Sedition – Section 124A IPC

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Sedition

Section 124A defines the offence of sedition. The section has had a chequered career and a historical genesis would reveal the various changes it has undergone through legislative amendments and judicial interpretation.[1] This section corresponded to section 13 of Marclay’s Draft Penal Code, 1837. However, it could not find a place in the Penal Code but was subsequently added by the Indian Penal Code (Amendment) Act, 1870. It got its modern shape by the IPC Amendment Act, 1898. Certain minor changes were made in 1937, 1948, 1950 and by the Part B States (Law) Act, 1951 respectively.

 Types of Sedition

Five heads of sedition can be enumerated depending upon the object of the accused:-

  • Exciting disaffection against the King, Government, Constitution, Parliament or administration of justice;
  • Promoting any alteration in Church or State by unlawful means;
  • Inciting disturbance of the peace;
  • Raising discontent among the King’s subjects; and
  • Exciting class hatred[2]

 Meaning of Hatred or Contempt

Hatred implies an ill will, while contempt implies a low opinion. Both of them are a state of mind in relation to the object. When this hatred or contempt relates to the State or an established form of government is punishable under the section. Hatred or contempt towards the government may be created by writing, imputing to the government base, dishonourable, contemptuous, malicious motives in the discharge of its duties or by writing that unjustly accuses the Government of hostility or indifference to the welfare of the people.[3]

 Meaning of Disaffection

Disaffection, as stated by explanation 1 of section 124A, includes disloyalty and all feelings of enmity. The courts have defined disaffection as follows:-

  • The meaning of disaffection is contrary to that of affection, i.e. dislike or hatred.
  • It means hatred, enmity, hostility, contempt and every form of ill-will to the government.
  • It symbioses political alienation or discontent.
  • It is a positive political distemper, and not a mere absence or negation of love or goodwill.

 Constitutional Validity of Section 124A

After the Constitution of India came into operation an important question relating to the constitutionality of section 124A, IPC vis a vis article 19 was raised in few cases leading to a conflict of decisions in High Courts. In Tara Singh v State of Punjab[4], section 124A was struck down as unconstitutional being contrary to freedom of speech and expression guaranteed under article 19(1)(a). In order to avert this newborn constitutional difficulty, the Constitutional First (Amendment) Act, 1951 added in article 19(2) the terms ‘in the interest of justice’ and ‘public order’ thereby including legislative restrictions on freedom of speech and expression.

The Supreme Court in Kedarnath v State of Bihar[5] ruled that section 124A, IPC to be intra vires of the Constitution. The Court held that any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. The right guaranteed under article 19(1)(a) is subject to such reasonable restrictions as would come within the purview of clause (2).  With reference to the constitutionality of section 124A of the IPC, as to how far they consistent with the requirements of clause (2) of article 19 with particular reference to security of the State and public order, the section, penalizes any spoken or written words or signs or visible representations, etc., which have the effect of bringing, disaffection towards ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration.[6] ‘Government established by law’ is the visible symbol of the State. The very existence of the State would be in jeopardy, where the Government established by law is subverted.

 History of Sedition Laws in India

The most celebrated cases of sedition laws arose under the British colonial rule and against the freedom fighters. In 1897,Bal Gangadhar Tilak was booked for sedition. His speeches deemed to have provoked violent behaviour of others. As a result, two British officers lost their lives. He was convicted but released on bail in 1898.

In Emperor v Mohandas Karamchand Gandhi and Shankarlal Ghelabhai Sankar[7], Gandhiji, being the editor of the paper ‘Young India’ along with Shankarlal Ghelabhai Sankar printer and publisher were charged under section 124A for bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards His Majesty’s Government established by law in British India, by means of the written words contained in the articles “Tampering with Loyalty” (29th September, 1921), “The Puzzle and its Solution” (15th December, 1921), and “Shaking the Manes” (23rd February 1922) published at Ahmedabad.[8] He was sentenced to six years of simple imprisonment.

 Section 124A vis-à-vis Freedom of Speech and Expression

Article 19(1)(a) secures to every citizen the right to freedom of speech and expression. It means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures or any other mode.[9] The freedom of speech and expression does not confer 1) an absolute right to speak or publish, without responsibility, whatever one may choose, or 2) an unrestricted or unbridled licence that gives immunity for every possible use of language, and 3) does not prevent punishments for those who abuse this freedom.[10] Clause (2) of the article lists the grounds on which the freedom can be restricted.

