It is time to define the limits of sedition: Supreme Court

What is the news?

• The Supreme Court said “it is time to define the limits of sedition” even as it protected two Telugu channels from any coercive action by the Y.S. Jagan Mohan Reddy-led Andhra Pradesh government for their reportage of the COVID-19 pandemic in the State.
• A three-judge Bench led by Justice D.Y. Chandrachud flagged indiscriminate use of the sedition law against critics, journalists, social media users, activists and citizens for airing grievances about the governments’ COVID-19 management, or even for seeking help to gain medical access, equipment, drugs and oxygen cylinders.
• “We are of the view that the ambit and parameters of the provisions of Sections 124A (sedition), 153A and 505 of the Indian Penal Code 1860 would require interpretation, particularly in the context of the right of the electronic and print media to communicate news, information and the rights, even those that may be critical of the prevailing regime in any part of the nation,” the court noted in its order.

How is sedition defined under the law?

• Sedition, which falls under Section 124A of the Indian Penal Code, is defined as any action that brings or attempts to bring hatred or contempt towards the government of India and has been illegal in India since 1870.
• Section 124A defines sedition as an offence committed when "any person 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".
• Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence under this section.

History of Sedition

• Sedition laws were enacted in 17th century England when lawmakers believed that only good opinions of the government should survive, as bad opinions were detrimental to the government and monarchy.
• The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but was inexplicably omitted when the Indian Penal Code (IPC) was enacted in 1860.
• Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it felt the need for a specific section to deal with the offence.

Impact of Sedition

• Sedition is a non-bailable offence. Punishment under Section 124A ranges from imprisonment up to three years to a life term, to which a fine may be added.
• A person charged under this law is barred from a government job.
• They have to live without their passport and must produce themselves in court at all times as and when required.

Sedition data

• NCRB, starting in 2017, introduced a new category of crime: incidents of violence by “anti-national elements". These anti-national elements - bucketed into four groups:

1. north-east insurgents,
2. ‘Jihadi’ terrorists
3. Naxalites and
4. Other terrorists - had 1,012 cases registered against them in 2018.

• In 2019, 9% of the sedition cases pending from previous years and filed in 2019 resulted in a closure because the accused were untraceable.
• Charge sheets were filed in only 17% of the cases.
• The conviction rate in such cases in 2019 was only 3.3%.
• That our government since 2014 has been misusing this law is evident from the fact that 96% of sedition cases against 405 persons for criticising politicians and governments were registered after 2014.
• Since then, there has been a 28% spurt over previous years in the number of sedition cases filed.
• Around 65% of the 10,938 individuals accused of sedition since 2010 have been implicated during the present regime.
• According to the National Crime Records Bureau’s report, Crime in India, 93 cases of sedition were filed in 2019, which is a 165% jump from 35 in 2016. The state of Uttar Pradesh seems to be the most enthusiastic in this regard.
• Around 77% of the 195 sedition cases since 2010 were registered in the last four years since Yogi Adityanath became chief minister. More than half of these cases targeted those who protested against the Citizen (Amendment) Act, 2019.
• The authoritarian streak of the present regime is apparent from the indiscriminate use of the law of sedition to shackle guaranteed fundamental freedoms without reasonable cause.
• This is reflected in India slipping from the 27th position in 2014 to the 53rd in 2020 in the Economist Intelligence Unit’s Democracy Index global ranking. In terms of press freedom too, India is ranked 142 out of 180 countries in the World Press Freedom Index 2020.

Major Supreme Court Decisions on Sedition Law:

1) Brij Bhushan vs the State of Delhi and Romesh Thappar vs the State of Madras.

• The SC highlighted debates over sedition in 1950 in its decisions in Brij Bhushan vs the State of Delhi and Romesh Thappar vs the State of Madras.
• In these cases, the court held that a law which restricted speech on the ground that it would disturb public order was unconstitutional.
• It also held that disturbing the public order will mean nothing less than endangering the foundations of the State or threatening its overthrow.
• Thus, these decisions prompted the First Constitution Amendment, where Article 19 (2) was rewritten to replace “undermining the security of the State” with “in the interest of public order”.

