The Law of Sedition: Is it the Right to Offend?

Ichchhit Goswami*

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Abstract

This article traces the origins and the usage of the law of sedition- through its colonial history to the present day. It outlines how the genesis of the law lay in protecting the colonial government at the expense of the press, freedom of speech and the freedom fighters. It is an attempt at analysing the law and making a case against its usage as a tool to curb dissent and critical rhetoric in the present times.

Keywords- Sedition, Section 124 A, Indian Penal Code 1860, Freedom of Speech.

Introduction

“Better a thousandfold abuse of free speech than denial of free speech. The abuse dies in a day but the denial slays the life of the people and entombs the hopes of the race.” – Charles Bradlaugh[1]

The term “sedition” can essentially be defined as disloyalty in action. A bird’s eye view of the term paints us an image of sedition being the inducement of discontent to stir up opposition and contempt against the government and to invite the people to insurrection and rebellion.[2] As a concept, sedition was born for the sole purpose of protecting monarchical power. The earliest manifestation of sedition law was brought into existence by King Edward I due to innumerable incidents of public unrest and disrespect towards the crown, which was occupied by the “foreign” Normans. Thereafter, the law was first codified in the First Statue of Westminster of 1275, interestingly enough: it was limited only to false news and not all condemnatory slander or libel.[3] At the time, it was of paramount importance that citizens do not harbour any ill opinion of the government. Moreover, no government could subsist without punishing the citizens that did so.[4]

Sedition in Colonial India

The ideology of sedition was introduced to the Indian masses when the British decided to draft their laws to aid in their governance and occupation of administrative posts. The first Indian Law Commission, with Thomas Macaulay at its helm, was charged with the responsibility of framing the Penal Code. The copious legislative processes required for the successful completion of framing the Penal code made the entire process move at a glacial pace until the sepoy mutiny of 1857.[5] However, even after the draft code was approved and finally enacted as the Indian Penal Code in 1860, it incomprehensibly left the sedition clause out. The credit for the inclusion of section 124A[6] which dealt with the offence of sedition under Part 6 of the Indian Penal Code is generally attributed to the Wahhabi political movement.[7] The Wahhabi are a Muslim sect that believes in monotheism and Jihad. After 1857, the British discovered a plot for an armed revolt spread across India against the British inspired and lead by Wahhabis.[8] This particular conspiracy seeded the necessity for an amendment to the Code which would allow offences that did not quite amount to waging war against the state, to be penalised.[9] Thus, the addition of the offence of sedition under the category of “offences against State”, was necessitated only by the imminent threat of another revolt.

Sedition Against Nationalist Dissent

Since the Wahhabis set the ball rolling, the emergence of nationalism and a growing feeling of discontent amongst the native population put the authority of the colonizers at great peril. The colonizers viewed the sedition law as an effective instrument to restrain all forms of dissent, protest, and opposition that led to its widespread use against political leaders and nationalists. With the law deliberately being left ambiguous and vague, it was used purely as a means of crowd control by the colonizers.[10] With equivocal words such as “disaffection” present within the section, it was completely open to subjective interpretation to determine the commission of the offence. Some of the most famous sedition trials in Indian history have been against historical figures and freedom fighters such as Bal Gangadhar Tilak, Vinayak Damodar Savarkar, Mahatma Gandhi, and Jawaharlal Nehru.

Queen Empress v. Bal Gangandhar Tilak[11], stands out as the case which set the landscape for sedition during colonial times. Tilak had been charged with sedition as the editor and proprietor of Kesari for an article titled ‘Shivaji’s Utterances’.[12] The call to swaraj contained therein was deemed to be seditious. Justice Strachey’s test disregarded ‘inconsequential impact’ and ‘lack of incitement’ as valid defences, which was the standard laid down in Britain.[13] The juries were often stacked against the accused, with a white majority (this was visible as the jury split down racial lines, with Indian jurors holding Tilak not guilty[14]).

The introduction and then the stricter interpretation of sedition, which broadened its ambit and raised it from a bailable to a non-bailable offence for India[15], can only be interpreted as a surge to stay the rising nationalism and to prevent the vernacular press from reaching the masses.

Sedition in Independent India

On looking at the statutes from a comparative scale, the contradictory nature of the Indian and American Constitutions stood out conspicuously; the First Amendment to the U.S. Constitution granted its citizens an un-equivocal right to freedom of speech, whereas the Indian Constitution’s First Amendment handed us article 19(2), essentially giving the government the power to curb free speech.[16] Since India gained its independence, there have been various attempts to declare 124A void or at the very least, to limit its scope. However, the Supreme Court in Kedar Nath Singh v. State of Bihar[17], justified the constitutionality of the law under the semblance of maintenance of public order and security of the state. Further adding, that inciting violence is a prerequisite for the offence to be committed.

