Colonial, political and legal history of the sedition law in India
NEW DELHI: Underlining a constitutional court’s duty to protect civil liberties, the Supreme Court on Wednesday put on hold the 152-year-old colonial-era penal provision of sedition in India.
The historic decision by a bench, led by Chief Justice of India (CJI) NV Ramana, held that it would not be appropriate for the law to be invoked when the central government has itself embarked on a journey to review Section 124A in the Indian Penal Code. It directed that no new FIRs be lodged, while those already booked under Section 124A can approach courts for bail and other appropriate reliefs.
The development in the highest court of the land brings into the spotlight the intriguing history of sedition law, which carries a maximum punishment of life imprisonment, and which allows police to arrest individuals without a warrant.
Insertion of sedition in the Indian Penal Code
IPC was brought into force in colonial India in 1860, but had no section concerning sedition. British historian-politician Thomas Macaulay drafted the IPC in the year 1837, and through clause 113 of the Draft Indian Penal code, he also introduced sedition as an offence punishable with life imprisonment. However, it is argued that the clause on sedition was dropped from the original IPC draft by mistake, and therefore Section 124A was inserted later in IPC in 1870.
Under Section 124A of IPC, the offence of sedition is committed when any person, by words or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the government established by law.
Three explanations added to the provision prescribe that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.
Sedition is a cognisable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.
Use of sedition in the British Raj
The penal provision was primarily used by the British government to quell nationalist voices and demands for freedom. The long list of India’s national heroes accused in cases of sedition includes Bal Gangadhar Tilak, Mahatma Gandhi, Bhagat Singh, and Jawaharlal Nehru.
Tilak was the first person to be convicted of sedition in colonial India. The British government brought the charge alleging that articles carried in his Marathi newspaper Kesari would encourage people to foil the government’s efforts at curbing the plague epidemic in India. In 1897, Tilak was punished by the Bombay high court for sedition under Section 124A, and was sentenced to 18 months in prison. Tilak was held guilty by a jury composed of nine members, with the six white jurors voting against Tilak, and three Indian jurors voting in his favour.
In 1922, Gandhi was arrested on charges of sedition in Bomlaw bay for taking part in protests against the colonial government. He was sentenced to six years in prison but was released after two years on medical grounds.
Later, Section 124A was given different interpretations by the Federal Court, which began functioning in 1937, and by the Privy Council that was the highest court of appeal based in London.
In Niharendu Dutt Majumdar Vs King Emperor, 1942, the Federal Court held that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence”. But this proposition was overturned by the Privy Council in King Emperor Vs Sadashiv Narayan Bhalerao, 1947.
The Privy Council lent credence to the law laid down in Tilak’s case and ruled that incitement to violence was not a prerequisite for the crime of sedition and that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A – making the a convenient tool for the rulers to crush dissent.
Sedition law after Independence
After Independence, “sedition” was dropped from the Constitution in 1948 following the discussions of the Constituent Assembly. KM Munshi moved an amendment to remove the word “sedition”, which was included in the draft Constitution as a ground to impose restrictions on constitutional freedom of speech and expression. The word “sedition” thus disappeared from the Constitution when it was adopted on November 26, 1949, and Article 19(1)(a) gave absolute freedom of speech and expression. But Section 124A continued to stay in IPC as it was.
In 1951, Nehru brought in the first amendment of the Constitution to impose State-mandated limits on the freedom under Article 19(1)(a), and enacted Article 19(2) that empowered the State to put curbs in the form of “reasonable restrictions” on the right to free speech. Though the first Prime Minister of the country identified offence of sedition being fundamentally unconstitutional and further said that the sooner this law is removed the better it would be, his government went on to add curbs on free speech and expression through the amendment.
The next amendment in the law made sedition a graver offence. The Indira Gandhi government made Section 124A a cognisable offence for the first time in India’s history. In the new Code of Criminal Procedure, 1973, which came into force in 1974 and repealed the colonialera 1898 Code of Criminal Procedure, sedition was made a cognisable offence authorising the police to make arrests without a warrant.
The legal history
The validity of sedition law was tested for the first time in Independent India by the then Punjab high court in 1951 in Tara Singh Gopi Chand Vs The State. The high court struck down Section 124A, terming it a restriction on the freedom of speech and expression under Article 19 of the Constitution of India. It was this judgment that prompted the Jawaharlal Nehru government to introduce through the constitutional amendment new grounds on which the right to freedom of speech and expression could be reasonably restricted.
Later, the high courts of Patna and Allahabad came out with conflicting judgments on the validity of Section 124A, prompting a constitution bench to rule on the subject. In the Kedar Nath verdict of 1962, the five-judge bench affirmed the validity of the sedition law, holding that the law is meant to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. It also underlined that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.
The latest raft of petitions before the Supreme Court has implored it to reconsider the Kedar Nath judgment in the wake of a “sea change” in the jurisprudence of the country in the last six decades and a more focussed approach of the constitutional courts to safeguard liberty and dissent, which has been called “safety valve of democracy”.