Explained: How The Scope Of 'Sedition Law' Has Changed Many Times Since 1870

Chief Justice of India (CJI) N V Ramana in open court on Thursday questioned the relevance of Section 124A of the Indian Penal Code —the law on sedition. He asked why a colonial law used against Mahatma Gandhi and Bal Gangadhar Tilak continued to survive 75 years after Independence.

CJI Ramana, heading a three-judge Bench, asked Attorney-General K K Venugopal and Solicitor-General Tushar Mehta, appearing for the union government:

“Sedition is a colonial law. It suppresses freedoms. It was used against Mahatma Gandhi, Tilak... Is this law necessary after 75 years of Independence?”

Prone To Misuse

The CJI also pointed out that the law was prone to being misused by the executive to silence criticism and punish dissenters. “The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself,” the CJI was quoted as saying by The Hindu.

He also asked the government why it did not repeal the sedition law along with the hundreds of “stale laws” it had expunged. “Your government is taking out a lot of stale laws from the law books, why have they not looked into this,” Chief Justice Ramana asked K K Venugopal.

“We are not blaming any particular government or State. But do look at how Section 66A of the Information Technology Act is continuing to be used... How many unfortunate people have suffered? And there is no accountability for all this...” he noted.

The CJI said the sweeping powers of Section 124A gives even a village police officer carte blanche to trample on the right to liberty and free speech of ordinary citizens.

“If a police officer wants to fix anybody in a village for something, he can use Section 124A... People are scared. Our concern is misuse of the law and the lack of accountability,” he said.

“The situation on the ground is grave... If one party does not like what the other is saying, Section 124A is used... It is a serious threat to the functioning of individuals and parties,” Chief Justice Ramana noted.

Attorney General Venugopal said that the court need not strike down Section 124A. “It is enough to see if there were any excesses in its use and limit the Section to its real purpose… That would be enough,” he said.

Low Conviction Rate

“If you look at the history of use of this Section 124A of IPC, you will find that the conviction rate is very low. There is misuse of power by executive agencies,” the Chief Justice said.

A petition filed by senior journalist Sashi Kumar claims that there has been “dramatic jump in charging a person with the offence of sedition since 2016”. It said:

“In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016. The same constitutes a 165 per cent increase. Of these 93 cases, chargesheets were filed in a mere 17 per cent of cases and even worse, the conviction rate was an abysmally low 3.3 per cent.”

Kumar referred to the sedition cases registered against climate activist Disha Ravi, filmmaker Aisha Sultana and journalists Vinod Dua and Siddique Kappan.

What Is Sedition?

‘Sedition’ is included as a punishable offence in Section 124A of the Indian Penal Code. The section defines sedition as the attempts to bring into “hatred or contempt”, or attempts to “excite disaffection towards, the Government established by law”.

The section was included in the Indian Penal Code by the British in 1870 who were concerned with the Wahhabi activities of Muslim preachers against the Raj.

The section incorporates a broad area of activities- “by words, either spoken or written, or by signs, or by visible representation, or otherwise” that can be seditious. Also, there is no need to demonstrate actual harm caused by the speaker but an “attempt” is enough.

The section clarifies that “disaffection” includes disloyalty and all feelings of enmity. It further states that “disapprobation”of any government policy or action, and seeking its alteration by lawful means “without exciting or attempting to excite hatred, contempt or disaffection” are not an offence under the section.

History of Usage in British Raj

Section 124A has been notorious for its usage against the nationalist voices in the Raj. Since its incorporation in 1870 in the IPC, the section was broadened in interpretation to include all hues of nationalist activities.

The first known case was against Jogendra Chunder Bose, who in his article, published in his own Bengali magazine Bangobasi, criticised the government’s Age of Consent Act, calling it ‘forced Europeanisation’ of the Indians. However, the article disavowed rebellion saying that Hindus were incapable of it.

