A. Background
On March 30, 2020, Mr Vinod Dua, in his show namely, The Vinod Dua Show on YouTube, has made allegations by stating that Narendra Modi has used deaths and terror attacks to garner votes.
He claims that the government does not have enough testing facilities and has made false statements about the availability of the Personal Protective Kits (PPE) and has stated that there is no sufficient information on those. Further, he also went on to state that ventilators and sanitiser exports were stopped only on 24th March 2020.
According to charges, Mr Vinod Dua had spread false and malicious news This directly amounts to inciting violence amongst the citizens and will definitely disturb public tranquillity. This is an act of instigating violence against the government and the Prime Minister. He also creates panic amongst the public and disturbs public peace by trying to spread false information, such as, the government does not have enough testing facilities which is absolutely false.
The aforesaid act of Mr Vinod Dua is as per the FIR was recorded as an offence punishable under Sections 124-A, 268, 501 and 505 of the Indian Penal Code, 1860 (IPC).
B. Outcome of hearing
Within one week the apex court shows its concern over the frequent use of sedition law in India. On May 31, 2021, a bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition regulation towards critics, journalists, social media customers, activists. The apex court also observed that it is the need of the hour to explain the scope of section 124A Indian Penal Code (IPC).
While upholding that allegations does not amount to sedition, the Supreme Court on June 4, 2021, held that every journalist is entitled to protection under the Kadar Nath Singh judgment of 1962 which ruled that “dissent is not sedition.
According to the National Crime Records Bureau (NCRB) between 2016 and 2019, the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) increased by 160% while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.
Section 124A of the Indian Penal Code (IPC)
The essential ingredients of sedition are:
(1) Bringing or attempting to bring into hatred; or
(2) Exciting or attempting to excite disaffection against the Government of India;
(3) Such act or attempt may be done (a) by words, either spoken or written, or (b) by signs, or (c) by visible representation; and
(4) The act must be intentional
“Hatred” or “contempt”
Hatred implies an ill will, while contempt implies a low opinion. In other words, hatred and contempt are the states of mind in relation to the object. The hatred and contempt to be punishable under this section must relate to the hatred and contempt of the state, or of the established form of the government[i]
Disaffection
The courts have interpreted the words, “disaffection” widely as stated below:
1.) Disaffection means a feeling contrary to affection.
2.) It means hatred, enmity, dislike, hostility, contempt, and every form of ill-will to the government.
3.) It signifies political alienation or discontent.
4.) It means disloyalty.
The government established by law
Section 17 IPC, defines government as denoting ‘the Central Government’ or ‘the Government of a State’.
The term ‘government established by law’ has to be understood as being distinct from the government formed by a particular ruling party or the bureaucracy running the government.
Sedition and Freedom of Speech
Under Article 19(1) (a) every citizen has the right to freedom of speech and expression but this right is not an absolute right and is subject to reasonable restrictions. These restrictions are (a) Interests in the sovereignty and integrity of India, (b) the security of the State, (c) friendly relations with foreign states, (d) public order, (e) decency or morality, or (f) in relation to contempt of court, (g) defamation or (h) incitement to an offence.
Here it becomes important to read section 124A concerning article 19 (1) (a).
Arguments in favour
The provision for sedition was not a part of the original draft of IPC. It was included as an offence under section 124A IPC through special Act XVII of 1870. The section intended to punish an act of exciting feelings of disaffection towards the government, but this disaffection was to be distinguished from disapprobation. Thus, people were free to voice their feelings against the government as long as they projected a will to obey its lawful authority[ii].it is clear that for sedition the intention of the accused is an important essential. The Supreme Court in its landmark judgment of Kedarnath v. state of Bihar [iii] specifies situations in which the charge of sedition cannot be applied.
- The expression “the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”
- “Any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of a tendency to public disorder by the use of actual violence or incitement to violence.” “Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”
- “A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”
- “The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”
- “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.”
- “We propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.”
In the case of Balwant Singh v State of Punjab [IV], The Supreme Court held that mere raising of casual slogans, once or twice by two individuals, alone cannot be said to be aimed at exciting or attempting to excite hatred or disaffection towards the government as established by law in India.
In the case of Shreya signal, V. Union of India[v] Apex court observed that mere advocacy or discussion is not sedition or incitement.
- During the hearing of the Kangana Ranaut case, the Bombay High Court expressed concerns over the ‘trend’ to add the offence of sedition (Section 124A) in First Information Reports. “If anybody does not fall within the line of the government, will that be sedition?”
- While granting interim bail for 6 months to kanhiya Kumar, Justice Pratibha rani noted that there were no recording of Kumar participating in anti-national slogans.
Arguments against sedition
Dr. Ambedkar in his book ‘States and Minorities’ has said–
“No law shall be made abridging the freedom of the press, of association and assembly except for consideration of public order and morality.”
The law of sedition is an invention of the English legal system.it does not want any discussion that from Bal Gangadhar tilak to Mahatma Gandhi were prosecuted for allegations of sedition. This law then was nothing but a tool for suppressing Indians who raise their voice against Britishers.
Nowadays it becomes a device for the authorities to handle opposition. The even United Kingdom also the seditious libel was deleted by section 73 of the Coroners and Justice Act, 2009.16 one of the reasons given for abolishing seditious libel was:
“Having an unnecessary and overbroad common law offence of sedition, when the same matters are dealt with under other legislation, is not only confusing and unnecessary, it may have a chilling effect on freedom of speech and sends the wrong signal to other countries which maintain and use sedition offences as a means of limiting political debate”.
Law Commission Proposal
Law Commission in its Consultation Paper on “SEDITION” published on 30 August 2018 recommended that to study revision of section 124A further, the following issues would require consideration:
- The United Kingdom abolished sedition laws ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain s.124A in IPC?
- Should sedition be not redefined in a country like India – the largest democracy of the world, considering that right to free speech and expression is an essential ingredient of democracy ensured as a Fundamental Right by our Constitution?
- Will it be worthwhile to think of an option of renaming the section with a suitable substitute for the term sedition and prescribe punishment accordingly?
- What is the extent to which the citizens of our country may enjoy the right to offend‘?
- At what point the right to offend would qualify as hate speech?
- How to strike a balance between s.124A and the right to freedom of speech and expression?
- Since there are several statutes which take care of various acts which were earlier considered seditious, how far would keeping section 124A in the IPC, serve any purpose?
- Given the fact that all the existing statutes cover the various offences against the individual and/or the offences against the society, will reducing the rigor of s.124A or repealing it be detrimental or beneficial, to the nation?
- In a country, where contempt of Court invites penal action, should contempt against the Government established by law not invite punishment?
- What could be the possible safeguards to ensure the s.124A is not misused?
Conclusion
The offence of sedition lies on intention or attempting to exciting disaffection towards the government but it becomes very subjective to prove that particular content should excite disaffection. Another line of thought is also that Section 124A can be amended but a provision cannot be repealed only for a reason that it is misused. The time comes that government discuss this matter with all stakeholders and make a balance between free speech [article 19(1) (a)] and hate speech which may become seditious [section 124A].
References
[i] K.D.Gaur, the textbook on Indian Penal Code, seventh edition, pp 369
[ii] LAW COMMISSION OF INDIA Consultation Paper on “SEDITION” published on 30 August 2018
[iii] AIR 1962 SC 955
[iv] AIR 1976 SC 230
[v] AIR 2015 SC 1523
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