Recently in India, we have seen many instances where people were charged under Sec. 124A of IPC which talks about sedition. Though the exact number of cases filed with sedition charges in India are not known, however there have been more than 300 cases in High Court and close to 20 that reached the Supreme Court. Few famous cases which took the limelight and remained in news for a while were when the sedition charges were charged on Kanhaiya Kumar, Hardik Patel, Aseem Trivedi, Binayak Sen, Arundhati Roy, Praveen Togadia.
S-124A of IPC runs as follows – Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Govt. established by law in [India] Out of the three explanations added to the Section, two seek to clarify that, expressing disapprobation of the measures of the Govt. or administrative action is not an offence. But any attempt to excite contempt, hatred or disaffection will definitely make such permissible disapprobation also liable to be punished. No incitement to violence or insurrection is necessary.
In Bilal Ahmed Kaloo Vs. State of Andhra Pradesh , the Court tried to tell as to what amounts to sedition. The court observed that, “The decisive ingredient for establishing the offence of Sedition under Sec. 124-A ,is the doing of certain acts which would bring the Govt. established by law in India into hatred or contempt etc.”
It is believed that before interpreting any provision it is very important to know the history of the provision as well so that one can think with the view of the legislators. So, I would like to discuss that where it came from. The provision of punishing for sedition was brought into the IPC in 1870, almost 10 years after the code was enacted. At that time India was under the rule of Britishers, so the main reason of Britisher’s behind introducing this provision was to silent the voice of Indian citizens against the rule of Britisher’s.
Even Pandit Nehru Ji at that time said that in his belief, the offence of Sedition was ‘fundamentally unconstitutional’, he said it categorically. He also said, that the provision is highly objectionable and obnoxious and also it should have no place either for practical and historical reasons. Moreover, he also suggested that for better, sooner we should get rid.
The English law did not define sedition but the Indian code defined it. The Privy Council therefore said that if the law defines the offence in clear terms the Courts should go by that definition as per the text of Sec 124A a simple speech or statement which can cause disaffection towards the govt. and nothing more shall bring it within the mischief of sedition.
The definition of sedition is so exhaustive that it does not leave out of its purchase any possible mode of self-expression, simply by using words or otherwise. The law of sedition which has emerged from the decisions of the Privy Council during the pre-independence era is for that a simple statement or a speech which can excite “disaffection” towards the Govt. The maker of the speech or statement is liable to be prosecuted under Sec 124A .
The courts in India have many a times criticized the provision. For say, in the case of Ram Nandan vs State of Bihar the Court observed that, “According to the sec., No publicity is required for the offence to fall under 124A and even an intimate conversation, or a conversation with a person who is not at all likely to disturb public order, is punishable. A speech to the wife, or to a minor, or to paralytic person, or to a life convict, or to an alien, or to a Govt. servant, is punishable even though there can be no apprehension of any public disorder from the wife, the minor, the paralytic person, the life convict, the alien or the Govt. servant. So even if there is no disturbance in the public order the person can be booked under this sec. which is violating his right of freedom of speech and expression.”
This law can be highly misused as it is the ordinary police constable who will in the person decide whether a brilliant speech made by an eminent author or a great cartoon made by a visible representation which attempt to bring in hatred or contempt or excite or attempt to excite disaffection towards “GOVT. ESTABLISHED BY THE LAW”.
In a democracy the people change such govt. through vote. No democratic govt. can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India. But democratic India even with all its bitter experience of the operation of this law by the colonial govt. retained it and used it liberally against its people taking refuge under a Supreme Court decision validating it.
Many questions are put before the court to answer and the court has always tried to serve justice and for the same by laying down principles and rules for the safeguard of innocents. One of the biggest question that was raised ones again in front of the Supreme Court was of the constitutionality of the provision of sedition as per Section 124A of IPC.
The Courts in India from time to time has given decisions which were both in the favor and against the provision. Firstly the question was asked in the matter of Ram Nandan vs State where the Allahabad High Court on 16 May, 1958 held that “Sec. 124A of IPC ultra-vires and declared it unconstitutional under A13.” This judgment was overruled by the Apex court and that is the reason it still prevails in the law.
There is a presumption in favor of constitutionality or validity of a legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that legislation can be challenged under any of the following grounds:
a) Lack of legislative competence to make the subordinate legislation.
b) Violation of fundamental rights guaranteed under the Constitution of India.
c) Violation of any provision of the Constitution of India.
d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.
e) Repugnancy to the laws of the land, that is, any enactment.
f) Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the legislature never intended to give authority to make such rules).
Taking the above grounds into consideration I would like to challenge the constitutionality of sec. 124A as it is in violation of:
• Fundamental rights guaranteed under the Constitution of India – Article19(1)(a)
• Violation of any provision of the Constitution of India. – Part III, i.e. Fundamental Rights.
Article 19(1)(a) of the Constitution of India guarantees every citizen the right to freedom of speech and expression.
Now the question before us is whether a person has a right to say things against the govt. under Art. 19(1)(a). I would like to quote the view of the court in the case Ahmad Ali vs. State , in which VS. Bhargava J., observed –
“Spread of disaffection against a party Govt. cannot be said to be aground for inferring that the public order would not be maintained. It is the right of every citizen in a democratic Govt. to spread disaffection against a particular party Govt.”
From this observation of the honorable Court we can reach to the conclusion that-
One cannot think of a right unless it is conferred expressly by some provision of law. The right to spread disaffection against the Govt. or any other person is included in the right to freedom of speech and expression guaranteed by the Constitution.
The court in the matter of Tara Singh vs. State of Punjab the court observed that – A person hearing a speech may begin to hate the Govt., or feel disloyal towards it, or may hold it in contempt, but is not bound to disturb the public order and may refrain from doing any overt act. Whether a speech will cause disorder or not depends not only upon its nature but also upon the nature of the hearer, his opportunities and the state of the country at the time.
The court later on overruled these and has held the provision valid and it is the reason it still exists. But the point here is it that the law is being misused and is also violating the right to freedom of speech and expression.
Lord Phillimore pointed out at p. 38 that in considering the natural result of the words used regard must be had, among other things, “to the character and description of that part of the public who are to be expected to read the article.”
Again in the case of King vs. Aldred (K) Coleridge, J. stated that one is entitled to look at all the circumstances surrounding the publication with a view to seeing that the language used is calculated to produce the results imputed, that is to say one is entitled to look at the audience addressed, and to take into account the state of public feeling Since the law of sedition as per Sec. 124A does not takes the facts into consideration, it gets easy to charge anyone under the said charge. This is one of the way in which the law is being misused.
Therefore, I think that it is high time this question is again asked before the Apex court and the law is considered for its constitutionality.