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Constitution and the Offence of Sedition

This article was submitted by Sanchita Kumari from National Law University, Odisha for National Legal Writing Competition,2016.

INTRODUCTION

Sedition as defined in Merriam-Webster is the crime of saying, writing, or doing something that encourages people to disobey their government. While the IPC was enacted in 1870, the section on Sedition was inserted only in the year 1898. This was the time when the Press had begun to function in India and voices had begun to raise against the British Government. It was also the time when Wahabi activities had begun in the country which the British took as a serious threat. The Sepoy Mutiny and increasing nationalism further added to the cause for insertion of Sedition as an offence in IPC. Section 124 A IPC defines Sedition as anything done to bring hatred and contempt against the government established by law. It is considered to be the highest crime in the IPC for it being against the sovereignty of the country and prejudicial to the security of the state. It is a cognizable (arrest can be made without warrant), non- compoundable (no compromise to be allowed between the parties) and a non bailable offence.

INTERPRETATION

In light of the recent ‘arbitrary’ arrests made, be it Cartoonist Aseem Trivedi or student leader Kanhaiyya Kumar, on Sedition charges, it is important to discuss what makes something seditious. The very first case of sedition was filed against Jogendra Chandra Basu editor of the newspaper Bangobasi, in 1891, for the fact that he had published an article whereby the “Age of Consent’ bill was criticized bitterly. He was, however, aquitted as the jury could not reach a unanimous decision and he apologized for what he did. The Privy Council (highest Appellate Court for Commonwealth Nations) and the Federal Court of India had different opinions and interpretation of Sedition. In Niharendra Dutt Majumdar vs. The King Emperor[1], the federal court opined that the acts or words which are complained of being seditious, shall be of such impact that it incites disorder and has the tendency to brings hatred towards the government. There must be actual enticement for violence. Mere words or gestures criticizing the government or the governmental policies and actions are not sufficient to bring a cause of action under this section. The Privy Council over ruled this decision in King Emperor vs. Sadashiv Narayan Bhalerao [2], saying that the offence covers exciting or attempting to excite ill feelings towards the government. It does not have to be a rebellion or actual violence however great or small. The essence, as per this judgment, lie in the fact that no actual result of such excitement has to be proven in order to convict under section 124 A. Such wide interpretation by the Privy Council had resulted in a number of people being charged under the offence of Sedition.

CONFLICT WITH THE CONSTITUTION

Post-Independence, after the Constitution was adopted in 1950, there has been a constant clash between the Fundamental Right of Freedom of Speech and Expression and Section 124-A of the IPC. Gandhiji, on being charged with sedition charges, said that Section 124-A is one among those sections of the IPC which the government may adopt arbitrarily in order to curb the freedom and liberty of its people. Jawaharlal Nehru had described this section as “highly objectionable and obnoxious”. The basic dispute is whether Section 124A is Ultra-Vires the Constitution or is a reasonable restriction on Freedom of Speech and Expression. Two views are present. First, although Sedition is not specifically mentioned as a restriction under article 19(2), the fact that it is essentially a wrong against public tranquility and order, it is covered under reasonable restrictions on Right to Speech and hence is not Ultra-Vires the Constitution. The second view is, that as it has not been specifically mentioned in Article 19 (2), it cannot be said to be a reasonable restriction on Freedom of Speech and hence is Ultra-Vires the Constitution. The author agrees with the first interpretation, provided arrests are not made arbitrarily and on frivolous grounds. The restriction shall be reasonable and not on whims and fancies of the government just to oppress any voice of dissent.

CONCLUSION

A lot of arrests have been made under section 124-A recently. While the arrests are large in number, conviction has happened very rarely. The section is often used by the government to shut those criticizing it or any of its policies. Instead of being used sparingly, the government has been using it as a tool to curb any voices of opposition or disapprobation of its policies. For instance, Arundhati Roy’s speech for which she was charged for sedition didn’t posses elements of sedition as she expressed her view for Kashmir being an independent state. Anyone expressing his view for a state to secede from the Union of India or their wish for independence, without professing enemity or disaffection towards the government or exciting the same, shall not be charged with Sedition. It’s merely an expression of his ideas and point of view. The dispute over the constitutional validity of section 124-A is not new. In Kedar Nath Singh vs. Union of India[3], section 124-A was held to be constitutional. The Court differentiating between the Government established by law and persons engaged in carrying out the activities of the state said that if the government does not have measures to tackle hatred or contempt or maintain public order by punishing those trying to incite violence, the very existence of the state would jeopardize. However, every comment on the government criticizing or disapproving its actions, however strongly worded shall not be taken as seditious. Disaffection and disapprobation shall not be equated since both connote different meanings. A citizen has a right to think and convey whatever he dislikes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. That is the very essence of democracy: Dissent. A society that cannot criticize itself has the risk of getting atrophied. While the Supreme Court has upheld the constitutionality of the section, it limited its sphere of operation.

The recent case where a student leader, Kanhaiyya Kumar was arrested on sedition charges again brought up the debate over constitutional validity of the section. The charges were levied on questioning the hanging of Afzal Guru, a terrorist involved in Parliament Attack, 2001. The fact that democracy allows one to raise his voice in dissent has certainly been overlooked by the police while making the arrest. Mere presence on the spot where supposedly anti national slogans were being shout is not sufficient to book someone under 124-A. It must be proved that the person is actively involved in the activity which allegedly is Seditious. Further, Part III of the Constitution, which guarantees Fundamental Rights, was also ignored. The event was organized not to incite anger or hatred against the government but to discuss and deliberate up on certain policies and administrative actions of the executive. Nothing in the case showed any feeling of disaffection or enmity for the country. Raising voice against a particular policy of the government, which supposedly is arbitrary, is a matter of disapprobation or disapproval. Such disapproval is again an essence of democracy. Disapprobation, as provided in explanation to section 124A does not amount to Sedition and hence not punishable.

Another important thing here is that taking away or curbing the right to life and liberty of an individual except in accordance with procedure established by law, is a violation of the constitutional rights.  Not everyone who is opposing or criticizing the policies of the government can be put behind bars on the charges of sedition. If candid and honest discussions are not permitted, Fundamental Rights come under jeopardy. While Section 124A is not Ultra Vires the constitution, it’s rampant and ad-hoc use has raised questions on the competency of police and the government authorities in the understanding and application of this section. A harmonious interpretation of 124-A and the Constitution is the need of the hour. Government cannot arrest people on the ground of them being in opposition or having an ideology different from the government. People have the right to preach their ideology and get laws altered by peaceful means. Unless they incite violence or excite hatred or attempt to do so, their right to freedom of speech and expression shall not be curtailed or restricted. As far as possible, harmonious construction of Fundamental Rights and Restrictions shall be made. However, in case of conflict, it is the public welfare that shall be given preference over individual rights and liberty. Also, where individuals exceed their fundamental right of free speech and such activity is directed towards spreading hatred for the government, it shall not be left unpunished, for sovereignty and security of the state shall be given top most priority.

REFERENCE

[1] AIR 1942 FC 22

[2] (1947) L.R. 74 I.A. 89

[3] AIR 1962 SC 955

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