Free Speech and the Law on Sedition

Sedition is an offence that criminalizes speech that is construed to be disloyal to or threatening to the state. The main legal provision in India is section 124A of the Indian Penal Code that criminalizes speech that “brings or attempts to bring into hatred or contempt, or attempts or attempts to excite disaffection” towards the government. The law makes a distinction between “disapprobation” (lawful criticism of the government) and “disaffection” (expressing disloyalty or enmity which is proscribed).

The British introduced this law in 1898, as a part of their efforts to curb criticism of colonial rule, and to stamp out any dissent. Many famous nationalists including Bal Gangadhar Tilak and Mahatma Gandhi have been tried and imprisoned for sedition. After a spirited debate, the Indian Constitutional Assembly decided not to include ‘sedition’ as a specific exception to Article 19(1)(a). However section 124A IPC remained on the statute book. After the First Amendment to the Constitution and the introduction of the words “in the interests of public order” to the exceptions to Article 19(1)(a), it became extremely difficult to challenge the constitutionality of section 124A.

In 1962, the Supreme Court upheld the constitutionality of the law in the Kedarnath Singh case, but narrowed the scope of the law to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. Thus the Supreme Court provided an additional safeguard to the law: not only was constructive criticism or disapprobation allowed, but if the speech concerned did not have an intention or tendency to cause violence or a disturbance of law and order, it was permissible.

However, even though the law allows for peaceful dissent and constructive criticism, over the years various governments have used section 124A to curb dissent. The trial and conviction of the medical doctor and human rights activist Binayak Sen, led to a renewed call for the scrapping of this law. In the Aseem Trivedi case, where a cartoonist was arrested for his work around the theme of corruption, the Bombay High Court has laid down guidelines to be followed by the government in arrests under section 124A. The court reaffirmed the law laid down in Kedarnath Singh, and held that for a prosecution under section 124A, a legal opinion in writing must be obtained from the law officer of the district(it did not specify who this was) followed by a legal opinion in writing within two weeks from the state public prosecutor. This adds to the existing procedural safeguard under section 196 of the Code of Criminal Procedure (CrPC) that says that courts cannot take cognizance of offences punishable under section 124A IPC unless the Central or State government has given sanction or permission to proceed.

The serious nature of section 124A is seen in the light of the punishment associated with it. Section 124A is a cognizable (arrests can be made without a warrant), non-bailable and non-compoundable offence. Punishment for the offence can extend up to life imprisonment. Because of the seriousness of the offence, courts are often reluctant to grant bail. Sedition law is seen as an anachronism in many countries including the United Kingdom, and it has been repealed in most Western democracies.

IMPORTANT CASE LAW

Kedarnath Singh v. State of Bihar, AIR 1962 SC 955 Supreme Court, 5 Judges,

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Brief Facts: Kedarnath Singh, a member of the Forward Communist Party, was prosecuted for sedition related to a speech that he made criticising the government for its capitalist policies. Singh challenged the constitutionality of the sedition law. The Supreme Court bunched Singh’s case with other similar incidents where persons were prosecuted under the sedition law.

Held: The law is constitutional and covered written or spoken words that had the implicit idea of subverting the government by violent means. However, this section would not cover words that were used as disapprobation of measures of the government that were meant to improve or alter the policies of the government through lawful means. Citizens can criticize the government as long as they are not inciting people to violence against the government with an intention to create public disorder. The court drew upon the Federal Court’s decision in Niharendru Dutt Majumdar where the court held that offence of sedition is the incitement to violence or the tendency or the effect of bringing a government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the state. While the Supreme Court upheld the validity of section 124A, it limited its application to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence.

Balwant Singh and Anr v. State of Punjab: AIR 1985 SC 1785

Brief Facts: The accused had raised the slogan “Khalistan Zindabad” outside a cinema hall just after the assassination of Prime Minister Indira Gandhi.

Held: The slogans raised by the accused had no impact on the public. Two individuals casually raising slogans could not be said to be exciting disaffection towards the government. Section 124A would not apply to the facts and circumstances of this case.

Sanskar Marathe v. State of Maharashtra & Ors, Criminal Public Interest Litigation No. 3 of 2015, Bombay High Court, 2 judges

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Brief Facts: The case arose out of the arrest of Aseem Trivedi, a political cartoonist who was involved with the India Against Corruption movement. Trivedi was arrested in 2012 in Mumbai for sedition and insulting the National Emblems Act. The court considered the question of how it could intervene to prevent the misuse of section 124A. Held: The cartoons were in the nature of political satire, and there was no allegation of incitement to violence, or tendency or intention to create public disorder. The Court issued guidelines to all police personnel in the form of preconditions for prosecutions under section 124A: Words, signs, or representations must bring the government into hatred or contempt, or must cause, or attempt to cause disaffection, enmity or disloyalty to the government. The words, signs or representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder. Words, signs or representations, just by virtue of being against politicians or public officials cannot be said to be against the government. They must show the public official as representative of the government. Disapproval or criticism of the government to bring about a change in government through lawful means does not amount to sedition. Obscenity or vulgarity by itself is not a factor to be taken into account while deciding if a word, sign or representation violates section 124A. In order to prosecute under section 124A, the government has to obtain a legal opinion in writing from the law officer of the district (the judgment does not specify who this is) and in the next two weeks, a legal opinion in writing from the public prosecutor of the state.