The Law of Sedition in India

It’s baffling that a colonial bequest, which is emanated on the rationale that the citizens are bound to possess a feeling of “affection” towards the state and are prohibited from showing any kind of detestation, hostility or abhorrence towards the government stills finds a significant place to establish its roots in a democratic country like India.[1]

No law has managed to generate more controversy than the “Law of Sedition”. It was first included in the Indian Penal Code, under the section 124A[2], in 1870.[3] The main objective of the law was to mete out punishment to “a person who by any medium of communication, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.”[4] The mentioned term “disaffection” is supposed to encompass all kinds of betrayal and enmity within it. This provision has been used and misused by the governments, pre- and post-Independent India.[5] The defenders of this provision reason that it was necessary to protect our national integrity while critiques of the act argue that it is a draconian law wrung by the lawmakers to curb dissent.[6]

The objective of this essay is to vet all the perspectives and contentions of this law. It will discuss the historical backdrop of the law and will also analyze the judicial pronouncements pertaining to it. Then, it will redact arguments both in favor as well as against the law and will try to produce an exposition.

Historical Backdrop of The Law

This law was brought into being in 1870 to efficaciously deal with the “Wahabi movement”. Wahabi were a menacing group of rebels who pursued a “modern organizational approach” of combining covert deeds with mass propagation set in a politico-religious framework. They played a significant role in the “first war of Independence” and posed a significant challenge to the British administration.[7]

The “Law of Sedition” was blatantly used by the British administration to deal with Indian Nationalist leaders. The offence was non-bailable was punishment was overtly strict which made it a potent tool which was subjected against prominent anti-colonial personalities in India in response to their inscribed or verbal work.[8] Eminent leaders like “Mahatma Gandhi”, “Bal Gangadhar Tilak” and many others were charged with this law.[9] Gandhiji, when charged with sedition, made a famous remark that “Sedition is the prince among all the provisions of the IPC which are used to suppress the liberty of the citizen.”[10] Almost all the nationalist including the likes of Mr Jawaharlal Nehru had termed the law as “highly objectionable and obnoxious” but still decided to retain it after our country attained independence.[11]

Judicial Pronouncements and the State of Present Law

The present law of sedition has gone through a lot of legislation and has been the subject matter of a lot of judicial pronouncements.[12]

The first major constitutional demur against the law of sedition arose in the case of Ram Nandan v State of UP[13] in 1958, where the Allahabad HC questioned the validity of the law and declared it unconstitutional. The court held that the law acted as a combatant against free speech, which is a fundamental right and should be struck down at the earliest to inoculate valid and harmless criticism against the government.[14]

But this decision was overturned by the Supreme Court in the case of Kedar Nath v State of Bihar[15], in which the court upheld the constitutional validity of the law. The court reasoned that this law is essential for the state to harbor itself from deleterious substances. But the court gave an obiter that every person has the right to criticize the government or its work profile by his written or verbal work and until and unless that work “incites violence” or has a tendency to “disrupt public order”, he cannot be booked for sedition.[16] In 2016, the apex court of India reiterated the caveat and held that these should be diligently followed by the law enforcement authorities.[17]

Another historic judgment about this subject matter was the case of Maneka Gandhi v Union of India[18]. In this case, the court appositely construed Article 19 & 21 of the Indian Constitution. It held that condemning and lambasting the government and its policies within a judicious limit, which does not instigate people to opt for violence, is in harmony with the freedom of speech and expression and does not fall under the ambit of sedition.[19] The judgment had the repercussions of saving the general public from the irrational and unquestionable actions of the people possessing the prerogative.[20]

Arguments in Favor

The biggest argument in favour the law of sedition is that it can be resorted to combat secessionist, separatist and terrorist elements. It does the work of protecting the lawfully established government against any kind of attempt to topple the government by violent or unlawful means.[21] It is imperative because a “government established by law” is of the utmost importance for a state to remain moored.[22] India accommodates a lot of secessionist and rebel group who work to run virtual and parallel administration. The Maoist insurgency also adds significantly to the pile of gremlin. These groups actively advocate overthrowing the government by any means possible which poses a glaring threat to the functioning of the state.[23] Another argument which surfaces is that just because one provision is being misused, it should not be abolished.  Hence, the ilk of the society which is in favor of this law contends that a law of such caliber is an essential requisite to keep the interdicted groups in check and protect the “national integrity”.[24]

Arguments Against

The critiques of the law contend that the “Law of Sedition” is antiquity of the colonial legacy aimed at suppressing the voice of dissent. It has no place in a democratic state like India.[25] Our constitution guarantees us the “fundamental right of speech and expression”, but this law is completely inconsistent with it. The act of dissent and the process of criticizing the government are the foundation of a vibrant democracy.  And these aspects are callously attacked by the “Law of Sedition”.[26]

Another substantive argument used against the law is that the wordings used in Section 124A are vague and imprecise.  They are open to subjective interpretation, which is not necessarily a good thing. It gives no clear-cut instruction to the citizens, law-enforcement officers or the judiciary about the prohibitory behavior.[27] It caters to the whims and fancies of the officials and they can use or misuse the law according to their interpretation.[28]

