Sedition Laws In India - The Tightrope Walk Of Democracy
Author: LawSphereX
Category: General Law
Published:
Updated:
SEDITION LAWS IN INDIA: THE TIGHTROPE WALK OF
DEMOCRACY
Udisha Singh, OP Jindal Global Law University
ABSTRACT
Freedom of speech constitutes the cornerstone of a liberal democracy. Nevertheless, this fundamental right cannot be regarded as absolute. Justifiable limitations on free speech are imperative to maintain a balance with national security interests. Sedition laws, while contentious globally, are "necessary evils" to balance national security interests and public discourse. Global experiences of democracies like US and UK suggest that when Sedition laws are removed their place is often taken by harsher anti terrorism laws. This paper delves into the significance of sedition laws, contending that while the absence of such regulations would lead to the implementation of far more severe anti-terrorism laws, thereby inducing a chilling effect on free speech. Within this context, sedition laws are preferable, albeit necessitating reform.
The replacement of Section 124A of the Indian Penal Code with Section 152 of the BNS merits thorough examination, as India appears to be following a trajectory similar to that of the United States, which retracted sedition laws only to replace them with more draconian anti-terrorism measures aimed at suppressing dissent and free speech.
Introduction One of the most enduring debates has been between considerations for national security and freedom of speech as ways of expressing political dissent. Sedition laws across different nations have been on the receiving end of staunch criticism from defenders of free speech. Free speech is the cornerstone of any liberal democracy. Sedition law is without question a contravention to the coveted freedom of speech and expression. However, jurisprudence dictates that the intrinsic tension between national security and free speech is false dichotomy. Democracy for its very survival needs a balancing act between security considerations and free speech, a tightrope that every liberal democracy must walk. India’s unique security needs further reiterate the relevance of sedition provisions. The law commission report no.
2791 holds India’s precarious internal security challenges, like Maoist Extremism; Militancy and Ethnic Conflict in the Northeast; Terrorism in Jammu & Kashmir; and Secessionist Activities, responsible for the uncompromising need to retain sedition law. It is a misnomer that it is the sedition laws alone that threaten freedom of speech when in reality it is the counter-terrorism laws that are the real danger, wielding wider executive discretion in matters of suppressing political dissent. For many nations the abolishment of sedition laws has been purely illusory in nature. Anti-terrorism laws in many western democracies are achieving the objects once attributed to sedition laws and contradicting freedom of speech and expression.
Some examples of this are The Espionage Act of 1917, the Smith Act of 1940 and, more recently, the Patriot Act of 2001 which gives United States Government wide power of surveillance to curtail subversive activities. 2 Terrorism Act of 2000 empowered the UK government to prohibit the ideas that lead people to support terrorist causes in a bid for early intervention. 3 The contention of this article is that any speech deleterious to the stability of the state is best addressed by sedition laws. It examines the importance of sedition laws in India. Later, it discusses how Section 152 of the BNS is a more severe law intended to replace the sedition
1 Government of India, Law Commission of India, Report No. 279: Usage of the Law of Sedition (Apr.
2023),https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/06/2023060150.pdf.
2 Sarah Sorial, Can Saying Something Make It So? The Nature of Seditious Harm, 29 LAW & PHIL. 273
(2010).
3 Terrorism Law and the Erosion of Free Speech in the UK, VERFASSUNGSBLOG (Feb. 4, 2022),
https://verfassungsblog.de/os4-uk/ (last visited Sept. 13, 2024).
provision. A brief analysis of UAPA is taken up of UAPA, further highlighting the article's thesis that sedition laws are the lesser of two evils. Drawing the Line: The Role and Relevance of Sedition Law in the democratic setup of a post-colonial India In India especially sedition laws have garnered immense notoriety owing to the colonial usage of sedition laws to repress political dissent during the freedom struggle. Stalwarts like Bal Gangadhar Tilak, Mohandas Karamchand Gandhi, Maulana Mohammad Ali, Maulana Shaukat Ali and Shri Shankaracharya have been tried under sedition laws for the righteous crime of protesting the harsh colonial governance. 4 With MK Gandhi going as far to say “Section 124- A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.
