The Scrimmage of a Free Democracy: Is it time to bring the Sedition Law in line with the Republican Era?

Simran Srivastava


“Every man who says frankly and fully what he thinks is so far doing a public service. We should be grateful to him for attacking most unsparingly our most cherished opinions.”

The bulwark of democracy in any democratic government is believed to be the freedom of speech and expression. However, the irony that juxtaposes today is witnessed in the sedition laws that have made their way from the colonial to the republican era.  It is not surprising how Section 124-A IPC has been a tool in the hands of contemporary government, used to muzzle any dissenting public opinion that strangulates the edifice of modern-day democracy.

The dissent shown by Mahatma Gandhi in his Trial Speech in 1922 still resonates with the feelings of those who are/were charged under this draconian law“The prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.

Unfortunately, due to the recent political developments in the country, India has slipped to a low position of Rank 150 on the Press Freedom Index. However, in the backdrop of this grim reality, a “Welcome Step” knocks on the door of the Indian Judiciary with a beaming new opportunity that comes with the recent Supreme Court Order.

Last year, Justice D Y Chandrachud said, Time has come to define the limits of sedition law and the current Order of the Hon’ble Court is rightly proceeding in this direction but only time will tell whether the dilemma between ‘Love thy Government or Love thy Country’ will be resolved because stifling the fundamental freedom of citizens“would sound like a death knell to the democracy and usher in autocracy.”

While there is no doubt that the right to freedom of speech and expression is not absolute, is sedition a valid restriction of the right? How does sedition fit in within our democratic scheme, and how has the jurisprudence surrounding sedition evolved over the years?

To understand the origins of the law of sedition and whether or not it is time to rewrite the legislation put down in the pre-independence age in accordance with democratic rule, the author of this article strives to analyse the same in the milieu of the recent Supreme Court Order. 

The Law of Sedition

Section 124A of the Indian Penal Code was amended in 1870 to include sedition as a crime. It was used to silence Indians who were seen to be “hostile critics” of the British government.

Section 124A says “whoever, by words, either spoken, written, signs, visual representation, or otherwise excites, or attempts to excite, feelings of “disaffection” to the Government established by law in India can be punished by either imprisonment for life or three years with or without fine.” However, comments expressing disapprobation of measures or actions of the Government without “exciting or attempting to excite hatred, contempt or disaffection” have explicitly been excluded from the ambit of this section.

Despite this exemption, the distinction between acceptable and seditious speech is indeterminate, and it has frequently been utilised by governments to suppress opposition, resulting in a “chilling impact on free expression.”

Connecting the dots for tracing the Evolution of Sedition in India

The Privy Court has been interpreting the law since the classic Bangobashi case, officially called as Queen-Empress v. Jogendra Chunder Bose & Ors., which was one of the first cases on the provision of sedition. When interpreting the terms disaffection and disapprobation, the High Court of Calcutta stated, “‘Disaffection’ indicates a sentiment opposed to attachment, in other words, hate or hatred.” On the other hand, ‘Disapprobation’ simply denotes disapproval.

The courts had again looked into the understanding of the term disaffection in the case of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897), wherein the Court highlighted that disaffection against the government is a crime irrespective of the level as successful exciting of feelings was seen at the same stature as that of an unsuccessful attempt to excite feelings.

Sedition in  post-independent India was challenged on the touchstone of freedom of speech.  To tackle these difficulties, the Parliament passed the First Constitutional (Amendment) Act of 1951, through which new grounds were introduced in Article 19(2), that are in line with public order and friendly relations with foreign states. The court held in Romesh Thappar v. The State of Madras (1950) that freedom of speech and expression could be restricted based on national security and serious aggravated forms of public disorder that endanger national security, rather than relatively minor breaches of peace of purely limited significance. Thus, to be penalised, the term “disaffection” must be construed in connection with the constraints outlined in Article 19(2).

With the law of sedition being in a grey area, the Courts were time and again faced with the challenge to its constitutionality. In the cases of Sabir Raza v. The State (1955) and Ram Nandan v. State (1959), the High Courts upheld that apart from the opposition in the Parliament, the government should be open to public disapproval of their policies.

The Allahabad High Court, in Arun Jaitley vs State of U.P. (2016), reiterated the notion that in order to constitute sedition the written words should have a “pernicious tendency of creating public disorder or disturbance of law and order”.

