‘Sedition’ is considered to be one of the nebulous sections within the Indian Penal Code. It has had a hazy layer due to which the decisions have never been adjudicated appropriately, within the consonance of this section.
Sedition under Article 124A has been explained as,
‘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, shall be punished with, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.’[1]
In 1837, at the very first instance Macaulay regarded it under Section 13 of the IPC, although it was never laid down and was rejected because of clerical issues. [2] Eventually in 1898, the IPC amendment Act laid down sedition under the guidance of Justice Strachey.
Enactment of sedition
The meaning and the ambit of sedition has been through various transformative phases, and hence, one forgets the mere intention behind its inclusion under the IPC. The section was included during the colonial rule, which created an extensive obligation upon the public. The law of sedition was in line to Section 3 of the Treason Felony Act of 1848,
‘If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty’s dominions or countries under the obeisance of her Majesty, and such compassing, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable to be transported beyond the seas for the term or his or her natural life.’[3]
The above section seems to curtail the doors leading towards freedom of speech, although the main aim of the act was to maintain the sanctity of the official positions in the country and that no opinion or act should be derogatory towards such positions. Moreover, in England a person could be convicted only when all the judges on the bench find him guilty, while in British India, even if the majority of the judges on the bench find the individual guilty, he would be convicted.
On 3rd July 1908, Bal Gangadhar Tilak was convicted under Sedition by a verdict of 7:2, by the Bombay High Court for writing two articles in a Marathi Newspaper KESARI, he was sentenced for six years of transportation to Burma.[4] Under the British India laws, only Indians would be sentenced for transportation, whereas Europeans and Americans would be imprisoned and be immune from any kind of transportation.[5] The law seemed bizarre and biased towards the Indian community. The case depicts the barbaric acts which were performed by the Britishers under the realm of this section. It shows the bigger picture that the main emphasis was not to maintain the sanctity of the official positions, but was to rather to block the people from their growing rage against the government. This misconstrued notion of sedition had been poignant towards the people of India.
Judiciary’s role in defining the contours
Judiciary had made various attempts at making an ambit and creating a bubble for sedition, but they were mostly struck down because of the political interference. In 1941, for the first time the English test of Sedition was applied by Chief Justice Maurice Gwyer, laying down that mere criticism cannot be considered to be within the purview of sedition.[6] The English test explains that sedition is a conclusion of ‘direct incitement’ and thus no opinions or criticisms would be considered within its ambit. This test was reaffirmed in King emperor V. Sadashiv Narayan Bhalerao, and was ended up being famously known as the Gwyer test.[7]
Post-independence, judiciary played a prolific role in explaining the working of 124A, and the Supreme court also relied upon the Gwyer test.
Lacunae in Sedition
Post-Independence, there were two major lacunas which prevailed within the ambit of sedition, one was with regard to the nature of offence was non-cognizable and the other which still persists is that of the nature of punishment of the offence.
The first lacuna, deals with the nature of offence, that is, sedition being a non-cognizable offence. A non-cognizable offence gives powers to the police to arrest without a warrant. Although this lacuna was curtailed in 1974, that is post the introduction of the Code of Criminal procedures. It pertinently mentioned that the recommendations were taken from the 41st Law Commission of India Report.
The second lacuna which still flashes the manner in which the colonial rule was trying to restrict and narrow our bubble of freedom or the fury against the dominance of colonial rule, is with regard to the nature of punishment, that is if a person is found guilty, he would be given a life imprisonment. Well, it is pertinent to note that the judiciary has been extremely careful in deciding matter of sedition. But the lacuna still persists, and also English law never had life imprisonment as punishment, the punishment was for two years. This is considered to be one of the major drawbacks of having sedition law in the country.
Conclusion
It can be concluded that the applicability of the section has been constrained by the judiciary although the ambit of the punishment needs to be reduced and moreover, it should be curbed into more elaborated and on a lenient ground. It is also noteworthy that England abolished sedition in 2009, while we are still unconditionally in love with section. Moreover, a lot of nations which were under the colonial rule have abolished the section and have opened the gates to a freer speech world. Moreover, Dr. Subramanium Swamy said, that, ‘even without section 124A IPC, there are sufficient constitutional and statutory safeguards.’, which indicates that in case of any casualties on the part of the judiciary there are other remedies as well which can be prevailed, giving so much of relevance to this section would solve no purpose.[VIII] Thus, the lack of proper elaboration and the hazy layer there is a sense of iniquity which many governments seem to look for when they try to make it as their own political agendas. The lack of sanctity makes the section to be inconsiderate towards the public by taking away their right to speech, which is considered to be a right in rem. Thus, there is a dire need to procure and maintain proper barriers as well lay down proper guidelines to the use of this hazy layer.
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- The Indian Penal Code, Section 124A, (1860).
- Consultation paper on ‘Sedition’, Law Commission of India (2018), http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf (last visited Jul 14, 2019).
- The Treason Felony Act, Section 3, (1848).
- Bal Gangadhar Tilak v. Emperor, (AIR 1916 Bom 91), (1916).
- Abhinav Chandrachud, Republic of Rhetoric: – Free Speech and the Constitution of India (Penguin Books India Pvt Ltd) (2017).
- Niharendu Dutt Majumdar v. King Emperor, (1942 FCR 38), (1942).
- King emperor v. Sadashiv Narayan Bhalerao, ((1947)60 Law Weekly 462), (1947).
- Abhinav Chandrachud, Republic of Rhetoric: – Free Speech and the Constitution of India (Penguin Books India Pvt Ltd) (2017).
This article is written by Anmol Agarwal of Maharashtra National Law University, Mumbai.
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