SEDITION; AMEND, NOT SCRAP
Author: Shreyash Dube, I year of BA.LLB(Hons) from National Law University, Sonepat
Section 124A of the Indian Penal Code (Sedition) has been a subject of intense debate since our nation's inception and Constitution. Certain developments in recent times have only served to excite further the discussion surrounding this topic. On April 27, The Supreme Court heard two petitions filed by retired Army general S.G. Vombatkere and the other by the Editors Guild of India. Both the petitions were seeking to quash Section 124A. On May 11, Section 124A was put in abeyance by the Supreme Court until the Government could complete its review. Advocate General K.K. Venugopal and Solicitor General Tushar Mehta represented the Government. It earlier argued to maintain the status quo but later shared the Centre's plan to get rid of colonial baggage.
The core provision of this highly controversial law reads as follows; "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 shall be punished with imprisonment for life, to which fine may be added…."
Those opposing Section 124A primarily seek its abolishment along with overruling the Kedarnath Judgement. TheKedarnath Singh vs. State of Bihar (1962)is the leading authority when dealing with cases related to sedition. It infamously upheld the constitutionality of Section 124A. The opposition often relies on specific recurring arguments, which include but are not limited to ;
1. The colonial past of the sedition law and its use against our freedom fighters.
2. The word 'sedition' was dropped from the Constitution by the constituent assembly.
3. Sedition is antithetical to the spirit of dissent in a democracy.
4. The low conviction rates under sedition law and finally,
5. The existence of alternative laws.
This blog attempts to refute some of the most common arguments used against sedition and try to provide an alternative remedy for the same.
Sedition and Intent of the Constituent assembly
Many rely on K.M. Munshi's amendment, which resulted in the term 'sedition' being dropped from the initial drafts of the Constitution, to argue that the constituent assembly never intended to criminalise sedition or restrict speech based on it. Munshi is often quoted as saying that "the essence of democracy is criticism of the government." However, this is nothing short of selective interpretation. Though K.M. Munshi was an advocate of freedom of speech, he also understood the importance of the security and stability of the State. In his own words, "where Government and the law ceases to be obeyed because no respect is felt any longer for them, only anarchy can follow ."He argued that there are two distinct interpretations of the word sedition. The first one, as understood at the time IPC was enacted, could penalise mere processions or meetings or even a critical opinion against the British Government. The second definition, as it was understood in 1942, included offences against the State, including those through illegal and violent means. The intent behind Munshi's amendment was to provide a better phraseology, to move away from the first definition and closer to the latter interpretation. As Munshi himself stated, "This amendment therefore seeks to use words which properly answer to the implication of the word 'Sedition' as understood by the present generation in a democracy and therefore there is no substantial change." Though the word 'sedition' was replaced by the words which "undermines the security of, or tends to overthrow, the State," The essence of the crime of sedition was never removed from the Constitution. This idea of security of the State and the need to protect it from anarchy is the same rationale underlying the Kedarnath Judgement.
Colonial Government vs. Government Established by Law
Critics of sedition view it as a vestige of India's colonial legacy. They quickly point out how this law was used to persecute India's freedom fighters, suppressing their voices of dissent. The most notable names trialled under sedition pre-independence include Mahatma Gandhi and Bal Gangadhar Tilak. However, such critics often overlook that the Government established under British rule is not the same as the Government of India in power today. That is, an entity established by foreign invaders and colonisers is not the same as a democratically elected government which is the legitimate voice of the people of India. A government elected by the people is an expression of the will of the people. A straightforward question to ask ourselves then is, Does the legitimate voice of the people of India not deserve protection against illegal attempts to overthrow it ?. The Kedarnath Judgement of 1962 notes that the State manifests itself as the Government established by law' (symbol of the State).Further noting that " The very existence of the State will be in jeopardy if the Government established by law is subverted." The provision for sedition is simply a way for the Government to maintain law and order and ensure its safety against violent and illegal revolutions. Such attempts to violently and illegally overthrow the Government are at odds with the democratic principles of the Indian State.
