This post has been self-published on Youth Ki Awaaz by Ashish Kotadiya. Just like them, anyone can publish on Youth Ki Awaaz.

Has Section 124-A Outlived Its Purpose?

More from Ashish Kotadiya

If we go see history of charging of Section 124-A, the enormous power of this section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree. That’s the effect of this provision.

Chief Justice of India N.V Ramana’s remarks in open court sends a clear and articulate message to the government that the Supreme Court is prima facie convinced that sedition is being misused by the authorities to stifle and suppress the voice of citizens and their fundamental right of free speech and liberty.

The CJI has sent a clear message that section 124A (called Sedition) of Indian Penal Code has passed its time. The honorable Supreme Court has made it clear that it is very sensitive to public demand to judicially review the manner in which law enforcement authorities are using the sedition law to control free speech and send journalists, activist, poet, authors, cartoonists and dissenters to jail and keep them there.

The CJI has sent a clear message that section 124A (called Sedition) of Indian Penal Code has passed its time.. Representational image. Photo: NDTV

This dispute about law is concerned, its colonial law, it was meant to suppress the freedom movement, the same law was used by British to silence Mahatma Gandhi, Tilak, etc. Still is it necessary after 75 years of independence? The government is taking out many laws. I don’t know why they are not looking into this.” remarked the CJI.

The CJI’s reference to conviction rates under the sedition law resonates with a petition filed by senior journalist Shashi Kumar, highlighting the dramatic jump in charging a person with the offence of sedition. In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016.

Of these 93 cases, charge sheets were filed in a mere 17% of cases and even worse, the conviction rate was an only 3.3%. The NCRB report shows that in 2019, 21 cases of sedition were closed on account of an availability of no substantial evidence, two were closed for being false cases and six cases held to be civil disputes.

Recently, Supreme Court Justice D.Y Chandrachud made it clear when he was speaking on ‘Role of the Supreme Court in protecting Fundamental rights in challenging times’ at a virtual conference hosted by American Bar Association, that “Criminal law, including anti-terror legislation should not be misused for quelling dissent or for the harassment of citizens”.

Further, he said that the Supreme Court plays the role of a counter-majoritarian institution and it is the court’s duty to protect the rights of socio-economic minorities. Our Indian judiciary has continued to remain the first line of defence against the deprivation of liberty of citizens.

Deprivation of liberty even for a single day is one too many. Many have termed these interventions by the Supreme Court as ‘Judicial activism’ or ‘Judicial overreach’ but it is the duty of court to put a break where executive or legislative actions infringe fundamental rights.

History Of Sedition

Before going to challenge the constitutionality of the colonial era sedition law, let’s put some light on the historical aspects of this contentious provision. Governments of the past and present have steadily used a colonial era law to charge many men and women, most recently during the farmers protest when a series of cases were filed against journalists and opposition politicians.

The crime of sedition was first defined in the draft Indian Penal Code of 1837. Englishman Thomas Macaulay was responsible for codifying the mishmash of law applicable in different parts of the country into a draft code. His draft code provided that anyone who by speaking or writing attempts to “excite feelings of disaffection’’ towards the government in the territories of the East India company will be punished with banishment for life or with imprisonment for three years.

Deprivation of liberty even for a single day is one too many. Representational Image.

The draft clause did not use the word ‘sedition’ and it was finished in 1837 and the mutiny of 1857 catalyzed its becoming into a law in 1860, a year after the death of Macaulay. But the law missed out on including the clause related to sedition. The mistake was rectified 10 years later by the insertion of Section 124-A in the penal code.

With nationalist movement gaining ground the then colonial government started using the sedition law as a tool to suppressing free speech and dissent. In 1897, Bal Gangadhar Tilak became the first political personality to be persecuted under the sedition clause for his writing and speeches. He faced three separates trials and was jailed twice.

Even when Mahatma Gandhi was tried under section 124A in 1922, he did not deny the charges. He said that “to preach disaffection towards the existing system of government has become almost a passion with me” while Nehru and Maulana Azad remained equally defiant at their sedition trials.

When sedition law came up for discussion during the framing of the constitution, the draft constitution included sedition as a restriction on the right of freedom of speech and expression. However, sedition was omitted and the constitution restricted the freedom of expression on grounds like libel, contempt of court, morality and security of the state.

But thereafter Prime Minister Nehru’s government in 1951 introduced the 1st Constitutional Amendment Bill in the provisional parliament. This amendment added three new restrictions to the freedom of speech, one of them being ‘public order’.

Constitutional Validity Of Section 124-A

Every citizen of India is entitled to fundamental rights provided in Part III of the constitution. Article 19(1) (A) of the constitution guarantees freedom of speech and expression, subject only to Article 19(2) which saves any law that imposes ‘reasonable restriction’ on the limited grounds of interest of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court, defamation etc.

The constitutional validity of section 124A of the IPC, 1860 is being ultra vires Article 19(1)(a) of the constitution read with article 14 and 21. This impugned provision was upheld in ‘Kedar Nath’ case (1962) subject to a partial reading down. This impugned provision is wholly unconstitutional and repugnant with provision of the constitution of India.

Representational image. Photo: REUTERS/Adnan Abidi

The verdict of ‘Kedar Nath’ case was overruled by the larger constitution Bench judgements in ‘R.C Cooper vs. Union of India’ (1970) and later the Supreme Court has again reaffirmed and strengthened in ‘Indira Gandhi vs. Raj Narayan’ (1975), ‘Maneka Gandhi vs. Union of India (1978), ‘I R Coelho vs. State of Tamil Nadu’ (2007) and recently in ‘Puttaswamy vs. Union of India’(2017) the scope, extent and the interrelationship between Articles 14, 19 and 21 of the constitution.

Each of these verdicts of the Supreme Court now establishes that fundamental rights in the constitution are not to be read as isolated silos or as watertight compartments, but are to be read as if the content of each fundamental right animates the other. The reasonable restriction of free speech under article 19(2) will need to considered afresh considering procedural as well as substantive due process embodied in Articles 14 and 21.

In 2011, D Raja as a member of the Council of States made one last attempt through a private member bill to remove the sedition law. Eventually, at the end of this article I would must say that Section 124A (sedition) of the Indian Penal Code may have passed its time and the time has come that government must should need to think on this very contentious law.

This article was first published on the Readers’ Blog, Times Of India.

Featured image is for representational purposes only.
You must be to comment.

More from Ashish Kotadiya

Similar Posts

By India Development Review (IDR)

By Lakshit Kale

By Tripathi Balaji

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.









We promise not to spam or send irrelevant information.

Share your details to download the report.









We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.









We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below