IS SEDITION LAW U/S 124 A OF IPC AN UNNECESSARY BAGGAGE

There has been some clamour about 124 A of Indian Penal Code relating to sedition every now and then. It is often debated whether the said section 124 A of Indian Penal Code , being a colonial legacy has outlived its legacy and needs revisiting. In fact, some people seek its repealing. The matter is currently pending before hon’ble Supreme Court.  In this backdrop, discussion on it shall throw light on the issue.

The bunch of petitions are pending before hon’ble Supreme Court, thereby contending that use of sedition offence u/s 124 A of IPC is used to intimidate, silence and punish journalists, free speech has continued unrestrained and the lived experience of the last six decades, leads to an irresistible conclusion that unless the impugned provision is deleted from the IPC, it will continue to "haunt and hinder" the full realization of the right to free speech and the freedom of the press. The use of sedition as offence is to intimidate, silence and punish journalists and it has continued unrestrained and the lived experience of the last six decades.

Before going further, the provision may be reproduced as under:

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, ¹⁰² [***] the Government estab­lished by law in ¹⁰³ [India], [***] shall be punished with ¹⁰⁴ [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.

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.]

 

The Section needs further dissection in as much as cases under this section shall be triable by courts of Session. The punishment under this sections are prescribed as under:

(i)          Life Imprisonment and Fine, or

(ii)        Imprisonment of three years and fine or

(iii)       Fine

From the bare perusal of the punishment prescribed it is manifest that the maximum punishment is Life imprisonment, the punishment meted out could be three (3) years imprisonment with fine in both terms as per above or there may be imposition of fine only. The punishment prescribed is from mere fine to life imprisonment. The case is session triable that means a senior judge in the hierarchy shall hear the case and the discretion accorded to the Sessions court is vast and even if a person is not discharged, even after trial, assuming there is no acquittal, there are scope or prospect of lesser punishment and the punishment may even be restricted to fine.

It is also worthwhile to mention that explanation makes the section more explicit in as much as disaffection includes ‘disloyalty” and all feeling of enmity. As per explanation 2 to the section comments expressing disapprobation of the measure of 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. The same covers the comments expressing disapprobation of the administrative or other action of government as well and shall not amount to offence.

Assuming anyone is falsely implicated in a case, then, in order to obtain bail, the accused may  appear in courts of law and if prima facie no case is made out, he will be entitled to bail. Moreover, the trap of criminal law may itself entail that even if charge sheet is filed, if prima facie, no offence is made out, the accused could be discharged. Assuming that a matter goes for trial, then, even during trial, prosecution has to prove their case, beyond reasonable doubt.

In the above perspective, when there is complete safeguard, to seek abrogation or repeal of section 124 A IPC may not be justified. The law is equal to all and if aggrieved everyone is entitled to approach courts of law and no one or no class can claim unbridled rights and better rights over others. So long a provision is in the statute book, if allegation is made, the legal course shall follow and recourse to law is available to all. No one can claim their act to be sacrosanct. The third pillar i.e judiciary, is there to safeguard and also to negate the over doings and mala fides of government of the day.

MERE CRITICISM: NO OFFENCE

What is pertinent in the context is that whether criticizing any policy or commenting about alleged mishandling of any crisis by a government of the day, could be construed as falling under section 124 A of IPC. Well, that shall not be, as the terms ingrained under the section itself does not make such criticism as an offence. The criticism of acts of government, so long as, it does not impinge or lead to intent to incite violence, it cannot be faulted. The safeguards are inherent in the section 124 A of IPC itself, as narrated above. Moreover, as hon’ble Supreme Court is currently hearing the matter related to section 124 A of IPC and has released a journalist from Manipur, in the interim, while seeking reply from the Government/State, for the alleged criticism of inept handling of a crisis by the Government, is a testimony, that even Apex court is to the rescue of any wrongdoings of State and a citizen can raise a plea before it.

IN RETROSPECT

Interestingly the word “sedition” does not find mention in the constitution of India and that may be understood, given, the state might was used by British, against the freedom fighters. The forefathers of the constitution, therefore, may not have envisaged inserting the word in the constitution.  In the same breath, however, one cannot be oblivious to the fact that section 153 A of IPC remained in the statute book, all the while and had the government of the day, thought about doing away with the provision, the same could have been done. Another significant aspect also in this regard is constitution bench judgment of hon’ble Supreme Court upholding the provision, hence, the provision has passed muster. 

Another aspect worth-mentioning in the context is that as per 19(1)(a) of the constitution of India, when the constitution was adopted was unqualified and the right to freedom was made absolute, but that was short lived in as much as in the very 1^st amendment to the constitution, Article 191(a) was amended and Article 19(2) was amended vide which reasonable restrictions was imposed to free speech. Still further, sedition was made cognizable offence after enactment of new Cr.P.C in 1973.

