The year 2021 marks 151 years of the law of sedition in India, a law that was introduced by the British in 1870 to consolidate their colonial rule and check the growing anti-colonial struggle. In the past few years, there have been raging debates over the use of extraordinary laws such as sedition and the UAPA to stifle voices of dissent against the government of the day.
On June 3, the Supreme Court bench led by Justice UU Lalit and Vineet Saran quashed a sedition case against senior journalist Vinod Dua that was filed by a BJP leader of Himachal Pradesh over alleged comments by the journalist on PM Modi. The top Court quoted the historic Kedar Nath Singh judgement by five Supreme Court judges in 1962 and said, “Every journalist is entitled to protection under the Kedar Nath judgment.”
The judgement has again invited fresh comments and demands by human rights activists, members of the civil society and a section of legal scholars who have been asking for the abolition of sedition for many years. This development has once again brought the question of legitimacy of such laws in modern democracies at centre-stage.
The discussion around sedition, in particular, also becomes interesting in the light of the fact that Britain, the country that introduced sedition in India, abolished it in its own country as a criminal offence under the Gordon Brown’s Labour government in 2009. It called the law a hindrance in the citizens” freedom of speech and expression. Before looking at developments around sedition in the last few years, let’s trace its origin in colonial India.
During the initial years of their rule, British colonisers were not explicit in destroying or rejecting traditional/indigenous institutions and power structures of the subcontinent, but soon, as the British rule began to expand and it empire started to grow in size, a need was felt to have better governance, and supporting institutions and tools that control Indian subjects.
The Charter Act of 1833 ensured the formation of the first Law Commission under Thomas Macaulay. Until then, there had been no major intervention in the traditional judicial administration. The task of the Law Commission was to draft the penal code. The codification of laws was seen as necessary to establish a uniform judicial system for British India to effectively carry out administrative tasks. The draft penal code was ready by 1937, but got implemented back in 1860.
Scholars argue that the law defining sedition was present in Macaulay’s Draft Penal Code as Section 113; however, this section was left out in the Indian Penal Code (IPC) during its enactment. There are different arguments over the absence of this clause, one being it was a mistake. Section 124A, which deals with sedition, was added through an amendment in the IPC in the year 1870.
Section 124A of the IPC reads:
“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.
Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3 – Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
The immediate development that led to the introduction of sedition in the IPC is cited as the need to resist the spread of the Wahabi Movement. This movement started as an Islamic revivalist movement, but soon took the form of an anti-British struggle, something that created tension among the ranks of British officers who feared that the movement would contest the colonial state.
In the course of the anti-colonial struggle, sedition was used as a tool by the British regime to suppress the nationalist movement. During the Independence struggle, many freedom fighters were charged with sedition and jailed for opposing the colonial regime. From Mahatma Gandhi to Bal Gangadhar Tilak, from Jawaharlal Nehru to Maulana Azad, many were charged with sedition for championing the cause of Indian Independence. These sedition trials were a watershed moment in the history of India’s freedom movement, which played an important role in shaping the ongoing struggle.
After Independence, just like many British era laws, sedition continued to exist despite debates over its validity in the newly-independent India. Nation’s first Prime Minister, Jawaharlal Nehru, while speaking in the Parliament, said, “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned, this particular Section is highly objectionable and obnoxious, and it should have no place both for practical and historical reasons…”.
However, it is ironic that after more than 70 years of India’s Independence, the law of sedition still exists. The demand for scrapping sedition is not a recent one, but it is only in the past few years, with the coming of the BJP in power in 2014, that a rise in sedition cases can be observed, claims a study by Media Portal Article 14. One of the analyses of the report reads:
“A 28% increase in the number of sedition cases filed each year between 2014 and 2020, Modi’s time in office, compared to the yearly average between 2010 and 2014, the second term of the United Progressive Alliance (UPA) administration.”
Further, the report reveals that nearly 11,000 individuals have been charged with sedition since 2010 and 65% of them were charged after the BJP came to power. The report suggests frequent use of sedition by the BJP governments in the past couple of years. According to this report, 22 of the 25 sedition cases filed during anti-CAA protests were in BJP-ruled states.
According to the National Crime Records Bureau, while there has been a rise in sedition cases in recent years, the conviction rate has dropped to 3.3% in 2019, from 33.3% in 2016. Despite many landmark judgements on cases related to sedition, there is still ambiguity over conditions in which sedition can be invoked, and the low conviction rate in cases related to sedition suggest the same.
In May this year, the Supreme Court Bench of Justice UU Lalit, Indira Banerjee and KM Joseph accepted a plea by two journalists to re-examine the validity of the law of sedition and issued a notice to the Central government to seek its response. In the midst of the debate around the validity of sedition in today’s age, all eyes are on the development in this particular case.