This article is written by Ashika,3rd year, student of AMITY UNIVERSITY LUCKNOW during her internship.
Ipc- Indian penal code
According to Section 124A of the Indian Penal Code (IPC), acts that stir hatred or contempt for the legally formed government or encourage violence against it are illegal under India’s sedition statute. It was put into effect in 1870, when Britain still controlled the colony. According to Section 124A, sedition charges may be brought against anyone who, through words, signs, or other representations, incites or seeks to incite hatred or contempt toward the Indian government. Critics claim that it frequently violates the fundamental right to freedom of expression protected by the Indian Constitution by stifling political opposition and free speech. The use of the law against activists, journalists, and those who criticize the government has caused controversy throughout the years. In India, some states have proposed repealing or changing the law, while others have demanded that it be enforced more strictly for reasons of national security. With conflicting views on its usefulness and potential for abuse, India’s sedition law continues to be a divisive topic. The debate around this statute is still shaped by legal disputes and discussions regarding its reform or removal.
Sedition and British Raj
The criminal clause served as a useful tool to silence nationalist protests and calls for freedom. Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, and Jawaharlal Nehru are just a few of the many national icons of India who have been implicated in sedition proceedings. In colonial India, Bal Gangadhar Tilak was the first person to be found guilty of sedition. The British government filed the complaint, claiming that Tilak’s Marathi journal Kesari contained articles that encouraged people to thwart the government’s attempts to control the plague epidemic in India. The Bombay high court convicted Tilak to 18 months in prison in 1897 for sedition under Section 124A. Nine people made up the jury, six of whom were European; the three Indian jurors voted in Tilak’s favor. The jury found him guilty. Later, the Federal Court, which was established in 1937, and the Privy Council, which served as the highest court of appeal and was situated in London, had conflicting interpretations of Section 124A. According to the Federal Court’s ruling in Niharendu Dutt Majumdar vs. King Emperor, 1942, “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence.” The Privy Council, however, overturned this claim in the 1947 case of King Emperor vs. Sadashiv Narayan Bhalerao. The Privy Council upheld the legal standard established in the Tilak case, concluding that inciting violence was not a requirement for the crime of sedition and that the arousal of anti-government sentiment was sufficient to establish guilt under Section 124A.
Law against dissent after Independence
In 1948, after discussions in the Constituent Assembly, the word “sedition” was removed from the Constitution. KM Munshi proposed a change to the draft Constitution that would have eliminated the word “sedition” as a justification for limiting the right to free speech and expression. Thus, when the Constitution was ratified on November 26, 1949, the word “sedition” was removed from it, and Article 19(1)(a) guaranteed complete freedom of speech and expression. Nevertheless, Section 124A remained in the IPC. Jawaharlal Nehru adopted the first constitutional amendment in 1951 to restrict the freedom under Article 19(1)(a) and to provide the State the authority to impose “reasonable restrictions” on the right to free speech.
For the first time in India’s history, Section 124A became a punishable offense under the rule of the Indira Gandhi administration. Sedition was deemed a cognizable offense in the new Code of Criminal Procedure, 1973, which replaced the colonial-era 1898 Code of Criminal Procedure and went into effect in 1974. This allowed the police to make warrantless arrests.
On September 12, the Supreme Court refused to wait for the Parliament to make a decision on the Bharatiya Nyaya Sanhita Bill, a draft law that would replace the British-made penal code of 1860. Instead, it referred petitions challenging Section 124A, the sedition provision in the Indian Penal Code, to a Constitution Bench.
DY Chandrachud, the Chief Justice of India, presided over a three-judge bench that rejected the government’s request to delay the matter rather than refer it to a larger bench of five justices.
A “substantive hearing” of the case right away, according to attorney general R. Venkataramani, would be premature because the Bharatiya Nyaya Sanhita and Bharatiya Nagrik Suraksha Sanhita Bills, which would replace the Indian Evidence Act and the Code of Criminal Procedure, respectively, respectively, were currently being heard by a parliamentary standing committee. Also on behalf of the Union, Solicitor General Tushar Mehta pleaded with the court not to “pre-empt” the Parliament.
