Topic: Deadening the Imagination
ISSN: 2582-3655
Author: Devika Agarwal
O.P. Jindal Global University, Sonipat, Haryana
I.INTRODUCTION
Section 124A, IPC, defines and lays down punishment for sedition. The main ingredients of this section are to bring or attempt to excite disaffection against the Government of India. Either word has to be spoken or written or should have usage of signs or visible representation, and the presence of an intention is a must[1].
On the other hand, Article 19(1)(a)[2]of the Constitution states the right to freedom of speech and expression, giving the liberty to express views and opinions, however, these rights are not absolute and have reasonable restrictions, mentioned under Article 19(2)[3].
If we compare the two, it seems like, the state tries to give us the freedom to express and pen down our thoughts but then, on the other hand, it also makes sure that it is not used as a weapon against itself, hence, lays down reasonable restrictions to limit its use.
This essay is majorly going to question the constitutional validity of Section 124A, IPC in reference to Article 19 (1)(a) of the Constitution. The second part will feature the landmark judgments, third, will question the constitutional validity, fourth, will draw a comparison between English and Indian Law a fifth is a concluding section.
II.LANDMARK JUDGMENTS
- British Colonial Era
Lord Macaulay proposed the provision of sedition, to be included under the Section 124A, Indian Penal Code, 1860, however, due to certain unaccountable reasons, it was not included. Later, in 1870, the British Colonial Government in order to keep a check on the activities of freedom fighters like BalGangadharTilak and Mahatma Gandhi found it necessary to include this provision[4].
In Bal Gangadhar case[5], he was charged under sedition because of the magazine published by him. It was held that the mere presence of feelings of disaffection towards the state and the attempt to excite feelings were sufficient enough to hold one as an offender under this section. The acts of incitement and violence were immaterial if the feeling of disaffection could be proved coupled with an attempt to propagate it[6].
- Independent India
After India attained independence, the offense of sedition remained a part of the IPC but was excluded from the limitation of the right to freedom and expression. The rationale behind criminalizing this act was because it creates “an environment and psychological climate conducive to criminal activity” even though it may not particularly incite a specific offense. Although the term ‘sedition’ had been removed from Article 19, the overall effect of it could still be felt.
It Romesh Thapar v. State of Maharashtra[7], restrictions was laid down on publishing and the constitutionality was challenged. Consequently, the terms ‘public order’ and ‘relations with friendly states’ were added to Article 19(2), also, the term ‘reasonable’ was added before the term ‘restrictions’ to not give a lot of leeway to the state[8].
The first case which was dealt with after independence was the Kedarnath Singh[9] case, where it was held that in order to hold sedition as constitutional, it was important for it to fall under either of the six grounds mentioned under Article 19(2) of the Constitution and could thereby come under the ambit of ‘public order’ and ‘security of the state’. However, there needs to be an incitement to violence in his speech or writing or an intention to create disorder. Also, this case stated that “any bona fide criticism of government officials with a view to improving the functioning of the government will not be illegal under this section. But the question which can be raised here is when does one cross the line to practically implement this section and hold one liable?
- Post-Independent Era
In the post independent period and in the more recent times, there have been cases where citizens have been acquitted and not held under this offence. For instance, there was a case in front of the Kerala High Court[10], where it was questioned as to whether or not protesting and questioning the foundation of the government would come under the “disaffection towards the government” and consequently it was held not to be a violation of the offence. On similar lines, cartoonists or filmmakers who portrayed their resentment against the government were not held to be seditious[11].
Whereas at the same time in the case of Binayak Singh v. State of Chhattisgarh[12], the conviction was done on the basis of possessing and transferring Naxalite literature[13].The judgment failed majorly because of three reasons. First being, the evidence collected was either false or contradictory. Secondly, it did not adhere to the principles laid down by the Supreme Court. And thirdly, it reflected the camouflaged intention of the user if the law[14].
Later in, Arup Bhuyan v. State of Assam[15] and Shreya Singhal v. Union of India[16], the American test of a ‘clear and present danger’ was applied which had been originally stated in Brandenburg v. Ohio. It was held that however, offensive, annoying or inconvenient would be the speech or writing, a direct connection needs to be established with any incitement to disrupt public order[17].
And the most controversial case in recent times has been the conviction of Kanhaiya Kumar under sedition. An event on the death anniversary of Afzal Guru regarding his judicial killing and also to address the grievances of Kashmiri citizens was organized at Jawaharlal Nehru University, Delhi. The protest was supposed to be silent and messages were to be delivered in the form of poetry, music, and art. The ABVP members alleged that the protest as not just a silent protest and anti-Indian slogans were being said. Kanhaiya Kumar, the president of the JNU Students’ Union was arrested on sedition charges, along with several other protestors. He was also later on bashed up and the police remained a ‘silent spectator’. There was a nationwide protest to support him and the arbitrary use of Section 124A was heavily criticized[18].
