Section 124A vs Free Speech: is it time to do away with the Sedition Law?

“Section 124A is the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen” – Mahatma Gandhi

Introduction

Recently, a two-judge bench of the Supreme Court in Vinod Dua v. UOI, while quashing the FIR registered against the veteran journalist Vinod Dua remarked that every journalist is entitled to the protection of the Kedar Nath Judgment and a citizen has the right to criticize the government as  long as he does not incite violence against the government. Earlier this year, a three-judge bench of the Supreme Court led by D.Y. Chandrachud J. pointed out that it’s time to define the limits of sedition while noting the 150-year-old law’s indiscriminate use, against critics, journalists, social media users, and activists, by the Government. It increasingly seems that the government has the favourite method of retribution, against those who say things it doesn’t like or who act in a way it doesn’t approve of, by accusing them of sedition. The question thus arises, is the law of Sedition being misused? Are instances of its misuse growing? Has the law outlived its purpose? And what can be the way forward to halt this disturbing trend of curbing free speech and dissent through legally viable measures? Through this article, an attempt has been made to critically respond to the aforesaid questions.

Judiciary’s Interpretation of the Sedition Law

Interestingly, Sedition was not included in the original draft of the Indian Penal Code of 1860. It was only in the year 1870 that the provision of Section 124A was inserted by Lord Stephen with an objective to curb dissent emanating from the Indian freedom movement against the British Colonial Rule.

As far back as 1962, the Apex Court in Kedar Nath Singh v. State of Bihar, read down Section 124A and held that the provision would be attracted only when there is an incitement to violence or grave public disorder. In P Alavi v. State of Kerala, the High Court of Kerala observed that mere criticism of the present judicial set-up or functioning of the parliament or state legislative assemblies cannot be considered as bringing into hatred or exciting or attempting to excite disaffection directed against the Government established by Law. In Balwant Singh v State of Punjab, the appellants had raised provocative slogans such as – “Raj Karega Khalsa, Khalsa Zindabad” on the day on which Smt. Indira Gandhi was assassinated. They were accordingly charged by the then union government for Sedition. The Court while acquitting the appellants held that slogans howsoever provocative do not in themselves constitute sedition.

Further, in Bilal Ahmed Kaloo v. State of Andhra Pradesh, the Apex Court reiterated the principles laid down in Kedar Nath Case and observed that sedition charges cannot be imposed in a mechanical manner merely for criticizing the government or its policies. In Indra Das v State of Assam, a two-judge bench of the Supreme Court observed that a state cannot criminalize free speech unless it is established that the exercise of free speech was aimed towards inciting lawless action.

Abuse of Section 124A to Suppress Free Speech

Though the Supreme Court has, in very clear terms, interpreted where and when the Sedition law can be invoked, unfortunately, the government and the law enforcement agencies in their zeal and enthusiasm to enforce this law they tend to go beyond what the law says and overlook the interpretation of the Apex Court in this regard. The law enforcement agencies fail to differentiate between an anti-national activity and an anti-government activity. Explanation 3 to Section 124A becomes relevant in the above context and it states: “Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.” Section 124A makes it reasonably clear that it is only when the words written or spoken have the pernicious tendency or intention to create public disorder or disturbance of law and order that the law steps in to punish such activities.

According to a data published by National Crime Records Bureau, there has been an enormous surge of 160% in sedition cases from 2016 to 2019 as the number of people being charged under the colonial-era law increased from 35 in 2016 to 93 in 2019. However, the rate of conviction under Section 124A of IPC fell from 33.3% in 2016 to a mere of 3.3% in 2019.  

There are various instances where the law enforcement agencies have indiscriminately slapped activists, dissenters, journalists with Sedition charges. In State v Disha Ravi, the Delhi High Court while granting bail to a climate activist accused of sedition and conspiracy for allegedly being related to a social media ‘Toolkit’ pertaining to the controversial farm laws and farmers’ protest observed that “the offence of sedition cannot be invoked to minister to the wounded vanity of governments.”

In another instance, Assamese activist Akhil Gogoi was unreasonably charged under Sedition and the Unlawful Activities (Prevention) Act,1967 for his role in the anti-CAA protests, reading the Communist Manifesto, and for calling his peers ‘Comrade’ and addressing them with a ‘Laal Salaam’. The NIA Court granted bail to Gogoi, which was later upheld by the Gauhati High Court.

In a much recent case, around 100 farmers in Haryana were charged with Sedition for allegedly attacking and damaging the official vehicle of Haryana’s Deputy Speaker while protesting against the farm laws. Going by the law, the act of the farmers of damaging the vehicle though qualifies as Mischief under Section 425 of IPC, a case under Section 124A is nowhere made out as the decisive ingredients of incitement to violence and public disorder are absent.

Has the Sedition Law outlived its utility?

Recently, The Supreme Court in the matter of S.G. Vombatkere v. UOI, has issued notice and questioned the Centre about the relevance of Section 124A after almost 75 years of independence. The Chief Justice of India expressed concerns about the misuse of Section 124A by the executing agency and law enforcement authorities.

Thus, the question arises as to whether the Sedition law has outlived its utility in modern-day India and does it need to be scrapped from the Statute book?

Going by the literal interpretation and the various judgments of the Apex Courts that have read down the provisions of Section 124A, it is clear that the Sedition law is aimed towards the maintenance of public order in society. Executive in our country faces serious challenges every day from terror organizations, Maoists, and other separatist groups. Therefore, it is not easy for a country like India to completely scrap away the Sedition Law. The judgment of the Supreme Court in the Kedar Nath case which laid down the circumstances in which the Sedition Law would be attracted has been constantly neglected by the magistrates and police officials, thereby leading to gross misuse of the law. As has been aptly put by CJI Ramana, the major issue with the law is that there is no accountability on the part of executive agencies. Hence, misuse and misapplication of the Sedition law is the concern that needs to be looked into.

Way Forward and Conclusion

Just because a law is being misused is no ground for quashing it. Merely because the law happens to be a relic of the colonial past doesn’t mean that it has outlived its utility. It is incumbent upon the Judiciary to read down the law so as to suit the changing social dimensions of the State and the Courts have rightly done so. Overthrowing or attempting to overthrow the government established by law by violent means is Sedition and to punish any act or action of that extent, the law is required. Unfortunately, the law enforcement authorities, overenthusiastic or ignorant, have applied the law to cases where the citizens tend to criticize the government or dissent from its policies.

Therefore, there is a need to sensitize the police officials and other law enforcement authorities so that they know which act would fall within the ambit of Sedition and which act would stand outside its ambit. Circulars can be issued by the State Governments to the police stations directing that whenever a case of sedition is made out, the law enforcing agencies should confirm that the mandate of the Supreme Court Judgment in the Kedar Nath Case is followed in its letter and spirit. If the law is implemented by the executive agencies in accordance with the interpretation given to Section 124A by the Supreme Court in various judgments, the gross misuse of law can be tackled.

By Amol Verma, Chanakya National Law University, Patna

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