Author : Anushka Ukrani, Law Graduate from CLC (Delhi University)
A few months back a school principle in Karnataka was arrested for an allegedly seditious school play protesting against the Citizenship (Amendment) Act. And this is not an isolated incident. In the past few months a lot of people who had been protesting against CAA have been booked under section 124A Indian Penal Code, 1860 (hereinafter referred to as “the code”). Infact the last few years have seen a similar trend. For instance, in 2018, eight people of which five were minors, were booked under this law, for dancing on a pro-jihadi song. Their parents later on said that the boys probably didn’t even know the meaning of the song and were dancing because of the beat. It seems that jail and not bail has become the rule with artists, students, journalist, and people from just every walk of life being arbitrarily charged and arrested under this law.
Black’s law dictionary defines section as “an insurrectionary movement tending towards treason, but wanting an overt act; attempts made by meetings or speeches, or by publications, to disturb the tranquility of the state.” It is essentially seen as a threat to public tranquility and public order. Section 124A of the code defines seditious act as words, spoken or written, or signs or visual representation that brings or attempts to brings, contempt or hatred or excites disaffection towards the Government established by law.
Section 124A which embodies the law of sedition in India was initially not a part of the code. It was inserted by the British on the advise of F. Stephen 10 years later, on 25th November 1870 in response to the Wahabi movement. It was later used to suppress the the Indian nationalists.
For the first 21 years after its enactment there were no trials under section 124A, until 1891 when a Bengali weekly newspaper, Bangobasi (meaning citizen of Bengal) published articles opposing the Age of Consent Act, which was enacted by the British government to raise the age of consent from 10 to 12 years for statutory rape under Sec 375 of the code. The proprietor, manager, editor and printers of the newspaper were all charged under Sec 124A before the Calcutta high court in Queen Emperor v. Jogendra Chandra Bose and Ors. The charges against them were however dropped after they tendered an apology.
In 1897, Bal Gangadhar tilak was prosecuted u/s 124A in Bal Gangadhar Tilak v. Queen Emperor . In one one his speeches he had justified the killing of Afzal khan by Shivaji, which the British government claimed led to the assassination of a British official, Mr. Rand merely because the assassination took place immediately after the speech. Justice James Strachey, who was presiding over the trial gave the section a new interpretation which largely altered its effect. He held:
“The offence consists in exciting or attempting to excite in others certain bad feelings towards the government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial.”
Thus, it was held that the gist of the offence is the speech itself, irrespective of whether or not it leads to any outbreak or violence.
In 1942, the federal court gave a very different opinion in Niharendu Dutt Majumdar v. The King Emperor, holding that the gist of the offence of ‘sedition’ is incitement to violence or the tendency or the intention to create public disorder by words spoken or written. Unlike the privy council in tilak judgment it did not make the occurrence of violence or disturbance immaterial.
After much debate the constituent assembly decided to not include sedition as a one of the grounds given under article 19(2) for imposing reasonable restriction upon freedom of speech and expression . But nonetheless, sec 124A was retained in the IPC. Later even, the then PM Jawaharlal Nehru, while addressing the parliament called the section ‘objectionable’ and suggested it should be gotten rid of as soon as possible
CONSTITUTIONAL VALIDITY AND JUDICIAL INTERPRETATIONS
In Ram Nandan v. State the Allahabad High Court while dealing with the question of constitutional validity of sec 124A held that it had become void since criticism of the executive was an important facet of democracy and sec 124A was capable of making punishable even such criticism of the government’s policies which did not have any tendency of causing public disorder. Such a provision was therefore violative of the freedom of speech and expression and strikes at the very roots of the constitution.
This judgment was overruled in Kedar Nath v. State of Bihar, where the supreme court while upholding the constitutional validity of sec 124A, defined and curtailed its scope. The court took note of Art 19(2) and accepted the definition laid down in Niharendu Dutt case, holding that if the literal meaning is given to the words of the section it would become impermissible in the light of Art 19(2). It defined sedition in the following words:
“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence…It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.”
The court, however, clarified that strongly worded disapprobation of the government’s measures or actions will not be penal under this section if it does not have the tendency of inciting violence or causing public disorder. Thus, to constitute the offence of sedition, it is necessary that the alleged seditious act should either be violent or lead to, or attempt the lead to violence. Unfortunately this principle hasn’t been followed by the authorities in recent times.
Recently in Common Cause and Anr. v. Union of India, an NGO had filed a writ petition in supreme court, demanding that the court lay down specific guidelines regarding registration of cases u/s 124A. Though the court refused to provide any such guidelines, it clarified in its order that charges for sedition cannot be brought against a person for merely criticising government policies and that the principle laid down in Kedarnath case should be kept in mind by the authorities while making arrests under Sec 124A.
The historical background of this law clearly shows that it has time and again been used to by governments as an instrument to curb fair criticism of its policies, thereby infringing people’s freedom of speech and expression. This was recently seen during the protests against Citizenship (Amendment) Act, 2019, when students, academicians, and activists were were charged with sedition, for what was nothing more than fair criticism of the government’s policies.
Crime in India report from National Crime Records Bureau (NCRB) shows that the number of people booked for sedition were- 47 in 2014, 30 in 2015, 35 in 2016, 70 in 2018. While the number of cases of sedition have been rising constantly, since 2014 there have been only 4 convictions under this section. So is this section really useful?
India is a democratic country, infact it is the largest democracy in the world. In a democracy dissent and criticism of the government’s policies are essential for better governance. The right of the people to freely express their opinions and fearlessly criticise the policies of the government is the one the most cherished democratic value. Every dissent cannot be termed as anti-national. Merely expressing your thoughts cannot be made grounds of punishment. It is a betrayal of very democratic ideal. Protection of the freedom of speech is founded on the belief that speech is worth defending even when certain individuals may not agree with or even despise what is being spoken. This principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilized and tolerant society.9 Just because a persons opposes the ruling government and its ideologies, does not make him any less patriotic.
Over the years the courts have laid down certain essential conditions for bringing an act under this section. It has also been made clear through judicial interpretations that section 124A is constitutionally valid. However the problem arises when the principles laid down by the courts are not implemented by the authorities making it draconian. It is a sad day for a democracy when people are arrested merely for criticising certain governmental actions. Our constitution and all its values are a reflection of the struggles of our forefathers and the oppression the faced under the colonial regime. Therefore, it is necessary to if not repeal then atleast re-think section 124A.