III.CONSTITUTIONAL VALIDITY
Now when we actually look into the various landmark judgments and trace its changes over time, there are a few questions that remain unanswered. First being, whether the reasons and circumstances under which this law for sedition was introduced in India still prevail in the present times. The answer to this is in negative as India was under the British rule and they didn’t want the Indians to throw them off the power, but not it is independent and democratic, the circumstances have completely changed. It is a fundamental right of a citizen to critique the government and make it better. Instead of considering it as ‘anti-national’ it must be used as a tool to improve the conditions here.
Secondly, where can the line of distinction be drawn between healthy criticism of government and criticism leading to incitement of violence against the government. There is no straight jacket formula for it as the definition for ‘healthy’ has not been stated and all the powers rest on the hands of the state. The language of Section 124A is exhaustive and also vague. The list mentioned leaves no room for any other offenses, so, automatically everything would come under its ambit and the final power rests with the government to whether charge them under sedition or not.
Thirdly, even after the amendment and inclusion of the terms ‘reasonable restrictions’ and ‘public order’ was added, there is no clarity as to when it is to be implemented. If we compare the cases in the post independent era, the grounds on which acquittal and conviction took place do not really have a different fact situation. They are very close-knit, direct repercussions of the actin the form of violence or a threat could not be witnessed, and application of the law was non-uniform. Charges have been randomly made against people for cheering Pakistani team during a match, for liking a Facebook Page or for criticizing a public icon. Each political party may use it to their own advantage.
This shows that the decision taken by the state is tyrannical and there is a need to either come up with a more precise law for the dire situation or to abolish the entire provision on the whole as all the flaws make us question the constitutional validity of Section 124A, IPC. Even if the threshold of this section is set high as mentioned in Shreya Singhal case, this section needs to be abolished as there are already enough laws to deal with such cases of violence. Restoring the right to critique and be accountable is more important than to actually have overlapping and arbitrary laws.
Further, I believe that a differentiation must be created between the common criminals and political offenders as the former are motivated by individual interests, profit and lust whereas the latter is driven by a larger social interest. Even though criminal offenders are a larger threat to society, quicker measures are taken against political offenders. Both are to be treated differently and with different priorities[19].
It seems to me like the government tries to put everything they feel like on an arbitrary basis under the rug by getting driven by its own political motives. Like mentioned above, the application of this section remains arbitrary and is not at all uniform. The standard of the section seems high but the application remains loose. Even though sedition was removed from the Constitution, its implementation and effect are still prevalent, making it unconstitutional, curbing the fundamental rights and not living by its words and absolutely fulfilling the test laid down.
IV.ENGLISH LAW V. INDIAN LAW
The Indian law of sedition, i.e. Section 124A, IPC, has been adopted by the English Law. Even though the latter law seems to be as stringent as Section 124A, IPC, it actually is a lot more comprehensive. The English Law can not only be extended to the protection of peace of the king, parliament, and church but also the hostility between different classes of subjects. And the Indian law protects only the government and the king.
It has been said for the English Law that “though sedition and blasphemy are very wide offenses, prosecutions are hardly ever taken.”
This has majorly been because of three factors. Firstly, weight is given to the jury to decide on sedition, secondly, the government in itself is very skeptical while implementing this policy as incorrect use of it would give the opposition a chance to pounce on them and also, influence the public opinion, which will affect the electoral count. Thirdly, the use of this law has been severally limited. It is only to be used when people are encouraged to use the physical force of violence in public matter related to the state.
Now if we draw a parallel between the English Law and the Indian Law, the courts and state in the latter, have a tendency to apply the law of sedition in its literal sense as in only to protect the state against the anticipated terror or violence. The language and the essence of this section have been borrowed from the English Law, but the application is different. In Kedarnath or the Binayak sen Judgment, the court has read and applied the section as it is. This differs from the implication in English cases where the juryman gives correct interpretation of the already present law, and if this is absent in India then at least it is expected out of the courts here to not just rely on the principle on the face of it and go deep into it to see the underlying rationale and apply it on a much broader note[20]. This means that it is not to be applied just on the basis of what the provision states but it is vital to understand the underlying meaning and apply it effectively. Only when there is a presence of some real danger, should this section be applied. Not to be misused as a weapon in the hands of the government.
In Pakistan, too, the concept of sedition was implemented which was borrowed from the British era. It was very frequently implemented to “suppress radical and anti-imperialist demands.” It has also been said that the citizens there have internalized this ideology of ‘state security’ and have stopped questioning it. Also, the independent print media expect the journalists to have an already inculcated habit of following the unwritten laws regarding self-censorship in the name of economic and state security. However, here the judiciary makes no pretense of allowing the right to dissent[21].