”5 Considering the infamous history of sedition in India, it is remarkable that it persists perhaps testament to its sheer relevance. In fact, when this debate came up in the constituent assembly debates the favourable opinion was to delete the word ‘sedition’ while retaining the law in concept. Munshi while debating sedition in the constituent assembly debates made an intelligible argument about sedition’s ever-evolving understanding depending on the varying contexts. The term ‘sedition’ has carried with it a marred legacy of oppression. However, It was his hope that a democratic government of a new independent India would make a distinction between criticism of government and incitement that undermines the security and order of the nation. 6 This sentiment was echoed again when the current union government requested a deferred judgement on the constitutionality of S.
124A of the erstwhile criminal code IPC,1872 so as to allow for the parliament to re-examine the law. The union government maintained the view that while sedition laws have remained contentious, dividing opinions across the board “jurists, academicians, intellectuals and citizens” alike, the requirement of such penal provisions is accepted to be in “legitimate state interest”. 7
4 India's Freedom Fighters Fought Sedition Law, DECCAN CHRON. (Oct. 20, 2019),
https://www.deccanchronicle.com/opinion/op-ed/201019/indias-freedom-fighters-fought-sedition-law.html (last visited Sept. 11, 2024). 5 Sedition Cases: Gandhi's Trial 1922, INDIAN CULTURE PORTAL, https://amritmahotsav.nic.in/districtreopsitory-detail.htm?25142
6 7 CONSTITUENT ASSEMBLY DEBATES 30 (Dec. 1, 1948) (speech by K.M. Munshi),
http://loksabhaph.nic.in/writereaddata/cadebatefiles/C01121948.html (last visited Sept. 13, 2024).
7 Union of India Aff. 2:3, S.G. Vombatkere v. Union of India, (2022) SCC OnLine SC 511 (India).
The result of the aforementioned parliamentary examination according to the Modi government is abolishment of the sedition provision. The word sedition finds no mention in the Bhartiya Nyaya Sanhita. However, critics were quick to point out that the sedition law has been repealed only in theory. 8 PRS identifies that while BNS removes the offence of sedition it has added a provision that arguably retains certain aspects of the offence of sedition and broadens the range of acts that could be seen as threatening the unity and integrity of India. 9 The History of Sedition Through the Lens of Indian Jurisprudence The meaning which we attach to sedition today only started taking form at the juncture of old Tudor England and early Stuart England. “The notion of inciting by words or writings disaffection towards the state or constituted authority.
Thus, sedition came to be interpreted as words that fell short of treason and did not directly involve-although they might lead to-acts of violence. ”10 In 1837 Thomas Babington Macaulay included sedition in Section 113 of his Draft Penal Code. For unaccounted reasons, it was not included in the Indian Penal Code, enacted on 1860. It was not until 1870 when it was included by way of amendment moved by the then Law Member of the Governor-General’s Council, James Fitzjames Stephen11. Very early on a discussion on the legal specificity of sedition law came up during Queen- Empress v. Jogendra Chunder Bose and Ors (1891) wherein it was quoted in the court’s judgement that “Sir. J.
STEPHEN in introducing the present section explained what the law of England then was, and stated that he proposed that Section 124-A should be passed into law, because if there were no provision in the law of India, the offence would fall under the common law of England, and would be more severely punishable; and he most distinctly asserted that there must be an intention to resist by force or an attempt to excite resistance by force before the offence could be brought under the present section. The peculiarity of the law of treason in 8 Arnab Ganguly, PM Narendra Modi says sedition law has been scrapped. Here's why he's right and wrong, THE TELEGRAPH (May 16, 2023), https://www. telegraphindia. com/india/prime-minister-narendra-modi-sayssedition-law-has-been-scrapped-heres-why-hes-right-and-wrong/cid/2044858 (last visited Sept. 13, 2024). 9 Bhartiya Nyaya Sanhita, 2023, PRS LEGIS.
RSCH. INDIA, https://prsindia. org/billtrack/the-bharatiya-nyayasanhita-2023 (last visited Sept. 13, 2024). 10 Roger B. Manning, “The Origins of the Doctrine of Sedition. ” 12 (2) Albion: A Quarterly Journal Concerned with British Studies,(1980): 99–121. https://doi. org/10. 2307/4048812. 11 Malavika Parthasarathy, Sedition Law in India: A Timeline, Supreme Court Observer (Apr. 27, 2022), https://www. scobserver. in/journal/sedition-in-india-a-timeline/.
