‘Sedition law must be toned down, if not abolished’

Today’s topic, ‘The Law of Sedition in India and Freedom of Expression’, is very important and relevant… In the preamble to the Constitution, ‘We the people of India’ have promised to secure for all citizens liberty of thought, expression, belief, faith and worship. This is an inherent human right and a part of the basic structure of the Constitution. There cannot be any democratic polity where citizens do not have the right to think as they like, express their thoughts, have their own beliefs and faith, and worship in a manner which they feel like.

What is a general promise in the preamble later becomes an enshrined fundamental right. Article 19(1)(a) guarantees the right of freedom of speech and expression. This right is a well-recognised right which includes within its ambit the right of freedom of press, the right to know, right to privacy, etc.

Article 21 prescribes that no person shall be deprived of his life or personal liberty except according to the procedure prescribed by law. The word ‘life’ has been given an expansive meaning and has been now recognised to mean to live a life of decency and not a mere animal existence. I am not dilating on the various aspects of the right to life but even if there was no Article 19(1)(a), we could include the right to freedom of belief, thought, expression, faith and worship in the right to life enshrined in Article 21.

Article 25 makes it clear that every person is entitled to freedom of conscience and the right to freely practice, profess and propagate his or her religion.

No doubt, the State has the power to impose reasonable restrictions on the exercise of such rights in the interest of sovereignty and integrity of the country, the security of the State, friendly relations with foreign States, public order, decency or morality, etc.

The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. Every society has its own rules, and over a period of time when people only stick to the age-old rules and conventions, society degenerates. New thinkers are born when they disagree with well accepted norms of society.

If everybody follows the well-trodden path, no new paths will be created, no new explorations will be done and no new vistas will be found. We are not dealing with vistas and explorations in the material field, but with higher issues. If a person does not ask questions and does not raise issues questioning age-old systems, no new systems would develop and the horizons of the mind will not expand.

The right to dissent is one of the most important rights guaranteed by our Constitution. As long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief.

…A very important aspect of a democracy is that citizens should have no fear of the government. They should not be scared of expressing views which may not be liked by those in power. No doubt, the views must be expressed in a civilised manner without inciting violence, but mere expression of such views cannot be a crime and should not be held against the citizens. The world would be a much better place to live if people could express their opinions fearlessly without being scared of prosecution or trolling on social media.

The law of sedition

The foremost thing that one must keep in mind is that the law of sedition was introduced at a time when we were ruled by a foreign imperialist, colonising power. The British brooked no opposition and did not want to listen to any criticism. Their sole aim was to deprive the people of this country of their rights including the right to express their views.

…The IPC was amended in the year 1898 when Section 124A was introduced. After its various amendments, it reads as under:

“Section 124A. Sedition – Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

The British used the law of sedition to curb any demand for independence.

A similar provision existed in the laws in England. However, in England, this offence was a misdemeanour, meaning a petty crime punishable with imprisonment up to 2 years, but for subjects in the colonies, including India, the punishment was ‘banishment for life’, which essentially means life imprisonment.

…I would also like to refer to the father of the nation Mahatma Gandhi, who in this city of Ahmedabad was charged with sedition. While appearing before sessions judge C N Broomfield, Mahatma Gandhi while dealing with the word ‘disaffection’ had this to say:

“Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

However, the Mahatma was sentenced to undergo imprisonment for 6 years.

You cannot force people to have affection for the government and merely because people have disaffection or strongly disagree with the views of the government or express their disagreement in strong words, no sedition is made out unless they or their words promote or incite or tend to promote or incite violence and endanger public order.

After independence and before the first amendment to the constitution was brought in, it was felt that Section 124A would not at all be constitutionally valid…the first amendment being brought in by which the restriction of public order was introduced to Article 19… In 1962, the constitutional validity of the provisions of Section 124A was challenged before a constitution bench of the Supreme Court in Kedar Nath Singh’s case, wherein the challenge was based mainly on the ground that Section 124A was inconsistent with Article 19(1)(a) of the constitution.

