India has spent 67 Year of independence and the legal frame works in the country have been developed to attain full coverage in connection with each and every matters available in the governance and also for the law and order maintenance. There are numerous laws on every possible issues and topics in India. And criminal laws which are generally strict in the nature are having their own status in India. The Indian Penal Code, 1860 which was brought from the British governance in India is still defining offences and specifying their punishments in India. Thus, the provisions which are defining offences against the state/ nation and their punishments are also found mentioned in this Indian Penal Code. The offence of Sedition, in so far as it is the concerned issue, now a days has attained a distinct status in India, when we look at the Delhi’s JNU Student Union President’s case. Kanhaiya Kumar, the President to Jawaharlal Nehru University Student’s Union was charged for this offence of Sedition, recently, when he was allegedly found protesting against the death sentence (hanging) of Afzal Guru, who was convict of Parliament attack of 2001.
Thus, Sedition is defined under section 124-A of the Indian Penal Code, 1860, and its definition explains sedition in wide and magnanimous terms. As per definition, anyone who brings into hatred, excited or attempts disaffection towards the Government which is established by law in India, is guilty of offence of Sedition. Moreover, the said section is also requiring the punishing of this offence, along with its attempts too. For exact definition contemplated in the provision, one need to take look of the same in Indian Penal Code. Thus, the said section is also offering punishment for the commission of such acts of sedition in India and such punishment may be extended to the life imprisonment. Also, notably, the word and expression ‘Disaffection’ as found in the definition discussed herein above, includes Disloyalty and All feelings of hate. However, the said definition of the offence of Sedition also clarifies that when a person comments strongly for disapproving the Government’s measures with the intend to obtain their desired modifications in lawful ways and also without exciting hatred, contempt or disaffection, or even attempting thereof, then such person cannot be said to have committed the said offence of Sedition.
Thus, the said provision defining the very remarkable offence of Sedition was brought in the Indian Penal Code, far back in the year 1860. And it was originally drafted by Thomas Macaulay. However, the most important and very interesting fact behind the law of sedition is that, there can be seen many well- known freedom fighters, protesters who have made their name in their works, were also found booked under this provisions for this offence and for naming such, Mahatma Gandhi and Bal Gangadhar Tilak are sufficient to know. Thus, considering such incidents when our great ideals were booked under such provision, it could be safely said that such provision would have been added to the Penal code by British peoples to stop Indians from protesting against them and their ruling. But, again one question arises, that why then our India legislatures would have allowed this provision to survive even after known such facts? Well, it is notable that there were some attempts which can be seen protesting against such provision.
Even from the very initial days of the Independence, when first amendment was introduced, it was notable that such amendments also included with detailed limitations on Free- Speech, as such the Prime Minister- Neharuji that time said that in his belief, the offence of Sedition was ‘fundamentally unconstitutional’, he said it categorically. He also said, the said provision is highly objectionable and obnoxious and also it should have no place either for practical and historical reasons. Moreover, he also suggested that for better, sooner we should get rid.
John Stuart Mill, in his classic defence of free speech, On Liberty, he laid down what is known as the ‘harm principle’. The only justification for silencing a person against his will, as per such his remark, is to prevent him from causing harm to others. It is to this powerful libertarian mid-19th century principle that we owe the idea that free speech cannot be proscribed merely because we find it disagreeable, and that curbs may be imposed only if such expression constitutes a direct, explicit, and unequivocal incitement to violence.
Moreover, the Free speech or Right to Freedom of Speech and Expression have attained the global importance and many scholars and even the international communities have supported it as the basic fundamental right of the human being. In India, the right is having constitutional status and it is enshrined under Part- III and Article 19 of the Indian Constitution. Moreover, Articles 20, 21 and 22 also mention and are guaranteeing individual concerned rights. Also, specifying the scope of the right to Freedom of Speech and Expression, the Supreme Court in its landmark verdict stated that the said right has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India, but also in abroad.
However, when the constitutional situation is very clear and it is allowing a citizen to share his ideas and thoughts with others, a normal and very common question can be safely drawn, as to whether sedition law is in favour or contrary to the Free speech right?
It was seen for the first time in the year 1962 when the Apex Court in India had to consider the legality of the colonial law on sedition, in the post independence context and also in the context of right to Free Speech guaranteed under the Constitution of India. Moreover, it was also seen that in the Niharendu Dutt’s case, the Federal Court had took chance to interpret the Section- 124A of the Indian Penal Code in the alignment with British law on sedition. And in its decision it had ruled that the tendency to disturb public order was an essential element of the offence under Section 124A of the Penal Code. However, earlier to that, the situation was somehow really opposite, as the Privy Council in its verdict in the case of sedition held that the incitement to violence or a tendency to disturb public order was not a necessary ingredient of the offence under s. 124A.
Moreover, while analysing the decision of the Supreme Court of India in ‘Kendar nath Singh vs State of Bihar’ (1962), the Time of India in its article recently published, concluded that the ‘mere slogan shouting against the State or the Government established by law which is not intended to have the “effect of subverting the Government” by violent means; and which is not intended to, nor has the tendency, to create disorder or disturbance of public peace or law and order by resort to violence; and which does not incite violence will not amount to the crime of sedition under section 124A’.
Thus, Indian Courts have been seen protecting the sedition law as it is constitutionally valid, as can also be seen in the verdict of honourable Supreme Court of India , where it has upheld the constitutional validity of the Section 124-A of Indian Penal Code. However, it is also notable that there is most important fact which is requiring the change of law as per the changes occurs in the social situations. As such, the Supreme Court of United States in its one of the ruling has rendered the concerned law toothless.
Now, JNUSU President- Kanhaiya Kumar is facing the sedition charges, earlier Patidar leader Hardik Patel was slapped with such charges of sedition, also Kashmiri students in the year 2014 were charged with sedition for supporting Pak in a cricket match. Thus, the law is having some really interesting facts hidden behind the situations and as such, now the authorities who have equipped with the powers can only give their opinion over it.
Adv. Faim Khalilkhan Pathan
References:
- The Hindu, as published in its article, ‘Sedition’ versus free speech (2011)
- Maneka Gandhi v. Union of India (AIR 1978 SC 597)
- Niharendu Dutt Majumdar And Ors. V. Emperor (1939)
- King-Emperor v. Sadashiv Narayan Bhalerao
- ‘A closer reading of the Supreme Court of India decision in Kedar Nath Singh vs State of Bihar (1962) on the offence of sedition defined in Section 124A IPC’ – published on 16th February, 2016
- Kedar Nath v. State of Bihar (AIR 1962 SC 955)
- Indian Sedition Law: What is it and what does it say
- 1934 to 2016: How Courts in India Looked at Charges of Sedition
- When governments used sedition law
- India shares sedition law with Saudi Arabia, Sudan, Iran
- Sedition law in UK abolished in 2009, continues in India
- Sedition: Time for new laws to shield free speech
