Is it Anti National? or Anti Government?: Tracing the Jurisprudence of sedition from its colonial legacy to the modern-day offence.

Introduction:

The freedom of expression in a democracy plays a key role in forming the pubs on social, political and economic issues,[1] the principle of human law, a natural right and the likes of which has been defined in different ways.[2] A large number of international organizations have considered freedom of speech and expression as a fundamental right. The Indian Constitution also guarantees its citizens the freedom of speech and expression under Article 19 (1) (a) of the Constitution of India and the Preamble itself guarantees to its citizens, “The Liberty of thought, expression, belief, faith and worship”. It includes the right, in any media such as words of the voice, prints, etc., to express one’s opinion. It also encompasses the right to contact and to publish or propagate views.

However, the right to free expression also raises complex issues, such as the degree to which the government should control individual conduct. Since individual autonomy is the bedrock of this freedom, any infringement on it is closely scrutinized. Article 19 (1)(a) provides that the citizens shall have the right to freedom of speech and it should always be within the permissible limits prescribed under Article 19(2) in the form of reasonable restrictions on public order, security of the state, defamation, decency and integrity of India. This article examines sedition as established by Section 124A of the Indian Penal Code in pre and post-constitutional times and the relationship between the right to free expression and sedition.

This right can still be subjected to reasonable limitations in order to ensure that it is exercised responsibly and that all people have equal access to it. Section 124A of the Indian Penal Code, 1860, defines sedition as a criminal offence. The importance of this segment in an independent and democratic India has been the subject of ongoing debates. Many who oppose it, see it as a remnant of colonial legacy, unfit for democracy. There is a concern that the government will use this clause to silence critics.

ANALYSIS OF SECTION-124 A IPC DURING PRE-CONSTITUTIONAL ERA

In India, Section 124A was often used to suppress political opposition. Mr Jogendra Chandra Bose was charged with sedition for opposing the age of Consent Bill and the negative effect of British colonialism on the Indian economy. While directing the jury on the case, the Court noted that the offence stipulated under Section 124A IPC was milder than in England, where any overt act in response to a seditious feeling was punishable, whereas, in India, only actions performed with the intent to resist by force or an attempt to excite resistance by force were punished [3]. This case was a forerunner to a peculiar type of colonial power-play in which laws were given broad and ambiguous meanings in order to trap Indian dissidents, as happened in Tilak’s 1897 trial. In Queen Empress vs Bal Gangadhar Tilak[4] , The defendant was allegedly charged with sedition for publishing an article in a newspaper inciting the overthrow of British rule by citing the example of the great Maratha warrior Shivaji. In this case, the term “disaffection” was broadly interpreted to include hate, enmity, dislike, animosity, disdain, and every other kind of ill-will against the government. Disloyalty is perhaps the strongest general concept, encompassing all possible forms of hostility toward the government.

Following the Tilak decision, two landmark decisions were issued: Queen Empress v. Ramchandra Narayana[5] and Queen Empress v. Amba Prasad[6]. In the Ramachandra case, the Court attempted to define the term “attempt to excite feelings of disaffection against the government” as an “attempt to produce hostility towards the government as defined by statute, to excite political resentment and alienate people from their allegiance.” However, the Court clarified that any such act does not constitute disaffection if the accused is loyal at heart and eager to follow and support the Government. The same interpretation was used in the Amba Prasad Case.

These cases highlighted the uncertainty caused by the explanation when defining the word disaffection. To avoid any more misinterpretations in the reading of Section 124A, the legislature added Explanation III to the section, which omitted “comments expressing disapprobation” of the Government’s behavior but do not intend to contribute to an offence under the section. The legislature’s main goal in including this explanation was to make the law more concise. The concept of sedition acted as an important tool in the hands of the British government particularly used to instill a fear in the minds of the people from raising voice against their rule.