The Section 124 A is part of Indian Penal Code 1860, though, not in original enactment, but vide amendment in the Indian Penal Code in 1870. This was done close on the heels of Wahabi movement and with a view to suppress the movement it. At that time, the law was used in a big measure to suppress nationalistic sentiments which was obviously, contrary to the policy of British Raj. The national renaissance was being subjugated then. The section continues there in the statute, but now, the law of sedition is not invoked to safeguard British interest, but her own national interest. India, was cobbled together. Erstwhile West part became Pakistan, and East originally, part of Pakistan but forked out as Bangladesh in 1971. The princely states merged in the Indian State. India won freedom. The law of sedition u/s 124 A of Indian Penal Code, however remained. The use of law of sedition, then and now has to be analysed in this backdrop.

Let us at the very outset bear in mind that British Government was not representing Indian masses, as the colonial power ruled India for plundering her wealth and without popular sentiments. Since 1950, when India became republic, she has matured into a vibrant democracy, represented by governments with popular mandate. The freedom movement was earlier treated as sedition and nationalistic leaders were booked under that. Now, the issue is inciting violence to overthrow the duly and popularly elected government cannot be equated with the objective of British Raj. The fact is that the government of India, all the while has retained the provision and it cannot be without reason. Merely because, the law was enacted by British, the same should not be condemned. The Indian Evidence Act, Laws related to properties, Civil Procedure Code and even Criminal Procedure Code were codified by British and the same are broadly in use, till date. In 1962, Supreme Court of India has held that the section 124 A of IPC could be used if there is illegitimate effort of overthrowing a popularly elected government or incitement of violence against state.

Top of Form

The Supreme Court has always been concerned as a custodian of law, in case of violation of fundamental rights. The observation of hon’ble Supreme Court shall suffice in some cases referred here-in-below:

In (i) AK Roy Vs. Union of India (1982) 1 SCC 271,

(ii)  Attorney General for India Vs. Amratlal Prajivandas, (1994) 5 SCC 54 and

(iii)  In M. Nagaraj & Ors. Vs. Union of India & Ors. (2006) 8 SCC 212, (para 20) the Supreme  Court observed :

"It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any Constitution by reason of the basic fact that they are members of the human race."

In I.R. Coelho (dead) By LRs. Vs. State of T.N., (2007) 2 SCC 1 The Supreme Court in paragraph no. 49 and 109 has observed :

"It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution.....Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as "transcendental", "inalienable", and primordial".

 

Coming back to the plea in bunch of petition seeking repealing of section 124 A of IPC, before hon’ble Supreme Court is, to the effect, that in view of the evolution of jurisprudence of the fundamental rights of citizens since 1970 till 2021, the impugned provision is liable to be struck down as being ultra vires, Articles 14, 19 and 21 of the Constitution.
It refers to various Supreme Court judgments starting form RC Cooper v. Union of India (1970) 1 SCC 248, where a 11-Judges Bench had held that the real test of constitutionality lay not in the object of the legislation but in the "real impact" it has on the life of an individual. The plea then refers to the Nine (9) judge constitution bench judgment in KS Puttaswamy v. Union of India (2017) 10 SCC 1, where the test of manifest arbitrariness was applied. In the said judgment, moreover, it is held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21of Constitution and as a part of the freedoms guaranteed by Part III of the Constitution.

The section 124 A of IPC has different import. Significantly, the provision was upheld by the Supreme Court in 1962 in the case of Kedar Nath Singh v. State of Bihar 1962 AIR 955, 1962 SCR Supl. (2) 769. The relevant extract from the said judgment of constitution bench (CORAM: P Bhuvneshwar Sinha CJI, S.K.,Das, J,  A.K Sarkar, J,  N Rajgoapala Ayyangar, J.R Mudholkar J. is as under:

“…..It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress….”

In the face of above, the instant plea points out that the said judgment upheld the constitutionality of Section 124A IPC when it was classified as a non cognizable offence, which is no longer valid law, as the offence of sedition is now a cognizable and non-bailable offence since 1973 under the Code of Criminal Procedure, and consequently its vires and impact on life and liberty needs fresh judicial scrutiny.

"That the three tier categorization of the punishment for the offence of sedition, ranging from life imprisonment to fine simpliciter, without any legislative guidance for sentencing, amounts to granting unbridled discretion to judges, which is hit by the doctrine of arbitrariness and violates Article 14, the plea presumably states. Furthermore, it is argued that constitutionality of sedition as a restriction on free speech does not meet the test of necessity and proportionality.

In this regard it is submitted that object of "public order" u/Article 19(2) can be achieved by less restrictive means than a provision which is so overboard and casts a chilling effect on the exercise of the right to free speech and expression.

