The filing of a sedition case against Amnesty International India in Bengaluru on Independence Day has brought the focus back on a colonial-era law against sedition and its effects on free speech.
According to the National Crime Records Bureau, 58 people were arrested on sedition charges in 2014. During the first three months of 2016, 11 cases were filed against 19 people under section 124-A that criminalises sedition.
Prominent among those slapped with sedition charges were Jawaharlal Nehru University student leader Kanhaiya Kumar for alleged “anti-national” slogans at an event and Tamil folk singer S Kovan for singing songs critical of Tamil Nadu chief minister J Jayalalithaa and her liquor policy.
Law on free speech in India
Article 19(1)(a) of the Constitution says, “All citizens shall have the right to freedom of speech and expression.” But this freedom is not absolute and can be subjected to “reasonable restrictions” as mentioned in Article 19(2) of the Constitution.
The purpose of reasonable restrictions is three fold. First, it protects any pre-Constitution laws restricting free speech. Second, it authorises the state to make laws imposing reasonable restrictions on free speech in the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
Third, it also places limitations on the state that cannot restrict a citizen’s free speech on any grounds other than those specifically mentioned in Article 19(2) – an often-overlooked implication of the provision.
Nehru on sedition
India’s first Prime Minister Jawaharlal Nehru – a votary of free speech – had described Section 124-A as “highly objectionable and obnoxious” and told Parliament, “The sooner we get rid of it the better.”
But what he did was just the opposite. In May 1951, he piloted the first amendment to the Constitution. The statement of objects and reasons of the amendment bill read: “The citizen’s right to freedom of speech and expression…has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the state from punishing or preventing abuse of this freedom.”
This gave more teeth to Article 19(2) that provides a licence to the government to curb free speech.
Among other things, the amendment added “pubic order” to the list. It was on this point that the SC upheld the validity of sedition law – now being invoked against activists.
His government further strengthened the restrictions in 1963, when it brought in the 16th amendment that added “the sovereignty and integrity of India”.
Since then, Article 19(2) has been used to justify laws on defamation, contempt of court, obscenity, official secrets and hate speech.
Many say had Nehru not brought in the first amendment, the sedition law could have been struck down 54 years ago.
But even non-Congress governments of Morarji Desai, Atal Behari Vajpayee and Narendra Modi chose not to amend the sedition law.
Law on sedition in India
Sedition was not a part of the original Indian Penal Code (IPC) that came into force in 1862. It was added to the IPC in 1870 and its scope and ambit was broadened in 1898 to deal with the freedom movement.
According to Section 124-A, a person commits the crime of sedition if he/she brings or attempts to bring in hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise.
The maximum punishment for sedition is imprisonment for life. It clarifies that the expression “disaffection” includes disloyalty and all feelings of enmity.
The law makes it clear that criticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression.
After the commencement of the Constitution in 1950, some high courts declared Section 124-A IPC unconstitutional as they violated Article 19(1)(a). However, the Supreme Court upheld its validity in the Kedar Nath Singh versus State of Bihar case in 1962.
A five-judge constitution bench said though the section imposed restrictions on freedom of speech and expression, it struck the correct balance between individual fundamental rights and the interest of “public order”.
The SC, however, restricted the scope. “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order,” it said.
In Balwant Singh’s case in 1995, the SC acquitted two men accused of shouting anti-India slogans on the day Prime Minister Indira Gandhi was killed.
The court said the chanting of a slogan only a couple of times – which neither evoked any response nor any reaction from the public – couldn’t attract the sedition law.
Need for balance
The state’s need to protect its sovereignty and maintain public order must be balanced with an individual’s freedom of expression.
Common Cause, an NGO, has approached the SC against the misuse of sedition law. It has demanded that before any FIR is filed, the police chief of the state should certify that the alleged seditious act either led to incitement of violence or had the tendency or the intention to create public disorder.
“Sedition is a serious act aimed at running down the sovereignty of the country. You can’t bring every criticism or tomfoolery into the ambit of sedition. It has to be read down to mean only serious acts aimed to harm the state or public order,” said former Delhi high court judge RS Soshi.