This blog has been authored by Anshuman Jhala and Vatshal Raval. The authors are 3rd year BSc LLB students at Gujarat National Law University.
Introduction
The Indian Penal Code [“Code”] can trace its origins back to the British colonial era. The necessity for the establishment of a complete and standardised criminal law system in British India became evident due to the existence of diverse legal frameworks across the territories under British governance. This heterogeneity frequently resulted in a state of inconsistency in the dispensation of justice. Consequently, a single criminal code was developed with the intention of ensuring consistent application throughout the entirety of the Indian subcontinent. In 1830s, Thomas Macaulay was tasked with bringing about some uniformity in the criminal laws of British India which was introduced in 1860. Interestingly, Sedition was introduced in 1870 through the means of the Penal Code Amendment, Act No. XXVII of 1870.Eventually, Sedition would go on to become the British Raj’s favourite enforcement to curb the Indian freedom struggle, which would, in the long run, prove of no use. Sedition is still part of the Code and has been a hotbed of controversy since Independence, with many calling it a draconian provision put in place to stifle the independence movement and now used by the authorities to curb dissent. In 1948, the Constitutional Assembly rejected the motion put forward by K.M Munshi to remove sedition. This blog explores the differences between Section 124A of the Code and Section 150 of the Bharatiya Nyaya Sanhita [“Sanhita”].
Section 124A of the Indian Penal Code of 1860.
Section 124A of the Code penalises any action that has an effect of bringing feelings of disaffection, hatred, etc against the government. The law, in colonial times, was largely employed to cater to colonial interest by ensuring no individual had the bravery to express the feeling of anger and discontentment against the British Raj. However, quite ironically, our colonisers got rid of the law of sedition in the year 2009 by way of Section 73 of the Coroners and Justice Act, 2009, following a dormant period where not a single case of sedition was instituted after 1972.
Queen v. Jogendra Chandra Bose was the first trial where the section was applied. Originally, the Federal Court decided that the gist of the provision is the incitement of violence and mere criticism or abuse would not constitute sedition in Niharendu Dutt Majumdar v. The King Emperor. This view was narrow but was subsequently overruled by the Privy Council in King-Emperor v. Sadashiv Narayan Bhalerao.
The Section has the following ingredients:
- Effort or attempt of bringing hatred or contempt against the Government of India through words, spoken or written, symbols or actions.
- Such effort should lead to incitement of violence against the government.
Surprisingly, the section does not take into consideration the consequence of such action, spoken or written word or symbol, when deciding the ingredients. The fact that an outbreak was not caused or the words did not lead to a disturbance is completely immaterial for the application of this provision.
The section is not by itself very broad since it excludes disapprobation of Government actions which do not excite feelings that can generate an inclination to cause public disorder. In the case of Naurang Singh v. Union Territory, Chandigarh, the Punjab and Haryana High Court laid down that considering the text and tenor of a speech made by the accused, the speech clearly had an underlying intention to bring contempt against the Government with the likelihood of eruption of violence and public disorder.
One of the most famous cases of sedition was the Trial of Bal Gangadhar Tilak with reference to his editorials, published in the Kesari newspaper. The trial led to an eventual redefinition of sedition laws in the nation.
Various other cases, such as the trial of Bhagat Singh and the Benoy, Badal and Dinesh trial show that the sedition law had been once employed to frame our freedom fighters for showing their nationalism and criticising the British Raj.
The provision, after being challenged in the Apex Court was upheld as being constitutionally valid in the case of Kedar Nath Singh v. State of Bihar where it was laid down that the presence of intention of circumventing the government using violent means would attract this section. It was also laid down that citizens who express disapproval of the government with the goal of inciting public disorder can do so but they shall not incite people to engage in violence against the government.
The scope of Section 124A is quite broad, which eases the manipulation and misuse of this provision, leading to a myriad of cases against anyone who criticizes the government. A variety of journalists have been charged with this provision of the Code.
The Supreme Court has also, from time to time, clarified certain aspects related to the application of such law. In the case of Balwant Singh & Anr v. State of Punjab, the Court laid down that two people carelessly raising slogans at a random place will not amount to showing dissatisfaction with the government and, therefore not amount to sedition.
Aseem Trivedi v. State of Maharashtra was another instance, among many, of a cartoonist being charged with Sedition for his cartoons.
