The Right to Freedom of Speech and Expression has well been defined by our Constitution. Is imprisonment justified enough if one expresses even if it is unreasonable? Read on to know more.
Sedition generally is understood as ‘defamation of state’, which is not correct. The ‘state’ as such cannot be defamed at all. Defamation of government is also not possible, even when there are some defamatory remarks against a leader of the Government. At the worst, it could be defamation of that leader, but one can hardly call it sedition.
Ever since Thomas Bobington Macaulay drafted ‘crime’ of ‘sedition’ (Section 124 A) as Section 113 in IPC draft of 1837, it has continued to be a threat to free speech. It was not there when IPC was enacted in 1860. Law Member of the Governor General’s Executive Council, Sir James Fitz James Stephen, on August 2, 1870, introduced it through an amending Bill.
According to section 124A, IPC, Sedition means:
“Whoever … brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, shall be punished with imprisonment for life… or with imprisonment which may extend to three years” besides fine.
In the beginning, Section 124A criminalized excitement of “disaffection” only, but in 1898 “hatred or contempt” was added by amendment. This means a citizen will be jailed if he excites disaffection. State will prosecute a person as a criminal if he hates the ‘state’ or develops contempt for it. This was used by British rulers against the leaders of freedom struggle and after Independence it was a weapon against criticism to suppress the expression, to oppress patriotic emotions and opinion.
In order to punish the nationalist leaders who were fighting against the Government of India and the rulers of princely states, the British brought in an Ordinance in 1937. It amended the IPC to add to the definition “local government,” expanding the power to grant punishment for conspiracy against any government.
Notorious history of ‘sedition’ in India is studded with trials sending famous freedom fighters to jails. Legal historian A G Noorani chronicled in a recent article, how sedition charge was used as a sword to counter the freedom fighters.
Bal Gangadhar Tilak was tried thrice for sedition. In first Tilak Case (Queen Empress vs Bal Gangadhar Tilak; 22 Bom. 112), on February 18, 1898, Justice Strachey held a mere excitement or attempt to excite the forbidden emotions will be sufficient enough to constitute sedition “even if there was nothing to show that he succeeded” or that “any disturbance” was caused. Unfortunately this view was upheld by the Privy Council. Tilak was first to be convicted for 18 months rigorous imprisonment by the British regime in 1898.
In second trial for sedition in 1908, Justice D D Davar with majority in jury held Tilak guilty, while two Indian members of jury delivered verdict of not guilty. Justice Davar, was counsel for Tilak in first trial. But as a judge he sentenced him to six years’ transportation.
Last trial was in 1916, M A Jinnah came to rescue of Tilak by his efficient defence. Allegation was that he had disseminated seditious material. Tilak was ordered to execute a bond for ` 20,000 ‘for good behaviour’. Justices Batchelor and Shah quashed the order. In 1921 Maulana Mohammed Ali, Maulana Shaukat Ali and Shankaracharya of Sharadaa Peeth were tried together for sedition in Karachi during Khilafat movement. Ali brothers, after conviction, suffered sentence till 1923.
Maulana Abul Kalam Azad made a magnificent statement, which attracted prosecution for ‘sedition’. Sedition history is incomplete without discussing trial of Gandhi. His open and full admission of his responsibility for “the diabolical crimes of Chouri Choura or the mad outrages of Bombay” was historic. Similarly, the Judge C.R. Broomfield made generous remarks while convicting Gandhi.
“It will be impossible to ignore the fact that you are in a different category from any person I have ever tried or am likely to have to try. It would be impossible to ignore the fact that in the eyes of millions of your countrymen you are a great patriot and a great leader. Even those who differ from you in politics look upon you as a man of high ideals and of noble and of even saintly life. ”
Gandhi said: “Affection cannot be manufactured or regulated by law……… Section 124A as the prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” As editor-writer Mahatma Gandhi suffered six years’ imprisonment for writing two articles in Young India.
