Freedom of speech and freedom of expression are indispensable conditions for the full development of the person. They constitute the foundation stone for every free and democratic society. The freedom of speech and expression is the first and foremost human right, the first condition of liberty, mother of all liberties, as it makes the life meaningful. However, freedom of speech often poses difficult questions, like the extent to which State can regulate individual conduct. Since individual‘s autonomy is the foundation of this freedom, any restriction on it is subject to great scrutiny. Although reasonable restrictions can always be imposed on this right in order to ensure its responsible exercise and to ensure that it is equally available to all citizens. The offence of sedition is provided under section 124A of the Indian Penal Code, 1860. The relevance of this section in an independent and democratic nation is the subject of continuous debate. There is an apprehension that this provision might be misused by the Government to suppress dissent and fair criticism. The paper deals with the history of sedition to its evolving during the pre and post constitutional era to what it is today. Also, the paper suggests the questions that still need thorough discussions and debates taking into consideration the fact that India is the largest democracy in the world and freedom of speech and expression is the most celebrated fundamental right.
The sedition law was formed by Thomas Macaulay, a British historian, in 1837 and was implemented in 1870. Leaders like Subhash Chandra Bose, Mahatma Gandhi, and Bal Gangadhar Tilak were charged under the law.
As per the Kedar Nath judgment in 1962, the sedition law was supposed to be applied in rare instances where the security and sovereignty of the country is threatened. However, there are growing instances to show that this law has been weaponised as a handy tool against political rivals to suppress dissent and free speech. As per the latest data presented by Article 14, as many as 25 sedition cases were filed after the anti-Citizenship Amendment Act protests, 22 after the Hathras gang rape, and 27 after the Pulwama incident. In all, 96 percent of the sedition cases filed against 405 Indians over the last decade were registered after 2014.
The offences that fall under the sedition provision are exciting, hatred, contempt, disaffection and attempt of such offences. The object of the sedition provision is to punish the accused of such offences. Sedition also includes certain amount of hate speech that incites hatred, violence. Hate speech that threatens the sovereignty and integrity of the state and security of the state may be qualified as sedition. However, lack of provision on hate speech in criminal laws has also contributed to the unsuccessful court proceeding in dealing with the issue of criminalizing the hate speech. Sedition is also a defamation of the state under section 124A IPC. It has been described as disloyalty in action and inciting discontent or disaffection in order to create public disturbance, or to lead to war, or to bring hatred in the society against the government or, contempt the ruling government and inciting violence the government. The section reads that any hater or contempt against the government and exciting against the government amounts to sedition and is punishable with up to life imprisonment under IPC. In order to fall under the section, there are two essentials to be fulfilled. Firstly, bringing into hatred or contempt against the government or exciting disaffection towards the government established by law in India. Secondly, the act or attempt may be in the form of words or signs, or visible representation, or otherwise.
With growing resentment and disagreements among the youth and citizens of the country regarding governmental policies or laws passed by the government, any refusal to accept or simply voicing one’s discontentment is regarded as sedition. The citizens of India are given Right to Freedom of Speech and Expression. The dichotomy here is that while the Constitution gives the citizens of the country the right to freely express and voice their opinions on matters including State policy and laws passed by the Government, this very same right is snatched away from the public by Section 124A of the Indian Penal Code.
Quite often, this section has been used as a tool to persecute political dissent which included the arrest of 14 students from Aligarh Muslim University for raising “anti-national” slogans, the arrest of a Manipur student activist for a social media post on the Citizenship Amendment Act, 2019 and the charge of sedition on four Kashmiri students in Rajasthan over social media posts about a recent terror attack in Jammu and Kashmir. The term ‘disaffection’ in this section is vague and lacks a clear, definite meaning even after various judgments, which allows the Government to interpret it as per their own discretion, often misusing the section to persecute individuals for merely expressing their discontent. Dissent and criticism of the Government are essential elements of the proper functioning of a Nation as they foster robust public debate and allow citizens to express their opinions on political matters. This should not be construed as sedition but rather promoted as the right to question, the right to criticize, and the right to choose their leaders are fundamental to the concept of democracy.
Further, the data provided by National Crime Records Bureau indicates that sedition cases have risen from 47 in 2014 to 93 in 2019, a massive 163 percent jump. However, the conversion rate from cases to conviction is a mere 3 percent. This shows that the police and related state authorities are using the sedition laws indiscriminately to create fear amongst the citizens and silence any criticisms or dissent against the regime.
For the proper functioning of a democracy it is important that its citizen indulge in constructive criticism or debates, pointing out the loopholes in the policy of the Government. Expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious. Section 124A should be invoked only in cases where the intention behind any act is to disrupt public order or to overthrow the Government with violence and illegal means. Every irresponsible exercise of right to free speech and expression cannot be termed seditious. For merely expressing a thought that is not in consonance with the policy of the Government of the day, a person should not be charged under the section.
Dr. S. Krishnan is an Associate Professor in Seedling School of Law and Governance, Jaipur National University, Jaipur.
Kritika Saini is an Assistant Professor in Biyani Law College, Jaipur.