Sedition has become one of the emerging issues in our country but lacks certainty. Section 124A of the Indian Penal Code, 1860 defines the offence of sedition as “whoever excites or attempts to excite hatred or contempt towards the government established by law by words or visual representation, will be liable for fine as well as imprisonment up to three years.”
The purpose of sedition is to influence people to hate the Government. It, of course, is illegal.
The hon’ble Supreme Court has constitutionalised and limited the scope of Sedition in the famous case of Kedar Nath Singh v State of Bihar The court restricted the offence of sedition to instances where individuals disrupt the law or trigger violence. However, in the recent past, it has been observed that individuals are charged for sedition even if they merely show their dissatisfaction towards the government and its policies without inciting violence.
There are many established tests to check the constitutionality of any law in question. The first being the overbreadth test. It states if a provision is ambiguous and its scope is expansive, then its applicability will be very subjective. The test was applied to section 124A and it was observed that the term ‘dissatisfaction’ is indeterminable. Despite the explanation given in the text, it is very subjective and vague. Article 19(2) of the constitution restricts the freedom given under Article 19(1) mentioning provisions such as public order. However, haziness is observed in the practicability of this provision and hence, sedition must be held unconstitutional.
The next test is the vagueness test. It states that an individual should be aware of the exact meaning conveyed by the provision. The vision of the legislation in question is not certain and may also lead to negative externalities.
Thirdly, Section 124-A of the IPC fixes a certain chilling effect on the generic public. This section identifies sedition as a criminal offence and attaches it with the provision of excessive damages and penalties for such instances. In India, however, sedition charges in practice are not limited to solely instances “in the interest of public order” but also extend to occurrences of defamation, deviations from the accepted standards of morality and decency, etc.
The fourth test is the establishment of a reasonable nexus between the provision and the objective of the act. In the provision of sedition, there exists no connection between the speech or representation and the causation of violence and public disorder. In such an absence and contradiction, the chilling effect of this provision might supersede in the society and often violate fundamental rights.
Section 124A of the IPC was used to curb the political dissent in India. Jogendra Chandra Bose was tried under the section of sedition for criticising a bill under the British colonialism. It was observed that at that time only those acts that were done with an ‘intention to resist by force or attempt to excite resistance by force’ fell under this section. The people were only punished for disaffection and not disapproval.
In the case of Queen Empress v Bal Gangadhar Tilak, the defendant was accused of the offence of sedition for publishing an article in newspaper – Kesari. The article mentioned an example of the Maratha warrior Shivaji who incited to overthrow the British regime. The Privy Council rejected the interpretation as only resistance to the government. This led to the 1989 amendment to section 124A wherein the explanation was provided to include disloyalty and feelings of enmity in the definition of disaffection.
The court in Kamal Krishna Sircar v Emperor ruled that the speech stating the trade unions and labor legislations carried on by the Communist party of India illegal is not seditious. The court also stated that mere suggestion to change the government does not necessarily incite hatred and violence against it and is not an offence under sedition.
The then government was trying to suppress the criticism done by the citizens under the umbrella of sedition.
The framers of the Constitution never accepted Sedition as a restriction on the freedom of speech and expression and it remained as it is in the penal statute. After independence, sedition was taken into consideration in the case of Romesh Thapar v State of Madras for the first time. The Supreme Court stated that unless the freedom of speech and expression practiced threatens the peace, security and sovereignty of the state, any law putting restriction on it will not come under the purview of Article 19(2) of the Constitution.
The Punjab High Court in the case of Tara Singh Gopi Chand v The State declared Section 124A of the Indian Penal Code unconstitutional. This is because Sedition contravenes Article 19(1)(a) of the constitution. The Court observed that the requirement of sedition laws was only in the British rule because many people incited violence and provoked general public. But now with the degree of change, these laws must be repealed.
In the opinion of Justice Saiyid Ali in the case of Brij Bhusan v State of Delhi, the grave instances of public disorder can lead to disturbance of public peace. The reason why sedition is not included in Article 19(2) as an exception to freedom of speech and expression is that wider terms have already been added by the constitution framers.
During this time itself, the Court had also struck a difference between the right to freedom and expression and the power that the legislature has to restrict this right. The Court said that the security of the state should be the basic consideration of the legislature while restricting someone’s right to freedom and expression. Also, the freedom of speech should not incite violence and hatred to fall under the exceptions under article 19(2).
After the judgement of Kedar Nath Singh v State of Bihar, public disorder became an important aspect of judging the cases related to sedition.
