Authored by Gangayee Saha, 4th year law student at St. Xavier's University, Kolkata. The author has secured 11th Rank in Article Writing Competition organised by The Society For Constitutional Law Discussion
Abstract
This paper scrutinizes Section 124A of the Indian Penal Code, a colonial-era law on sedition, and its application in contemporary India. It highlights instances where the law has been used to suppress dissent, often leading to unwarranted harassment and arrests of individuals expressing their opinions. Despite low conviction rates and judicial interventions safeguarding free speech, concerns persist regarding the chilling effect of the law on freedom of expression. The debate over whether Section 124A should be abrogated revolves around balancing national security concerns with constitutional guarantees of free speech. Advocates for its retention argue for procedural safeguards to prevent misuse, while critics assert that its vague and broad provisions empower the government to stifle dissent, contradicting democratic principles. Ultimately, the paper advocates for the repeal of Section 124A, contending that its existence undermines the fundamental rights enshrined in the Indian Constitution.
Introduction
Section 124A of the Indian Penal Code (Hereinafter referred to as ‘code’) was mainly prompted by the Wahabi movement. Its primary purpose was to quell any political dissent or movements advocating for Independence during the British Raj. Bal Gangadhar Tilak was convicted under this section for criticizing the British Government for not being able to deal effectively with the famine. Even Mahatma Gandhi was convicted under this section despite being a strong advocate of peace and non-violence. Lon Fuller contends that when interpreting a statute, one should consider the problems the law addresses and the benefits it seeks to achieve. In the case of Section 124A of the code, it neither serves a positive purpose nor addresses any specific issue. Instead, it grants the government authority to prosecute individuals expressing dissent against the government, indicating an underlying motive since its introduction.
Instances Where Sedition Laws Have Been Used To Suppress The Voices of The Citizens
Numerous cases exist where individuals have faced unwarranted harassment under Section 124A of the Code, which posits that mere criticism can be treated as a sedition offense. Here are a couple of illustrations:
In the case of Balwant Singh and Anr v. State of Punjab, the Court held that ‘merely raising slogans such as “Khalistan Zindabad,” “Raj Karega Khalsa,” and so on did not constitute the offense of sedition because there was no evidence or record that any violence occurred despite the slogans being raised in a public place.’
In the case of Rajat Sharma v. Union of India, the former Chief Minister, expressing his views on the Ladakh situation, suggested that ‘resolving the chaos and reinstating Article 370 could involve collaboration with China.’ Subsequently, he faced charges under Section 124A of the Code for merely expressing his sentiments. The Supreme Court imposed a Rs. 50,000 fine on the petitioners for filing an unnecessary PIL, emphasizing that statements by the former Chief Minister diverging from the central government's stance should not be construed as sedition.
Disha A. Ravi had participated in the Farmer’s protest and that is the reason she was arrested inter alia under the charges of Section 124A to express her views during the Farmer’s protest. She faced not only sedition charges but was also accused of having ties to a Khalistani group, all because of her affiliation with a WhatsApp Group featuring Greta Thunderbarg, a well-known climate activist—an association well within her fundamental rights. The court emphasized that in a democracy, disagreement, dissent, and divergence from government policies are vital, absolving her of any wrongdoing under Section 124A of the Code.
In the case of Patricia Mukhim v. State of Meghalaya, The appellant had merely brought attention to the ongoing violence and urged the Meghalaya government to take necessary actions. Yet, she found herself charged with sedition under Section 124A, with an FIR alleging an attempt to incite communal violence. Seeking justice, she filed a petition under Section 482 of the Code of Criminal Procedure to quash the FIR. The Supreme Court, dismissing the allegation of incitement as a mere fabrication, ruled that the conditions warranting the invocation of Section 124A had not been met.
Sarjeel Imam was held guilty of sedition for his alleged inflammatory speeches during the CAA-NRC protests. He was granted bail as the Supreme Court had directed abeyance of the prosecution of all pending cases of sedition. He had to be in custody for 31 months just for expressing his views during the CAA-NRC protest.
Instances That Do Not Fall U/s 124A of The Code
A journalist has every right to dissent and the State cannot put a bar on any discussion no matter how hateful it is towards the Government policies. Tolerance of various opinions and acknowledging the freedom to express views that might not align with the mainstream values is the essence of any democracy and the rule of law does not permit restriction of any unpopular view that is not agreed upon by the majority. Any citizen can criticize the measures taken up by the Government and state that such a law or such measure is against the public interest.
The Supreme Court had held that as morality is highly subjective, Criminal Law cannot act as a coercive measure to act in personal autonomy and there was a need for tolerance towards unpopular views. In the case of Debi Soren and Ors. v. The State, the appellant had called the Bihar Government merciless but the Court held that such a statement was not seditious.
Hence, harshly criticizing the government for its policies, or even using words like “merciless”, “evil” etc. does not amount to the offense of sedition in any way. Still, a lot of times, people are arrested for the same where the government intends to suppress the voice of the citizens just for criticizing the manner the government takes up its responsibilities.
Can 124A Be A Reasonable Restriction Under Article 19(2)?
For any law to come under the ambit of reasonable restrictions, it must be in the interest of the sovereignty and integrity of India, public order, security of the state, friendly relations with foreign states, decency or morality, or in relation with the contempt of Court, or incitement to an offense or to prevent defamation.