It is also stated that issue of words like hatred, disaffection, disloyalty, etc. are incapable of precise construction, and are hit by the doctrine of vagueness and overbreadth, thereby, falling foul of Article 14 of the Constitution.

In the bunch of petition filed by People's Union for Civil Liberties (PUCL) and also by a former union minister, and set of journalists contends that the doctrine of Presumption of Constitutionality applied in the Kedar Nath Singh (Supra) judgment is no longer relevant, since the case of Navtej Singh Johar v. Union of India in WRIT PETITION (CRIMINAL) NO. 76 OF 2016  and thus, the matter requires re-consideration. 

DRAWING PARALLELS MISCONSTRUED

It appears that drawing parallel on judgment relating to section 124 A of IPC in matters captioned Navtej Singh Johar (Supra) which relates to section 377 of IPC and right to sexuality and  sexual autonomy. The Supreme Court had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality. Then, a nine- Judge Bench decision in K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1, it is opined  that sexual orientation is an essential component of rights guaranteed under the Constitution which are not formulated on majoritarian favour or acceptance. The emphasis for individual‘s freedom to conduct his sex life and personal relationships as he wishes, subject to the permitted exceptions, countervails public interest.

The context of the aforesaid judgments cannot be equated with section 124 A of IPC, which is on very different footings.

Going back to early years, just after independence, in Tara Chand Gopichand Vs State 1951 CriLJ 449 (P & H)  case that the provision was 1^st tested by Punjab & Haryana High Court and it was held that section 124 A IPC was against the fundamental rights and it was then that through the first amendment to the constitution, reasonable restriction was imposed. In 1954 the Patna High Court in a matter Debi Soren & Ors Vs State 1954 CriLJ 758 had upheld the provision 124 A IPC thereafter and it was thus held that section 124 A of IPC does not violate Article 19 1(a) of Indian constitution. Yet again Allahabad High Court in Ram Nandan Vs State, AIR 1959 All 101 had invalidated section 124 A of IPC and it was observed that government of the day should not be deterred by the criticism and should take it in their stride. Then, came, constitution bench judgment in Kedar Nath (Supra) in 1962, thereby the hon’ble Supreme Court had upheld the section 124 A of IPC and the challenge was put to rest. In the above milestone judgment, the hon’ble Supreme Court had clearly demarcated the line when it is held that law of sedition is imperative for functioning of democratically elected government and for stability and such established government by law cannot be allowed to be subverted. Moreover, the section 124 A IPC merely penalizes words that reveal intent to incite violence or breach law and order and peace. It is held that pernicious tendency to incite violence should be conspicuous to attract the provision. Thus, the safeguard to free speech as always, was considered as necessary but in the garb of that, the action with intent to de-stabilize the establishment should be actionable.

In 2011 in a matter captioned as Indra Das Vs State of Assam, 2011 (3) SCC 380 the supreme court has held that merely because, even if  someone is a member of banned organization that in itself cannot attract section 124 A and similar ratio was held in Arup Bhuyan Vs State of Assam 2011 (3) SCC 377. The involvement in inciting of violence shall be sine qua non to attract section 124 A of IPC.        

REMARK The bare perusal of section 124 A shall reveal that it has enough safeguard ingrained into it. Then, in a judicial system- preemptive, protective and even therapeutic measures are prescribed with a view to curb the misuse of provision if and when it is noticed. Even government of the day and the agency of governance such as police. if found to misuse the provision, the courts of law is there to ensure rule of law and truncating excesses. Merely because, the law is a colonial legacy, on that premise itself , the law should not be repealed. The proper use of law and its likely misuse are two faces of coin and on the presumption and some time the instance of misuse in itself should not lead to a fait accompli that the provision has outlived its utility. If there is ailment, there is cure prescribed, but there cannot be a guarantee that the illness shall not ever occur. The antidote to the prospective or probable misuse of Section 124 A of IPC in a vibrant democracy by way of another pillar existed, i.e judiciary. The sedition law has some time been used for a good measure in as much as vested interest cannot be allowed to cause detriment to national interest. In this context, for instance, section 498-A of IPC could be referred to, as it has been misused in several cases and there has been hue and cry to get rid of the law and in good measure, but the law is in statute book, as instance of misuse or probability of misuse in itself should not relegate the larger interest envisaged from the enactment. There is no denying that freedom of expression is a vital rights, but Article 19(2) of Constitution of India and element of welfare of state cannot be overlooked. Should executive err, the judiciary shall step in to set right the wrongs. Doing away with the law on the premise of its prospective misuse and some instances of misuse should not lead to repealing of law. The colonial legacy can hardly be any argument, as even as on today, we have several law  and Acts in use from colonial legacy, and in good measure.

ANIL K KHAWARE

FOUNDER & SR ASSOCIATE

Website: Societylawandjustice.com