In the case of Kanhaiya Kumar v State (NCT Delhi), the petitioner who was charged under Section 124A of the Indian Penal Code, approached the High Court for bail. The High Court in this case held that while exercising the right to freedom of speech and expression, one must remember the fundamental duties as a citizen as provided under Article 51A, Part IV of the Indian Constitution.
In Shreya Singhal v. Union of India, the Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the expression and the ability of public disorder. The case is a step towards restricting the seditioun laws. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.
The aforesaid judgements give us an idea as to what amounts to a seditious act. It could be said that unless the words or actions questioned do not threaten public or State security or lead to any kind of disorder, the act would not fall within the sphere of Section 124A of the Indian Penal Code.
The Apex Court of India while establishing a relationship between a democratic society and freedom of speech in Re Harijai Singh stated that in a democratic set-up, there should be an active participation of people to give their opinions. They should be aware of current political, social, economic and legal scenario so that they can form their own opinion and the government can tackle it accordingly. So, to achieve this objective, people need a clear account of events so that they can form their opinions and offer their own comments and viewpoints on such matters and issues.
It has been observed that freedom of speech makes a society more vibrant. He also said that to let people self govern, it is very important for them to make an informed and well researched decision and the only way is to give them freedom of speech and expression.
In Union of India & Ors. v The Motion Picture Association & Ors, the Supreme Court observed that a free exchange of ideas, dissemination of information without restraints, dissemination of knowledge, airing of differing view points, debating and forming one’s own views and expressing them, are the basic indications of a free society. So, the freedom of speech must be protected for the free flow of views and opinions.
The Supreme Court of India has pronounced in several judgements that the fundamental right of speech and expression is subject to exceptions. One of the exception can be Section 124A of the Indian Penal Code.
In the case of A.K. Gopalan v. State of Madras, the Supreme Court stated that a person has a lot of desires that he/she wants to fulfil. But those desires have to be controlled. The liberty that is given to the people should be restricted so as to prevent any disorder.
In the case of S. Rangarajan v. P. Jagjivan Ram, it was held that until and unless there is danger to the public order and security, the right to speech and expression cannot be restricted under Article 19(1)(a). However, the danger should not be farfetched. It should have a direct nexus between the expression and danger. The expression should be grave enough to cause and excite violence.
The articulation of Section 124 of the Penal Code appears to subdue and extinguish any forms of dissent present in society. It is obsolete to still have such a provision in a country which is on the way of development. The existence of such a provision will continue to have a chilling effect on the fundamental right of speech and expression guaranteed under Article 19(1) of the Constitution. Further, it is also observed that sedition covers a wide ambit of actions and there must exist different laws rather than one generic offence entailing strict punishment. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society.
• Constitution paper on sedition. (2018, August). Retrieved from http:// www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf
• Gupta, D., Gen, L., Philip, S. A., & Yadav, Y. (2019, November 22). Here’s the text of Justice Deepak Gupta’s speech on sedition law being abused and misused. Retrieved from https:// theprint.in/opinion/heres-the-text-of-justice-deepak-guptas-speech-on-sedition-law-being-abused- and-misused/288439/
• Indian Cultural Forum 13 Jun 2016, Forum, I. C., & 2016, 13 J. (2016, June 13). Sedition and the Right to Freedom of Expression. Retrieved from https://www.newsclick.in/sedition-and-right- freedom-expression
• Rajagopal, K. (2019, January 14). Sedition law a tool against free speech? Retrieved from https://www.thehindu.com/news/cities/Delhi/sedition-law-a-tool-against-free-speech/ article25996244.ece
• Sedition. (2019, February 20). Retrieved from https://criminal.findlaw.com/criminal-charges/ sedition.html
• Sinha, C. (2019, August 30). How “seditious speech” was dropped from draft Indian constitution but is still a crime. Retrieved from https://qz.com/india/1699010/indian-constitution-doesnt-ban- seditious-speech-yet-its-a-crime/
 AIR 1962 SC 955
 a situation where a speech or conduct is suppressed by the fear of penalisation at the interest of an individual or group.
 Available at: http://archive.org/stream/onlawofsedition00dono#page/2/mode/2up (last visited on Mar2, 2020)
 ILR (1898) 22 Bom 112
 AIR 1935 Cal 636
 AIR 1950 SC 124
 AIR 1951 Punj. 27
 AIR 1950 SC 129
 2016) 227 DLT 612
 AIR 2015 SC 1523
 AIR 1997 SC 73
 Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India, AIR 2015 SC 1523
 AIR 1999 SC 2334
 AIR 1950 SC 27
 (1989) 2 SCC 574