Sedition is currently a hotly debated topic on account of a fresh petition filed in the Supreme Court which seeks to challenge the constitutionality of Section 124A of the Indian Penal Code, which is the provision which provides for sedition. Constitutionality of any law means that whether the law is consistent with the Fundamental Rights guaranteed by the Constitution. If the law is not, then the same is declared unconstitutional or ultra vires, which means it is beyond the power of Parliament to enact such a law.
The law of sedition as provided under Section 124A of the IPC has an obvious opposition in the fundamental right to free speech provided under Article 19(1)(a) of the Constitution. At this point it is important to understand the language of both the provisions to appreciate the nature of conflict. Art. 19(1)(a) provides:
(1) All citizens shall have the right
(a) to freedom of speech and expression;
The language is very short and crisp in the provision and clearly provides that all citizens have the right to freely express themselves through speech or in any other manner they deem fit. The word ‘expression’ has been interpreted by the court to include various forms of liberties including that of press and publications. However, the provision should not be taken to understand that this Fundamental Right is absolute and one can say or express anything and everything. For instance, the freedom to speech doesn’t include the freedom to abuse someone else. These restrictions flow from Article 19(2), which reads as:
(2) 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 sovereignty and integrity of India, 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
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The provision clearly provides that the government of the day may limit the freedom of speech if it is in the interest of the grounds provided, which include the sovereignty and integrity of India. The law of sedition is squarely concerned with this ground. Section 124A provides:
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 shall be punished with imprisonment for life, to which fine may be added…
As can be seen the provision criminalizes any expression which brings hatred or contempt or disaffection towards the “government established by law.” The term disaffection has been further explained by the Explanation 1 appended to the provision, which adds:
“disaffection” includes disloyalty and all feelings of enmity.
The problem here is that the terms like disaffection, disloyalty and enmity are themselves vague and for the want of a clearly limited definition the government can invoke this law against political adversaries, which is also something which the present petition argues before the Supreme Court. Interestingly, the government has also agreed that there may be a need to revise the law.
Earlier, the Supreme Court in Kedar Nath Singh v. State of Bihar had already limited the scope of sedition by necessitating a need for public disorder accompanied by the speech. Thus, mere words against the government are not enough for this law to be invoked. There should be actual violence or breakdown of public disorder, as a consequence of such speech.
Examples of seditious speech can be calls for the dismemberment of India and the overthrow of the Constitution. It can be argued that such calls if not accompanied by violence which ensues as a consequence of that call may not constitute sedition. However, this is similar to saying that one has a right to abuse unless and until it leads to violence or public disorder.
The present petition in the Supreme Court seeks to review the above ruling and entirely strike down the provision. Nevertheless, it is being argued here that the law of sedition is necessary because it can perfectly be claimed that there is no vested right in someone to abuse the government or the state and thus, it can be regulated. For instance, when we consider a call for the overthrow of the Constitution, something which is common in the Maoist movement of India, it will be absurd to argue that such calls are protected by the Constitution itself. The constitution clearly provides that India is an indestructible union, thus, advocacy for the destruction of the Indian Union can in any way be protected by the Constitution.
In the present petition what the Supreme Court should ideally do is to restrict the scope of the law of sedition. The same can be done by reading ‘government established by law’ as ‘State’ under Section 124A. Consequently, then the criticism of the state can be separated from the criticism of the government. Further, the Court should take this opportunity to also lay down guidelines as to what can be considered legitimate criticism and what can be called as hate speech or abuse.
It is for good reason that even America, where the concept of free speech is near absolute, also retains sedition in its jurisprudence. Considering the geopolitical sensitivities of India, where we are surrounded by adversaries, it is difficult to argue that the law of sedition should entirely be done away with.
The author is an Assistant Professor of Law at Maharashtra National Law University Mumbai. He is also a Visiting Fellow at India Foundation. He tweets @raghavpandeyy
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