In 1974, the then government brought another change into Section 124A, making it even more stringent. The offence, which till then had been a non-cognizable offence, was made a cognizable offence – meaning thereby that a person could be arrested by a police officer without obtaining a warrant from a magistrate. For me, it is very shocking that in independent India we should make the provisions with regard to sedition even more stringent and curb the voice of the people.

The law as laid down in Kedar Nath Singh is absolutely clear. It is only if there is incitement to violence or creating of public disorder or disturbing the law that the offence of sedition is made out. Following this judgment, the Supreme Court in 1995 in Balwant Singh held that raising slogans like “Khalistan Zindabad”, “Raj Karega Khalsa”, etc. by themselves did not amount to an offence of sedition because there was no material or record to show that any violence had taken place despite the slogans being raised at a public place.

…Unfortunately, the common refrain is either you agree with me or you are my enemy, or worse, an enemy of the nation, an anti-nationalist.

The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause, however unpopular or uncomfortable it may be to the powers that be, must be permitted. Majoritarianism cannot be the law. Even the minority has the right to express its views.

We must also remember that in India we follow the first-past-the-post principle. Even governments which come in with a huge majority do not get 50% of the votes. Therefore, though they are entitled to govern, or be called as majority, it cannot be said that they represent the voice of all the people.

There is another very important aspect of this interplay between freedom of expression and the law of sedition...

Sedition can arise only against a government established by law. Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the government. During the dark days of the Emergency, an attempt was made by one party president to equate his leader with the country.

That attempt miserably failed and, I am sure that no one will ever try in future to equate a personality with this country of ours which is much bigger than any individual. Criticism of senior functionaries may amount to defamation for which they can take action in accordance with law but this will definitely not amount to sedition or creating disharmony.

The law of sedition is more often abused and misused. The people who criticise those in power are arrested by police officials on the asking of those in power and even if a person may get bail the next day from the court, he has suffered the ignominy of being sent to jail. The manner in which the provisions of Section 124A are being misused, begs the question as to whether we should have a relook at it. Freedom of expression, being a constitutional right, must get primacy over laws of sedition.

I think our country, our constitution and our national emblems are strong enough to stand on their own shoulders without the aid of the law of sedition. Respect, affection and love are earned and can never be commanded. You may force or compel a person to stand while the National Anthem is being sung but you cannot compel him within his heart to have respect for the same…

In fact, in my view, the law of sedition needs to be toned down if not abolished and the least which the government can do is to make it a non-cognizable offence so that the persons are not arrested at the drop of a hat.

India is a powerful nation, loved by its citizens. We are proud to be Indians. We, however, have the right to criticise the government. Criticism of the government by itself cannot amount to sedition.

In a country which is governed by the rule of law and which guarantees freedom of speech, expression and belief to its citizens, the misuse of the law of sedition and other similar laws is against the very spirit of freedom for which the freedom fighters fought and gave up their lives. The shoulders of those in power who govern should be broad enough to accept criticism. Their thinking should be wide enough to accept the fact that there can be another point of view.

…We all must be open to criticism. The judiciary is not above criticism. If judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be an improvement. Not only should there be criticism but there must be introspection.

When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the armed forces cannot be termed sedition. In case we attempt to stifle criticism of the institutions – whether it be the legislature, the executive or the judiciary or other bodies of the state – we shall become a police state instead of a democracy and this the founding fathers never expected this country to be.

Gurudev Rabindra Nath Tagore had a view on nationalism, which is the anti-thesis of the view which many of us have. He, in fact, had not appreciated the satyagrah movement. He, who wrote the national anthem, also held the view that “nationalism is a great menace”. I do not agree with those views, nor did eminent leaders of that time, but this did not make Gurudev Rabindra Nath Tagore less an Indian, less a patriot than any of his contemporaries. Merely because a person does not agree with the government in power or is virulently critical of the government in power, does not make him any less a patriot than those in power.

(This is an edited excerpt of Supreme Court judge Justice Deepak Gupta’s speech on “Law of sedition in India and freedom of expression” at the workshop of lawyers, organised by Praleen Public Charitable Trust and Lecture Committee at Ahmedabad, on 7 September, 2019)