The modern offence of sedition follows its historical roots, albeit it does so while adding a layer of intolerance that was hitherto absent. During the span of 2000-2015, fourteen cases of sedition were brought before the courts and these cases lead to a measly three convictions.[18] This figure clearly shows the number of frivolous lawsuits being filed under the garb of sedition with the sole purpose to deter any alternative discourse or as a form of harassment. Moreover, the punishment for sedition is particularly harsh as it comes under the category of offences against the state and, as such, is a cognizable, non-bailable, and non-compoundable offence.[19]

In recent history, there have been sedition charges against filmmakers who had sent an open letter to the Prime Minister of India, urging him to act against the rampant mob lynching, minors who were dancing to an ‘objectionable’ song, children who allegedly insulted the PM in their school play on CAA, a politician for hugging the Pakistan Army Chief during his visit to Pakistan, criticizing a yoga guru and an entire village protesting the building of a nuclear power plant.

Sedition Against Dissent

The application of sedition has ranged from the banal to the baroque, to the point where even the slightest criticism or hint of disaffection is construed as an affront to the nation. The offence of sedition has become a haven for the wounded vanity of governments[20], being used pointedly as a tool of propaganda, to restrain discourse and enforce their rhetoric. The blatant misuse of this law and the consequent suppression of Fundamental Rights raises the question as to what extent does a citizen have a right to freedom of speech and to that extent the right to offend. The line between opinion and sedition needs to be demarcated lucidly so that a citizen can express himself without the sword of sedition hanging over him. The offence of sedition still commands a penalty of imprisonment for life, as was the case during colonial times. Incredulously, while the offence of sedition was a non-cognizable one under the British, the Indira Gandhi led government in 1974 turned it into a cognizable one.[21] This ironic fact is that under the colonisers, sedition was a lesser offence. India obtaining freedom and forming its own laws had a regressive effect on our freedom to offend.

Other nations seem to have sorted this out to a certain extent, starting with the country from which we inherited this vile law, the United Kingdom, which has abolished it, stating that they did not want to be cited as an example of countries using such draconian laws. Shouldn’t the fact that the lawmakers are denouncing it, be seen as a sign to follow suit? Other constitutional democracies consider the freedom of speech to be even more fundamental, with the US Supreme Court including even the right to burn the nation’s flag under the ambit of free speech- “It is poignant but fundamental that the flag protects those who hold it in contempt” – Justice Anthony Kennedy[22].

Even if one were to argue for the nation’s safety, integrity, and the maintenance of ‘public order,’ wouldn’t other laws such as the Terrorist and Disruptive Activities Act, 1987, Prevention of Terrorism Act, 2002, Unlawful Activities Prevention Act, 1967 in addition to a slew of other statutes all for the protection of the state, be enough?

Conclusion

In a democracy, singing from the same songbook should never be considered a sign of patriotism.[23] The citizens should have the liberty to pick and choose how they show their affection towards their nation. Dissent and criticism are the backbones of a thriving democracy. Paramount importance must be given to a citizen’s rights and not only to the protection of national integrity. Every unwarranted restriction on free speech and expression must be scrutinized to avoid any unnecessary limitations. Lastly, we would do well to remember the difference between the administration and the nation and how criticism of the government is not sedition.[24].

“Loyalty to the country always; loyalty to the government, when it deserves it.” – Mark Twain

[1] Law Commission of India, Consultation Paper on Sedition, 20, (Aug. 2018) https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf?utm_source=nl_landingpage&utm_medium=web&utm_campaign=timestop10_daily_newsletter [2] Regina v. Sullivan (1868) 11 Cox. C.C. 44. [3] CHITRANSHUL SINHA, THE GREAT REPRESSION 64-65 (Penguin Books 2019) [4] R v. Tutchin, (1704) 14 State Trials 1096. [5] CHITRANSHUL, supra note 3, at 69. [6] Indian Penal Code, 1860 [7] GAUTAM BHATIA, OFFEND, SHOCK OR DISTURB 259 (Oxford University Press 2016) [8] CHITRANSHUL, supra note 3, at 75. [9] CHITRANSHUL, supra note 3, at 76. [10] Sara H., 5 Landmark Cases That Changed The Way We Look At India's Sedition Law, Homegrown (Feb. 18, 2016)https://homegrown.co.in/article/47919/5-landmark-cases-that-changed-the-way-we-look-at-indias-sedition-law [11] (1897) ILR 22 Bom 112. [12] ABHINAV CHANDRACHUD, REPUBLIC OF RHETORIC 28 (Penguin Random House India 2017). [13] Id. at 37. [14] Id. at 31. [15] ABHINAV, supra note 11, at 20. [16] A.G. Noorani, Colonial Relic, FRONTLINE (Apr. 15, 2016) https://frontline.thehindu.com/the-nation/colonial-relic/article8408868.ece [17] Kedar Nath Singh v. State of Bihar, 1962 AIR 955. [18] Nivedita Saksena & Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, 7 NUJS L. REV. 121, 137 (2014). [19] Code of Criminal Procedure, 1973, Schedule I, Acts of Parliament, 1973 (India). [20] ABHINAV, supra note 11, at 41. [21] ABHINAV, supra note 11, at 43. [22] Texas v. Johnson 491 U.S. 397 (1989) [23] Law Commission of India, supra note 1, at 30. [24] Kedar Nath Singh v. State of Bihar, 1962 AIR 955

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[*] Ichchhit Goswami is a third-year undergraduate student from Jindal Global Law School, India.

Preferred Citation – Ichchhit Goswami, “", Syin & Sern Law Review, Published on 18th July 2021.