Time to review scope of sedition law

Rakesh Dwivedi

Senior Advocate, Supreme Court

Sedition as a crime in the Indian Penal Code (IPC) was upheld as constitutionally valid by the Supreme Court in the Kedar Nath Singh case (1962), but in the Kishore Chandra Khemcha case, the apex court has issued a notice to the Union Government and suspended the operation of Section 124-A. The government has itself offered to give the law a relook.

The IPC is an “existing law” made long before the advent of the Constitution of India. Sedition was inserted in the IPC in 1870. That was soon after the British government assumed direct control over India and ten years after the IPC was enforced in 1860. It was inserted in Chapter VI titled “Of Offences against the State”. Section 121 to 124, dealing with the offence of waging war against the Queen (HMG) or attempt or abetment thereafter, were already there. Apparently, the colonial masters found them insufficient to cope with the aftermath of the 1857 War of Independence. Section 124-A was widely worded to cover bringing or attempts to bring into hatred or contempt, or attempt to excite disaffection towards the government established by law for punishment with transportation of life or lesser punishment (now life imprisonment). Explanations broadened the ambit to cover “disloyalty” and “feeling of enmity” against the government, and also comments expressing disapprobation of the measures of the government in order to obtain alteration by lawful means if accompanied by excitement or attempt to excite hatred, contempt or disaffection. The colonial government’s objective was to keep the Indian people subjugated and to perpetuate their rule and exploitation of India. So they needed a very broadly worded penal provision. Such governments function on the basis of absolutism and crushing of people’s movements. People had no civil rights in such a system.

The British introduced harsh laws of sedition in view of their previous history of wars in India which led to the expansion of their rule to cover the whole of the country. And no sooner expansion was complete, stringed with treaties with several princely states, they faced the 1857 revolt. Section 124-A was born out of this fear of loss of empire.

Section 124-A in some ways imitated the First Sedition Act, 1798, made in America which was made by the Federalists soon after the American Revolution of 1778. That Act was passed by a narrow majority of 44 to 41 by the 5th Congress. It was generally believed to be unconstitutional encroachment on liberty. It expired in 1801. Lastly, there was the Sedition Act, 1918, which was repealed in 1920. Despite the existence of sedition laws, there were very few prosecutions. Eventually, it was replaced by a narrowly tailored Espionage Act. The sedition law was severely condemned by Jefferson and Madison (New York Times vs Sullivan).

Our Constitution adopts a system with centrality of fundamental rights. And democracy is a basic feature of the Constitution. Therefore, Section 124-A has to be given a fresh look. As it stands, its ambit is too wide. Notwithstanding the Kedar Nath judgment, the provision of sedition has to be reconsidered, if not by the Central Government, by the Supreme Court. After 1962, much water has flown down the river. The scope of fundamental rights has been considerably expanded, and after the Kesavananda Bharati and IR Coelho cases, they are treated as natural human rights and part of the basic structure. The scope of free speech and right to expression in Article 19(1)(a) of the Constitution also stands strengthened. Therefore, the validity of Section 124-A would have to be reconsidered.

On a practical plane too, given the democracy we practice, people have not only the right to strongly criticise the governments but also a right to work for the acceptance of their ideas. In particular, strong Opposition parties are needed and they have a right to project their oppositional views. The media too has a right to critically appraise government policies and actions. The workers, farmers and other sections also can stand up to oppose adverse decisions and seek changes in policy. These cannot be curbed by resort to charges under Section 124-A of the IPC. The British government needed to sustain its colonisation but we don’t need it. If at all needed, the law should be narrowly tailored so that the flow of democracy is not obstructed. There are enough provisions to deal with communal and defamatory acts and speeches which incite violence.

Of late, we witnessed a series of cases being lodged on flimsy grounds, some merely because the protest was against a chief minister or a government. It is such charges which brought back the focus on the sedition law. Such charges ignored that post WW-II, the trend has been to interpret sedition laws very narrowly. The Supreme Court of Canada said in Boucher vs The King (1951): “But it is not every sort of mischief that will exhaust the description of the offence. It must be that sort of mischief that consists in and arises out of directly and materially obstructing public authority.” In R v Chief Magistrate, ex parte Choudhury (1991), a Queen’s Bench held “seditious intention to incite to violence or to create public disturbance or disorder against His Majesty or the institutions of the government. Proof of an intention to promote feelings of ill-will and hostility between different classes of subjects does not alone establish a sedition intention. Not only there must be proof of an incitement to violence in this connection, but it must be violence or resistance or defiance for the purpose of disturbing the constituted authority.” In Nazir Khan vs State of Delhi (2003), our Supreme Court said, “Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval.” The acts complained of must have the potential to “subvert the government and laws of the country”. It’s a tendency to incite people to insurrection. This trend is consistent with the Doctrine of Proportionality which is an intrinsic element of “reasonableness”.

It augurs well for our society that the Supreme Court has stayed the operation of Section 124-A and that the Union Government has decided to give it a fresh look. 

#sedition law