First Chief Justice of the Federal Court Sir Maurice Gwyer reduced rigour of definition saying “unless there is reasonable anticipation or likelihood of public disorder, there can be no sedition” in Niharendra Dutt Majumdar vs The King Emperor(1942 Federal Court Reports 38). But it was overruled by the Privy Council(King Emperor vs Sadashib Narayan Bhalerao (1947) Indian Appeals 89)
Leading nationalist personality, Rammanohar Lohia scripted a historic resolution saying “the ordinance law of sedition, Sea Customs Act and the Board of Censors are in them sufficient to put a ban on all advanced opinion, thought and art.”
Though the national leaders opposed Sedition law, it crept in to the draft of Indian Constitution. Sedition was mentioned as a ground on which freedom of speech and expression may be restricted, in the Draft Report of the Constituent Assembly’s Advisory Committee on Minorities, Fundamental Rights. Thereafter ‘sedition’ was replaced by words “or undermines the authority or foundation of the state” and then by the words “or undermines the security of or tends to overthrow the state”. On October 3, 1947, the Drafting Committee retained sedition that reflected in the draft published in February 1948.
Indian journalists saved from being prosecuted for Sedition had it been retained as a ground of restriction on freedom of speech. Mr. K M Munshi proposed an amendment to Draft Constitution. And in defence, he contended:
“The word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of courts of law all over the world. Its definition has been very simple and given so far back as 1868. It says ‘Sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the state and lead ignorant persons to subvert the government”. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards government, was considered sedition once. Our notorious Section 124 A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered bySection 124 A. But the public opinion has changed considerably since and now that we have a democratic government a line must be drawn between criticism of government which should be welcome and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the state. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is criticism of government. The party system, which necessarily involves an advocacy of the replacement of one government by another, is its only bulwark; the advocacy of a different system of government should be welcome because that gives vitality to a democracy. ”
After a thorough discussion and deliberations, the sedition was rightly omitted in the Revised Draft Constitution of November 1949. B Shiva Rao said that ‘omitted sedition by a deliberate, considered decision’. But words ‘which undermines the security of or tends to overthrow, the state’ continue to remain as ground of restriction on free speech .
Finally the Article 19 (2) of the Constitution remained as follow:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to or prevents the state from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the state.”
First Prime Minister Jawaharlal Nehru wanted that ‘the sooner we get rid of it (Sedition) the better’. He said that particular section was highly objectionable and obnoxious and it should have no place both for practical and historical reasons. Though Nehru wanted that ‘crime’ to go, it did not. It’s unfortunate that Congress Party, which ruled for several decades, did not delete this crime.
First Amendment to Indian Constitution in 1951 changed Article 19(2) which reads: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” Certain elements which reflected ‘sedition’ were also removed (Constitution (First Amendment) Act, 1951).
Significant changes in Article 19(2) are:
After Independence it was amended in 1951, just to replace ‘British India’ with ‘state’. In order to punish the nationalist leaders who were fighting against the Government of India and the rulers of princely states also, the British brought in an Ordinance in 1937. It amended the IPC to add to the definition “local government,” expanding the power to grant punishment for conspiracy against any government. Section 124A was used against nationalist leaders to punish anyone who advocated freedom.
In the Meerut Conspiracy case, the accused were charged with conspiracy to wage war for having formed a union on the lines of trade unions in Soviet Russia. They were convicted by a session’s court. The Allahabad High Court held that unless it was a conspiracy to overawe a government by means of criminal force or show of criminal force, such a finding would be wrong. However crime of sedition continued to exist in Indian Peal Code even after the commencement of Indian Constitution. It was Judiciary that struck down section 124A as violative of Article 19(2) i.e., freedom of speech and expression.
What nationalist leaders or ruling politicians in Independent India could not do was done by the Judiciary. After the Constitution came into force, several High Courts struck down Section 124 A as being violative of Article 19 (2). Justice Patanjali Sastry (Justice Patanjali Sastri) pointed out that deletion of Sedition in Constitution was deliberate, in case of Romesh Thapar vs State of Madras((AIR 1950 SC 124) .
In Ram Narain vs State(AIR 1959 Allahabad 101), a full bench of three judges M.C. Desai, R.N. Gurtu and N.U. Beg of the Allahabad High Court unanimously held Section 124A to be void and said right to spread disaffection against the government is inherent in the freedom of speech andexpression.
