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Sedition law challenged: the legacy of colonial India still looms large

The colonial sedition law is still in force in India, hampering the spirit of free expression and freedom of speech. Much so, the legacies of such laws disrupt or create serious obstruction in the proper functioning of the freedom of the press.

Renowned journalists, Patricia Mukhim, Editor, The Shillong Times, and Anuradha Bhasin, Owner, The Kashmir Times, moved to the Supreme Court of India to challenge the constitutional validity of the offense of the sedition as codified in Section 124A of the IPC.

Section 124A of the Indian Penal Code (IPC) lays down the punishment for sedition. It forms part of chapter VI of the code which deals with the offense against the state. It comprises sections 121 to 130, wherein sections 121A and 124A were introduced in 1870. The need for the law was felt as the British government feared the Muslim preachers of the Indian subcontinent, thinking they would wage a war against the then British government. Under the British Raj, the section was primarily used to suppress activists which were in favor of national independence.

Section 124A states, "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 the 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, with fine”.

  • The expression “disaffection” as mentioned above, includes disloyalty and all feelings of enmity.

  • Comments which express disapproval over the measures of the government intending to obtain modification by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, will not be counted as an offense under the section.

  • Comments expressing disapproval over the administrative or other actions of the government to obtain modification by lawful means, without attempting to excite hatred, contempt of dissatisfaction, will not be counted as an offense under this section.

At numerous intervals, the sedition law in India faced criticisms as it posed a hindrance to the right to free speech. According to the data by National Crime Records Bureau(NCRB), about 326 sedition cases were filed in India in just a span of five years (2014-2019). Among these, charge sheets were filed in only 121 cases which resulted in only 6 convictions.

In addition to this list, another petition has been filed before the Supreme Court of India, challenging the constitutional validity of the offense of sedition as codified in section 124A of the IPC. Filed by two women journalists, Patricia Mukhim and Anuradha Bhasin, the petition claims, the sedition offense has been under use for almost six decades and it intimidates, silences, and harasses the journalists. It is believed, that unless this provision is deleted from the IPC, it will continue to “haunt and hinder” the right to free speech and the freedom of the press. The petition has been filed through Advocate Aakarsh Kamra, settled by Advocate Vrinda Grover, and drafted by Soutik Banerjee.

Following are the points raised in the petition.

1. Given the evolution of the fundamental rights of the citizens from 1970-2021, the impugned provision is liable to be struck down as being ultra vires, citing Articles 14, 19, and 21 of the Indian constitution. The plea refers to various supreme court judgments in the cases of

  • RC Cooper vs. Union of India (1970) 1 SCC 248, where an 11- judges bench had held that the real test of constitutionality lay on the impact it has on an individual's life.

  • KS Puttaswamy vs. Union of India (2017) 10 SCC 1, where the test of manifest arbitration was applied.

  • Kedar Nath Singh vs. the State of Bihar, where the provision was upheld by the Supreme Court in 1962.

2. The plea also points out that the said judgment upheld the constitutionality of Section 124A IPC when it was a non-cognizable offense, which is not a valid law today. Since 1973, the offense of sedition is considered a cognizable and non-bail able offense.

3. It was argued that the constitutionality of sedition as a restriction of speech does not fulfill the test of proportionality and speech.

4. The plea stated that the issue of words like hatred, disaffection, disloyalty, etc, is vague and incapable of precise construction of the communication and thus falls out of Article 14 of the constitution, which guarantees that all people are equal before the law.

5. The impugned provision does not survive the test of 'harm principle as it criminalizes protected speech, which does not have any kind of proximity with inciting violence or public disorder, but may be interpreted to tend to incite public disorders.

6. The remarks were made while hearing the petition moved by Army veteran Major General SG Vombatkere. It challenged the sedition law by calling it ‘vague’ and creating a ‘chilling effect on the right to free speech and expression’.

7. Justice UU Lalit is also heading a bench that is hearing the ongoing plea, as well as the interventions applications, challenging the constitutional validity of Section 124A of the IPC. On 30th April 2021, the court had issued a notice in the plea filed by two journalists working in the states of Manipur and Chhattisgarh.

8. Former Union Minister Arun Shourie also moved the top court stating that the judgment in the case of Kedar Nath Singh requires a re-consideration since the doctrine of presumption applied is no longer relevant. He, along with the People’s Union for Civil Liberties (PUCL) has also challenged section 124A. The PUCL said that sedition was a political crime, originally enacted to prevent political uprisings against the crown and to control the British colonies. It has no place in independent India.

9. On 12th July 2021, the court had sought the response of the AG in the case and had adjourned the matter till 27th July 2021. It has granted two weeks to the respondents to file their respective responses.

10. On 15th July 2021, the apex court agreed to examine the pleas, and said that its main concern was the "misuse of law".

The Supreme Court on sedition law mainly questioned the government as to whether it still needed the law, 75 years after independence by calling the law 'colonial'. The Supreme Court also mentioned that the law will pose a serious threat during the functioning of institutions as it holds enormous power which can be misused with no accountability for the executive.


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