Sedition law is one of many pre-Constitution laws brought over from colonial to independent India. As per the Indian Penal Code 1860, sedition means an act that brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards a government established by law. It is a non-bailable offence, with punishment ranging from imprisonment up to 3 years to a life term, to which a fine may be added. A person charged with sedition is barred from travelling abroad pursuant to which they have to surrender their passports, are not eligible for government jobs, and must produce themselves in the court as and when required.
The present controversy surrounding the reconsideration of sedition has led to calls for scrapping the law of sedition as a whole. At the same time, there may be some opposition to the move, which makes it imperative to understand the nuances of sedition law in detail.
Originally drafted by British politician-historian Thomas Macaulay in 1837, sedition was inexplicably omitted in the enactment of the IPC in 1860. A decade later, in 1870, the IPC was amended to introduce Section 124A via an amendment forwarded by Sir James Stephen, the chief draftsman of the Indian Evidence Act, who surmised that a separate section was warranted to deal with this special category of offence against the government. With another amendment in 1898, sedition was made a punishable offence. The law has been challenged on several grounds since the time of Independence and Supreme Court verdicts have endeavoured to narrow the ambit of sedition, making its meaning more explicit, unambiguous and precise.
Post-constitutional position on sedition
Article 372 of the Constitution provides for the application of pre-constitutional laws to even independent India in the interest of continuity. Many pre-constitutional laws were also repealed in independent India. Interestingly, the law on sedition has been retained by India post-Independence. In fact, the State has resorted to the active invocation of this law and it has frequently been used to date. The State argues that it is essential to have a law on sedition which serves to protect the integrity and sovereignty of the nation. In multiple instances, the issue of overbreadth is sought to be addressed through the promise of rightful implementation of the law by authorities.
March of the law on sedition
In Kedar Nath v State of Bihar (1962) the Supreme Court of India upheld the constitutionality of the law, observing that such power was required by the State to protect itself. However, in this judgement, the apex court attempted to define the contours of the law by stating that an individual could be prosecuted for sedition only if the act ‘caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace’. Interestingly in 1968, the Law Commission of India in its 39th Report had rejected the idea of repealing the section. In fact, in its 42nd report of 1971, the Law Commission supported the idea of expanding the scope of sedition to include the Constitution, the legislature and the judiciary, in addition to a lawfully established government.
Subsequently, several judgements like Balwant Singh v State of Punjab (1995), Bilal Ahmed Kaloo v State of Andhra Pradesh (1997) and Common Cause v Union of India (2018) have limited the scope of what constitutes sedition. The common theme reiterated by the apex court through case law has been that charges of sedition cannot be brought just for criticising the government or its policies but any seditious act must have implicit in them the idea of subverting government by violent or illegal means. In 2018, a Law Commission consultation paper on sedition proposed a rethink of Section 124A. It sought to strike a delicate balancing act by commenting that while every irresponsible exercise of the right to free speech and expression cannot be termed seditious, it also acceded that a revision of Section 124A is warranted to only criminalise acts committed with the intention to disrupt public order or to overthrow the government with violence and illegal means.
Way forward: Addressing the core issue
It is noticeable that sedition has been opposed on account of its overbroad nature and wide meaning which has been used to suit the fancies of the executive. The argument then is not against the law per se but rather against its implementation. A country like India that has some secessionist tendencies (with realities of insurgency, terrorism, etc) needs to protect itself against those speeches which can fundamentally overthrow the government. It is hardly debatable that speech can lead to the violent overthrow of an establishment whereby the State has a legitimate interest to curb such speech.
At the same time, it must be borne in mind that all citizens cannot be subjected to a ‘one-size-fits-all’ approach as they have different realities in different parts of the country. There exist different special laws to deal with such anti-state tendencies. Hence, a right balance between sovereignty and integrity of India and freedom of speech and expression of citizens be strived towards. It is, therefore, the need of the hour that the law on sedition is revised to protect the fundamentally guaranteed liberties of citizens, while at the same time it must be retained in the statute book to meet any unforeseen eventuality.
Snehil and Sushant are final-year students of law at National Law School of India University, Bangalore. Snehil is an International Editor at Cambridge Law Review. Views expressed are personal.