Sedition law has no place in a democracy

Updated on May 12, 2022 06:36 PM IST

If we attempt to stifle criticism of State institutions, we shall become a police State instead of a democracy and this the founding fathers never expected this country to become

Mahatma Gandhi, when charged with sedition, said: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.” (PTI) PREMIUM
Mahatma Gandhi, when charged with sedition, said: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.” (PTI)
ByDeepak Gupta

In the Preamble to the Constitution, “We the people of India” promise to secure for all citizens liberty of thought, expression, belief, faith and worship. Article 19 guarantees the right of free speech and expression to every citizen. There cannot be any democratic polity where citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner they feel like.

The right to freedom of opinion and freedom of conscience, by themselves, include the extremely important right to disagree. No doubt, the State has the power to impose reasonable restrictions on such rights in the interest of the sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality.

Dissent is an essential part of democracy and no citizen should have to fear the government. They should be able to freely express views which may not be liked by those in power. Criticism must be expressed in a civilised manner without inciting violence, but the mere expression of such views cannot be a crime.

According to Section 124A of the Indian Penal Code, a person is guilty of sedition if he or she brings into hatred or contempt, or excites or attempts to excite disaffection against the government. This provision was introduced when the country was ruled by a foreign, imperialist colonising power that brooked no dissent. Mahatma Gandhi, when charged with sedition, said: “Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

The constitutional validity of the provisions of Section 124A was challenged before a Constitution Bench of the Supreme Court (SC) in Kedar Nath Singh’s case, on the grounds that it was inconsistent with Article 19(1)(a) of the Constitution. The SC held that no offence of sedition is made out unless the words – spoken or written – have the tendency to create disorder or disturbance of public peace by resorting to violence.

The SC in the 1995 Balwant Singh case held that raising slogans such as “Khalistan Zindabad”, “Raj Karega Khalsa”, by themselves did not amount to an offence of sedition because there was no material or record to show any violence had taken place. There can be no doubt that advocating any cause, however unpopular or uncomfortable it may be, must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its view peacefully.

The law of sedition is more often abused and misused. Citizens who criticise those in power are arrested by police officials at the drop of a hat. Even if the person gets bail, he has suffered the ignominy of being sent to jail. Criticism can be a crime only when there is incitement to violence or public disorder. Sadly, day in and out, we read of people being arrested for making not so complementary references about those in power. The police always claim to be short of forces when questioned about the adverse law and order situation in various parts of the country.

In many countries, recognising the right of freedom of speech, the laws of sedition stand repealed. In England, the crime of sedition was abolished in 2009 on the ground that sedition and seditious and defamatory libel are archaic offences – from a bygone era when freedom of expression wasn’t seen as the right it is today.

Our country, Constitution and national emblems are strong enough to stand on their own feet without the aid of the law of sedition. Respect, affection and love is earned and can never be commanded. India is loved by all its citizens. We are proud to be Indians. We, however, have the right to criticise the government when we feel things are not moving in the right direction. In a country governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws goes against the very spirit of freedom for which the freedom fighters fought and gave up their lives.

The shoulders of those in power should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view. Everybody may not use temperate or civilised language. If intemperate, uncivilised and defamatory language is used, then the remedy is to file proceedings for defamation but not prosecute the person for sedition

Criticism of the legislature, the executive, the judiciary, the bureaucracy or the armed forces cannot be termed sedition. If we attempt to stifle criticism of such institutions, we shall become a police State instead of a democracy and this the Founding Fathers never expected this country to become. If India has to progress not only in the field of commerce and industry, but become a world leader, it must also progress in the field of human rights and be a shining example of an effective, vibrant democracy. Then the voice of the people can never be stifled and there can be no place for the law of sedition in a true democracy “where the mind is without fear and the head is held high”.

Deepak Gupta is a former judge of the Supreme Court

The views expressed are personal

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