Section 124A is the main weapon in the State바카라s armoury against non-violent speech and expression
Two recent decisions of the Supreme Court바카라first, issuing notice on a petition asking for Section 124A (sedition) of the Indian Penal Code to be declared entirely unconstitutional, and the other of quashing the prosecution of journalist Vinod Dua while holding that mere criticism of the State does not amount to sedition바카라will hopefully, and soon, wipe out sedition from the IPC completely.
Under monarchy, mere words against the emperor were enough to attract the death penalty. It mattered little whether those in opposition did no overt act against the king. As time passed, several cases of sedition came before the Privy Council on the issue as to whether mere words against the State were enough to attract the most severe criminal penalty, or if sustained violence against the State was a necessary ingredient. The first case was known as the Bangobasi case, where the Privy Council held that sedition would be attracted 바카라even though no disturbance is brought about by the words바카라. The next case was Queen Empress v. Bal Gangadhar Tilak, where the Bombay High Court held that 바카라it is absolutely immaterial whether any feelings or disaffection have been excited바카라. The court held that direct incitement to stir up disorder or rebellion was not necessary.
A quick look at the basic ingredients of 124A makes it clear that a mere word of hatred or contempt for the government was good enough to prosecute. The section goes like this: 바카라Whoever by words바카라or signs바카라brings into hatred or contempt바카라or excites disaffection towards the government shall be punished with imprisonment for life.바카라 All strong criticisms of the government and of its criminal conduct will originate from hatred, contempt and disaffection. Any fierce criticism will be intended towards spreading those feelings to bring about radical change. Remember Jai Prakash Narayan바카라s famous call for 바카라Sampoorna Kranti바카라?
The coming into force of the Constitution, and particularly Article 19(1)(a)바카라바카라freedom of speech and expression바카라바카라ought to have put an end to the controversy because it seems quite plain that vociferous criticism of the government without violence is constitutionally protected. This was held in Rangarajan바카라s case, where the court held that freedom of speech must be upheld 바카라even if the viewpoint expressed is hateful to government policies바카라.
The Constitution Bench in Kedarnath tested the section against Article 21 and correctly concluded that a literal interpretation would conclude that words without violence do not come within the ambit of Article 19(2), which specifies the exceptions to freedom of speech and expression and includes 바카라sovereignty and integrity of India and the security of the State바카라. The mistake in Kedarnath was that after concluding that the section was unconstitutional, instead of striking down the section, the Supreme Court read it down. In lay terms, the court declared that the section would be read as if it included a requirement that the words uttered by the accused should be followed by violent action against the State.
The problem with this approach is that the IPC is the Bible for the police. When a policeman opens the Code and looks at 124A, he will see that words alone constitute the offence. Violence is not mentioned. He may not have read the Kedarnath judgment. This is how, across the country, politically motivated cases of criticism against the current government are registered. The ministry concerned is enraged by the criticism, directs the police to file a sedition case, and the police duly comply. The correct approach is laid down in another Constitution Bench judgment in Kartar Singh, where the Supreme Court said, 바카라It is the basic principle that an enactment is void for vagueness. Vague laws may trap the innocent by not providing fair warning.바카라 In Shreya Singhal, the Supreme Court said 바카라a section which creates an offence which is vague must be struck down as being arbitrary and unreasonable바카라. Thus, instead of reading down the section, it ought to have been struck down and removed from the IPC. Thereafter, the police would have no occasion to refer to this section.
Two interesting decisions of the Supreme Court show how limited the scope of sedition is. In Balwant Singh, a person shouted the slogan 바카라Khalistan Zindabad바카라 and urged the Sikh community to rise up and fight for a separate state within India. Singh was convicted and his case came up to the Supreme Court. The judges enquired as to whether the individual had done any violent act. The prosecutor answered in the negative. The accused was acquitted. In Bilal Ahmed Kaloo바카라s case, a person shouted the slogan 바카라Azaadi바카라 in Kashmir and encouraged people to take arms against the State for independence. In the Supreme Court, the prosecutor admitted that the accused had done no overt act. He was acquitted.
Why is 124A so important for a belligerent and repressive state? The answer is because it is the only provision in law that allows policing and prosecution of legitimate free speech. The State is not particularly bothered about the part of sedition that requires a violent overt act. This is because with passage of time, since 1962 when Kedarnath was delivered, repressive criminal statutes have been enacted, which comprehensively cover the whole field of terrorist and unlawful activities, and the sedition section is no longer required to be used in situations of violence against the State. These statutes include the Unlawful Activities (Prevention) Act, 1967, which defines unlawful activity as 바카라causing disaffection against the government바카라, the Public Safety Act, 1978, which create the crimes relating to 바카라security of the state and maintenance of public order바카라, and the National Security Act, 1978, which was enacted to prevent 바카라acts prejudicial to the defence of India바카라. The IPC itself creates 바카라offences against tranquility바카라, including 바카라rioting바카라 as well as 바카라promoting hatred바카라. Thus, 124A is, apart from vagueness, unconstitutional because it is obsolete and unnecessary. In the Cricket Association case, the Supreme Court laid down that an unnecessary provision must be struck down.
According to the National Crimes Record Bureau, sedition cases have risen from 35 in 2016 to 96 in 2019. This data is a farcical underestimate. In Jharkhand, 10,000 tribals were booked under sedition for protesting against the government for allowing commercial use of tribal land. A single mother of an 11-year-old was charged with sedition after her daughter participated in an anti-CAA play in Bidar, Karnataka. In Mumbai, 50 people were booked for sedition for raising slogans in favour of a JNU student. The well-known journalist, Kishorechandra Wangkhem from Manipur, was charged with sedition for using an expletive against the chief minister. Wangkhem was in jail for months and was ultimately released on bail. Recently, Andhra Pradesh TV channels were charged with sedition for airing views against the chief minister. Journalist K.L. Shukla from Chhattisgarh was arrested because he drew cartoons바카라in court, the state government submitted 바카라posting of objectionable cartoons depicting senior leaders is complete to constitute the offence바카라 under section 124A. In Uttarakhand, unions that published a poster using the expression 바카라Inquilab Zindabad바카라 were similarly prosecuted. The list is endless.
It could well be said that the main weapon in the armoury of the repressive state against non-violent free speech and expression is Section 124A. Nothing short of it being removed from the statute book will do. The sooner the better.
(Views are personal)
Senior advocate, Supreme Court of India and founder, Human Rights Law Network