Do Sedition Laws have any place in a Democracy?

In the past few months, the law of Sedition has assumed controversial importance. It mainly on account of change in the constitutional provision of freedom of speech (Article 19 (1)(a)) as a fundamental right. Sedition law is becoming a chronic problem. The number of sedition cases has increased largely, precisely because of the CAA protests. Data from the National Crime Records Bureau (NCRB) show that 194 cases of sedition have been filed since CAA was passed. How useful is the sedition law? The NCRB started recording the sedition cases from 2014. The NCRB data shows that in the last four years, only four cases resulted in a conviction. [i]

Table of Contents

What is Sedition?

Section 124A under the Indian Penal Code (IPC) defines sedition.

124A. Sedition [ii] —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 inIndia, shall be punished withimprisonment 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. It is a non-bailable offence.

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.

However, any comments that show disapproval of any actions or steps or administrative actions taken by the Government, made with an intent to ensure the Government alters the steps taken by it would not be considered as sedition provided that such statements do not excite or attempt to excite hatred, contempt or disaffection towards the Government.[iii]

The validity of Sedition was upheld in which case?

The validity of the Sedition was upheld in the landmark case, Kedarnath Singh v. State of Bihar [iv] (1962). This judgement analysed whether sedition law is consistent with the fundamental right under Article (1)(a) which guarantees freedom of speech and expression to the citizens. The Supreme Court held that every citizen has a right to say or write about the government, by way of criticism or comment, as long as it does not “incite people to violence” against the government established by law or create public disorder.

But, in 2016, the Delhi High Court referred to the Kedarnath judgment and said there was a need to lay down parameters for the invocation of Section 124A. If parameters weren’t laid down, a situation would result in which an unrestricted recourse to Section 124A would result in a severe encroachment of freedom of speech and expression conferred upon every citizen of a free society. The court referred to many judgements including a Supreme Court judgement (Balwant Singh vs State of Punjab).

Later in the year 2016, the Supreme Court ruled “casual raising of slogans, once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection by the government”. The court made it clear that the provisions of Section 124A of IPC cannot be invoked to penalise criticism of the persons for the time being engaged in carrying on administration or strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means.

Arbitrary Application of this legal provision

The charge of sedition is a serious allegation that needs to be applied with scrutiny and review. Recently, at the beginning of the current year, a sedition case was registered against a Karnataka school management for allegedly allowing students to stage an anti-CAA, an anti-NRC drama that ‘portrayed Prime Minister Narendra Modi in poor light’. It’s high time that an order needs to be issued. The order should direct the Centre to constitute a committee to scrutinise complaints filed under Section 124-A and adhere to judgements by the apex court before registering the FIR under the said provision.

To ensure that the section is not raised arbitrarily, a circular was issued that a legal opinion from the district law officer should be taken by the public prosecutor addressing the fulfilment of the conditions. Within a few months of the High Court order in 2015, the state government informed the court that it was issuing a Government Resolution based on the circular.[v] However, recently when a few retired and current bureaucrats and police officials were asked if the Government Resolution was issued, they said they were not aware of it.

NCRB data suggests that the number of sedition cases has increased in recent years as police in certain states clamp down on protesters. The definition of sedition law is so broad and vague that the terms like “disaffection” and “contempt” can be stretched to any extent to mean anything. Given its frequent misuse, the courts need to start looking into this. The lower courts should quickly dismiss the cases that fail to meet the SC’s standard of incitement to imminent lawless action.

Conclusion

Of course, it surely is essential and crucial to protect the national integrity. It is unlikely that Section 124A be repealed or scrapped anytime soon. However, this does not give the authorities any right to use this legal provision as a tool to curb free speech. The authorities are forgetting the essence of the “fundamental right” – freedom of speech and expression. If a citizen merely disagrees or is against any provision of the law, that does not make him an “Anti-national” unless he meets the Supreme Court’s standard of this provision.

A search committee needs to be set up in every State. A suo moto check must take place for each sedition case being filed. If the case is baseless, the lower courts must quash it without putting the onus of proof on the citizen. With the rising cases of sedition, who is going to guard us? Who is going to put an end to this misuse and when? We can repeal this legal provision. Any provision can be misused. If one law is repealed, some other law will be misused. The problem isn’t with the provisions, but with its abuse.

“Repeated cases of sedition show the police have been brainwashed to act like colonial masters.” ~ Solomon, Activist