A new penal legislation would only apply prospectively, according to a well-established legal principle, the court claimed as justification for its decision not to postpone the case. Even if the Bharatiya Nyaya Sanhita Bill is successful in getting through Parliament, prosecutions under Section 124A, which are now on pause due to a Supreme Court judgment in May 2022, would continue. If the new law is implemented, it will only apply to cases that arise in the future. As far as Section 124A prosecutions are concerned, they will go forward. All ongoing cases under Section 124A will expire unless the new law specifies that it has retrospective effect or the Parliament determines otherwise. Because a new law might be passed, we cannot avoid looking into whether Section 124A is constitutional. Until the new law takes effect, Section 124A will be in force and control all prosecutions. That is a widely accepted idea. A new penal statute cannot be implemented retroactively, according to Chief Justice Chandrachud. With the assistance of attorneys Vipin Nair, PB Suresh, and Prasanna S, senior attorneys Kapil Sibal, Arvind Datar, and Gopal Sankaranarayanan have argued on behalf of the petitioners that “words or action conveying disaffection to the government cannot necessarily be treated as seditious in character in relation to the state. The state and the current administration cannot be compared. The suggested replacement for Section 124A, according to Mr. Sibal, is “unfortunately worse”. Sedition is not specifically mentioned in Section 150 of the Bharatiya Nyaya Sanhita Bill, which instead refers to any act that “endangers the sovereignty, unity, or integrity of India.”
“What they have proposed is far more draconian,” said Mr. Sibal. The court, however, declined to offer any commentary on the Bill’s provisions. “We won’t investigate the new law. The Chief Justice stated that it was merely a proposal at the time and not even a law.
The petitioner’s attorney, Kaleeswaram Raj, argued that a five-judge bench was not necessary because the Centre had raised concerns about Section 124A’s validity in an earlier document that was submitted to the court.
The 1962 Constitution Bench decision in the Kedar Nath Singh v. State of Bihar case, which upheld the legality of Section 124A while limiting its applicability to “activities involving incitement to violence or intention or tendency to create public disorder The Chief Justice clarified that the Kedar Nath ruling was limited to how sedition affects the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The impact of Section 124A on the fundamental rights to life (Article 21) and equality (Article 14) had not been discussed. The court ruled that the Kedar Nath decision needed to be reassessed in light of the significant developments in the recognition and development of new rights since 1962. We cannot revisit the Kedar Nath ruling as a three-judge bench. Let the 1962 ruling be reviewed by a five-judge bench. We are obligated by it if it decides that the 1962 judgment does not need to be modified and sends it back to us. In order to better reflect the times, the five-judge bench may also refer the case to a seven-judge panel or modify Section 124A’s meaning, according to Chief Justice Chandrachud. Despite Section 124A being described as “draconian” by Mr. Sibal, Mr. Mehta shot back that the previous administration had never bothered to repeal the clause. “Why didn’t they? Now, the current administration is carrying it through, he stated
In 1951, Tara Singh Gopi Chand v. The State, a case heard by the then-Punjab high court, put the constitutionality of the sedition legislation to the test for the first time in independent India. The high court determined that Section 124A was unquestionably a restriction on the right to free speech and expression and declared it illegal on the grounds that it violated Article 19 of the Indian Constitution’s basic right to free speech and expression. The Jawaharlal Nehru administration was influenced by this ruling to establish new justifications for limiting the freedom of speech and expression.
But in 1954, the Patna High Court confirmed Section 124A’s legality in Debi Soren & Ors Vs. The State, concluding that the law does not contravene Article 19. Four years later, in the case of Ram Nandan v. State, the Allahabad High Court nullified Section 124A and ruled that the administration must be prepared to face a powerful opposition in addition to popular support or resistance. The Supreme Court’s decision in the Kedar Nath case, which is regarded as its most authoritative ruling on the interpretation of the sedition legislation, resolved the controversy brought on by differing high court opinions in 1962. Because “the continued existence of the Government established by Law is an Essential Condition of the Stability of the State,” a Constitution bench upheld the validity of the IPC’s sedition law, holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted. At the same time, the five-judge bench defined the scope of Section 124A. It was decided that Section 124A only punished words that appeared to promote violence or show a predisposition to disturb the peace. The Supreme Court emphasized that invoking the sedition clause requires the existence of a harmful propensity to promote violence and that the criminal provision cannot be used to restrict free speech. Since then, this definition has been used as the standard for all Section 124A-related issues.
The sedition story: Complicated history of SEC 124A (2021) Hindustan Times. Available at: https://www.hindustantimes.com/india-news/the-sedition-story-complicated-history-of-sec-124a-101626370928612.htm
Rajagopal, K. Sedition law | Supreme Court refers petitions challenging validity of Section 124A to Constitution Bench. The Hindu. https://www.thehindu.com/news/national/supreme-court-refers-challenge-to-the-validity-of-sedition-law-to-constitution-bench/article67298224.ece