Time to speak up & not be punished: Law of Sedition in India

Section 124A of the Indian Penal Code, 1860 defines ‘Sedition’ as follows: 

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 102 [***] the Government estab­lished by law in 103 [India], [***] shall be punished with 104 [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. 

Explanation 1.- The expression “disaffection” includes disloyalty and all feelings of enmity. 

Explanation 2.- Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

 Explanation 3. - Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Simply put, the offence of ‘Sedition’ can be understood as any expression or comportment that undermines the authority of and leads to an insurrection against the state. 

In order for any act or expression to be deemed as an offence within the ambit of Section 124A IPC, such act or expression must exhibit the following ingredients[1]:

1. Any words, which can be either written or spoken or signs which include placards/posters (visible representation)
2. Must bring hatred/contempt/disaffection against the Indian Government
3. Must result in ‘imminent violence’ or public disorder.

In Nazir Khan and Ors. v. State of Delhi reported in [(2003) 8 SCC 461], the Hon’ble Supreme Court observed as follows with respect to the meaning, scope and object of ‘sedition’: -

“44. Section 124A deals with 'Sedition', Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquility of the State and lead ignorant persons to endeavor to subvert the Government and laws of the country. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; the very tendency of sedition is to incite the people to insurrection and rebellion. "Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.”

Thus, the law on sedition is clear. Any person partaking in an attempt or act of inducing hate, encouraging contempt or inciting violence towards the Government, in the form of words, signs or visual representations would be held guilty for the offence of sedition and shall be punished with imprisonment for a term of 3 years and fine. The quintessence of sedition is the intention. In order to sustain a conviction under section 124-A, it must be proved (a) that the accused spoke the words in question, (b) that he thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite disaffection, and (c) that such disaffection was towards the Govt. established by law in India.

Interestingly, this provision has been known to cause mischief. This is because, in recent times, the State has charged those persons with sedition who have been vocal about their dismay towards policies and or actions carried out by the Government.  Take for example the case of Binayak Sen, an activist, who was accused of sedition by the Chattisgarh government for allegedly supporting Naxalites outlawed by the State and fighting for their rights. Similarly, cartoon artist Aseem Trivedi was accused of putting up banners mocking the Constitution for speaking out against the incumbent government during the Anna Hazare crusade in Mumbai. Other examples include Arundhati Roy and Akbaruddin Owaisi. 

What is riveting is that any criticism of the government has opened up floodgates of litigation under the sedition law. While the constitutional validity of the sedition law has been upheld by the Supreme Court in the case of Kedarnath Singh v. State of Bihar, 1962 AIR 955, yet the rights of a citizen to freedom of speech cannot be undermined. Understandably so, such freedom of speech should not pave the way for any violence or retaliation in any manner, yet the law on this point cannot be an antithesis of the provisions enshrined in the Constitution while it comes to elements as simple as acts/speech/expression whereby no violence is, in any manner, incited.  Mere disagreement, and vocal expression of such disagreement, cannot and should not constitute an offence in the eyes of the law. An irresponsible application of this provision would curtail the fundamental rights conferred upon citizens by the Constitution. 

It is pertinent to mention that the law on sedition is under review by the Law Commission of India. The commission is yet to finalize its recommendations on whether the controversial law needs a review and the scope to widen implications of this law has been discussed in detail in the consultation paper released by it on 30.08.2018. Uploading a "consultation paper" on its website, the Law Commission observed: "In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing the same, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the government.

[1]Indra Das v. State of Assam (2011) 3 SCC 380