by Aishwarya Gopalakrishnan
Abstract
The law of sedition was originally drafted in 1837 by thomas macaulay, the british historian-politician, but was inexplicably omitted when the IPC was enacted in 1860. Section 124a was inserted in 1870 by an amendment introduced by sir james stephen when it felt the need for a specific section to deal with the offence. It was one of the many draconian laws enacted to stifle any voices of dissent at that time [1]. The wide concept of sedition being a criminal offence acts as a reasonable restriction over the fundamental right of freedom of speech and expression provided under article 19(1)(a) of the constitution if the act is scornful apropos the government [2].
Introduction
Chapter vi of the Indian penal code,1860 deals with the offences against the state. The main object of this chapter is to safeguard and protect the state as a whole in case of offences against the state. S.124a, IPC deals with sedition. It means revolt or an incitement to revolt against established authority or simply it means the crime of revolting or inciting revolt against government. Sedition is an offence which criminalizes speech which is considered as disloyal or which threatens the state. It is an act of defamation of the government established by law. It is cognizable, non-bailable and non-compoundable offence which are tried by the court of sessions [3].
the recent trend shows that there has been an increase in the number of cases related to sedition against human rights activists, students, teachers, journalists and intellectuals. As per the data from national crime records bureau (NCRB), the number of cases filed under this section has increased by 160% between2016 and 2019. Sedition was used by the britishers against the criticizers in the colonial period.
Various controversies with respect to law of sedition in INDIA
During the 21st century, notable activists, journalists, politicians, authors, have been charged with sedition, including Praveen Togadia (2003), Simranjit Singh Mann (2005), Binayak Sen (2007), Arundhati Roy (2010), Syed Ali Shah Geelani (2010), Aseem Trivedi (2012), Kanhaiya Kumar (2016), Varavara Rao (2018, Rinshad Reera (2019), Sharjeel Imam (Anti-Caa Protest) and many more. The database showed that 6 sedition cases were filed during ongoing farmers’ protest, 22 after Hathras gangrape, 25 during protest against citizenship amendment act (CAA) and 27 after Pulwama terror attack [4]. Moreover, bjp in its election campaign declared that it will strengthen the sedition laws to deal with the anti-nationals. The unlawful assembly prevention (amendment) act, 2019 empowered the central government to declare an individual as a terrorist [5].
According to the consultation paper published by the law commission of INDIA in august 2018, it recommends that it is time to re-think or repeal the section 124a of the IPC that deals with sedition. Although the 39th law commission report had rejected the idea of repealing the section. 42nd report tried to expand it to cover the constitution, the legislature and the judiciary, in addition to the government to be established by law, as institutions against which disaffection should not be tolerated. However, in the recent consultation paper, the law commission has suggested invoking 124a to only criminalize acts committed with the intention to disrupt public order or to overthrow the government with violence and illegal means.
The first registered case under this section was of Queen Empress V. Jogendra Chunder Bose [6]. In this case, the editor of the bengali magazine bangobasi published an article objecting the English rulers for raising the age of consent of sexual intercourse from 10 to 12 years. The authorities claimed that bose incited feeling of rebellion, however, bose was released. In the case kamal krishna sircar v. Emperor [7], the court refused to conclude that the speech given by him against the government as sedition.
In the case niharendu majumdar v. Emperor [8], the court held that sedition means person’s intention to promote public disorder. Incitement of violence is an essential element of sedition. However, in the post-independence period, in the case in tara singh v. State of punjab [9], the punjab & haryana high court struck down s.124a IPC as unconstitutional contrary to freedom of speech and expression. The constitutional first (amendment) act, 1951, added two words in article 19(2), in the interest of and public order in order to overcome the difficulty and thus adding restriction on speech and expression.
The constitutionality of sedition was challenged in the supreme court in kedar nath v. State of bihar [10], where the court held that a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace. SC also pointed that a citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.
As far as the international jurisdiction is concerned, the United Kingdom deleted the seditious libel through the coroners and justice act, 2009 & upon the recommendations of the Australian law reform commission (ALRC), Australia removed and replaced sedition with references to urging violence offences.
Conclusion
India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. The law commission has rightly said that an expression of frustration over the state of affairs cannot be treated as sedition. If the country is not open to positive criticism, there would be no difference between the pre- and post-independence eras. The section should not be misused as a tool to curb free speech. The present trends in India shows that s.124a IPC is being misused for one or more reasons.
End notes
[1] use and misuse of sedition law: section 124a of IPC, INDIA today, (june.17, 2021, 9:15 am), https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09
[2] sedition law: a controversial law, the lex repository, (june. 16, 2021, 8:45pm), http://www.thelexrepository.com/sedition-a-controversial-law/
[3] lexlifeeditor, judicial controversy over section 124a- sedition of the indian penal code, lexlife india – the legal way of life, (june. 16, 2021, 10:45 am), https://lexlife.in/2021/03/29/judicial-controversy-over-section-124a-sedition-of-the-indian-penal-code/#_ftn8
[4] ibid.
[5] sedition law: a controversial law, the lex repository, (june. 16, 2021, 8:45pm), http://www.thelexrepository.com/sedition-a-controversial-law/
[6] queen empress v. Jogendra chunder bose, (1898) ilr 22 bom 112
[7] kamal krishna sircar v. Emperor, air 1935 cal 636
[8] niharendu majumdar v. Emperor, air 1942 fc 22 (26)
[9] tara singh gopichand v. State of punjab, air 1951 ep27(129)
[10] kedar nath v. State of bihar 1962 scr sulp. (2) 769.
[11] picture: lawdocs
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