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Law or the Application of the Law: Where Does The Anti-National Element Lie?

Updated: Mar 26

Authored by Raghav Khandelwal and Tarusha Airan, OP Jindal Global University, Sonipat, Haryana.


Law or the Application of the Law: Where Does The Anti-National Element Lie?
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Introduction

Article 19(1)(a) of the Constitution of India gives every citizen the right to freedom of speech and expression. However, on the basis of Article 19(2), which recognises the State powers, reasonable restrictions can be imposed on this freedom, making it not an absolute liberty. Therefore, yes, for protecting national security and integrity or safeguarding people’s feelings, the government can control our freedom of speech and expression through their powers. But, the question lies here: whether to limit our independent thoughts and ideas is it not possible for the government to abuse this power?


Hence, this paper endeavours to draw your attention to the paradox between the theory and the interpretation of the law of sedition with the help of judicial proceedings. Also, identifying the need of the hour, i.e., to repeal the law or modify the application of the law.


How do The Courts read section 124-A?

Although, Sedition is not mentioned as a ground in Article 19(2) on which restrictions may be imposed. The law of Sedition in India is affirmed under Chapter VI, “Offences against the State”, beneath Section 124-A of the Indian Penal Code, 1860, which punishes a person who, 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.


This means that a citizen is restricted under Article 19(1)(a) when he, by his words, visible representation or through signs, or otherwise, goes across the limits or, in other words, ‘Laxman-Rekha’ and tries to bring or brings into hatred or tries to motivate or motivates hostility towards the government in others. It is enough for the purpose of this section when the words that are used are intended to arouse ill feelings against the law-established Government.


Conflicting Interpretations of The Sedition Law By Federal Government And Privy Council

The Supreme Court of India faced two-dimensional contradicting interpretations on the legality of the sedition law where Section 124-A and 505 of IPC were under the challenge of being unconstitutional with respect to Article 19(1)(a) while deciding the case of Kedar Nath v. State of Bihar in 1962. This was because many landmark judgments were given on sedition by the Privy Council and the Federal Court during pre - Independence. Not only that, but both these judicial bodies had different points of view on the sedition law on the subject of its scope and meaning.


Earlier, the situation according to the Privy Council verdict in Emperor v. Sadashiv Narayan Bhalerao case on sedition approved the observation made in Queen – Empress v. Bal Gangadhar Tilak, which held that whether any outbreak or disturbance of public order is caused by some article or words or signs is completely immaterial. Therefore, if the accused intended to cause such outbreaks or rebellion and even if he did not intend to do so but in a way tried to stimulate enmity in the crowd against the Government, this is sufficient cause to charge him under Section 124-A and make him guilty of the said offence.


Whereas, in Niharendu Dutt Majumdar v. Emperor, decided by the Federal Court, it interpreted the section in a completely opposite view as compared to the Privy Council. It held in alliance with British law that the tendency to cause public disorder is an essential ingredient under the act to make a person liable for sedition. The acts which are complained of ought to incite disorder or must satisfy reasonable men the intention to cause such rebellion or disorder. Now, in the constitutional legality question of Article 19(1) (a) arising in Kedar Nath v. State of Bihar, the Supreme Court sided with the Federal Court’s decision and rejected the literal interpretation of the law. It held that sedition laws are not unconstitutional. It clarified that this offence is an offence against the State. The whole purpose of the sedition law is to prevent the Government from being threatened or challenged. In other words, the 5 judges' constitutional bench, while deciding, observed that any action by violent means, even if it has an implicit plan of subverting or threatening the Government, would lie within the ambit of the Indian Penal Code, 1860. It also went on to explain that to express disapprobation by mere strong words of the measures taken by the government so that improvement can be made is not sedition.


Therefore, it concluded that a citizen is free to write or speak his views on the Government, their measures, and whatever he likes or dislikes by means of comments or criticism but to the extent that he/she is not inciting hatred into people or with the intention of causing such incitement against the Government. Hence, it is not violative of Article 19(1)(a) of the Constitution read with Article 19(2).


Recent Trends and The Interpretation of Sedition Law

Returning back to our initial argument of whether this power of the Government can be misused or not to curtail our thoughts, we see that even after the Supreme Court’s clarification in the 1962 case on sedition, there is this presence of confusion regarding the validity of the law.


In light of a number of recent cases where people voice their criticism against the Government without the use of any violent act or no intention to create public disorder, the police authorities and the Government bodies are throwing the charge of sedition.


Take the recent case of Kanhaiya Kumar in 2016, the then president of Jawaharlal Nehru University Students’ Union, who was arrested by the Delhi police on the charge of Sedition under Section 124-A of the IPC for raising slogans that were anti-national in a rally. The event was organised against the hanging of Afzal Guru, a Parliament attack convict. However, Kumar denied the charges against him by saying that he said nothing which is against the integrity of the nation, nor did he shout any slogans.


In another case of a South Indian actress, Ramya, who, on a visit to Islamabad, countered the statement “Pakistan is hell” of the Defence Minister, Manohar Parrikar, by saying, “Pakistan is not hell and people there are also friendly and hospitable, like us”. This ostensible justification led to slapping the charge of Sedition on Ramya on the basis that she should go to Pakistan and leave India as her statement was anti-national and, in a way, insulting to the people of India.


This is a serious concern because inappropriate penalties are being imposed on those very frequently who just put their honest views and express their beliefs and still face charges of Sedition. This is nothing else but cowing down their right to freedom of speech and expression under the threat of action.


We have already closely viewed the Supreme Court’s Decision in Kedarnath, which lays down two important ingredients to constitute a crime of Sedition, and the Section cannot be read in a literal sense,

  1. The acts being complained about must, by violent means, have the intention to effect of challenging or subverting the Government and

  2. Such acts must have the tendency to cause public disorder, harm peace, and incite hostility or violence.


Conclusion

Therefore, one may opine that Section 124-A – Sedition is unconstitutional and should be repealed, but in my view, the way the Supreme Court has interpreted this Section is correct and necessary, but the implementation or the application of the Section is wrong by other authorities and lower courts. There may be cases under which Sedition can be called upon legitimately. This is the appropriate moment when we can save the provision and tighten its misuse by clarifying the acts that do not fall under this provision, such as uttering mere slogans or publishing something unless it can be used to subvert or overthrow the government by violent means. In a democracy, raising voices, criticising, putting dissenting views and expressing dissatisfaction are the essential features rather than curbing thoughts, which will lead to only one direction, i.e., dictatorship and majoritarianism.

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