England is that it considers every thought of the heart criminal, which is to be punished as soon as it is manifested by any overt act, but the clause as it stands insists on a distinction between disaffection and disapprobation. A person may freely say what he pleases about any Government measure or any public man as long as it is consistent with a disposition to render obedience to the lawful authority of Government. This interpretation has been further refined and made narrower in post-independence India. When the history of doctrine of sedition is traced in post-independence India, it is abundantly clear that the courts have over time preferred a narrower interpretation of the sedition provision, giving preference and protection to freedom of speech. For example, in the 1962 Kedar Nath Singh v.
State of Bihar ruling, the Supreme Court ruled that the only speech that qualifies as sedition is that which incites violence. It takes more than advocacy to qualify as sedition. 12 Further, Supreme Court again in Balwant Singh v. State of Punjab reiterated that a more overt act was necessary for sedition, hence simply using anti-national slogans did not qualify as sedition. 13 From Sedition to Silence: How S. 152 retains the offence of Sedition A cursory reading of S. 124A of IPC and S. 152 of BNS reveals five types of changes in the old
and new provision. One, the meaning and scope of the term ‘subversive activities’ have been left vague and ambiguous. Two, the object of harm has changed from ‘government established by law’ to ‘sovereignty, or unity and integrity of India’. Three, the element of ‘Mens Rea’ has formally been added to the provision by including the terms ‘purposely or knowingly’ in the statute. Four, the punishment of the offence has been changed from imprisonment for life, imprisonment for up to three years, or a fine to life imprisonment, or, imprisonment up to seven years. Five, the statute has been given wider powers by including digital media and financial means in its ambit.14 These developments are eerily close to the pattern of omitting sedition laws and replacing them with far more draconian laws having the similar objective of repressing political dissent.
12 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (India).
13 Balwant Singh v. State of Punjab, (1995) 3 SCC 709 (India).
14 Criminal Law Bills 2023 Decoded #8: Sedition, Recast – Implications of Clause 150 of the BNS 2023, PROJECT 39A (Sept. 14, 2023), https://p39ablog.com/2023/09/criminal-law-bills-2023-decoded-8-seditionrecast-implications-of-clause-150-of-the-bns-2023/
Alarm bells are already being raised over the very valid concern that the language used in the new provision effectively removes the safeguards that the sedition law of S. 124A enjoyed by virtue of judicial pronouncements.15 The 152 year old provision
for all its flaws had at the very least, developed a very sound jurisprudence foundation for itself. However, the new language of the provision of Sec 152 BNS, using ambiguous terminology like "secessionist feelings" and "subversive activities," makes the judicial precedents regarding sedition until now obsolete. UAPA: The true successor of the colonial era sedition laws On the other hand the true successor of colonial era sedition laws survives in the form of ‘Unlawful Activities (Prevention) Act’. The chilling similarity between these two laws is that of preventive detention. While neither S. 124A of IPC nor S.152 of BNS has the provision of preventive detention built into in it , on the other hand UAPA does utilise the mechanism of preventive detention. 16 S. 217 (1)(a) of Bhartiya Nagarika Suraksha Sanhita, 2023 lays down a peculiar rule, that is,
the courts can take cognizance of a case of sedition only with the previous sanction of the central government or the state government. This provision effectively shapes sedition law into a political tool used exclusively at the executive’s discretion. 17 This has been a sharp criticism of the sedition law. However, it is important to note that harsher laws like UAPA, NSA etc have many more provisions to align these laws as executive tools.
For example in UAPA provisions like, the authority of the police to make arrests, conduct searches, and seize the property (Sections 43A and 43B), makes all offences punishable (Section 14, 43D [1]), lengthens the period of detention (Section 43D [2]), limits the ability of the court to require that defendants appear for trial (Section 43D [3]), prohibits anticipatory bail (Section 43D [4]), tightens the restrictions on (Section 46)18, give executive much more wider power than S. 217 (1)(a) of 15 Chitranshul Sinha, Opinion, Sedition law is not gone, it's set to be more draconian, INDIAN EXPRESS (Aug. 22, 2023), https://indianexpress. com/article/opinion/sedition-law-is-not-gone-its-set-to-be-more-draconian- 8889139/ 16 C. Raj Kumar, Human Rights Implications of National Security Laws in India: Combating Terrorism While Preserving Civil Liberties, 33 DENV. J. INT'L L. & POL'Y 195 (2005).