ANALYSIS OF SECTION-124 A IPC DURING POST-CONSTITUTIONAL ERA-

While the framers of the Constitution did not approve of sedition as a limitation on freedom of speech and expression, it remained in the penal law after independence. The section was first brought up for consideration after independence in the landmark case of Romesh Thapar v. State of Madras[7]. The Apex Court held that unless the freedom of speech and expression threaten the ‘security of or tend to overthrow the State’, any law imposing restriction upon the same would not fall within the purview of Article 19(2) of the Indian Constitution. Following the ruling in Tara Singh Gopi Chand v. The State[8], the Punjab High Court ruled that the 124A was unconstitutional because it expressly violated Article 19(1)(a) of the Constitution, observing that “the law of sedition, though necessary during the time of foreign rule, has become inappropriate now by the very nature of the reform which has occurred.” Since the Supreme Court had held in Romesh Thapar that freedom of speech and expression could be restricted on the grounds of threat to national security and for serious aggravated forms of public disorder that endanger national security, two additional restrictions were added to Article 19(2) in 1951 by the 1st amendment to the Constitution, namely, “friendly relations with foreign states” and “public order.” The concept of sedition was a given a wider interpretation and a proper concept of sedition was evolved through these judgements.

However, in the Kedar Nath Singh Case[9], another landmark judgement, where the constitutional validity of sec. 124A was questioned again, and the constitutional bench upheld the validity of sec. 124A but placed it on a different pedestal this time. The Court distinguished between “the Government established by law” and “the individuals for the time being engaged in carrying on the administration,” holding that “the Government established by law is a recognizable emblem of the State. “The State’s very existence would be jeopardized if the law-enforced government is overthrown, so its continued existence is a necessary condition for the State’s stability.

At the same time, Court also tried to strike a balance between the right to free speech and expression and the power of the legislature to restrict such right observing thus that “the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing offences against the State, is undertaken. Such legislation has on another hand, fully protect and guarantee the freedom of expression, which is the sine quo non of a democratic form of the Government that our Constitution has established. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.” The public disorder has been considered to be a necessary ingredient of sec. 124A after this judgment and it also became necessary to establish that the accused has actually done something, which would threaten the existence of the Government established by law or might cause disorder[10]

Unlike the other existing legislation, sedition places an unfair constraint on freedom of expression. Article 19(2) includes limitations on the proper functioning of the State that is fair. Democracy and other major aspects of freedom of expression, such as public order, external relations and national security, protected by Article 19, have to be governed by law. However, anarchic law like sedition, which was sanctioned as an offence under the Indian penal code of section 124A, continues to unreasonably limit freedom of speech and expression.

FREEDOM OF SPEECH AND SEDITITON

The Right to freedom of speech and expression is both a legitimate right and a legal obligation, with the aim of fostering peace and a spirit of mutual brotherhood among all Indians, regardless of religious, linguistic, or regional differences. In order for a person to freely exercise his right to free expression, others must uphold their basic responsibilities and when another person’s obligation is enforced will one’s right be enforced. One pays the price for another’s right, and the cycle continues. If one of the parties fails to pay for another’s privilege, the same will be mirrored, resulting in the privilege’s extinction in respect of both.

In today’s world, freedom of expression has come under intense pressure and has been severely curtailed. Without a doubt, freedom of speech has gained a sense of flexibility and has been subjected to a lot less restrictions in comparison to the pre-independence era; nevertheless, there have been many attempts by power wielders, primarily politicians, to restrict this freedom to their advantage by exploiting the bewilderment of the masses and further alienating them under various authors, journalists, activists, and film directors have been the hardest hit by the crisis.

Media, being the fourth pillar of democracy is collaterally intertwined with our subject. Several journalists have been deprived of their basic rights in their pursuit of exposing the truth and exercising freedom of press. Eminent journalists, including Sandeep Sharma, an investigative journalist reporting on unabated illegal sand mining and the alleged involvement of police in the same, who was crushed by a truck in Bhind, Madhya Pradesh; and Patricia Mukhim, editor of the Shillong Times, who had a petrol bomb thrown at her home, are few among the many, to have been subjected to aggravated threats, and while some have been killed, others have been fomented.