The data pertaining to the cases of sedition puts forth a harrowing picture. According to the statistics provided by the “National Crime Records Bureau” of the period 2014-16, there have 179 arrests for sedition. But, sadly, a charge sheet has been filed in less than 30% of the cases. Apart from that, there have been only two convictions. These data testify for the fact that the utility of the law is very less.[29]

The “IPC” and the “Unlawful Activities Prevention Act” (UAPA), contain provisions which deal with the subject of “disruption of public order” and “incitement of violence against the state”. They are competent enough to deal with the offences which are supposed be dealt with by the “Law of Sedition”.  They are adequate to protect the National Integrity of our country. Hence, the notion, that the “Law of Sedition” is necessary to deal with the rogue groups, is wrong.[30]

Conclusion

India is a democratic country and citizens of this country possess the fundamental right of freedom of speech and expression. They have the right to appositely express, without any impediment, whatever they find wrong with the government established by their valuable votes. Any provision which acts against that should be done away with. Sedition satisfies the aforementioned criteria.

It is an archaic and obnoxious law which should have very little place in a democracy. It is used, rather misused to aggrandize the government to a place where they find normalcy in citizens being docile and acquiescent. Protecting National integrity is without a doubt very important. But, that should not be misplaced with the exercise of curbing dissent. Also, as mentioned earlier, there are a lot of other competent provisions through which we can keep safe our integrity as a nation.

Given, the recent comportment of the lawmakers, it is highly unlikely that they will change their stance regarding the “Law of Sedition”. But, the least they can and they should do is to make sure that the vagaries of law are eliminated. They should also make sure that the caveat is given by the Supreme Court of India, in Kedar Nath v State of Bihar and Maneka Gandhi v UOI is enforced. These enforcements will go a long way in reducing the scope of misuse of the “Law of Sedition”, and will be instrumental in catalyzing the process of blossoming of our Democracy.


[1] Narrain, Siddharth, “Disaffection and the Law: The chilling effect of Sedition Laws in India”, 46 Economic and Political Weekly 33(2011).

[2] The Indian Penal Code, 1860, §124A

[3] Reema Omer, India’s sedition law, February 4, 2020, available at https://scroll.in/article/952017/indias-sedition-law-is-just-another-colonial-hangover-and-has-no-place-in-a-democracy (last visited on May 28, 2020)

[4] Id

[5] India Today, Use and Misuse of Sedition Law, October 9, 2019, available at https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09 (last visited on May 28, 2020)

[6] Id

[7] National Herald, “’The Great repression’: The history of Sedition in India”, March 1, 2020, available at https://www.nationalheraldindia.com/reviews-recommendations/the-great-repression-the-history-of-sedition-in-india (last visited on May 28, 2020)

[8] R.K. Misra, “Freedom Of Speech and the law of sedition in India”, 8 Journal of the Indian Law Institute 117(1966)

[9] Supra note 1

[10] Supra note 3

[11] Tripudaman Singh, “When Nehru put the ‘Constitution in Danger'”, January 26, 2020, available at https://timesofindia.indiatimes.com/blogs/voices/when-nehru-put-the-constitution-in-danger/ (last visited on May 28, 2020)

[12] Supra note  1

[13] Ram Nandan V State of UP AIR 1959 AII 101

[14] Id

[15] Kedar Nath V State of Bihar 1962 AIR 955

[16] Id

[17] Supra note  5

[18] Maneka Gandhi v Union of India 1978 AIR 597

[19] Id

[20] Insights, “Why India’s Sedition Law needs to be buried”, January 21, 2019, available at https://www.insightsonindia.com/2019/01/21/insights-into-editorial-why-indias-sedition-law-needs-to-be-buried/ (last visited on May 28, 2020)

[21] The Hindu, “The Sedition Debate”, September 1, 2018, available at https://www.thehindu.com/opinion/editorial/the-sedition-debate/article24835441.ece (last visited on May 28, 2020)

[22] Id

[23] Supra note  5

[24] Livemint, “India needs a law on Sedition, January 4, 2011, available at https://www.livemint.com/Opinion/01n4fliR8kbI0t1jsD24OJ/India-needs-a-law-on-sedition.html (last visited on May 28, 2020) 

[25] Soutik Biswas, “Why India needs to get rid of its sedition law”, August 29, 2016, available at https://www.bbc.com/news/world-asia-india-37182206 (last visited on May 28, 2020)

[26] Supra note 7

[27] J Duncan, “Sedition in India”, 14 The International and Comparative Law Quarterly 339(1965)

[28] Id

[29] P Dantewada, Vishnu P, “Sedition cases in India: What data says”, February 25, 2020, available at https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html (last visited on May 28, 2020) 

[30] Supra note 5

Pratyush Kumar Jena

Pratysuh is from Bhubaneswar, India. He is currently a first year student of B.A.LLB. at West Bengal National University of Juridical Sciences

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