Sedition has no room in modern democracies, time for the law to be repealed

Abhijit Sengupta
Contd from previous issue
The S124A of 1870 defined sedition as exciting or attempting to excite feelings of disaffection towards the Government, while the 1898 change to S124A made bringing or attempting to bring in hatred or contempt towards the Government punishable. The IPC was amended to reflect that disaffection included “disloyalty and feelings of enmity”.
The most significant sedition case, after that of Tilak, must surely be that of Mahatma Gandhi in 1922. Gandhi’s statement is well known:
“…Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence…. I consider it a privilege, therefore, to be charged under that section.”
The hearing took less than two hours. Gandhi received a jail sentence of six years, and he served two years of the term before he was released on grounds of ill health.
But not all Judges, even in British times, were prejudiced. In an early case, of 1934, where one Kamal Krishna Sircar was charged with sedition for making a speech condemning a ban on the Communist Party, a two-Judge bench of the Calcutta High Court said:
“It is really absurd to say that speeches of this kind amount to sedition. If such were the case, then every argument against the present form of Government and in favour of some other form of Government might be alleged to lead to hatred. To suggest some other form of Government, is not necessarily to bring the present Government into hatred or contempt.”
After Independence
With independence, Section 124A of the IPC remained in the statute books. But after the Constitution was adopted in 1950, there was a sudden change in the legal position because Article 19 ensured “freedom of speech” to all citizens. The word “sedition” is not found in our Constitution. The Constituent Assembly had decided not to include “sedition” as an exception to Article 19(1) (a), which guaranteed to all citizens the right to freedom of speech and expression. Consequently, a set of judicial pronouncements came in just after independence, standing up for the freedom of speech enshrined in Article 19.
Two significant cases of the time pertained to two journals, one from the Left and the other from the Right in our political spectrum. The first involved the Left-oriented magazine Crossroads which was very critical of the Nehru Government and was banned. It is ironic, in today’s context, that the second case was related to the censorship of the RSS mouthpiece Organiser; a prior restraint order was passed by the Chief Commissioner, Delhi on Organiser to submit the paper for scrutiny before it was published. Both matters went to the Supreme Court, the ban and the censorship orders were struck down.
The Government moved quickly to control free speech. Thus came the very first amendment to the Constitution in 1951, with the insertion of Article 19(2) which imposes reasonable restrictions on free speech. This is perhaps understandable, for violent threats and salacious or deeply communal speeches, for instance, can hardly be acceptable. But nowadays, when a Union Minister exhorts a crowd at an election rally to chant “shoot the traitors”, no action under any provision of criminal law is taken against him for hate speech.
The amendment to Article 19 allowed S124A to remain on the statute books. The Constitutionality of the law on sedition was challenged in the Supreme Court in Kedar Nath vs State of Bihar (1962). The Court upheld the law on the basis that this power was required by the State to protect itself. However, it added a vital caveat that “a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
The Court held:
“What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government, might also come within the ambit of ‘sedition’. But, in our opinion, such words written or spoken would be outside the scope of the section. (To be contd)