Background :- 

Law commission of India has publicized a consultative paper for a comprehensive public discussion regarding Section 124A of the Indian Penal Code 1860, which deals with sedition. Dissent is the lifeblood of democracy. But today when the stench of fascism looms large, exercising this constitutional right can get one branded as anti-national, thrown behind bars or a lynch mob waiting outside to teach you a lesson. A law that has especially come in handy for the self-proclaimed nationalists of our times to suppress dissent is the archaic colonial era sedition law.

The sedition law was incorporated into the Indian Penal Code (IPC) in 1870 as fears of a possible uprising plagued the colonial authorities. Most of this penal code was retained intact after 1947. Despite demands to scrap it, the law of sedition remains enshrined in our statute book till today.

As per Section 124A of IPC, Sedition is an act 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 by words, either spoken or written, or by signs, or by visible representation, or otherwise. As per this Section, a person is liable to be punished with imprisonment for life or imprisonment up to three years with fine.

Relevance of this Section in a democratic and independent nation is a matter of continuous debate. Use of Section 124A by the government might go beyond the reasonable restrictions provided under fundamental right to freedom of speech and expression as per Article 19 of the Constitution. There is an apprehension that this Section might be misused by government of the day to suppress political dissent, constructive criticism of government and its policies thereby stifling democratic governance. The countries like UK, Australia have already abolished sedition laws considering them draconian.

Historical Background :- 

• Origin and evolution : The legitimacy of British colonial governance system rested on silencing any kind of political dissent or dissatisfaction thus the right to freedom of speech and expression of individuals was suppressed through imposition of Section 124A. Section 124A IPC added through Special Act XVII of 1870, defined Sedition and 1898 amendment made it a punishable offense. Various leaders such as Mahatma Gandhi, Bal Gangadhar Tilak have been punished under this.
• Post Constitutional Journey and Sedition vis-a-vis Article 19 of the Indian Constitution - Various verdicts by Indian Judiciary have led to re-interpretation and re-examination of ‘sedition’ in light of Article 19 of the Constitution in order to strike a balance between right to free speech and expression and power of State to impose reasonable restrictions (Article 19(2)). These verdicts have led to narrowing the ambit of ‘Sedition’ making its meaning more explicit, precise and unambiguous.
• Essential ingredients for a seditious act - Various verdicts in Romesh Thappar case, Kedar Nath Singh case, Kanahiya Kumar case re-defined a seditious act only if it had essential ingredients as:
• Disruption of public order
• Attempt to violently overthrow a lawful government
• Threatening the security of State or of public.
• Judicial verdicts in defense of Right to freedom of speech and expression - The judicial pronouncements in cases like AK Gopalan vs State of Madras, Ramesh Singh vs Union of India, Shreya Singhal vs State elaborated ‘what does not tantamount to sedition’: Political dissent ,A thought non-consonant with the government and its policies, Expression of frustration over the state of affairs e.g. racist state or gender biased state ,Expressing different or conflicting ideas of Indian nation, Right to offend , Peaceful protest.

Concerns :- 

In the recent years the ease with which complaints of sedition or speech that allegedly hurts the sentiments of a community are brought before the police and criminal action initiated against the speakers is a cause of worry.

Figures of the National Crime Records Bureau reveal that in the two years preceding the JNU case, there were a total of 77 sedition cases. Beyond the high-profile urban cases, the reach of Section 124-A has extended even to faraway places. An entire village in Kudankulam, Tamil Nadu had sedition cases slapped against it for resisting a nuclear power project. Adivasis of Jharkhand, resisting displacement, topped the list of those slapped with sedition in 2014.

People concerned with the misuse of these laws often ask for them to be repealed or struck down on the grounds that they violate Article 19(1)(a). But herein lies the problem. Most of these laws have, in fact, been challenged and their constitutional validity has already been upheld. Section 295A (“deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”) was found to be constitutional in the Ramjilal Modi case (1957) and Section 124A (sedition) was held to be constitutional in the Kedarnath case (1962).

Both these were Constitution benches and even though the effect of these judgments has been subsequently watered down through more liberal judgments, these cases remain the law of the land.

Short term measures:-

• All speech-related offences should be made bailable offences; this would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising their rights under Article 19(1)(a).
• The offences should be made non-cognisable so that there is at least a judicial check on the police acting on the basis of politically motivated complaints.
• In the case of offences under Sections 153A (“promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony”) and 295A of the Indian Penal Code, it is mandatory under Section 196(1) of the Code of Criminal Procedure to obtain prior sanction of the government before taking cognisance of the offences. This needs to be extended to the offence of sedition under Section 124A.
• In the case of hate speech, it is important to raise the burden of proof on those who claim that their sentiments are hurt rather than accept them at face value. And finally, it is crucial that courts begin to take action against those who bring malicious complaints against speech acts.

Conclusion:-

Democracy has no meaning without freedoms and sedition as interpreted and applied by the police and governments is a negation of it. Hence, before the law loses its potency, the Supreme Court, being the protector of the fundamental rights of the citizens has to step in and evaluate the law and may declare Section 124A unconstitutional if necessary. The word ‘sedition’ is thus extremely nuanced, and needs to be applied with caution. It is like a cannon that ought not be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.

Way forward :- 

• Dissent acts as a safety valve in a vibrant democracy and every restriction on free speech and liberty must be carefully imposed weighing its reasonableness.
• If the country is not open to positive criticism, there lies little difference between the pre- and post-independence eras
• Debates and discussion with respect to essential questions like need of sedition law in a modern democratic society vis-vis freedom of speech, redefining sedition etc. needs to be started among the legal luminaries, lawmakers, Government, NGOs, academia, students and above all, the general public