The sedition story: Complicated history of Sec 124A
Proceedings in the Supreme Court and the contentious arrests of activists and journalists have once again brought the law of sedition into the spotlight.
The colonial era law, which many say is used to quell protests and to quieten criticism against the government, carries a maximum punishment of life imprisonment and the police can arrest individuals without a warrant.
The law has been amended after Independence, but only to make it more stringent. As many as three benches in the Supreme Court have recently underscored the need to review Section 124A (sedition) in the Indian Penal Code (IPC), making it pertinent to examine how the penal law has evolved since the pre-Independence era and the interpretations rendered to it by the constitutional courts in the country.
History of sedition law in India
India’s sedition law has an interesting past. IPC was brought into force in colonial India in 1860 but had no section concerning sedition. It was introduced in 1870 on the grounds that it was dropped from the original IPC draft by mistake. The UK, incidentally, would repeal the law in Britain only in 2009 (with effect from early 2010).
Under Section 124A of IPC, the offence of sedition is committed when any person by words or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law.
Three explanations added to the provision prescribe that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.
Sedition is a cognisable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.
Use of sedition in the British Raj
The penal provision came in handy to muzzle nationalist voices and demands for freedom. The long list of India’s national heroes who figured as accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh and Jawaharlal Nehru.
Bal Gangadhar Tilak was the first person to be convicted of sedition in colonial India. The British government brought the charge alleging articles carried in Tilak’s Marathi newspaper Kesari would encourage people to foil the government’s efforts at curbing the plague epidemic in India. In 1897, Tilak was punished by the Bombay high court for sedition under Section 124A and was sentenced to 18 months in prison. Tilak was held guilty by a jury composed of nine members, with the six white jurors voting against Tilak, and three Indian jurors voting in his favour. Later, Section 124A was given different interpretations by the Federal Court, which began functioning in 1937, and the Privy Council that was the highest court of appeal based in London.
In Niharendu Dutt Majumdar Vs King Emperor, 1942, the Federal Court held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence.” But this proposition was overturned by the Privy Council in King Emperor Vs Sadashiv Narayan Bhalerao, 1947.
The Privy Council lent credence to the law laid down in Tilak’s case and ruled that incitement to violence was not a pre-requisite for the crime of sedition and that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A.
Sedition law after Independence
After Independence, “sedition” was dropped from the Constitution in 1948 after discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word “sedition” that was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression. The word “sedition” thus disappeared from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in the IPC.
In 1951, Jawaharlal Nehru brought in the first amendment of the Constitution to limit the freedom under Article 19(1)(a) and enacted Article 19(2) to empower the State put curbs in the form of “reasonable restrictions” on right to free speech.
It was the Indira Gandhi government that made Section 124A a cognisable offence for the first time in India’s history. In the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonial-era 1898 Code of Criminal Procedure, sedition was made a cognisable offence authorising the police to make arrests without a warrant.
The validity of sedition law was tested for the first time in independent India by the then Punjab high court in 1951 in Tara Singh Gopi Chand Vs The State. The high court held that Section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Constitution of India. It was this judgment that prompted the Jawaharlal Nehru government to introduce new grounds on which the right to freedom of speech and expression could be reasonably restricted.
But in 1954, the Patna high court, in Debi Soren & Ors Vs The State, upheld the validity of Section 124A, holding that the law does not violate Article 19. Four years on, the Allahabad high court declared Section 124A void in the case of Ram Nandan Vs State, and held that the government must be ready to face a strong opposition apart from popular approval or disapproval.
The conundrum arising from various views of the high courts was finally settled by the Supreme Court by its judgment in Kedar Nath case in 1962, which is considered the most authoritative judgment of the Supreme Court on the interpretation of the sedition law. A Constitution bench upheld the validity of the sedition law under IPC, holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”.
At the same time, the five-judge bench defined the scope of Section 124A. It held that Section 124A only penalised words that reveal an intent or tendency to disturb law and order or that seem to incite violence. The Supreme Court underlined that the presence of a pernicious tendency to incite violence is a pre-condition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech. This definition has been taken as precedent for all matters pertaining to Section 124A ever since.
Post-Constitution bench judgment on sedition
In Balwant Singh & Anr Vs State of Punjab, 1995, the Supreme Court dropped sedition charges against two men who raised slogans in favour of an independent Sikh majority State outside a cinema hall in the aftermath of the assassination of former PM Indira Gandhi. The court ruled in favour of the accused, pointing out that acts did not amount to sedition since the slogans did not lead to any disturbance, and was not likely to incite any violence in the minds of the target audience.
By two judgments in 2011, the Supreme Court unambiguously stated yet again that only speech that amounts to “incitement to imminent lawless action” can be criminalised. In Indra Das Vs State of Assam and Arup Bhuyan Vs State of Assam, the apex court also held that mere membership of a banned organisation cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence. The Union government has, however, sought review of these judgments on the aspect of membership of banned organisations.
The Law Commission of India, in its consultation paper on sedition, published in August 2018, also observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
Sedition cases up in India but convictions dip
According to the data from the National Crime Records Bureau (NCRB), uploaded on its website, cases of sedition and under the stringent Unlawful Activities (Prevention) Act showed a rise in 2019, but only 3% of the sedition cases resulted in convictions.
The year 2019 saw a 25% increase in the number of sedition cases and a 41% increase in arrests over the previous year. A total of 93 cases of sedition were reported in 2019, with 96 arrests and charge sheets filed in 76 cases, as against 70 cases, 56 arrests and 27 charge sheets the previous year.
The ministry of home affairs, in a written reply in February, informed the Rajya Sabha that out of the 96 people arrested for sedition in 2019, only two were convicted for the crime, while 29 were acquitted.