By Anshika Juneja, Symbiosis Law College, Pune.
KENNY- the Law of Sedition relates to the uttering of the seditious words, the publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious intention. The Bombay High Court on Tuesday 22nd September, directed the State not to implement its circular issued by the Home Department defining guidelines for the police to book people under sedition charges while hearing a public interest litigation (PIL) filed by Advocate Narendra Sharma, who practices in the Bombay HC, sought for quashing of the circular. A division bench of Justice VM Kanade and Justice Dr Shalini Phansalkar Joshi asked the government to file a detailed affidavit within two weeks or it would decide on the petition at the admission stage.
The circular — containing guidelines to the police by the State Government with regard to invocation of Section 124-A of the IPC — says the sedition clause can be invoked against “whoever, by words, either spoken or written, or by signs or by visible representation, is critical of politicians, elected representatives belonging to the government”. The section, however, will not be invoked against those trying to bring in change in the government through legal means “without hatred and contempt”.
This PIL stated that “Through the circular, instead of clarifying, the government is trying to amend the section. This is not permissible without following due procedure and approval of the legislature.”
The PIL further states that the circular is ultra vires (beyond one’s legal power or authority) and an attempt to “gag citizens”. The petition also prays for non-implementation of the circular until a final decision on the petition as the circular will rob people of freedom of speech and expression hence challenging the constitutional validity.In Tara Singh v. State of Punjab, Section 124-A, of the Indian Penal Code was struck down as unconstitutional being contrary to the Freedom of Speech and Expression guaranteed under Art 19(1) (a).
Aseem Trivedi, a political cartoonist who was arrested last year under Section 124A and other provisions of IPC for cartoons that allegedly insulted the National Emblems and Parliament which were published on ‘India Against Corruption’ website and later absolved of the charges by the High Court, argued: “The circular encroaches on the statutory powers. Executive cannot widen the ambit of the legislature on its own. “This ambiguity can be misused by the State against an individual citizen for fair criticism of politician or public personality and or against a fair criticism of their policies.”
Trivedi and others contended that Clauses 1 and 2 of the circular did not mention the basic ingredients of sedition, i.e, words (spoken or written), signs or representations must be made with the object to overthrow or subvert the government (central or state) established by law by “violent means”, by creating feeling of contempt or hatred or disaffection against it or by bringing or attempting to bring into hatred or contempt towards it or by exciting or attempting to excite disaffection towards it. One cartoon shows India’s National Emblem, the Ashoka Lions, with foxes rather than lions. In the inscription on the emblem, the words ‘Satyamev Jayate’ are replaced with ‘Brashtamev Jayate’ (meaning corruption alone triumphs) and a danger sign.
A number of judgements have made a distinction between the criticism levelled against the State and against the Government and its officers and some judgements by High Courts of different states have even held sedition to be unconstitutional. In the case of Ram Nandan v. State of U.P. Hon’ble High Court held that Section 124-A imposed restriction on the freedom of speech which is not in the interest of the general public and hence declared 124-A as ultra vires. But this decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court in the case of Kedarnath Das v. State of Bihar, that held Section 124-A, intra vires; the court upheld the constitutionality of sedition. But the court said that there was a distinction between “the Government established by law” and “persons for the time being engaged in carrying on the administration.”
The order in the Trivedi Case went on to state that ‘A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comments, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder’.
In the case of Bal Gangadhar Tilak, it was held that if the person tried to excite feelings of hatred or contempt towards the Government, that is sufficient to make them guilty under this section.
On this basis, the Court had suggested that the State Home Department issued guidelines to the police, in the form of pre-conditions to the invoking of Sec 124 A.
The arrest of the cartoonist sparked protests and a nation-wide debate on whether colonial-era laws like sedition had any place in Independent India.
Subsequently, after a legal opinion of the State Advocate General, police decided to drop Sec 124A but retain the other two laws as the cartoons displayed were a part of a movement launched by Anna Hazare against corruption in India, were full of anger and disgust against corruption prevailing in the political system and had no element of wit or humour or sarcasm.
‘But for that reason, the freedom of speech and expression available is to express his indignation against corruption in the political system in strong terms or visual representations could not have been encroached upon when there is no allegation of incitement to violence or the tendency or the intention to create public disorder’.
The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest import, wiz., “in the interest of” “public order”. Thereby including the legislative restrictions on freedom of speech and expression. Interpretation as of section 124-A, of I.P.C is constitutional and is not in contravention of Art 19(1) (a) as it is saved by the expression “in the interest of public order” in Art 19(2). It has been stated that the expression in the interest of public order is of wider connotation, and includes not only the Acts which are likely to disturb public order but something more than that. In accordance with this interpretation, section 124-A, I.P.C. has been held intra vires of the constitution. This view has relied on the Supreme Court in the case of Kedarnath v. State of Bihar (supra) wherein it was held that any law which is enacted in the interest of public order may be saved from the voice of constitutional invalidity. Also, the right guaranteed under Art19(1) (a) is subject to such reasonable restriction as would come within the purview of clause (2), to Art 19 which comprises of Public order.
Several countries of the Commonwealth, including India, continue to hold on to sedition even as the UK decided to drop it in 2009, from their own common law after a concerted campaign from free speech groups. In India, the campaign against the arrest of Dr Binayak Senprompted the then Union Law Minister, Veerappa Moily, to agree that sedition laws were outdated.
Mahatma Gandhi through articles in Young India in 1922 and, then in a famous speech, said: Section 124 A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. In the case of Niharendra Dutt Majumdar the Federal Court of India had, however, held that the gist of the offence of sedition is incitement to violence; mere abusive words are not enough. The view of the Federal Court was subsequently overruled by the Privy Council, in Sadashiv Narayan, as being opposed to the view expressed.
The word “Sedition” does not occur in Section 124-A of the Indian Penal Code or in the Defence of India Rule. It is only found as a marginal note to Section 124-A, and is not an operative part of the section but merely provides the name by which the crime defined in the section will be known.
Hence, the legislature needs to pass an order with the revised version of the circular containing guidelines for the invocation of Section 124-A of the IPC which is apparently promised by the government as there might have been a translation defect in the circular. The revised circular should without taking away the fundamental rights of the citizens of the country, upheld the constitutional validity and hereby make a real democratic country, of people who are free to criticize the government formed by them peacefully without any threat of the police, but must not instigate a war against it.