IPC - 124A

What is 124A - Sedition?

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite?disaffection?towards,??the Government established by law.??

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.?

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.?

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

In July 2021?

“Continuance of this law is a serious threat to the functioning of institutions and individuals’ liberty. Why doesn’t the government scrap it?” -?Justice NV Ramana.

June 2021?

“Every citizen has a right to criticise the government’s policies so long as it does not incite people to violence or creates public disorder.” -?Justice Uday U. Lalit.

May 2021

“Everything cannot be seditious. It is time we defined what is sedition and what is not.” -?Justice Dhananjaya Y. Chandrachud.?

March 2021?

“Expression of views which are different from the opinion of the government cannot be termed as seditious. It cannot become sedition only because one has a different view.” -?Justice Sanjay Kishan Kaul.?

It is not new that this clause is in limelight, it has been since beginning. Let’s dig into the history and understand why this clause has been a talk of the town.

124A - History

IPC was brought into force in colonial India in 1860, but had no section concerning sedition. British historian-politician Thomas Macaulay drafted the IPC in the year 1837, and through clause 113 of the Draft Indian Penal code, he also introduced sedition as an offence punishable with life imprisonment. However, it is argued that the clause on sedition was dropped from the original IPC draft by mistake, and therefore Section 124A was inserted later in IPC in 1870.?

In 1897, Bal Gangadhar Tilak was punished by the Bombay high court for sedition under Section 124A, and was sentenced to 18 months in prison. Tilak was held guilty by a jury composed of nine members, with the six white jurors voting against Tilak, and three Indian jurors voting in his favour.

Tilak was the first person to be convicted of sedition in British India. The British government brought the charge alleging that articles carried in his Marathi newspaper?“Kesari”?would encourage people to foil the government’s efforts at curbing the plague epidemic in India.?

The penal provision was primarily used by the British government to quell nationalist voices and demands for freedom. The long list of India’s national heroes accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, and Jawaharlal Nehru.?

In 1922, Gandhi ji was arrested on charges of sedition in Bombay for taking part in protests against the colonial government. He was sentenced to six years in prison but was released after two years on medical grounds.

Later, Section 124A was given different interpretations by the Federal Court, which began functioning in 1937, and by the Privy Council that was the highest court of appeal based in London.?

In Niharendu Dutt Majumdar Vs King Emperor, 1942, the Federal Court held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”. But this proposition was overturned by the Privy Council in King Emperor Vs Sadashiv Narayan Bhalerao, 1947.?

The Privy Council lent credence to the law laid down in Tilak’s case and ruled that incitement to violence was not a pre- requisite for the crime of sedition and that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A – making the law a convenient tool for the rulers to crush dissent.?

Post-Independence?

After Independence, “sedition” was dropped from the Constitution in 1948 following the discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word “sedition”, which was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression.?

The word “sedition” thus disappeared from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave absolute freedom of speech and expression. But Section 124A continued to stay in IPC as it was.?

The first Prime Minister of the country identified offence of sedition being fundamentally unconstitutional and further said that the sooner this law is removed the better it would be.?

The validity of sedition law was tested for the first time in Independent India by the then Punjab high court in 1951 in Tara Singh Gopi Chand Vs The State.?

The high court struck down Section 124A, terming it a restriction on the freedom of speech and expression under Article 19 of the Constitution of India.?

It was this judgment that prompted the Jawaharlal Nehru government to introduce through the constitutional amendment new grounds on which the right to freedom of speech and expression could be reasonably restricted.?

Later, the high courts of Patna and Allahabad came out with conflicting judgments on the validity of Section 124A, prompting a constitution bench to rule on the subject.?

In the Kedar Nath verdict of 1962, the five-judge bench affirmed the validity of the sedition law, holding that the law is meant to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. It also under- lined that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.?

The latest raft of petitions before the Supreme Court has implored it to reconsider the Kedar Nath judgment in the wake of a “sea change” in the jurisprudence of the country in the last six decades and a more focussed approach of the constitutional courts to safeguard liberty and dissent, which has been called “safety valve of democracy”.?

Current scenario?

The development in the highest court of the land brings into the spotlight the intriguing history of sedition law, which carries a maximum punishment of life imprisonment, and which allows police to arrest individuals without a warrant.?

Supreme Court asserting that the sedition law in India “is not in tune with the current social milieu”, the Supreme Court in a historic decision on Wednesday effectively put on hold the 152- year-old colonial era penal provision, and asked the Centre and states to desist from arresting people or prosecuting them under the contentious provision until the Union government reviews it.

The historic decision by a bench, led by Chief Justice of India (CJI) NV Ramana, held that it would not be appropriate for the law to be invoked when the central government has itself embarked on a journey to review Section 124A in the Indian Penal Code.?