Essence of Democracy: Freedom of Speech and Expression

The ‘right to hear’ of every person to hear a public opinion, participate in political conversations and debates, and make informed decisions that contribute to public education, is a fundamental aspect of freedom of expression. The Supreme Court echoed this approach in S. Khushboo v. Kanniammal (2010), holding that a society’s polity is well-informed when ideas are freely exchanged. In Shreya Singhal v. Union of India (2015), the Apex Court observed that in the Indian Constitutional scheme, freedom of speech is of “paramount importance” for democracy to thrive. Hence, a delicate balance of the States’ interests with the individual’s freedom of speech has been at the core of our Constitution.

In light of this, the next section will examine whether the Recent Supreme Court Order helps mitigate this situation or not.

A march towards a Democratic Democracy

The Supreme Court of India in S.G Vombatkere v. Union of India, through an interim Order dated 11th May 2022 has put a hold on the Sedition law till the same is reviewed by an “appropriate forum” of constitutional experts.

“In a democracy, singing from the same songbook is not a benchmark of patriotism” thus this order aims to re-examine the 162-year-old Sedition Law. Through this order, the Apex Court has requested the Central and respective State Governments to refrain from lodging any FIR under this said provision and that all trials/ appeals would be kept in abeyance.

The court also allowed persons who had been arrested under section 124A and were currently languishing behind bars, to seek bail from the appropriate courts. In addition to this, the court determined that if any new cases are filed under the stated provision, courts will have the liberty to provide proper relief.

The bench, which included Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli, agreed in unison that the sedition law enshrined under section 124A is “not in consonance with the current social milieu.”

The CJI opinionated “The court is cognisant of the duty of the State on one hand and citizens’ civil liberties on the other.” Therefore, an order is passed for “re-consideration and re-examination” of Section 124-A.

What is the need of the hour?

One ponders whether to say or not to say; is it time to bid adieu to sedition law?

Despite the pomp and show that comes with this order, critics have not failed to draw our attention to the ‘dubious step’ of the government, as they say, because in Kedar Nath Singh v. State of Bihar (1962), Constitutional Judge Bench upheld the validity of the sedition law where the Centre claimed that this is a “binding precedent that has withstood the test of time.” On the contrary, with no particular reason, the government now wants to “shed the colonial baggage” of this archaic law.

However, this path-breaking order to re-examine by the Central Government is still a glimmer of hope for keeping the sedition law at bay.

As was noted in a recent statement by the Chief Justice of India, “If we go see the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree.”

Emphasis should be drawn upon the fact that “Exciting disaffection” is not one of the specified grounds for curbing free speech. Section 124A has not undergone any substantial amendment in the last 100 years and this perhaps compels us to re-question “Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak, etc., even after 75 years of independence?”

The premise of ‘the King is the Holder of Divine Right,’ inherited from Britain, is at the heart of the concept of sedition. However, Britain removed the law in 2009, recognising that it dates from a time when people did not elect their representatives. In Australia, it was suggested that sedition convictions be limited to certain acts that instigate violence with the intent of disrupting constitutional authority. Likewise, the term “sedition” was substituted with “urging violence offences” to encompass only the most serious situations of direct incitement to violence. Hence, a trend of moving away from the colloquial era and embracing the concept of free speech is witnessed throughout Nations whereas the paradox is that the same colonial law continues to be valid in the world’s largest democracy.

The Undecided Fate: Is it time to break free from the shackles of the Colonial Past?

The fate of this section is still in bamboozlement because if the court decides to completely scrape off the provision, it will have to overrule its previous judgements, including the Kedar Nath Ruling, which restricted the liberty of free speech.

If on the other hand, it is decided that the law would prevail, it needs to reconcile with the test of reasonable restriction as laid in the Constitution itself. Strict guidelines should be laid down to limit the registration of frivolous cases, the concept of men’s Rea should be introduced, direct nexus between the act complained of and the ensuing consequence should be established so that the usage of this Section is limited to the cases where it poses anti-national threats subverting public law and order.

However, if this section were to prevail, India would not get her true independence as she would be still be “reeked with the colonial mindset.” The Government has agreed to re-examine section 124A, as it has vowed to “shed the colonial baggage” to protect civil liberties, it can just be hoped that India will get rid of the Victorian Law and strengthen the edifice of Democracy in its true essence.

Simran Srivastava is a III Year Student at Gujarat National Law University, Gandhinagar.

Image Credits: Outlook


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