Eight reasons why sedition and free speech cannot go together

The SC's observations in two recent cases has raised fresh hopes of a review of the constitutional validity of Section 124A of the Indian Penal Code, popularly known as the law of sedition.
Chief Minister YS Jagan
Chief Minister YS Jagan
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The Supreme Court’s observations in two different cases within a span of a few days has raised fresh hopes of a comprehensive review of the constitutional validity of Section 124A of the Indian Penal Code (IPC), popularly known as the law of sedition, especially in regard to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. The SC quashed an FIR lodged against senior journalist Vinod Dua for sedition recently, with a bench comprising Justices UU Lalit and Vineet Saran observing, "Every journalist is entitled to protection under the Kedar Nath Singh judgment (which defined the ambit of offense of sedition under Section 124A IPC).”

In another instance, the apex court stayed coercive action against two Telugu channels, TV5 and ABN Andhrajyothy, in FIRs registered by the Andhra Pradesh police in a sedition case. A bench comprising Justices DY Chandrachud, L Nageswara Rao, and S Ravindra Bhat expressed a prima facie view that the FIRs are an attempt to "muzzle media freedom”. “It is time we define the limits of sedition. There is a need to define the scope of offences under Section 124A (sedition) under the Indian Penal Code, especially in the context of media freedom,” the bench observed. "...we are of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation," the bench further observed in the order.

1. Freedom of press and sedition cannot be balanced

Freedom of the press is a fundamental right guaranteed under Article 19(1)(a) of the Constitution. The state is empowered to restrict free speech under article 19(2) on the grounds of threat to public order, decency, morality, and the security of the state. Indian jurisprudence makes it clear that citizen’s right to free expression and the state’s power to restrict it cannot be seen on equal footing. Free expression is a rule and restrictions on it are an exception. The exception cannot be either equal to or more than the rule. Such restrictions should pass the ‘test of reasonableness’ as enunciated in several judgments of the Supreme Court spread over decades. 

2. Mere criticism cannot be sedition 

Explanations to section 124A clearly define limits to the law of sedition. It says, “Comments expressing disapprobation of the measures of the government to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section. Comments expressing disapprobation of the administrative or other actions of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.”

The Supreme court judgment in Kedar Nath Singh vs State of Bihar (1962) further restricts the scope of sedition law. In the case, the court had read down Section 124A of the IPC and held that the application of the provision should be limited to "acts involving intention or tendency to create disorder or disturbance of law and order; or incitement to violence". Thus, the Kedar Nath Singh verdict makes the ‘tendency test’ imperative for imposing sedition cases on anyone, leave alone the media.

3. Logic no longer exists

The Allahabad High Court in 1959 dismissed section 124A as ultra vires to the Constitution of India. Unfortunately, the nation lost a golden opportunity to do away with a colonial relic with the Supreme Court refusing to strike down the section in 1962, though it has significantly restricted the scope of its use. As early as 2016, the apex court reiterated that the Kedar Nath Singh verdict should be the guiding principle in the application of sedition law. However, the court has its logic in doing so. Paragraph 26 of the said verdict states as follows, “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional. The court would rule in favour of the former construction.” But, India’s tryst with the sedition law reveals its extensive unconstitutional use making its repeal necessary. 

4. Dishonour to India 

Despite all its limitations, India is a vibrant democracy with a robust media tradition. As former Prime Minister Nehru observed, free press with all its limitations is always better than the controlled press. In countries like the United States, Canada, Australia, United Kingdom, New Zealand, etc., the sedition law is practically defunct or in disuse. On the contrary, sedition law is operational in Saudi Arabia, Turkey, Sudan, Senegal, Iran, Uzbekistan, etc. Sure, every Indian does not aspire to be in the dubious company of the latter set of countries. 

5. Vagueness makes it invalid 

Section 124A of IPC is vaguely worded when it says “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 in India shall be punished with imprisonment for life.” The expression “disaffection” includes “disloyalty and all feelings of enmity”. As per the Supreme Court verdict in Shreya Singal vs Union of India (2015), the vagueness of law can be a sufficient ground for its invalidation. 

The US Supreme Court in Grayned vs Rockford said that “vague laws may trap the innocent by not providing fair warning”. Such laws trap the innocent citizen or even a policeman prompting them to file false cases under sedition law. 

Certainly, section 124A of IPC is a net so large enough to catch dissenters, dissidents, critics in media, political opposition, and civil society representatives who perform the critical adversarial function so crucial for a healthy democracy. 

6.  Sedition not part of 19(2)

Under the constitution of India, the fundamental right to free expression can only be subjected to ‘reasonable restrictions’ specified under article 19(2) in which sedition is not included. The constituent assembly itself unanimously resolved not to include sedition as a ground to restrict free speech. Sedition was initially incorporated under Article 13 of the draft Constitution, which is the equivalent of the present Article 19. At the instance of KM Munshi, TT Krishnamachari and Seth Govind Das, the constituent assembly resolved not to include sedition as an exception to the right to free speech. 

7. Test of causation and proximity

In the case of The Superintendent, Central Prison, Fatehgarh vs Dr Ram Manohar Lohia, 1960, the apex court held that to prevent complete arbitrariness, and to give effect to Article 19(2)’s requirement of reasonableness, there needs to be some test of causation and some understanding of proximity. 

Indian jurisprudence makes it clear that beyond any reasonable doubt that an arbitrary law is unconstitutional. In Balwant Singh vs State of Punjab in 1995, the Supreme Court has proposed a test of proximity besides that tendency test propounded in the Kedar Nath Singh verdict. Even the American Supreme Court held that a ‘clear and imminent danger’ should be the basis for any restriction of free speech. 

8. Test of national security

As per the Supreme Court verdict in Romesh Thapar vs the State of Madras, 1950, “nothing less than endangering the foundations of the state or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression.” Thus, if exercise of free speech invokes a proximate and imminent tendency to violently overthrow a government established by law, an action can be initiated under section 124A of IPC. But in the absence of such a clarity, the law is prone to unconstitutional use. Such a brazen violation of the Constitution warrants the invalidation of sedition law as the Constitution of India has many provisions to preserve its security, unity, integrity, and sovereignty.

Professor K Nageshwar is a senior journalist and former Member of Legislative Council from Telangana. Views expressed are the author’s own.

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