Deconstructing Section 297 IPC: Extension, Inclusion and ReformationJuly 18, 2021
It was rightly said A prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.
-Mohandas Karamchand Gandhi
Law of Sedition in India
The origination of the sedition law can be traced back to the times of colonizers misusing it to censor the condemnation against the rule and regulate growing patriotism. Bal Gangadhar Tilak’s trial clear this law as a colonial benefaction that still exists in our legislation as a tool in the hands of a powerful person to dominate the public as well as the opinion of an individual. The voices of dissent, peaceful protest, and constructive criticism are mistaken by the administrative and executive branches as ‘disaffection’ due to the lack of profound knowledge about the legislation.
According to the language of Section 124 A of the Indian Penal Code, the offence of sedition can be recognized as ‘any person by words, either oral or written, or by signs, or by visual representation, or otherwise, lead or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection concerning the government established by law in India’.
It has been elucidated by many as a crime related to public disorder and public tranquility. The Law of Sedition is a non-bailable, cognizable offence and is argued to have unreasonable penalties. It becomes appropriate in this context to understand the fundamentals of the law of sedition under section 124A of the Code-
An act by a person or a group, which is accomplished;
An act in question has to be done with a motive to create the feeling of hatred, contempt, and disaffection among the public at large.
The motive needs to elucidate on a case-to-case basis by properly and fairly analyzing the act in question.
The public order has to be left unaltered by ensuring that disaffection or violence against the government is established by legislation.
Thereto, it is important to take note that in the case of Kedar Nath Singh v. the State of Bihar, the government here means ‘visible symbol of the State’ and not the persons for the time being engaged in carrying on the administration’. It is though argued that, on closer scrutiny, this distinction is difficult to properly implement. In the landmark case of Shreya Singhal v. UOI, the difference between “incitement” and “advocacy” is articulately laid down by the judiciary. Besides, Section 124 A has three explanations, which are extremely pivotal to ensure the broad interpretation of the law following the rights of freedom of speech and expression. Explanations 2 and 3 primarily focused on what is barred from the scope of sedition. Thereto, the disaffection does not always comprise any statements indicating disapproval of acts or regulations taken by the government. Though the expression should be within the limits of not exhilarating or in any way attempting to excite hatred, contempt towards the government. This brings us to the most important question of what is the constitutional validity of the offence of sedition under the Code?
The Reciprocity of Free Speech and Sedition
It is to be noted that there was coherent and absolute solidarity among the members of the Constituent Assembly to drop the word ‘sedition’ from the Draft Constitution. Though its inclusion in the Code assures strict action against those trying to unfairly overthrow the state administration, that is to mention, in the plea of security of the state. Nevertheless, during the then Prime Minister Nehru’s government, additional grounds for ‘public order‘ was added to the list of legitimate restrictions against the rights provided under Article 19 of the Indian constitution. Post-Independence, in the 1950s, several court rulings, such as Romesh Thappar v State of Madras, Ram Nandan v State, and Tara Singh v State, found the law of sedition unconstitutional, backing the judgment of Niharendu Majumdar. Although, the landmark Judgement of Kedar Nath overruled them all, ruling the sedition law to be lawful. By this time, what was interpreted in this judgment is widely accepted literature to understand the sedition law.
The Hon’ble court restates that for an expression to attract the crime of sedition, it has to ‘provoke violence’, or ‘public disorder’. Although the judge had ample criticism by the scholars for not engaging with the vagueness of what public order and or authority of state essentially mean. Additionally, as pointed out in the book ‘The Great Repression’, the judgment take not notice providing guidelines for pre-arrest conditions and enforcement to check the misuse of laws by the executive.
The provision given in the Code is excessively broad and unclear, giving liberty to the executive to put down the voices and expression of the young generation. In many instances, particularly political parties’ agendas are used by the police officer to charge people with such hard and fast laws. In the existing situation, misuse of the law of sedition is further reinforced by Section 95 of the Code of Criminal Procedure and Section 2(O) of the Unlawful Activities (Prevention) Act, 1967 which enables an oppressive government to diminish free rights. Not long ago that the country has witnessed the discourse turn out by sedition laws around nationalism, directly indented against the human rights of citizens. Notwithstanding numerous efforts by intellectuals and law commissions to suggest the scrapping of this stringent law, it is observed that it is still used as a tool to put down opposition and fuel public opinion against the dissent.
In a democracy, the law now diminishes in relevance. Like England, it is time to acknowledge the law being out-dated and must be either repealed. Judiciary can play an effective role by narrowing the blurred lines between expression and disaffection and interpreting the laws clearly to ensure constitutional undertakings. Committees can be formed to extensively work on this issue and actively look into the cases of sedition. One can always have faith in the legislature to avoid the undisguised misuse of such legislation but it is the judiciary that has to independent to change the present narrative of sedition on legal grounds. The sedition law in India originated with the colonial rule when they tried to dominate the nationalist sentiments arising in the people of the country and its constitutional validity still attracts numerous criticisms and debates. Sedition is considered by many as a criminal activity promoting public disorder and incite violation, many see its punishment as suppressing the public opinions about the elected government policies. The law of sedition is still unclear in its expression, vague, and ambiguity must be removed from it by interpreting the laws clearly to guarantee the constitutional undertakings. The distinction between sedition and anti-nationalism shall be defined distinctly by the judicial courts of India.
ABOUT THE AUTHOR
Shikha Mishra is a law student at Modi Law College, Kota.
Content Picture Credit: Legiteye
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.