“In the Draft Constitution, one of the heads of the restrictions proposed on freedom of speech and expression was ‘sedition’.KM Munshi opposed the inclusion of “sedition” in the Draft Constitution as a restriction on freedom of speech and expression. During the debates in the Constituent Assembly, in view of the bitter experience of the arbitrary application of the sedition law by the colonial regime against nationalist leaders, Jawaharlal Nehru amongst others, agreed with Munshi and deliberately omitted ‘sedition’ as one of the permissible grounds of restriction under Article 19(2). However, sedition remained a criminal offence in the IPC Section 124-A and provides inter alia for the sentence of life imprisonment and fine upon conviction.”[11]

 Position in United States

Section 2385 of the US Code deal with advocating the overthrow of the government. It states that any person “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government by force or violence, or by the assassination of any officer of any such government; intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons[12] is said to have committed sedition.

 Position in Netherlands, Indonesia and South Korea

Articles 111-113 of the Dutch Penal Code criminalizes any insult done to the King, the Heir Apparent and their spouse. In Indonesia, sedition is unconstitutional. Similar is the position in South Korea.

Position in Malaysia

The Malaysian Sedition Act, 1948 comprises of laws on sedition against any ruler, ruling government, administration of justice and rights & privileges under the Federal Constitution; as well as prohibitions on racial hate-speech.

Position in New Zealand

Sedition is not a crime with the enforcement of The Crimes (Repeal of Seditious Offences) Amendment Bill in January 2008.

 Position in United Kingdom

Sedition and seditious libel have been decriminalized with the passage of the Coroners and Justice Act 2009 (section 73). It came into force from 12th January 2010. However, it is an offence when committed by an alien (not a national of the country).

Illustrations

Illustration 1: Kanhiya Kumar

The much-celebrated incident of sedition was when a JNUSU leader was accused of shouting anti-India slogans at an event on the Parliament bomb blasts mastermind Afzal Guru. 10 students of the said University had organized an event to protest against the death penalty awarded to Afzal Guru and Maqbool Bhat and support “the struggle of Kashmiri people for their democratic right to self-determination”.[13]Both of them were Kashmiri separatist convicted of participating in the 2001 Parliament attack. his execution in 2013 had drawn criticism for being carried out in secret.Posters advertising the event had invited people to attend a protest march against the “judicial killing of Afzal Guru and Maqbool Bhatt.”[14] The posters also mentioned an exhibition of art and photographs about the history of the occupation of Kashmir and the struggles of its inhabitants.[15] The Vice-Chancellor and Registrar of the University withdrew permission for the event. The students resorted to freedom of speech and thereby continued with it. Instead of a protest, there was a cultural programme, and an art and photo exhibition. Various groups clashed towards the end of the program. A small group of people raised slogans like “Kashmir Ki Azadi tak jung chalegi, Bharat ki barbadi tak jung chalegi“. However, the sloganeers were not identified.

Illustration 2: Aseem Trivedi

Aseem Trivedi, the cartoonist was booked for sedition for his cartoons for sending offensive messages under the Information Technology Act and under the law for Prevention of Insults to National Honour.[16] He is said to put up banners derisive the Constitution of India at the rally of Anna Hazare. Simultaneously, he posted the same on social media.The complainant took particular exception to Mr Trivedi’s cartoon showing the national emblem with three wolves instead of lions and the words Bhrashtameva Jayate (only corruption triumphs) instead of Satyameve Jayate.[17]

Illustration 3: Arundhati Roy

Arundhati Roy along with the Hurriyat leader Syed Geelani was booked under sections 124A (sedition), 153A (promoting enmity between classes), 153B (imputations, assertions prejudicial to national integration), 504 (insult intended to provoke breach of peace) and 505 (false statement, rumour circulated with intent to cause mutiny or offence against public peace)[18] of IPC by the Delhi Police. A petition was filed by Sushil Pandit alleging that Geelani and Roy made anti-India speeches at a conference on “Azadi-the Only Way” on October 21, 2010. Thus, the local court directed for the filing of the FIR.

Illustration 4: Praveen Togadia

The government of Rajasthan slapped sedition charges on the Fire brand VHP leader in 2003 for defying a state ban. He violated the ban order issued by the state government for displaying, possessing and carrying of sharp-edged weapons(tridents)[19] to Bajrang Dal members. One of the charges included was an attempt “to wage a war against the nation.”The court also referred about the provocative speech of Togadia delivered during the trial Diksha ceremony in which the tridents were distributed to VHP workers.[20] The then Chief Minister Ashok Gehlot took the stand that the ban was to curb communal violence in the state and therefore, it was justified. The charges against Togadia were also justified since his speeches were aimed at disturbing peace in the state.[21] 

Frequently Asked Questions (FAQs)