The Chief Justice presiding over the case argued that though Bose didn’t call openly for rebellion, his words were calculated to create in the minds of reader a disposition not to obey the government.

In 1897, Bal Gangadhar Tilak was tried on sedition charges for his lectures and patriotic songs at the Shivaji Coronation Ceremony. Tilak’s speeches also didn’t make any direct reference to overthrowing of the government.

This time, the sedition clause was interpreted broadly to include “any writing that was found to be attributing every sort of evil and misfortune suffered by people, or dwelling on its foreign origin and character, or accusing it of hostility or indifference to the welfare of the people.”

Few months after this in Prathod case, the sedition was expanded to include basically any speech or action that attempted to persuade Indians not to love the British rulers.

The above two cases led to an amendment in the Section 124A by the Raj to specifically counter the defence’s arguments in those cases and incorporating the broadened provisions. The words ‘hatred’ and ‘contempt’ were added alongside ‘disaffection’. Section 153A was also added to the code to curb nationalist newspapers.

Tilak was brought back to court on sedition charges in the aftermath of the anti-partition agitation, and brutal British repression in Bengal in 1908. The scope of the section was further broadened and the semblance of difference between ‘disaffection’ and ‘disapprobation’ was removed.

Under this framework, Satyaranjan Bakshi was arrested in 1927 for saying that the British government was following a policy of ‘divide and rule’, deposit of a press was confiscated because the paper published an article criticising local government for misusing and abusing its powers.

In 1910, Ganesh Damodar Savarkar was booked under sedition for publishing a series of allegorical poems. The court noted that Savarkar had used words with ‘double meanings’, and reference to Shivaji, and Hindu gods and goddesses was meant to preach war against the government.

The usage of sedition, therefore, was not limited to political domain, but included cultural domain as well. People were even prosecuted for kirtanas and reading Puranas under the sedition act.

Sedition in Independent India

Given the challenges faced by newly independent India, the Fundamental Rights Sub-Committee of the Constituent Assembly chaired by Sardar Patel expressly included sedition as a ground for restricting free-speech.

However, when the draft came up for discussion, the provision was vehemently criticised and not included in Article 19(2) in the final copy of the constitution.

Under Article 13, the constituent assembly dictated that all colonial laws repugnant to the constitution would be void. However, the Section 124A wasn’t repealed by the Parliament and the battle reached the courts.

Ultimately, in 1962, in Kedarnath Singh case, the Supreme Court said that speeches or protests against parties or governments was no offence, but the attempts to break up India by force or persuasion would be under the Section 124A.

The apex court refused to strike down the provision in light of the separatist and anti-national forces, but made it cleat that he provision cannot be used against the strongly-worded criticism or opposition of the government.

The court limited the sedition charge to those attempting to incite people to use violence against the government established by law, and pernicious tendency to create public disorder or disturbance of law and order.

Keeping With The Trend

In recent times, the court has repeatedly warned the government against the reckless use of the sedition provision.

In May, Justice D Y Chandrachud flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management. He said “it is time to define the limits of sedition”.

While considering a plea made by two TV channels, TV5 and ABN, against the Andhra Pradesh government for using the sedition law to “silence” them, Justice L Nageswara Rao called it "muzzling the media.”

In the judgment quashing a sedition case against Vinod Dua for his remarks about the prime minister and the union government in a YouTube video, Justice U U Lalit said that every journalist had the right to criticise, even brutally, the measures of the government with a view to improve or alter them through legal means.

Yesterday, CJI Ramana said the Supreme Court would “definitely look into this Section 124A”. His remarks have opened an opportunity to relook at Supreme Court’s own verdict in the Kedar Nath case 1962.

A number of petitions have been filed in the apex court against the provision. The petition by senior journalist Arun Shourie and NGO Common Cause, represented by advocate Prashant Bhushan, has contended that a “presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body”.

On Thursday, the CJI Ramana-led bench issued notice to the union government on a petition filed by the Editors Guild of India to quash the sedition law.