The law of sedition is unconstitutional

Context:

In Vinod Dua’s case (2021), the Supreme Court of India has reaffirmed the law of sedition laid down in Kedar Nath Singh (1962) and directed governments to adhere to it.

Relevance:

GS-II: Social Justice (Health related issues, Government Interventions and Policies, Issues arising out of the design and implementation of Government Policies)

Mains Questions:

To what extent does the Kedar Nath judgment guarantee the basic right of speech and expression? Examine the need for review of this judgement. (10 Marks)

Dimensions of the Article:

1. What is Sedition?
2. About Sedition law
3. SC Judgement in the Vinod Dua case
4. Sedition: Views of Judiciary in the past
5. Criticism of Sedition
6. The Problem of Sedition being constitutional

What is Sedition?

Sedition, which falls under Section 124A of the Indian Penal Code, is defined as any action that brings or attempts to bring hatred or contempt towards the government of India and has been illegal in India since 1870.

Historical background of Sedition laws

• Sedition as a concept comes from Elizabethan England, where if you criticised the king and were fomenting a rebellion, it was a crime against the state.
• When they ruled India, the British feared Wahhabi rebellion. They brought the [sedition] law in, and it was used against our freedom fighters as well.
• We must remember that both Mahatma Gandhi and [Bal Gangadhar] Tilak were tried under this law and sentenced.
• Government didn’t remove it because every administrator has this thought that dissent is okay, but beyond a certain point it gets dangerous and an administration must have the means to control it.
• Previously policemen were much more independent. But since Indian independence, the independence of the police has also been severely compromised. So, any local leader can almost bully a policeman into registering a case.

About Sedition law

• The law was originally drafted by Thomas Macaulay. Since its introduction in 1870, meaning of the term, as well as its ambit, has changed significantly.
• Sedition is a cognisable, non-compoundable, and non-bailable offence, under which sentencing can be between three years to imprisonment for life.

About Section 124A of Indian Penal Code (IPC)

• The Indian Penal Code in Section 124A lays down the offence:
• “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 Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
• A person charged under this law can’t apply for a government job. They have to live without their passport and must present themselves in the court as and when required.

SC Judgement in the Vinod Dua case

• Vinod Dua is a journalist had criticised Prime Minster Modi and the Centre for the handling of the migrant crisis in 2020 and a case of sedition was filed against him for allegedly making remarks against Prime Minister.
• While the Supreme Court shielded Dua from arrest earlier, the case itself was quashed by a two-judge bench of the SC which held that his remarks constituted genuine criticism of the government and could not be labelled seditious.
• The significance of the verdict lies in the Supreme Court’s subsequent reiteration of the Kedar Nath Singh principles.

Sedition: Views of Judiciary in the past

• The constitutionality of sedition was challenged in the Supreme Court in Kedar Nath Vs State of Bihar (1962). The Court upheld the law on the basis that this power was required by the state to protect itself.
  • However, it had added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
  • The court held that “a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder”.
• In the 1995 Balwant Singh case verdict, the Apex Court said, ‘The casual raising of slogans once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the government”.
• In 2016, the Supreme Court had reiterated these necessary safeguards and held that they should be followed by all authorities.
• Various verdicts in Romesh Thappar case, Kedar Nath Singh case, Kanahiya Kumar case re-defined a seditious act only if it had essential ingredients which are:
  • Disruption of public order
  • Attempt to violently overthrow a lawful government
  • Threatening the security of State or of public.

Criticism of Sedition

• Colonial Era law: It is a colonial relic and a preventive provision that should only be read as an emergency measure.
• Right to Freedom of expression: Use of Section 124A by the government might go beyond the reasonable restrictions provided under fundamental right to freedom of speech and expression as per Article 19 of the Constitution.
• Democratic foundation: Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy and therefore, should not be constructed as sedition. The sedition law is being misused as a tool to persecute political dissent.
• Lower Conviction Rate: Though police are charging more people with sedition, few cases actually result in a conviction. Since 2016, only four sedition cases have seen a conviction in court which indicates that sedition as an offence has no solid legal grounding in India.
• Vague provision of sedition laws: The terms used under Section 124A like ‘disaffection’ are vague and subject to different interpretation to the whims and fancies of the investigating officers.
• Other legal measure for offences against the state: Indian Penal Code and Unlawful Activities Prevention Act (1967), have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. o Similarly, the Prevention of Damage to Public Property Act is also there for offences against the state.
• Perception of law: Globally, sedition is increasingly viewed as a draconian law and was revoked in the United Kingdom in 2010. In Australia, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed.

The Problem of Sedition being constitutional

• The law of sedition was not struck down by the Supreme Court in 1962 as unconstitutional even though sedition, as defined in Section 124A of the IPC, clearly violates Article 19(1)(a) of the Constitution which confers the Fundamental Right of freedom of speech and expression, the most valuable right of free citizens of a free country.
• Further, this section does not get protection under Article 19(2) on the ground of reasonable restriction.
• It may be mentioned in this context that sedition as a reasonable restriction, though included in the draft Article 19 was deleted when that Article was finally adopted by the Constituent Assembly. It clearly shows that the Constitution makers did not consider sedition as a reasonable restriction.
• However, the Supreme Court was not swayed by the decision of the Constituent Assembly. It took advantage of the words ‘in the interest of public order’ used in Article 19(2) and held that the offence of sedition arises when seditious utterances can lead to disorder or violence.
• This act of reading down Section 124A brought it clearly under Article 19(2) and saved the law of sedition. Otherwise, sedition would have had to be struck down as unconstitutional.

-Source: The Hindu