by Vartika Johri
India’s 156-year-old, colonial era sedition law used against arrested Jawaharlal Nehru University Students’ Union President Kanhaiya Kumar inserted under section 124A of Indian Penal Code in 1870 by an amendment introduced by Sir James Stephan became one of the many draconian laws enacted to stifle any voices of dissent. After 75 years of independence question has aroused on the requirement of such law in our democratic country when many leading nations have discarded similar laws.
In the words of Charlotte Bronte Shirley, Endurance over-goaded, stretched the hand of fraternity to sedition. The law on sedition has always been contentious, it is ridiculous to charge people with sedition on writing a letter to the Prime Minister. But when the act of letter writing is part of a larger plan to defame the country, delegitimise the lawfully elected government and it is a regular pattern for a political campaign against the government, the law would naturally apply against such individuals.
Section 124A of the Indian Penal Code since its inception punishes sedition which is defined as an offence committed when “any person 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 disaffection toward the government established by law in India.” As a matter of fact, disaffection includes disloyalty and all feeling of enmity however, comments without exciting or attempting to excite hatred, contempt or disaffection will not constitute an offence under this section. Under the Indian criminal law sedition has been considered a very serious non- bailable offence and its punishment ranges from imprisonment up to three years extended to a life term and may also include fine. The person once charged under Section 124A will be barred from a government job, issuance of a passport and have to appearance required.
It took 75 years for the Indian judicial authority to start questioning the constitutionality of such colonial period laws, currently the supreme court is focused on having a comprehensive review of the constitutional validity of Section 124A of IPC, this section in recent times has said to be in clash with freedom of speech and expression guaranteed under Article 19(1)(a) of the constitution of India. Recently the SC has rejected an FIR lodged against senior journalist Vinod Dua for sedition, the 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 offences 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.
The supreme court has also agreed to examine fresh plea claiming section 124A wholly unconstitutional and should be unequivocally and unambiguously struck down by Major-General S G Vombatkere. The petitioner contended that a statute criminalising expression based on vague definitions of disaffections toward Government is unreasonable restriction on the fundamental right to free expression and cause constitutionally impermissible ‘Chilling Effect’ on speech. Further in regard to this plea Chief Justice of India NV Ramana observed “Sedition is a colonial law and was used by British to supress freedoms which was used against Mahatma Gandhi, Bal Gangadhar Tilak in 1922”.
MISUSE OF SECTION 124A IPC
Over the years there has been notable misuses of this section in the country widely, statistically around 47 sedition cases were reported in 2014 across nine Indian states according to National Crime Records Bureau report, those arrested included cartoonist, student cheering Pakistan in a cricket match, a Gujarati case-group leader and a Kerala man for a Facebook post and most of these charges were not violent or has not incited violence which is a legal pre-requisite for a sedition charge. The word ‘disaffection’ is used in the section defining sedition in the Indian Penal Code. The word used is open to accommodate every action of a citizen and accordingly go contrary to the purpose to be achieved through this law. It is inconsistent with the constitutional guarantees. This confusion gives unlimited discretion to police to book any one or everyone who uttered something, and caused inconvenience to the government and the powerful individuals sitting there. A number of explanatory notes have been set out in the section and the judgements of the Supreme Court have not been able to regulate the arbitrary action taken by the police under this section. That is why it can be said that the definition of this offence lacks ‘sufficient definiteness’ for charging an accused under sedition. It is a vague term to the core and hence arbitrary. This issue becomes a greater problem considering the fact that in our system discriminatory enforcement of laws, especially laws relating to personal liberty and fundamental freedom, is common.
Currently the country is undergoing debate on the validity of the section as it is violating the essentials of democracy. The Central Government has clarified that there is no proposal to scrap sedition law and the Ministry of Home Affairs [MHA] in a written reply to Rajya Sabha saying “The IPC provision needs to be retained to effectively combat anti-national, secessionist and terrorist elements”, has made the views of Narendra Modi led Government clear. The attracted criticism from the opposition party pointed out the misuse of the law in last 6 years and how it was brough by the British to protect their dominations of India and that as a free country there is no scope of such law. While India is arguing vividly on this age-old law, there are various Nations which have welcomed a change in their legal system according to the need of their respective society.
SEDITION AND BRITAIN
Since Sedition was given to India from the Britishers, and we still abide by it, interestingly the Britishers moved in an opposite direction and repealed their Sedition Act and even removed it from their common law as a criminal offence in 2009 as they considered to be a relic of an era, where freedom of expression is the need for satisfaction among the public. Sedition was abolished through Section 73 of the Coroners and Justice Act, 2009, under Gordon Brown’s Labour government, three offences were abolished:
- The offences of sedition and seditious libel
- The offence of defamatory libel
- The offence of obscene libel
It was observed by the Britain that sedition and seditious and defamatory libel were arcane offences from a bygone era when freedom of expression wasn’t seen as the right as it has become with the development in society though Sedition by an alien (resident but not a national of the country) under section 3 of Alien Restriction Act, 1919 is still an offence. The law of sedition in any country is a protection law and a means to avoid unnecessary fiction in the society, but as the notion of people change the laws should change with them. It took almost 32 years for British government to take this step as the Law Commission of Britain recommended the abolition of the law in 1997. British government expressed their views on abolishing of Sedition as criminal offence as “Freedom of speech is seen as the touchstone of democracy and the ability of the individuals to criticise the state is crucial to maintaining freedom”.
