Law of Sedition, Ultra Vires or Intra Vires to Constitution of India

Amitosh

I disapprove of what you say, but I will defend to the death your right to say it[1]

 

Introduction:

Sedition is in any form a speech, action, writing that incites hatred against the government. According to the Oxford Dictionary the term sedition signifies as “conduct or speech inciting people to rebel against the authority of state or monarch”. The law of sedition was though applied at the colonial rule and under the ambit of which many freedom fighters and others has been put behind the bars for raising voice against the British Government, but after the independence the law of sedition lost the lawful approach and trespassed in the freedom of speech and expression, which has been enshrined by our Indian Constitution. The article will be dealing with the concept and origin of the sedition as a law within the territory of India and its misappropriate growth marking the leading illustrations of its growth.  The author in the article tries to establish the legal and political approach of the sedition, which lead the law of sedition amended till date. When the author believes that sedition is against the freedom of speech and expression he tries to facilitate the important and most controversial landmark cases to the reader in a very comprehensive and limpid manner to develop the better understanding of the law.

 

Concept and Origin of the Law of sedition:

Pre Independence:

The British introduced the law of sedition in the colonial era to suppress the voice of the people against the government. The section 124 A of Indian Penal Code(“IPC”) was originally section 113 of the Macaulay’s Draft Penal Code of 1837-39 but later the section was omitted and introduced in the Code, 1860. It was stated by James Fitzjames Stephenes (architect of Indian Evidence Act) that the omission was the result of mistake. The true sense behind the omission of the section is that the British government was looking for the wider range of the law applicability against the press. The law was introduced in 1870, which in itself reflects as one of the draconian laws to stifle the voices against the authority of the state.

Post Independence:

After independence India became the free and sovereign nation, as sovereignty was facilitated under the Preamble of the Constitution of India. Unlike British Parliament, the Indian Parliament cannot claim unlimited powers[2] and therefore the right of citizens to criticize the government was given superiority. The irony of the fact is the law of sedition is being utilized post independence too when a citizen raises voice against the government.

In 1898, the law of sedition was amended and the terms “hatred” and “contempt” were replaced with “disaffection”. Disaffection was also stated to include “disloyalty and all feelings of enmity”[3]. The first case, which brought the interpretation and implementation of the law of sedition, was Queen Empress v. Jogendra Chandra Bose, in which the word “disaffection” was defined as the opposite of affection. The term disaffection was interpreted in numerous other cases. In Queen Empress v. Ramchandra it was defined as a positive feeling, not just absence of affection. This was followed by Emperor v. Bhaskar Balvant Boptkar, disaffection was interpreted not as a feeling for another individual, but a feeling one had for a ruler.

 

The Law of Sedition and Drafting of Constitution:

Looking back to the history of drafting of the Indian Constitution, much discussion was tabled whether the term sedition should be included as a restriction upon the right of free speech. The constitutional framers included sedition and the term “public order” as a basis on which the law could be framed, but in the final draft both the words sedition and “public order” were eliminated from the exceptions to the right to freedom of speech and expression (Article 19(2))[4]. The framers added the term “reasonable” in order to prohibit misuse by the government.[5] Sedition, therefore, became not a specific ground for restricting the constitutional rights to free speech and it continues to be in the statue book. Section 124(A), IPC reads as:

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.

Looking at the above provision, it can be stated that the section has no applicability “until” the claim in question criticizes the measures of government or administration or other action of the government without exciting or attempting to excite hatred, contempt or disaffection. Further, dealing with important landmark cases which turns the wind of sedition in other direction, which can be framed in words by saying the ill intention of the government (British and independent India).

 

Important Cases of Sedition:

Queen Emperor v. Bal Gangadhar Tilak

This is the most famous case of sedition in India. Tilak was charged for sedition on two occasions. The first in 1897 for speeches that allegedly incited the violent behavior of others, which resulted in the death of two British officers and later in writing in the newspaper Kesari. The court held that the incitement to violence and insurrection was immaterial in regards to the culpability of the person, charged with sedition.

Kedar Nath v. State of Bihar[6]

The law of sedition prior to the case was considered to be the ultra vires to the Constitution as it violated the very basic fundamental right to freedom of speech and expression. The Supreme Court in the case adjudicated that the law of sedition is intra vires to the constitution by stating that the section is limited in its application “to acts involving intention or tendency to create disorder or disturbance of law and order of incitement to violence”.

Dr. Binayak Sen v. State of Chattisgarh

He was charged for sedition for allegedly aiding naxalites and was sentenced to life imprisonment by the sessions court at Raipur. He was accused of helping insurgents who were very active in the region by passing notes from a Maoist prisoner that was his patient outside the jail. Dr. Sen stated he was under the constant supervision of prison officials during his treatments so such an action would not be possible. It was his criticism of the killings committed by a vigilante group that prompted his arrest and subsequent accusations, Dr. Sen stated to The Wall Street Journal.

Aseem Trivedi v. State of Maharashtra (2012)

Controversial political cartoonist and activist, Aseem Trivedi, best known for his anti-corruption campaign,  Cartoons Against Corruption, was arrested on charges of sedition in 2010. The complaint, filed by Amit Katarnayea who is a legal advisor for a Mumbai-based NGO, condemns Trivedi’s display of ‘insulting and derogatory’ sketches, that depicted the Parliament as a commode and the National Emblem in a negative manner having replaced the lions with rabid wolves, during an Anna Hazare protest against corruption, as well as posting them on social networking sites.

As reported by India Today, members of India Against Corruption (IAC) claimed that the cases were foisted on Trivedi by the government, as the government was angry with their anti-corruption crusade. Mayank Gandhi of the IAC said, “The case has been registered simply because Aseem had participated in the BKC protest organized by Anna Hazare and had raised his voice against corruption. So the government is trying to scuttle his protest in this manner.” Trivedi’s case seriously questioned freedom of speech and expression in the country.

 

Conclusive Remark:

The author believes that the law of sedition has no place in the Indian laws as law is for the society based on the Constitution of India. There can be no law welcome which in any way violates or encroaches the freedom of nationals. The question which now arises is whether the person who has been charged under the Law of sedition will be considered to be anti- national or not. I leave it on to the reader’s intellect to respond whether Mahatma Gandhi or Balgangadhar Tilak were anti national?

 

Author: Amitosh Pareek, Legal Intern, Kaden Boriss Partners, Lawyers.


 

[1] Voltaire.

[2] Journal of Legal Analysis and Research, Vol.1, Issue 1.

[3] Rajinder Sachar, “Repeal the Law of Sedition” XLIX (26) Mainstream Weekly (Jun. 18, 2011).

[4] Centre for the Study of Social Exclusion and Inclusive Policy

[5]The Constitution (First Amendment) Act, 1951.

[6] 1962