V.CONCLUSION
In my opinion, Section 124A does violate Article 19 (1) (a) of the Constitution of India. The main reason behind the implementation of this law was because the British wanted to keep a check on the government. However, now when we are an independent and a democratic country, the law persists to exist and they themselves have removed it[22]. India has a still ‘hangover’ of the colonial laws. It is not required anymore, the situation has changed, India is independent and now there are enough laws in place to keep a check on the public. The real and imminent danger against the government can be taken care of.
The main reasons why the law is unconstitutional is because of its wide and non-uniform application[23]. Similar fact patterns and still the law is applied arbitrarily. A good and honest government must not fear any public criticism and should instead try to look into the grievances of the mass and accordingly work on it. it should be strictly applied. In a democratic government, questions will be raised and the present government will be accountable. Putting the people behind the bar by creating such a wide law is definitely not what the underlined principles of the Constitution try to infer[24]. It is the right of a citizen to express grievances and ‘disaffection’ against the state. There many other laws which can handle the dire situation of ‘violence and bloodshed’. It is high time to get rid of such anarchist laws and restore the true essence of democracy. Section 124A, IPC, must be held void “for it is legally unnecessary, constitutionally invalid and democratically untenable”[25]. And even if it’s present, one must ensure that it is implemented only when there is a real danger or there is a potential of the spark to light up the powder keg.
And as the title suggests, the so-called ‘reasonable restrictions’ would soon deaden the imagination of the people as there would be no debate and every side of the story would have a suppressed argument which is not what a democratic country giving the right to express would actually want to do[26].
[1]The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
[2] INDIA CONST. art. 19,cl. 1.
[3] INDIA CONST. art. 19,cl. 2.
[4]RishabhChaudhury, The Mask of Sedition, YOUTH FORUM,(Mar.01,2019, 12:00 pm),http://youthforum.co.in/the-mask-of-sedition/
[5] Emperor v. BalGangadharTilak, (1917) 19 BOMLR 211.
[6]JNU row: What is the outrage all about?THE HINDU, February 16, 2016.
[7]RomeshThappar v. the State of Maharashtra, 1950 AIR 124, 1950 SCR 594.
[8]NarrainSiddharth, ‘Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, 8, ECONOMIC AND POLITICAL WEEKLY, 33, 35 (2011).
[9]KedarNath Singh v. the State of Bihar, 1962 AIR 955, 1962 SCR Supl. (2) 769.
[10] P.J. Manuel v. the State of Kerala, ILR (2013) 1 Ker 793.
[11]PankajButalia v. Central Board of Film Certification, WP (C) 675 of 2015 (Del).
[12]Binayak Singh v. the State of Chhattisgarh, (2011) 266 ELT 193.
[13]NiveditaSaksena; Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7, NUJS LAW REVIEW, 121, 140 (2014).
[14]Contempt of Justice: The Shocking Judgment against Binayak Sen and Others Should Lead to a Reform of Our Anachronistic Laws, 46, ECONOMIC AND POLITICAL WEEKLY, 7 (2011).
[15]Arup Bhuyan v. the State of Assam, (2011)3 SCC 377.
[16]Shreya Singhal v. Union of India, (2013) 12 SCC 73.
[17]Saksena, Nivedita; Srivastava, Siddhartha, An Analysis of the Modern Offence of Sedition, 7, NUJS LAW REVIEW, 121, 132 (2014).
[18]JNU row: What is the outrage all about?THE HINDU, February 16, 2016.
[19]Sanidad, Pablito V., Political Prisoners as Common Criminals, 45, PHILIPPINE STUDIES, 271, 274, (1997).
[20] Mukherjee, A. K., The Federal Court and the Law of Sedition in India, 5, THE INDIAN JOURNAL OF POLITICAL SCIENCE, 94–101, (1943).
[21]Arif Azad., Resisting Censorship in Pakistan, 32, ECONOMIC AND POLITICAL WEEKLY, 2192, 2193, (1997).
[22]Binayak Singh v. the State of Chhattisgarh, (2011) 266 ELT 193.
[23]NiveditaSaksena; Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7, NUJS LAW REVIEW, 121, 132 (2014).
[24]Chandhuri, J., Law of Sedition in India,10, JURIDICAL REVIEW,385-389,(1898).
[25]A case against the sedition law, FRONTLINE (Mar. 18, 2016),http://www.frontline.in/cover-story/a-case-against-the-sedition-law/article8299363.ece
[26]Arif Azad., Resisting Censorship in Pakistan, 32, ECONOMIC AND POLITICAL WEEKLY, 2192, 2193, (1997).
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