17 Anushka Singh, The Law of the Executive Sedition and Its Political Functions, 57 ECON. & POL. WKLY. 26 (2022).
18 Vareny Chaudhary, UAPA: A Critical Appraisal, 3 JUS CORPUS L.J. 592 (2022),
https://www.juscorpus.com/utapa-a-critical-appraisal
BNSS can ever bestow on the executive. Conclusion The arguments presented in this essay represent only a fraction of the potential discourse supporting the assertion that sedition laws, whether embodied in Section 124A of the Indian Penal Code or Section 152 of the Bhartiya Nyaya Sanhita, , despite their apparent incompatibility with the principles of liberal democracy, remain preferable to the more deleterious effects of anti-terror legislations. While a more comprehensive analysis encompassing additional arguments is possible, it extends beyond the scope of this essay. Based on the limited research conducted within the confines of this study, it can be concluded that the outright abolition of these laws might create a legislative vacuum, potentially leading to the implementation of more draconian measures.
Paradoxically, despite their apparent conflict with freedom of speech, these sedition laws may be preferable to more stringent legislation such as the Unlawful Activities (Prevention) Act or other anti-terror statutes. This nuanced perspective underscores the complexity of balancing national security concerns with fundamental democratic freedoms.
Bibliography
1. CONSTITUENT ASSEMBLY DEBATES 30 (Dec. 1, 1948) (speech by K.M. Munshi),
http://loksabhaph.nic.in/writereaddata/cadebatefiles/C01121948.html. (last visited Sept. 3, 2024)
2. Anushka Singh, The Law of the Executive Sedition and Its Political Functions, 57 ECON.
& POL. WKLY. 26 (2022).
3. Arnab Ganguly, PM Narendra Modi says sedition law has been scrapped. Here's why he's
right and wrong, THE TELEGRAPH (May 16, 2023), https://www.telegraphindia.com/india/prime-minister-narendra-modi-says-sedition-law-hasbeen-scrapped-heres-why-hes-right-and-wrong/cid/2044858. (last visited Sept. 9, 2024)
4. Balwant Singh v. State of Punjab, (1995) 3 SCC 709 (India).
5. Bhartiya Nyaya Sanhita, 2023, PRS LEGIS. RSCH. INDIA,
https://prsindia.org/billtrack/the-bharatiya-nyaya-sanhita-2023 (last visited Sept. 13, 2024). (last visited Sept. 27, 2024)
6. C. Raj Kumar, Human Rights Implications of National Security Laws in India: Combating
Terrorism While Preserving Civil Liberties, 33 DENV. J. INT'L L. & POL'Y 195 (2005).
7. Chitranshul Sinha, Opinion, Sedition law is not gone, it's set to be more draconian,
INDIAN EXPRESS (Aug. 22, 2023), https://indianexpress.com/article/opinion/sedition-lawis-not-gone-its-set-to-be-more-draconian-8889139/. (last visited Sept. 13, 2024)
8. Criminal Law Bills 2023 Decoded #8: Sedition, Recast – Implications of Clause 150 of the
BNS 2023, PROJECT 39A (Sept. 14, 2023), https://p39ablog.com/2023/09/criminal-lawbills-2023-decoded-8-sedition-recast-implications-of-clause-150-of-the-bns-2023/. (last visited Sept. 10, 2024)
9. India's Freedom Fighters Fought Sedition Law, DECCAN CHRON. (Oct. 20, 2019),
https://www.deccanchronicle.com/opinion/op-ed/201019/indias-freedom-fighters-foughtsedition-law.html. (last visited Sept. 12, 2024)
10. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 (India).
11. Roger B. Manning, The Origins of the Doctrine of Sedition, 12 ALBION 99 (1980).
12. Sarah Sorial, Can Saying Something Make It So? The Nature of Seditious Harm, 29 LAW
& PHIL. 273 (2010).
13. Sedition Cases: Gandhi's Trial 1922, INDIAN CULTURE PORTAL,
https://amritmahotsav.nic.in/district-reopsitory-detail.htm?25142. (last visited Sept. 3, 2024)
14. Terrorism Law and the Erosion of Free Speech in the UK, VERFASSUNGSBLOG (Feb.
4, 2022), https://verfassungsblog.de/os4-uk/ . (last visited Sept. 1, 2024)
15. Union of India Aff. 2:3, S.G. Vombatkere v. Union of India, (2022) SCC OnLine SC 511
(India).
16. Vareny Chaudhary, UAPA: A Critical Appraisal, 3 JUS CORPUS L.J. 592 (2022),
https://www.juscorpus.com/utapa-a-critical-appraisal. (last visited Sept. 30, 2024)