2) Kedar Nath Singh vs State of Bihar

• In 1962, the SC decided on the constitutionality of Section 124A in Kedar Nath Singh vs State of Bihar.
• It upheld the constitutionality of sedition, but limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
• It distinguished these from “very strong speech” or the use of “vigorous words” strongly critical of the government.

3) In 1995, the SC, in Balwant Singh vs State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.

4) Recent news: Farooq Abdullah

• Voicing dissent against the government does not amount to sedition, the Supreme Court said while rejecting a plea to “terminate” the Lok Sabha membership of National Conference leader Farooq Abdullah and book him for sedition.

Why is there less conviction in Sedition cases in India?

• One reason for this could be that sedition as an offence has no solid legal grounding in India.
• The Indian Constitution lays out freedom of expression as a fundamental right which many legal scholars have argued prevents sedition from being an offence.
• In 1967, the government enacted the Unlawful Activities (Prevention) Act (UAPA). This was meant to be a more specific law intended to impose more reasonable restrictions on freedom of speech in the interests of sovereignty and integrity of India.
• In 2018, there were 1,182 cases registered under UAPA. And almost all these cases (92%) were concentrated in five states (Uttar Pradesh, Jammu and Kashmir, Assam, Jharkhand and Manipur).
• Because of its use to clamp down on dissent, the UAPA has faced similar criticisms as the sedition law.
• And the joint existence of a sedition offence and the UAPA governing the same category of offence makes little sense.
• UAPA and sedition though are just two of the many offences that can be committed against the state.
• Under the NCRB’s breakdown of offences against the state, the biggest offence comes under the Prevention of Damage to Public Property Act. The Act, which lays down the law about damage to public property, accounted for more than 80% of all offences against the state in 2018 and has increased since 2016.

Arguments in Support of Section 124A:

• Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements.
• It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State.
• If contempt of court invites penal action, contempt of government should also attract punishment.
• Many districts in different states face a maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution.
• Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.

Arguments against Section 124A:

• Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.
• Dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. They should not be constructed as sedition.
• Right to question, criticize and change rulers is very fundamental to the idea of democracy.
• The British, who introduced sedition to oppress Indians, have themselves abolished the law in their country.
• The terms used under Section 124A like 'disaffection' are vague and subject to different interpretations to the whims and fancies of the investigating officers.
• IPC and Unlawful Activities Prevention Act 2019 have provisions that penalize "disrupting the public order" or "overthrowing the government with violence and illegal means". These are sufficient for protecting national integrity. There is no need for Section 124A.
• The sedition law is being misused as a tool to persecute political dissent. A wide and concentrated executive discretion is inbuilt into it which permits the blatant abuse.
• In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India's international commitments.

Way Forward

• India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy.
• Section 124A should not be misused as a tool to curb free speech. The SC caveat, given in Kedar Nath case, on prosecution under the law can check its misuse.
• The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
• The word ‘sedition’ is extremely nuanced and needs to be applied with caution. It is like a cannon that ought not to be used to shoot a mouse; but the arsenal also demands possession of cannons, mostly as a deterrent, and on occasion for shooting.

Recent SC Verdict on Sedition

• The Chief Justice of India indicated that Section 124A (sedition) of the Indian Penal Code may have passed its time asking the government what was the need for the ‘colonial law’ of sedition after 75 years of Independence.

Chief Justice of India's Statement on Sedition law

• Chief Justice of India, in a judicial criticism of the way the sedition law is used by the government to crush liberties, asked why a colonial law used against Mahatma Gandhi and Bal Gangadhar Tilak continued to survive in the law book after 75 years of Independence.
• This is a step away from the court’s own Kedar Nath judgment of 1962 which had upheld Section 124A but read it down to mean any subversion of an elected government by violent means.
• The CJI’s refered to low conviction rates under the sedition law & dramatic jump in charging a person with the offence of sedition since 2016.

Low convictions in Sedition cases

• In 2019, 93 cases were on the ground of sedition as compared to the 35 cases that were filed in 2016 (a 165% increase).
• Of these 93 cases, chargesheets were filed in a mere 17% of cases and the conviction rate was an abysmally low 3.3%.
• National Crime Records Bureau reports show that in 2019, 21 cases of sedition were closed on account of no evidence, two were closed being false cases and six cases held to be civil disputes.