Can ‘any’ act of sloganeering, piece of writing or innocuous pictorial depiction be called seditious? Can the Fundamental Right to speech and expression and personal liberty be curtailed under “reasonable restrictions” in the context of sedition laws?
In the present socio-political scenario, it is essential to interpret Sections 124A and 505 of the Indian Penal Code, 1860, judiciously, more so because of the volatile nature of these penal provisions. Given the fact that a literal interpretation of the words, “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India”, as contained in Section 124A, can wreak havoc, it is of paramount importance that it be read harmoniously with Article 19(1)(a) of the Constitution of India. A disjunctive or restrictive application of Sections 124A and/or 505 of the Indian Penal Code (IPC) can be potentially damaging for a democratic society. Besides, leaving no scope for free speech, a stricter Sedition Law, if so enforced, would also ruin the social fabric of India.
Sedition law as it stands today
In India, sedition law is being interpreted by various courts since the year 1891. Though the Constitution of India does not mention or define sedition, it contains a specific provision for free speech and expression in the form of Article 19(1)(a). The offence of ‘Sedition’ as in Section 124A of IPC has been interpreted to refer to activities “intended” to or having the tendency to create disorder or disturbance of public peace by resort to violence.
In Kedar Nath Singh vs State of Bihar (1962) AIR 955, the Supreme Court of India had the occasion to deal with Sections 124A, 505 of IPC read with Articles 19(1)(a) and 19(2) of the Constitution of India. The five-judge bench, giving a purposive interpretation to Section 124A observed, “criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits, and would be consistent with the Fundamental Right of freedom of speech and expression.” Thus, it was made reasonably clear that acts criticising the executive action or policy, would not constitute an offence unless the act incites or has the tendency to incite public disorder and destabilise peace.
Section 124A of IPC was also interpreted by the apex court in Balwant Singh vs State of Punjab (1995) 1 SCR 411, where a two-judge bench, presided over by Justice AS Anand observed that casual raising of slogans could not have created a law and order situation. The legal position so propounded in Kedar Nath’s case and Balwant Singh’s case remains to be good law.
In a recent Public Interest Litigation filed before the Supreme Court, the misuse of sedition laws against critics and political dissidents by the ruling government was brought forth by an NGO. The bench, though it declined to entertain the petition, upheld the law laid down in Kedar Nath’s case.
While dealing with sedition laws, it is also essential to draw a clear distinction between the ‘State’ and the ‘person for the time being engaged in carrying out administration’. An administrative action/policy may or may not be applauded by every section of the society and such criticism would fall within the ambit of “reasonable restrictions”. Hence, while the state has to be protected under section 124A IPC, the same would not apply to an action/decision taken by the latter, even though made for the state. The sine qua non of Section 124A, therefore, is to punish acts which can incite violence or have the tendency to destabilise public order and peace.
Scope for mischief
Considering the fact that provisions like Sections 124A and 505 of IPC, which relate to the state, rest on high public sensitivity, they mandate utmost caution. There have been several instances where innocent persons have been charged for the offence of sedition on unfounded grounds. Ironically, a provision which was incorporated to combat the rising resentment against the British rule in India, today is being used to quell criticism. What is even more surprising, is to see the legal mechanism being misused to suit the political ambition and activism of a few.
In a similar context, Mahatma Gandhi had referred to Section 124A of IPC as “the prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
Centre’s proposal for a new bill
When Member of Parliament Shashi Tharoor had introduced a fresh bill advocating a liberal approach to sedition law in early 2016, not many paid heed. The Centre is now proposing to introduce a Bill to amend the sedition laws in India, as it exists today. While dissent against misuse of sedition laws in the current political scenario is rising, the present Government feels repeal of Sections 124A and/or 505 of IPC, would be irrational.
In the wake of rising cases of intolerance and evident misuse of sedition laws, the Law Commission of India too has mooted the idea of reforming the criminal justice system, particularly laws on sedition, defamation and right to privacy. The deliberate failure of our law-makers is to draw a distinction between “the State” as contained in Section 124A, and the “person carrying out administration.” Doing so is perilous because the State embodies its citizens and their welfare, irrespective of their caste, creed, gender or belief, which may not necessarily be the objective of the latter.
The report of the Law Commission is awaited and so is the proposed Bill. At this crucial point, it is expected that our legislators do not overlook the fact that as a democratic republic we need to have liberal laws, and not something draconian. If sedition law in India is at all amended or modified, efforts should be made to ensure that it does not usurp the rights and liberties of an individual.
Prity Kunwar is an advocate at the Supreme Court of India
Note: Views expressed are the personal opinions of the author.