Updated: Aug 26, 2020
It is perspicuous that the Indian constitution embodies within itself the basic human rights fundamental to every person. One such right is the right to speech and expression, under article 19(1) (a) of the constitution. Free speech is not only one of the cornerstones of a democratic society, but it also instrumental in achieving a sense of self-fulfilment. The liberty to express and speak without the fear of suppression is doctrinal for the development of a nation. While it is important to define the boundaries for free speech, it is equally required to ensure that the same is not construed in a fashion that crushes the voices of the people. Placed on the said boundary is the law of sedition in India. This article revisits the age-old argument of the viability of section 124A of the Indian Penal Code (IPC) and analyses its impact on the human rights principles.
History of sedition laws in India
Words, either spoken or written, or by signs, or by visible representation, that could bring or attempt to bring either hatred, or contempt, or excite or bring to excite any disaffection towards the Government established by law constitute sedition. Section 124A of the Indian Penal Code criminalizes sedition in India. Inserted with the objective of suppressing revolts by the freedom fighters against the colonial government, it was carefully worded by Lord Macaulay to ensure the obedience of the subjects. The intent of this section after India’s independence is to combat anti-national and secessionist elements. It offers protection to the elected government against illegal and armed rebellions which may be used to overthrow it. However, the provision is loosely drafted, thereby inviting criticism by activists and legal practitioners. Major issues concerning section 124A are as follows-
i. The provision is vaguely worded and gives unconditional powers to the government to silence the dissenting opinions. Words like “disaffection” and “attempts to bring into hatred or contempt” make the ambit of this section unclear.
ii. The law is infamous for being used as a political tool to curb dissenting opinions and ensure unquestioned compliance.
iii. It possesses a threat to the right to free speech and expression, which is one of the core principles of human rights.
Human Rights Instruments and their interface with sedition law in India
Article 19 of the Universal Declaration of Human Rights (UDHR) bestows upon every individual the right to freedom of expression and opinion. This right has been covered elaborately in article 19 of International Covenant for Civil and Political Rights, which also provides for certain exceptions to the same. An otherwise unconditional right, it can only be restricted to ensure respect for the rights and reputation of others and to prevent threats to national security or public order. It has been expressly provided by the human rights institutions that the restrictions on right to freedom of speech and expressions shall not put in jeopardy the right itself.
While the wordings of section 124A, IPC are in synergy with the exceptions laid above, the issue substantially stems from the relentless application of this section to curb dissenting opinions. In order to ensure a judicious and genuine application of this section, the Supreme Court in Kedar Nath Singh v. State of Bihar[i] laid down the ambit of application of section 124A. While upholding the constitutionality of this provision, the court held that it shall only be applied in circumstances wherein the people disrupt law and order or incite violence through their speech or expression. In a plethora of cases following this landmark judgement, the apex court reiterated that only those expressions can be criminalised which can be considered as “an enticement to imminent lawless action”.[ii] In Shreya Singhal v. Union of India[iii], it was explicated that there exists a notable difference between advocacy and incitement, and the law punishes only the latter.
Although the Supreme Court has circumscribed the ambit of an otherwise widely worded section of sedition, little has been done to prevent its misuse. The European Court of Human Rights too has affirmed that the guarantee of freedom of expression exists while expressing all forms of opinions and not just those which match with the majority perspective. Despite the word of caution by the judiciary in this regard, charging cartoonists, and journalists on frivolous grounds, and stifling the voices of human rights activists depicts the callous use of this provision. In 2019, section 124A was invoked against 49 celebrities for writing an open letter to the Prime Minister regarding increased instances of lynching. Internationally recognised authors and activists too have faced consequences for supporting or voicing their opinions on politically sensitive issues. The protection of the right to speech has lost its essence and has been reduced merely to words.
Sedition: A violation of other rights too
It is clear that the freedom of speech and expression is not just a fundamental right in itself, but is also an enabler of economic, social and cultural rights. Article 18 of the UDHR embodies within itself the freedom of thought, conscience and religion. However, with the state using such draconian provisions to curb the right to speak and express, the realization of other rights too are hampered. In 2017, a singer was charged for composing songs in which he criticised the state government for benefiting from the state-owned liquor shops. In 2013, around 9000 protestors were charged with sedition for demonstrating against the setting up of nuclear power plant in the region. The above two instances used speech and expression as a means to seek the protection of their right to livelihood and good governance, which were crushed by labelling them as anti-nationals.
Fundamental rights as the right to freedom of assembly (art. 20, UDHR), and right against discrimination (art. 7, UDHR) are dying a slow death since the government is using this provision to instil fear among those who are voicing their concerns over prevailing injustices. Any opinion which speaks against government inactions towards the protection of weaker sections of the society, or against government policies is silenced by invoking this provision. For instance, even peaceful protestors were charged with sedition for demonstrating against amendments made to the Citizenship Amendment Act.
The Indian government is notorious for using the sedition law as a means to curb minority opinions on state functioning and criticism against the government policy. Even peaceful dissent without the involvement of violence is criminalised by the government. More than 140 sedition cases are pending in India, and numbers are increasing with every opinion against government policies and agendas. By penalising peaceful demonstrations and dissenting opinions, the people have been deprived of their right to peaceful assembly (Art. 20, UDHR) too.
It is clear from the above analysis that the provision of sedition is inconsistent with the international obligations of the country. While the importance of curbing expressions which are a threat to national security cannot be undermined, misuse of such provisions for political gains can also not be permitted. There is a crying need to repeal section 124A of the IPC in order to prevent its misuse. Alternatively, the same can be restructured via an amendment to reduce the ambit of its broad interpretation. The executive shall ensure a cautious use of this provision and ensure that the rights intrinsic to human existence are not stifled.
With India entering a new stage of socio-economic development, there is a necessity to mould the legal fabric to match these developments. The continuation of draconian provisions such as sedition laws is an anachronism in view of the democratic system of the nation. The decision of upholding the validity of this section runs counter to popular opinion of repealing this provision. The courts shall revisit its decision in Kedar Nath case and evolve a sound principle which shall uphold the freedom of thought and expression in such a manner that the same is not encroached upon by the executive unless it casts a shadow on the peace and security of the nation.
[i] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
[ii] Indira Das v. State of Assam, (2011) 3 SCC 380.
[iii] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
Image source: The Logical Indian
This article has been written by Ashika Jain and Lakshay Garg who are students at GNLU,Gujarat.