Mr Kedar Nath Singh(AIR 1962 SC 955) gave a highly critical speech on May 26, 1953, saying:
“Today the dogs of the C.I.D. are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congressgoondas to the gaddi and seated them on it. … The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the people’s court along with these Congress goondas…“On the strength of the organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have today established a rule of lathis and bullets in the country…. Today Vinoba is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell the last word even to the Congress tyrants. Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of nawabs sitting on the chairs.”
This speech was considered seditious and he was sentenced to rigorous imprisonment for a year in Indian Republic. The court held:
“Freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have tendency… bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced S.124 A into the Indian Penal Code in 1870 as aforesaid, the law will be within the permissible limits laid down in cl. (2) of Art.19 of the Constitution. If, on the other hand, we give a literal meaning to the words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in cl. (2) aforesaid.”
The Supreme Court explained the meaning of Section 124A in Kedar Nath Singh case saying that sedition did not apply to mere “criticism of government action, however strongly worded.” The operation of the provision, the five-member bench ruled, would be limited to cases where what is said or spoken incites violence and public disorder.
Noorani commented on this: “There was nothing remotely seditious in the speech; not even the advocacy of revolution. There clearly was no immediate incitement to violent revolution”. But unfortunately the mere advocacy of revolution was considered sedition itself. English law meaning of sedition is basically libel of government, but its ordinary English meaning is “stirring up rebellion against the government”.
When two officers of the Punjab Education Department raised the slogan “Khalistan Zindabad, Raj Karega Khalsa,” they were convicted of ‘sedition’. But the Supreme Court set it aside(1995(3) SCC 214), saying the court should look at whether it led to a consequence detrimental to the nation’s unity and integrity. It pointed out that Section 124A should not be used to violate freedom of expression. Free speech can be reasonably restricted if that would result in violence or public disorder. Such an event linked to the relevant communication needed to be proved before pronouncing a person guilty of sedition.
Instead of three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out blood, and altered “Satyameva Jayate” (Truth alone triumphs) into “bhrashtameva jayathe” (Corruption alone triumphs). If it is considered seditious, i.e., spreading hatred against the nation, every person who is charged with corruption should be sent to jail too for “sedition”. Drawing a cartoon or writing an article resulting in whatever serious meaning it may communicate, cannot not be considered “seditious”. Trivedi’s cartoons reflected the agitated mind of a young man who was seriously concerned about this country.
In his cartoons, where is the insult to the Constitution or the National Symbol? His dig (in the Ashoka Pillar cartoon) was at the politicians and bureaucrats who turned the national symbols into national signs of danger. Under no circumstances can this be treated as insult to the Constitution or the symbol.
M. Veerappa Moily, Law Minister in 2011, wanted a review and removal of this section. The Apex court brought out the distinction between merely sympathising with a movement and committing an offence under Section124A. Soon after this order, Mr Moily said that the Law Commission of India would be asked totake a fresh look at it.
The United States repealed laws such as the Sedition Act of 1918, and reduced the Smith Act 1940 into a dead letter followed by the directive of that country’s Supreme Court. After profusely using it against the freedom fighters of India, the British stopped using sedition charges. It was last used in 1947. Recently UK abolished offences of sedition and seditious libel. The sections of the Indian Penal Code that deal with “conspiracy to wage war against the government” (121A) and “sedition” (124A) are draconian in terms of their definition and ambit and carry a disproportionate quantum of punishment. After Independence, IPC was amended in 1951, just to replace “British India” with “state”.
For expressing strong or sometimes unreasonable dissent, one should not be sent to jail considering comments as seditious. Sedition sentences ‘sentences’ of criticism. One can understand the power and impact of public opinion in fighting the dreaded sedition. With the great struggle of the forefathers of the Constitution, sedition was deleted as a ground of restriction on free speech, but it was most unfortunate that sedition was not removed as a crime from the Indian Penal Code. With ‘sedition’ on board, the Indian Penal Code will be never an Indian code’; it continues to be British Penal Code. For rising slogans or drawing cartoons or sympathizing with extremists or harshly criticizing the government, ‘sedition’ cannot be used. Time has to come to remove this tool of oppression, which is misused for snubbing the opposite view by successive ‘democratic’ political governments.
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