Is There Any Place for Sedition in a Democracy?

The law criminalises any act that “excites disaffection”, irrespective of whether it instigates violence. Such a law is detrimental to free speech and does not belong in a democracy.

Over a century after the British used the law of sedition to jail Mahatma Gandhi and Bal Gangadhar Tilak, on India’s 70th independence day, the Bengaluru police filed sedition charges against Amnesty International for allowing slogans of azadi during a programme on Kashmir, although pro-Indian army slogans were reportedly also raised.

The charges against Amnesty come in the wake of  a surprising number of sedition cases in recent years. Kanhaiya Kumar was charged with sedition for raising allegedly anti-national slogans at JNU; a student in Kerala was arrested for remaining seated while the national anthem was played in a cinema hall; another student in Kerala was arrested over a Facebook post in which the words of a patriotic song had been changed to abuses; Aseem Trivedi was arrested for a cartoon on corruption; and Arundhati Roy was charged with sedition for a speech on Kashmir.

Although the charge of sedition in most of these cases have been dropped, the threat of life imprisonment can be detrimental for free speech. The law of sedition, along with criminal defamation, made criticism of the monarch and government a criminal offence. These laws should have disappeared along with the colonial era, especially, given that the Supreme Court has held over half a century ago that it is unconstitutional.

Anyone who brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India, by words spoken or written or by signs or by visible representation or otherwise, is guilty of sedition under section 124A of the IPC, punishable with life imprisonment.

Determining disaffection

Section 124A provides that ‘disaffection’ includes disloyalty and all feelings of enmity. It excludes 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. In short, “attempting to excite disaffection” is sedition irrespective of whether any disorder or violence is caused.

“Disaffection”, as explained by the learned chief justice in the Bangobasi case, 1892 while instructing the jury, “means a feeling contrary to affection, in other words, dislike or hatred… …he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection is, in fact, produced by them.” ‘Disaffection’ was further explained by the Bombay high court while instructing the jury in the Balgangadhar Tilak case, 1898, as “hatred, enmity, dislike, hostility, contempt and every form of ill-will to the government.” ‘Disloyalty’, in turn, was interpreted as “comprehending every possible form of bad feeling to the government.”

The court noted, “it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question.….For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings.” In other words, a person can be imprisoned for life only for attempting to excite feelings of ill-will or dislike or similar bad feeling towards the government, irrespective of whether said feelings are excited or not and irrespective of whether it results in public disturbance. Most troubling, in the words of the Manipur high court in the Sagolsem case, 1955, is that “even honest criticism can sometimes cause disaffection…”

Article 19(1)(a) of the constitution guarantees all Indian citizens the right to freedom of speech and expression. Article 19(2) provides that nothing in Article 19(1)(a) will prevent the state from making any law that imposes reasonable restrictions on such a right in the interests of sovereignty and integrity of the country, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. The word ‘sedition’ is not mentioned in Article 19(2). Moreover, the word ‘sedition’, which appeared in Article 13(2) of the draft constitution, was deleted before the article was finally passed as Article 19(2). Therefore, it is clear that sedition is not a basis for restricting speech under Article 19(2) of the constitution, as the framers expressly deleted it.

In the landmark 1962 judgment in Kedar Nath v State of Bihar, the Supreme Court held the law of sedition, contained in section 124A of the IPC, to be unconstitutional, but upheld it to be subject to the condition that it will apply only to such acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence. As per the Supreme Court, the deletion of the word ‘sedition’ from the draft Article 13(2) of the constitution shows  that criticism of the government exciting disaffection or bad feelings towards it is not to be regarded as justification for restricting the freedom of expression and the press unless it is such as to undermine the security of or tend to overthrow the state.

In fact, the Supreme Court should have struck down section 124A having found it unconstitutional, but instead chose to limit its applicability. In the Kedar Nath case, the court held that, in interpreting an enactment, the court should have regarded 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 that light, the Supreme Court limited the application of section 124A to acts involving the intention or tendency to create disorder or the disturbance of law and order or, incitement to violence. The Supreme Court thus brought section 124A within the purview of Article 19(2), which allows legislative restrictions on speech in the interests of ‘public order’ by reading in a requirement that the alleged acts include mere intention or tendency to create disaffection.

However, the Supreme Court in Kedar Nath did not apply the ‘reasonableness’ test in Article 19(2). The restriction imposed by the legislature constitutes a ‘reasonable restriction’ on speech in the interests of public order. The ‘reasonableness’ test was recently re-visited by the Supreme Court in the much welcome judgment in Shreya Singhal v. Union of  India, 2015, which struck down the infamous section 66A of the Information Technology Act, 2000 as void under Article 19 of the constitution. In the Shreya Singhal case the court noted that both the substantive and the procedural aspects of the impugned restrictive law should be examined to determine if it is a reasonable restriction on speech.

The substantive test of reasonableness means examining whether the statute is couched in the narrowest possible terms. If instead, the statute can extend its purview to inhibit speech by finding a large amount of innocent and protected speech offensive, it will be void as an unreasonable restriction. The language in section 124A , “attempts to excite disaffection towards the government” is not a restriction couched in the narrowest possible terms. As noted in the early court cases, “disaffection” is an extremely broad term which includes “dislike” and every form of “bad feeling.”

Therefore, a person may be making an impassioned critique of  government policy, the type of political speech that should be protected in a democracy, and yet such speech may go beyond mere “disapprobation” that is, disapproval, and be found to have excited disaffection. The speech may also have a tendency to create disorder as the views may be unacceptable to certain sections of society. Therefore, despite the limitation imposed by the court in the Kedar Nath case, impassioned political speech may still constitute sedition under section 124A as it could go beyond disapprobation to constitute exciting disaffection or dislike of the government. If the legislature was seeking only to restrict acts that advocate overthrowing the government or otherwise threaten the security of the state, it should have used precise language rather than the term ‘excite disaffection’, which is overly broad and has a restrictive effect on speech.

When considering the procedural reasonableness of section 124A, a court has to examine whether life imprisonment is a reasonable punishment for an offence, which, after reading the limitation imposed by the court in the Kedar Nath case, is committed only by the attempt to excite disaffection with an intention to create disorder or incite violence, irrespective of whether what was attempted actually occurred. Clearly life imprisonment is a wide and excessive punishment for an offence that is committed irrespective of whether or not any disaffection was excited and any disorder or violence took place.

Section 124A is an anachronistic hangover from the colonial era and has no place in a modern democracy. The creation of ill-will and bad feelings towards the government per se should be a concern only in a colonial or autocratic state and should not be a concern, much less an offence, in a democracy. As in the case of  Amnesty International, section 124A may be evoked even for organising a conference and allowing both sides to present their views. Section 124A, which criminalises exciting dislike and bad feelings towards the government, whether or not any disorder results, and even where the impugned act was simply criticism of government policy, is not a reasonable restriction on speech. The time has come for another courageous court, as in Shreya Singhal, to remove the lingering legal vestiges of  the colonial era and strike down section 124A as void under Article 19(1) of the constitution.

Aparna Viswanathan practices law at Viswanathan & Co. Advocates.