Sedition and Freedom of Speech, Dissent
Another accusation against Section 124 A is against the right to voice dissent. This includes criticism of the Government and its policies. However, looking at the provision and the existing judicial precedent, it is abundantly clear that sedition is not at odds with the right to criticise the Government. The Kedarnath Judgement demarcated the difference between what can be considered criticism and what can be penalised as seditious. The court, in its judgement, noted that " Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal." The individual is, therefore, free to criticise the Government and its policies and even call for a change in the ruling party by lawful means, such as through elections. The Judiciary has stood by the guidelines established by the Kedarnath judgement and vehemently protected the right to criticise. In the Vinod Dua case, a journalist was charged with sedition for making a Youtube video criticising the Government's Covid policy. While quashing these charges, the court extensively cited the Kedarnath judgement and noted that "Every journalist is entitled to the protection under the Kedar Nath Singh case (which defined the ambit of the offence of sedition under Section 124A IPC)." In Kedar Nath Singh (1962), five judges of the Supreme Court made it clear that "allegedly seditious speech and expression may be punished only if the speech is an 'incitement' to 'violence,' or 'public disorder.'"
The protection to freedom of speech provided under the Kedarnath case is not limited to free and fair criticism. In the case of Balwant and Anr vs. State of Punjab (1995), two men were investigated and tried for sedition. The men had allegedly raised several questionable slogans such as 'Khalistan Zindabad,' 'Raj Karega Khalsa,' 'Hinduan Nun Punjab Chon KadhKeChhadange', 'Hun Mauka Aya Hai Raj Kayam Karan Da'. Such comments are distasteful and offensive. They do not qualify as legitimate criticism or dissent. Despite the nature of the slogans, the apex court still protected freedom of speech and expression. Noting that stray slogans raised by one or two individuals do not result in incitement of violence does not qualify the threshold for sedition as prescribed by the 1962 ruling. Such cases make it abundantly clear that Section 124 A is not against free speech or the right to voice dissent. It begs the question of whether the Kedarnath judgement deserves the negative image it has garnered as of late.
Sedition and Low conviction rates
This brings us to a very legitimate concern. The data released by the National Crime Reports Bureau (NCRB) points to an alarming increase in arrests made under sedition while the conviction rates lie at a startling 3 percent. These numbers indicate rampant misuse of the sedition law. Though one may be tempted to blame the provision itself for this trend, to hold the law itself responsible would be a case of misdiagnosis. To put this point into perspective, let us take the example of Section 498A or the Dowry Law. Despite amounting to approximately 30 percent (1.1 Lakh Cases)of all the cases registered under crimes against women, the conviction rate for the same lie at a measly 12 percent. However, to suggest that the same provision must be scrapped would be disastrous. Another law in this category is The Protection of Children from Sexual Offences Act, 2012. Though the legislation was drafted with good intent, The courts have repeatedly noted the propensity of this law to be misused. The solution, in this case, is not to repeal these laws but instead to amend these laws and minimise the possibility of misuse. Pointing out low conviction rates is not an argument against the law but its enforcement by those in power.
Alternative to Sedition
The last and final argument against sedition is the existence of alternative laws. proposing that since the IPC and Unlawful Activities Prevention Act have provisions that penalise "disrupting the public order" or "overthrowing the government with violence and illegal means".There is no need for Section 124A. However, arguing for UAPA to repeal sedition would be catastrophic. First of all, UAPA has virtually been made the same as sedition. UAPA's Section 2(o)(iii) describes unlawful activity in relation to individual/association as follows ;
"[A]ny action taken by such individual or association (whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise) … (iii) which causes or is intended to cause disaffection against India."
The similarities to section 124 A can not go unnoticed with respect to the use of the word 'disaffection' or the description of an action that includes words, signs, or visual representation.
Moreover, the deletion of sedition while keeping UAPA would benefit the union government immensely. The State governments can use the sedition law without interference from the Union government. In effect, This allows the opposition-ruled state parties to arrest supporters of the national ruling party. On the other hand, Section 45 of UAPA states that no court shall take cognizance of any unlawful activity offence without the Central Government's previous sanction. Hence, in the absence of sedition where only UAPA remains, the Union Government will enjoy an unchallenged monopoly while taking away the same power from states ruled by the opposing party. This can also explain the change of heart that the union government had, which earlier defended sedition only to now oppose it. It can also be observed that Advocate General K.K. Venugopal referred to the misuse of sedition in reference to the Hanuman Chalisa case, Where two independent MLAs were arrested by the state government under the opposition's rule, No such comments were made about the Government's own alleged misuses.
The Next Step
To scrap Section 124A would be akin to throwing the baby with the bathwater. There is sufficient judicial precedent and intent on the part of the constituent assembly to justify the presence of sedition laws. The best way to shield the law from misuse would be to amend the language to ensure greater clarity. There needs to be more awareness and accountability on behalf of the police. To ensure a more productive and solution-oriented approach, we must strive for balance and avoid extreme positions of either inaction or overcorrection.