In the case of S. Khusboo v. Kanniamal & Anr.[11], the Supreme Court observed that morality and crime do not co-exist and that the free flow of ideas in a society makes its citizens well educated, which results in good governance. For the same reason, it is important that people are not constantly threatened with dire consequences for expressing their opinions that differ from the widely-held current viewpoint. highlighting the significance of free expression. In this case sec. 66A of the Information and Technology Act of 2000 was ruled unconstitutional because it was in direct conflict with the fundamental right of free expression.

Any speech, in general, cannot be said to be harmful in and of itself. Although it is true that many types of speech are intended to incite hate in the listener, this alone does not provide a valid basis for prohibiting and penalizing speech, as the law is very ambiguous on the details of what constitutes speech worthy of punishment. Under sec 124A the statement:

“brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government of India”

Doesn’t specify what constitutes “hatred” or “contempt,” all of which have a broad definition. Whether or not a speech succeeds in inciting hate, the attempt itself is punishable. This law is too vague in nature, and it is an anarchic law that was imposed prior to independence in order for imperialists to exert power over colonies, and it has no place in an independent democratic country. Expression cannot be restricted in a democracy solely because it is hateful. Hatred and disdain are, to a large degree, contextual and context-dependent. With the broad spectrum of the definition, the Judiciary has a vital role to play in being impartial in literal and grammatical interpretation of the scenarios based on individual circumstances.

The four purposes of free speech and expression were laid out in Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India[12]: (a) it helps an individual to attain self-fulfillment, (b) it assists in the discovery of truth, (c) it strengths the capacity of an individual in participating in decision making and (d) provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. After discussing the significance of freedom of speech and expression, it is impossible to deny that the right to freedom of speech and expression alone is insufficient. It must be known that in order to talk or articulate a feeling, one must be aware of their surroundings. The “harm principle,” which states that a speech cannot be silenced unless it causes some kind of harm, is another crucial point to remember. The “harm principle” allows the state to place some limitations on the right to free speech. However, the barometer by which this harm is to be measured must be extremely high. The harm must be so severe that it threatens the society’s very existence; it must disrupt public order and result in anarchy in the society[13].

Conclusion:

Sedition finds no relevance in our nation owing to the essential factor of our polity being a democracy, by no means can speech of the citizens be restricted. Any such restriction has the potential to shake the pillars of the democratic setting. Where there are specific offences for grave misuse of freedom of speech, there need not be another general restriction in vague terms like “disaffection”, “disloyalty”, “hatred”, “contempt” as provided under sec 124A which tend to have a subjective application and impede the general flow of free opinion exchange, thereby posing a great threat to the proper functioning of a democracy. In fact, certain subjective factors cannot be violated because people all view the same offence in different ways and until the cases that take long due to the rise in small claims for seditive material are resolved, a gross limit will be impaired on the free expression of those charged before an appropriate decision is taken.

The true test of a vibrant democracy lies in the independence of its media. But according to popular public opinion the media today is divided into Pro-government and Anti-government and function for popularity instead of welfare. With this being said, certainly, the exposition of truth should not be counted in as an infringement of free speech. Freedom of expression is a complex right as freedom is not absolute. People should be encouraged to give unbiased opinions and media to act as a bridge between the leaders and the public, all this within the ambit of restrictions and responsibilities that work hand in hand with the right.

[1] UOI v. Naveen Jindal, (2004) SC 1559.

[2] Dharam Dutt v. Union of India, AIR 2004 SC 1295.

[3] Queen Emperor v. Jogendur Chandra Bose, (1892) 19 ILR Cal 35

[4] Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.

[5] Queen Empress v. Ramchandra Narayana, ILR (1898) 22 Bom 152.

[6] Queen Empress v. Amba Prasad, ILR (1897) 20 All 55.

[7] Romesh Thapar v. State of Madras, AIR 1950 SC 124

[8] Tara Singh Gopi Chand v. The State, AIR 1951 Punj. 27

[9] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 95

[10] Bilal Ahmed Kaloo v. State of Andhra Pradesh, AIR 1997 SC 3438.

[11] S. Khusboo v. Kanniamal & Anr., AIR 2010 SC 3196

[12] Indian Express Newspaper (Bombay) (P) Ltd. v. Union of India, AIR 1986 SC 515