Sedition Law: Curbing the voice of dissent
By: Shawaiz Ali Khan
India has covered a long road since its independence back in 1947. We got over the wounds that the British Raj in India gave us for more than 200 years. Today we are an independent and sovereign nation and proclaim to be the world’s largest democracy. But are we truly independent as a nation? This question arises because our country’s basic law and justice system is governed by the text imposed by the British government long before Independence. The Indian Penal Code (IPC) dates back to 1860 when the First Law Commission of India was established in 1834 by the Charter Act of 1833 under the Chairmanship of Lord Thomas Babington Macauley. It was enforced pan-India in January 1862. Since then, the Indian criminal and justice system has been following the same code to date. It was natural for several amendments and structural upgrades to be done in the penal code if India was going to be a democratic and liberal nation. However, the basic structure has always been the same.
One of the many draconic sections which continue till today is Section 124(A) of the Indian Penal Code, better known as the Sedition Law.
Text of the law:
The section reads, “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” The soul of the application of this law in India comes down to one single word- “disaffection”. There are various explanations on to what extent this ‘disaffection’ can be allowed. That is what makes this law so controversial and draconic. The law doesn’t define the exact limitations of its application and therefore it’s on the state to decide what text, speech or words it considers seditious. People often presume Sedition and Treason to be the same which is not true. Treason (deshdroh) Law (section 121 of IPC) is different from sedition (raajdroh).
The sedition law came into the penal code in the year 1870; a decade after the IPC came into force. It was a law introduced, possibly, to counter the Wahabi activities in the subcontinent. At the time of its introduction, it was a law against “exciting disaffection”. The most commemorated victims of this tyrannous law include Bal Gangadhar Tilak and Gandhiji, who called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
So, one may wonder how such a law is still there in a constitutional Republic like India. Well, it’s not that simple. Soon after the independence, two high courts ruled this law unconstitutional. Consequently, a Constitutional Amendment came to include ‘public order’ as one of the ‘reasonable restrictions’ on which speech could be scrutinized by law. The most famous judicial verdict to date is the Supreme Court of India ruling in Kedarnath v. State of Bihar (1962) where the court upheld its validity. The court delivered its verdict, capping its application to “intention or tendency to create disorder” or “incitement to violence”. The court added- “as long as they do not excite disloyalty and enmity, or incite violence, are not offences under this section”.
Nature of the law:
In India, sedition doesn't require a warrant for arrest, it doesn't allow a compromise between the accused and the victim, and the accused cannot receive a bail. The penalty ranges from a small fine in monetary terms to three years or even life imprisonment. But these penalties can only be awarded after the judgement, which can take a while to come. Meanwhile, a person charged with sedition must live without a passport, barred from government jobs, and must produce themselves in the court on a loop. All of this, while bearing the legal fee. The accused is rarely found guilty in almost all the cases but the process itself becomes the punishment.
The first case involving sedition was registered in the year 1891, when the editor of a local newspaper “Bangobasi” was charged for publishing an article criticizing an ‘Age of Consent Bill’. In this case, the jury could not reach a unanimous decision; hence after a written apology from the accused, the charges were dropped.
The trial that changed the course of section 124(A) in India was that of Bal Gangadhar Tilak.
The English government claimed that Tilak’s speeches on the killing of Afzal Khan by Shivaji Maharaja had incited the murder of two British officials in Pune. This case was decisive in terms of the application of sedition law for 123 years from then. Judge James Strachey presided over this case, and broadened the scope of the law infinitely by equating “disaffection” to “disloyalty”. Tilak was charged with sedition and released after a year in prison. Based on Strachey’s interpretation of the law, the section was used repeatedly against Indian nationalist leaders by the English government.
The issue of sedition was thoroughly debated during the Constituent Assembly debates. Prominent leaders such as Vallabhai Patel, Somnath Lahiri, and Seth Govind Das continued debating, every time coming back to the question of sedition intermittently. Finally, an amendment was passed to remove the word ‘sedition’ from the section and to not allow the law to infringe upon the freedom of speech and expression.
In 1950, two Supreme Court judgments led Prime Minister Jawaharlal Nehru’s government to bring in the much-maligned First Amendment of the Constitution of India. While speaking in the parliament during the discussion on the amendment, Nehru specified, “Take again Section 124(A) of the IPC. So far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place for both practical and historical reasons. The sooner we get rid of it the better”. But it never did go away.
No government in India that enjoys the power of authority wants its citizens to question its competency and raise their voice against injustices. So, they never really want the citizens to question the existence of such a draconian law in a modern democracy. Those sitting in authority enjoy curbing any voice of dissent; therefore, they openly misuse this law to make themselves comfortable. As if the existence of such a law wasn’t enough, our country has several laws like UAPA and NSA that can be considered a tool of authorities to curtail the scope of dissent in the country. Since Independence, several Law Commissions have been set up and reports have been submitted to the governments, debates have been conducted, criticism from every direction has been made yet the law still exists haunting the freedom of expression and liberty of the citizens of India.
The bitter truth remains that the administrators who introduced this law in the first place to oppress Indians have abolished the same law a decade back in 2009 in their country citing that “they did not want to be quoted as an example of using such draconian laws”. So how far is it justified to retain section 124(A) in IPC? The larger question is to what extent the citizens of our country may enjoy the ‘right to offend’?