In the case of Sagolsem Indramani Singh and Ors. v. State of Manipur, the court had observed that although public order comes under reasonable restrictions mentioned in Article 19(2), it cannot be expected to punish mere criticism against the government, for maintaining public order.
In the case of Rammanohar Lohia v. The Superintendent Central Prison, the court held that public order is not necessarily affected by the breach of every law and any threat to public peace and security must be proximate and clear instead of being remote and problematic.
In the case of Chintaman Rao v. The State of Madhya Pradesh, the Supreme Court held that if the legislation either arbitrarily or excessively evades the fundamental right and fails to strike a balance between the fundamental rights, then the quality of reasonableness is absent. In this scenario, as Section 124A of the Code has time and again infringed the fundamental right guaranteed under Article 19(1)(a) of the Constitution, it cannot be deemed as a reasonable restriction as it is not in the interest of any of the eight criteria mentioned in Article 19(2) of the Indian Constitution.
Section 66A of the Information Technology Act, 2000 (Hereinafter referred to as “The Act”) states that if any person publishes grossly offensive statements or any threatening information over the internet, he or she shall be liable to an imprisonment of three years, with or without a fine. In the famous case of Shreya Singhal v. Union of India, two girls were arrested for commenting on a Facebook post under section 66A of the Act. The petitioners had filed a PIL in the Supreme Court and prayed to declare section 66A of the Act as unconstitutional. The apex court declared the section unconstitutional on the following grounds.
The terms 'offensive' and 'menacing' were excessively ambiguous and lacked specific criteria for defining the elements of the offense. Consequently, this provision was susceptible to misuse, posing a threat to the right to freedom of speech and expression as protected under Article 19(1)(a) of the Indian Constitution. The section's arbitrary application could potentially lead to the harassment of individuals expressing their opinions.
A restriction is considered reasonable when it aligns with the interests outlined in Article 19(2), and Section 66A of the Act failed to meet any of these criteria. Similarly, the phrase "bringing or attempting to bring hatred or disaffection" towards the government in Section 124A is excessively vague and susceptible to misuse. The lack of precise terminology in the provision, using terms like "hatred or contempt" and "disaffection," allows for subjective interpretation. This absence of clear definitions places individuals in a precarious position, unsure whether their actions or expressions could be deemed seditious. Such ambiguity hampers the exercise of free speech and expression, leading to self-censorship due to the fear of potential repercussions.
The Chilling Effect of Sedition
The sedition law creates a chilling effect by arbitrarily arresting citizens just for putting forth their opinions, thereby restricting the fundamental right under Article 19(1)(a) of the Indian Constitution. The chilling effect in the legal context is a circumstance where the speech or conduct is suppressed by fear of penal consequences to an individual or community interest.It is a situation where the legitimate exercise of certain natural or legal rights is threatened through legal sanctions. The chilling effect of these laws not only threatens to undermine, and gradually destroy, the right to protest, dissent, or criticize the government which is enshrined under Article 19(1)(a) of the Indian Constitution. As the sword of section 124A can be used to bully and silence those who oppose the Government or the Government's policies, the Government will not strike down such a useful weapon.
Defence For The Sedition Law
While it's true that the sedition law has been frequently employed to suppress citizens, some may argue that the Courts have consistently affirmed the fundamental right to freedom of speech and expression, leading to the acquittal of individuals in numerous instances. That is the reason why the conviction rate is as low as 3.3% in the case of these offenses. Despite the situations highlighted earlier, where sedition was utilized to stifle individual voices, the Courts have consistently ruled in favor of the affected citizens. Thus, even if the Government employs this law as a tool, the Courts will ultimately ensure justice by upholding the fundamental rights enshrined in the Constitution.
The 279th Law Commission report has explicitly mentioned that the colonial origin of the sedition law is not sufficient ground to declare this law unconstitutional. Rather, procedural safeguards should be adopted to make sure that the scope of misuse is reduced. In the landmark judgment of Kedarnath v. State of Bihar, the apex Court, while upholding the constitutionality of the sedition law said that even though this law can be misused, the same cannot be a sufficient ground to render a provision unconstitutional altogether. Instead, there must be criteria on what can constitute an offense of sedition so that people in power cannot use it as a tool to suppress the voices of the citizens.
Should Section 124A Be Abrogated?
Despite the minimal conviction rates and the eventual acquittal of arbitrarily arrested citizens, individuals shouldn't endure the ordeal of a protracted trial merely for expressing their opinions. The sluggish pace of the Indian judiciary system adds to the challenges. While recommendations for procedural safeguards to curb misuse exist, none have been effectively put into practice. Moreover, the assessment of whether an expression has the potential to incite hostility and disaffection towards the government varies from case to case, contingent on specific facts and circumstances. Hence, there cannot be a straight jacket formula to determine what can constitute an offense of sedition. When there cannot be such criteria, then the ambit of section 124A of the code, which is already so broad and open-ended, gives power to the government to silence individuals who criticize its policies, create a chilling effect among the citizens and that is not in the essence of democracy. Hence, this section must be abrogated as it is against contravenes with the provisions of Article 19 (1)(a) of the Indian Constitution.
Conclusion
The absence of a clear definition for sedition makes it difficult to determine what constitutes an offense. The broad and open-ended nature of section 124A of the code gives the government the power to silence individuals who criticize its policies, creating a chilling effect among citizens. This is not in the essence of democracy. Therefore, this section must be abrogated as it contravenes with the provisions of Article 19 (1)(a) of the Indian Constitution.