It directed that no new FIRs be lodged, while those already booked under Section 124A can approach courts for bail and other appropriate reliefs.?

Underlining a constitutional court’s duty to protect civil liberties, the Supreme Court on Wednesday put on hold the 152-year-old colonial era penal provision of sedition in India.?

The bench said?“it will be appropriate not to continue the usage of the provision of law by the governments”?when the Centre itself has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A in the Indian Penal Code — a non- bailable offence punishable with jail term ranging from three years to life, and one that activists and jurists have alleged is often misused to muzzle dissent.

Bench also said, “It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.

The Supreme Court passed three important directions:?

One, it said it will “hope and expect” governments to not register first information reports (FIRs), continue investigation, or take coercive measures under the law.?

Two, it allowed affected parties in fresh cases to approach courts for relief and asked the courts to consider pleas based on the SC’s order and the stance taken by the government, which earlier this week acknowledged concerns about misuse and the need to safeguard civil liberties.

Three, it asked all pending trials, appeals and proceedings under Section 124A be kept in abeyance. In effect, the offence of sedition has been put on hold, until the next date of hearing in July.?

Where the bug lies?

According to the “Crime in India” report by NCRB, during the period 2014 to 2020, total 399 sedition cases were filled, and 52% cases can be traced in just 5 states.?

Other states

International Stand

The global movement has been overwhelmingly anti-sedition with different countries either easing the law or simply getting rid of it.?Many democratic countries, including the United Kingdom, Ireland, Australia, Canada, Ghana, Nigeria and Uganda, have held?sedition law as undemocratic, undesirable and unnecessary.

The predominant argument for the abolition of sedition has been the protection of freedom of speech. The potential misuse of sedition laws to further political agendas is also a factor.

United Kingdom

The sedition law became obsolete in the UK in the 1960s and was finally repealed in 2009. Sedition by an alien (resident but not a national of the country), however, is still an offence.

United States of America

In the USA, some sedition laws have been repealed or made a dead letter. The courts provide a wide protection to free speech.

Sections 2381 to 2385 of the US Code deal with treason, sedition and subversive activities advocating overthrow of government. However, the law is rarely enforced to uphold the freedom of speech.

Singapore

Last year, Singapore, which like India inherited colonial English law, repealed its sedition law 83 years after it was first introduced to curb local opposition to British colonial rule.

The Home Ministry said that key aspects of the Sedition Act have not been relevant in modern Singapore for a long time, and the law was hardly used for prosecutions. It said that several new laws can sufficiently address issues that were under the ambit of the sedition law.

Singapore has enacted other laws over the years to deal with issues covered by the Act in a more targeted and calibrated manner.

New Zealand

The act of ‘sedition’ ceased to be a crime following the introduction of The Crimes (Repeal of Seditious Offences) Amendment Bill in 2007 that came into effect from January 1, 2008.

Australia

The first comprehensive legislation in Australia that contained sedition offence was the Crime Act 1920. It was reviewed twice -- in 1984 and 1991. In 2005, amendments were made in Schedule 7 of the Anti-Terrorism Act (No 2) 2005.?

The Australian Law Reform Commission (ALRC) reviewed whether the use of the term “sedition” was appropriate to define the offences mentioned under the 2005 amendment. In 2010, a recommendation of the ALRC was implemented in the National Security Amendment Act 2010, replacing the word ‘sedition’ with ‘urging violence offences.’

Scotland

Section 51 of the Criminal Justice and Licensing Act, 2010 abolished the common law offences of sedition with effect from March 28, 2011.

Indonesia

In 2007, sedition was declared as “unconstitutional" in Indonesia, similar to the laws of its Dutch colonisers.

South Korea

The Republic of Korea abolished sedition laws during democratic and legal reforms in the year 1988.

Ghana

On July 27, 2001, Ghana’s parliament unanimously repealed the Criminal Libel and Seditious Laws, which had been used to incarcerate a number of journalists in the past. The repeal follows the passage of the Criminal Code (Repeal of the Criminal and Seditious Laws Amendment Bill) Act 2001 by a unanimous vote in the House.

Conclusion

This is a welcome decision, not only because sedition represented India’s colonial baggage but also because of the thousands of citizens who battled its stringent provisions for an ever-expanding array of offences.?

If we look at the data whenever sedition cases increases, conviction rates trashes, highlighting how this clause has become tool to harass people.?

It is up to the Centre to get back to the Apex court on completion of its review of the law.?

Journalist Aman Chopra on Wednesday was the first per-son to get relief in a sedition case, hours after the Supreme Court’s decision to put on hold the colonial-era law.?

Overall situation is Government is at the verge of losing a tool.?