  1. What does sedition mean?

Sedition is nothing but libel (defamation) of the established authority of law, i.e. Government. Hence, it is called seditious libel in England. In the ordinary sense, sedition means, a stirring up of rebellion against the government.[22] However, in legal terminology, it includes all those acts and practices which have for their object to excite discontent or dissatisfaction towards the Constitution, the Government or the Parliament to create a public disturbance, or to lead a civil war, and generally all endeavours to promote public discord and disorder.[23]

  1. What is sedition and treason?

Generally, sedition is limited to the offence of organizing or encouraging opposition to the government in a manner (such as in speech or writing) that falls short of the more dangerous offences constituting treason.[24] Under English law, treason includes the levying of war against the government and the giving of aid and comfort to the monarch’s enemies ort to violate the monarch’s consort, eldest unmarried daughter, or heir’s wife.[25]Treason against the United States “shall consist only in levying War against them, or in adhering to their Enemies, giving them aid and comfort.”

  1. What constitutes sedition?

The following ingredients u/s 124A constitute sedition:-

  • “Bringing or attempting to bring into hatred;
  • Exciting or attempting to excite disaffection against the Government of India;
  • Such act or attempt may be done (a) by words, either spoken or written, or (b) by signs, or (c) by visible representation; and
  • The act must be intentional.”[26]
  1. Why sedition act should be abolished?

The section has been found by the courts to be defective because the pernicious tendency or intention underlying seditious utterances have not been expressly related to the interests of integrity or security of India or of public order.

Another lacuna, as pointed by the Law Commission of India, is that the definition of sedition does not take into consideration disaffection towards (a) the Constitution, (b) the legislatures, and (c) administration of justice, all of which would be as disastrous to the security of the State as disaffection towards the executive Government.[27]

[References]

[1]K.D.Gaur, Textbook on Indian Penal Code, (5th edition, Universal Law Publication, 2015) at pg- 220.

[2] Stephen, Commentaries on the Laws of England, (1950), Vol. IV, pp. at pg-141 and 142.

[3]Annie Besant v Advocate General of Madras, AIR 1919 PC 31: (1919) 21 BOMLR 867.

[4] AIR 1951 Punj 27.

[5] AIR 1962 SC 955: (1962) 2 Cr LJ 103: 1962 Supp (2) SCR 769: 1963 (1) SCJ 18.

[6]Supra note 1 at 235.

[7] Session Case No. 45/1922 Ahmedabad.

[8] Supra note 1 at pg-266.

[9] V.N. Shukla’s, CONSTITUTION OF INDIA, (13th Edition, EBC Publication Ltd., Lucknow, 2015) at pg-136.

[10]Romesh Thapar v State of Madras, AIR 1950 SC 124: 1950 SCR 594.

[11] Soli J Sorabji, The Limits Of Freedom, Indian Express, 30th Jan 2018. Retrieved on 17/08/18 from https://indianexpress.com/article/opinion/columns/sedition-law-constitution-law-freedom-of-speech-5044091/.

[12]18 U.S. Code § 2385 – Advocating overthrow of Government, Legal Information Institute, Cornell Law School. Retrieved on 05/08/18 from https://www.law.cornell.edu/uscode/text/18/2385.

[13] Afzal Guru: A martyr in JNU campus? Anti-India slogans raised, no arrests made, India Today, 11th Feb 2016. Retrieved on 17/08/18 from https://www.indiatoday.in/education-today/news/story/jnu-afzal-guru-308204-2016-02-11.

[14] Ibid.

[15] Ibid.

[16] Amit Chaturvedi, Who is AseemTrivedi?, 11th Sep 2012. Retrieved on 16/08/18 from https://www.ndtv.com/people/who-is-aseem-trivedi-498996.

[17] Ibid.

[18] Sedition case registered against Arundhati Roy, Geelani, 29th Nov, 2010. Retrieved on 16/08/18 from https://www.ndtv.com/india-news/sedition-case-registered-against-arundhati-roy-geelani-440611.

[19] Sedition charge against Togadia, 17th Apr 2003. Retrieved on 17/08/18 from https://timesofindia.indiatimes.com/india/Sedition-charge-against-Togadia/articleshow/43611076.cms.

[20] Ibid.

[21]Ibid.

[22]Kedarnath Singh v State of Bihar, AIR 1962 SC 955 (1962) 2 Cr LJ 103: 1962 Supp (2) SCR 769: 1963 (1) SCJ 18.

[23] Webster’s Third New International Dictionary (G.C. Merriam Co., USA, (1976), pg-652.

[24]Sedition. Retrieved on 05/08/18 from https://www.britannica.com/topic/sedition.

[25]Treason. Retrieved on 05/08/18 from https://www.britannica.com/topic/treason.

[26]Supra note 1 at pg-221.

[27] Supra note 1 at pg-235.

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