Daily News Analysis

Section 124A (sedition)

3rd June, 2021 Polity

GS PAPER II: Functions and Responsibilities of the Union and the States, Issues and Challenges Pertaining to the Federal Structure, Devolution of Powers and Finances up to Local Levels and Challenges Therein.

Context: Concerned over the misuse of India’s sedition law, the Supreme Court said that it will define the contours of the colonial era penal provision to indicate what does and does not constitute sedition.

  • SC restrained the Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124A (sedition) of the Indian Penal Code (IPC).
  • Another bench of the top court agreed to examine constitutional validity of the penal law on sedition in India, while seeking assistance of attorney general KK Venugopal in the wake of the significance of the matter and issues of constitutional interpretation involved.

History of the law

  • The law on sedition was originally drafted by Lord Macaulay and became a part of Indian Penal Code (IPC) in 1870.
  • Many Indian freedom fighters, including Mahatma Gandhi and Bal Gangadhar Tilak, were charged with sedition during freedom struggle.

Sedition Laws in India:

  • Section 124A of the IPC defines sedition and makes every speech or expression that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India” a criminal offence punishable with a maximum sentence of life imprisonment.
  • It states that the expression 'disaffection' includes disloyalty and all feelings of hate
  • It is classified as
  • Cognisable” i.e. investigation process (including the powers to arrest) can be triggered merely by filing an FIR, without a judicial authority having to take cognisance
  • Non-bailable” i.e. accused cannot get bail as a matter of right, but is subject to the discretion of session judge.
  • It also says that comments that express strong disapproval of the 'administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section’ but attempts to break up India by force or persuasion is an offence.
  • Criminal Procedure Code (CRPC), 1973 contains section 95 which gives the government the right to forfeit material punishable under Section 124A
  • Prevention of sedition meeting Act criminalises meetings likely to promote sedition or disaffection.

Landmark judgements:

  • In Kedar Nath Singh vs. State of Bihar case, (1962) Supreme Court upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”. It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.
  • In Alavi vs. State of Kerala (1982), court held that, criticising of parliament or judicial set-up did not amount to sedition.
  • In Balwant Singh vs. State of Punjab (1995) Supreme Court held that mere sloganeering that evoked no public response did not amount to sedition

Why there is a need of sedition law?

  • Centre says that there is a need to retain these provisions to “effectively combat anti-national, secessionist and terrorist elements”.
  • India ratified the International Covenant on Civil and Political Rights, its Article 19 requires speech-limiting state action to be backed by a law and to be necessary on the grounds of respect for rights and reputations of others, national security etc.
  • Supreme Court has repeatedly observed that the mere possibility of misuse of a provision does not per se invalidate the legislation. In this case, the vulnerability extends only to the ‘action’ and not the ‘section’.
  • It is required for put a check on hatred crimes, public disorder, communalism or disloyalty against state.
  • It act as a deterrent against elements which seek to incite violence to overthrow an elected government

Why there is a need to repeal or scrap this law?

  • It is used by authorities to suppress or criminalise the voice of dissent or criticism, which are essential for sustenance of democracy.
  • Its provision is “overbroad”, i.e. it defines the offence in wide terms threatening liberty of citizens. This makes it open to different interpretation.
  • Sedition law clearly distinguishes between strong criticism of government and incitement of violence. Unfortunately, Indian courts have repeatedly failed to appreciate this distinction.
  • National Crime Record Bureau (NCRB) 2017-report shows that between 2014 and 2016, 179 people were arrested on the charge of sedition with only two convictions.
  • Charge sheet was not filed for almost 80% of the cases and 90% sedition cases are lying pending in the court.
  • This clearly indicates that authorities are abusing this law to harass environmentalists, activists and pressure groups.
  • In Kedarnath case, court did not take into consideration its effects on the right to equality (Article 14) or due process (Article 21). It did not examine the provision for “chilling effect” on Right to speech (Article 19).
  • Chilling effect: Probability of state action causing psychological barriers in the free exercise of the right to free speech
  • It leads to unauthorised self-censorship and institutionalise contempt of government.
  • In Navtej Johar vs. Union of India (2018), court held that pre-constitutional legislations have no legal presumption of constitutionality.

Section 124A of IPC vs. Article 19 of Indian Constitution (Freedom of speech and expression)

  • Freedom of speech is not an absolute right and reasonable restrictions are imposed on it.
  • Section 124A infringes article 19(1)(a) and is not saved by the expression ‘in the interest of public order.’ out of the six grounds listed in Article 19(2),
  • In Kedarnath case, court was of the view that ‘security of the State’ could be one of the grounds to uphold validity of Section 124A.
  • In Tara Singh vs. State of Punjab, High Court held that section 124-A has no place in new democratic setup and it curtailed the freedom of speech and expression.
  • The Law Commission of India has suggested that Section 124-A must be read in consonance with Article 19(2) of the Constitution each case must be scrutinised on the basis of facts and circumstance

International scenario:

  • United Kingdom: sedition law abolished in 2009, as it was not in line with modern democratic values.
  • USA: Some sections of sedition laws are repealed and some are scrapped to give impetus to Right to Free speech.
  • Malaysia: This South Asian nation is all set to abolish the colonial era sedition law.

Way forward:

  • Since it is an offence against the State,
    • Higher standards of proof must be applied for Conviction
    • State should establish that such a limiting measure is “necessary in a democratic society”.
  • In present scenario burden of proving innocence is on the victims to put a check on its misuse burden of proving guilty should be on law enforcing agency
  • Law Commission of India report held that
    • Law enforcement agencies must use sedition law judiciously.
    • It is necessary for Supreme Court to interpret the provisions of sedition law.
    • It also highlighted that the United Kingdom has itself abolished its own law on sedition almost a decade ago.
    • It must be constantly updated according to the global context.
  • In 2015, Section 66A of the Information Technology Act 2000, which criminalised online speech, was struck down as unconstitutional. Sedition law suffers a similar problem like broad definition, lack of procedural safeguards; Supreme court should take up this section again to
    • Review its constitutionality under present circumstances.
    • Check sedition law validity as a reasonable restriction on free speech.
  • Need to hold law-enforcing agencies accountable for their actions. Provisions like compensation to victims or punishment/enquiry against those who bring malicious complaints
  • Government should constitute a taskforce or committee to give clear procedural guidelines to law enforcing agencies.
  • To uphold the very fabric of democracy constructive criticism of the government should be welcomed to ensure this all speech-related offences should be made bailable
  • The Indian Penal Code (Amendment) Bill, 2011 too suggested that only those actions/words that directly led to ‘violence’ or ‘incited violence’ could only be labelled as seditious.

Conclusion:

To strike a balance between free speech and ensuring security of the nation, this provision must be repealed or replaced with a new set of laws specifying what stands for sedition, leaving no scope for misinterpretation by the authorities susceptible to political pressures

https://www.hindustantimes.com/india-news/its-time-we-define-what-is-and-is-not-sedition-sc-101622486269556.html