SEDITION AND GERMANY
Sedition law unlike other countries is different in Germany, Volksverhetzung loosely translated to sedition is a legal concept although the laws ban’s the incitement of hatred against any particular race or religion instead of government. Section 130 of the criminal code which defines sedition as “Anyone who publicly incites different class of the population to act violently against one another in a way that endangers public peace will be punishes with a fine up to 200 thalers or imprisonment up to 2 years”. The federal government of Germany took over the penal code of the German Reich after the second World War and section 130 was given a name “Sedition of people” since then, the legislature has expanded and tightened the offense of sedition as a reaction to continued anti-Semitic and xenophobic activities several times. The term political offense does not exist instead the German law enforcement speak of “politically motivated crime” which include attacks on the German state but they are mostly high treason or terrorist financing. Hate crimes like those committed against a person because of political attitude, nationality, ethnicity, race, skin, colour, religion, external appearance etc are incitement of hatred and is also termed as “politically motivated crime”. Section 5 of the German Penal Code deals with offenses committed against domestic legal interests abroad which includes
- Preparation of war of aggression
- High treason against the federation
- Endangering the democratic state under the rule of law
- Treason and endangering external national security
- Offences against the national defence
- Causing the danger of political persecution
And various offences but they do not come under the ambit of sedition as no such law is recognised in the country which makes conspiracy to overthrow the government by use of force or violent actions as is recognised by Indian Penal Code, instead Germany only gives recognition to sedition of people.
SEDITION AND UNITED STATES OF AMERICA
The broad protection of free speech under the First Amendment in USA prosecution for sedition are rare, but still sedition remains a crime in the country under 18 U.S.C.A 2384(2000) a federal statute that punishes seditious conspiracy and 18 U.S.C.A 2385 (2000) which outlaws advocating the overthrow of the federal government by force. In the case of Schenck v United States, a person may be punished for sedition only on making statements that create a clear and present danger to rights that the government may lawfully protect. Moreover, the law defines crime of seditious conspiracy is committed when two or more person in any state or U.S territory conspire to levy war against the U.S government or a someone who wilfully advocate’s or teaches the overthrown of the government by force or publishes material that in anyway depicts the intension to overthrow. The guilty are entitled to fine and 20 years in prison and even the advocacy and conspiracy are punishable under the laws.
Sedition has been illegal in the United States since the beginning of time, in the late 18th century it was believed that government should be protected from “false, scandalous and malicious” criticism, this led Congress to the enactment of Sedition Act of 1798 which authorised the criminal prosecution of persons who wrote or spoke falsehoods about the government, Congress, the President or even the Vice President, but this act expired with the term of President John Adams after a very strong opposition by Thomas Jefferson on the grounds of serious misuse of the provisions, which latter got him elected as the President in 1800 and the act ended in 1801. Further in 1820s and 1830s when the country was experiencing movements to abolish Slavery as it grew in size and force in South, the southern states started to enact seditious Libel law, later Congress enacted seditious conspiracy laws before the Civil War aimed at persons advocating secession for the US. After stabilising the internal condition of the country in late 19th Century Congress and the states began to enact new limits on speech, most notably statutes prohibiting Obscenity. During World War I the legislation designed to supress anti-war speech. The U.S supreme court did little to protect the right to criticise the government until after 1927 when in Whitney v California court observed “it is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.”. This led to courts becoming more protective of political free speech rights by 1930.
However, given to the history of the country with experiences such as bombing of World Trade Centre of 1993 the government refused to completely decriminalise sedition and sedition conspiracy. Sedition law in US clearly mentions “use of force” or “violation of laws” whereas the Sedition law in India ambiguously considers “any act that brings or attempts to bring into hatred or contempt” on comparison the Indian law is subject to misuse because the words of the provision are vague.
SEDITION AND MALAYSIA
The Sedition act was introduced by the British colonial government in 1948 to use against local communist insurgents. Human rights accused the governing Barisan Nasional coalition of expanding the scope of law since it gained independence from the British 5 decades ago which made the definition too vague. The law bans any act, speech or publication that brings contempt against the government or Malaysia’s nine royal sultans. It prohibits people from inciting hatred between races and religions, or questioning the special position of the ethic Malay majority and the natives of Sabah and Sarawak. The punishment for those found guilty of sedition could face fines and jail terms up to three years.
Similar to India, Malaysia’s Prime Minister Najib Razak supported the arguments in favour of abolishing Sedition Act in July 2012 by saying that it represents a bygone era and the law will be replaced with a National Harmony Act. In the year 2013 the Prime minister backtracked on his promise. Further in 2018, Prime Minister Mahathir Mohamad again took initiative on a government run platform and declared to repeal oppressive laws including Sedition Act. After this announcement on November 30th, 2018 in response to disturbances surrounding a Hindu temple in Subang Jaya the law of sedition was used to arrest individuals for comments critical of the Malaysian monarchy and after this there are instances of use of sedition law by the governments to punish the guilty under the defense that the law is not yet repealed.
Among the countries that hold on to sedition as a criminal act are Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey. Though sedition has its utility in combating anti-national, secessionist and terrorist elements and also has historical evidence in protecting the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition for the stability of the state. On the other hand, dissent and criticism of the Government are essential ingredients of robust public debate in a vibrant democracy and there should be freedom of expression, right to question, criticize and change rulers is the very fundamental to the idea that democracy promised.
In the words of Montesquieu “law is the creation of the climate, local situation, accident or imposture and that law must change according to changing needs of the society. India is the largest democracy of the world and the right to free speech and expression is an essential of democracy. The Law Commission has rightly said, “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 ambiguity in the provision of the law mixed with wrong usage of the law is slowly paving a way towards a democracy devoid of complete freedom. Considering the current scenario of the country it is unlikely that Section 124A will be scrapped soon and this leaves the law makers with option to make the provision unquestionable and error-free, and establish complete democracy as promised to every citizen of India.
- Picture: TheLeafLet
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