was published from 1919 to 1932 so that he was jailed on the charges of sedition. He was sentenced to a six-year jail term.
Three charges were imposed on him:
- Tampering with loyalty;
- Shaking the manes and
- Attempt to excite disaffection towards the British Government.
An Adivasi leader, was booked for an inflammatory speech against the government. In its judgment, a division bench of the Patna High Court made a clear distinction between disapprobation and disaffection and held that only disaffection leads to public disorder. The High Court also confirmed the constitutionality of section 124A of the IPC, ruling that it does not violate Article 19.
2. Kedar Nath Singh judgment (1962)
In this matter, a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of the sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress government.
The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement to violence or would result in public disorder.
Since Kedar Nath criticised the Congress party and not the Indian State, and the speech in question did not lead to any incitement to violence, therefore it did not amount to sedition.
The court also noted that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause.
3. Balwant Singh & Anr. v. the State Of Punjab, (1995)
The accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favour of an independent Sikh majority state in the wake of Indira Gandhi’s assassination.
A two-judge division bench of the Supreme Court ruled in favour of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.
The Law Commission of India, in its Consultation Paper on “Sedition”, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period.
This clearly indicates that the State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.
India ranked 142 out of 180 countries on the World Press Freedom Index, 2021, highlighting the issues related to the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.
The right to freedom of speech and expression is an integral right of citizens and a landmark for a democratic society. The government must try to remove any ambiguity in-laws, which may curtail these rights.