Shreya Singhal v. Union of India [“Shreya Singhal”] was the landmark case that led to the repeal of Section 66A of the Information Technology Act, 2000. The Mumbai Police detained two teenage girls for displaying their dissatisfaction with a protest organised by Shiv Sena via Facebook, a social media app. The provision was challenged on the basis of it being ultra vires of Article 19(1) of the Constitution of India. The Supreme Court finally repealed the provision in the year 2015 in Shreya Singhal and also made a distinction between “advocacy” and “incitement”. The Court also opined that an individual can only be prosecuted under Section 124A if they have a direct connection to the commission of violence or the instigation of public disorder. Further, the limitation imposed in the interests of public order to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order.
One of the cases that captured national attention emerged in the campus of Jawaharlal Nehru University in Delhi, where Kanhaiya Kumar was detained by the police for alleged violation of Sections 124A and 120B of the Code. Kumar denied all accusations of delivering seditious slogans. His arrest sparked debates all across the nation and even across the globe in the United States.
Section 150 Of The Bharatiya Nyaya Sanhita
On August 11, 2023, with a major criminal law revamp in mind, three new bills were introduced in the lower house of the Parliament. One of these bills was the Bharatiya Nyaya Sanhita Bill (to replace the Indian Penal Code).
The objective behind the bills, according to the Home Minister, is to do away with the British-era laws, which were designed not for the enforcement of justice but to curb the Indian freedom struggle. The Sanhita reduces the number of sections in the Code and removes the word sedition from the bill altogether. However, this is not to be confused with the notion that the provision of sedition has been removed; it has merely been given a disguise. The new provision under Section 150 of the Sanhita appears to be even stricter and gives the government more scope to punish individuals than the original section 124A of the Code.
A major change to the provision is that according to the old law, a person accused of sedition could get away with a fine, but now he may be punished with imprisonment for life or with imprisonment, which may extend to seven years and shall, along with that, be liable to pay fine. One could argue that the new law has made the punishment more severe. The changes related to punishment have been made after the recommendations given by the 22nd Law Commission of India.
In the Code, electronic and financial means were not included in the ambit of sedition but are added to the Sanhita. So, anyone who by financial or electronic means attempts to damage the sovereignty, integrity and unity of India may be charged with sedition. The presence of the phrase “by use of financial means” introduces a certain level of uncertainty, particularly due to the lack of explanations accompanying the proposed clauses in the new legislation pertaining to it. The lack of clarity on the definition of the term “subversive” within the context of this sentence is also evident. The current objective appears to be expanding the scope of the existing sedition, albeit without including the safeguards established by judicial interpretations thus far.
The notion of promoting sentiments towards separatist activity has also been introduced. The phrase “separatist activities” possesses multiple interpretations and could function as a political instrument to suppress opposition groups or individuals who engage in protests against government policy. It can also act as an umbrella term intended to prevent crimes which may not strictly fall under any provision of the Code. This vagueness in terms used in drafting the Sanhita, however, has been a major criticism of it at first glance.
The constitutionality of Sedition has been challenged in the case of SG Vombatkere v. Union of India, which has been res subjudice (meaning that the matter is under consideration and awaits a final decision) for a considerable time before a Bench led by former Chief Justice NV Ramana. The Bench, in its Order dated 11.05.2022 had suspended the operation of the Section while the Apex Court reconsiders the validity of the provision:
As stated earlier, the Law Commission recommended that sedition be a part of the law of the land, and it seems that the incumbent government has followed through on the recommendation and, in drafting a new law, has perhaps added even more ambiguity and harshness to that which was already existing.
Conclusion
Section 124A of the Code has been subject to significant issues since its inception during the colonial period. The first controversy surrounding its implementation stemmed from its perceived utilisation as a means to suppress revolutionary activities. While detractors contend that it exhibits draconian tendencies and hampers democratic processes, proponents assert its significance in safeguarding national security. Nevertheless, it is undeniable that over use of this measure poses adverse effects on the functioning of the World’s Largest Democracy.
Its contentious use is highlighted by application of the law to silent our great freedom fighters like Bal Gangadhar Tilak and Bhagat Singh. In independent India, despite objections to its constitutionality, it endures. Recent changes to the law, such as the Bharatiya Nyaya Sanhita Bill in 2023 a proposed new law whose objective is to remove the colonial shackles of injustice from the Indian criminal system, aim to replace “sedition” with a much harsher and broader Section 150,raising the quantum of punishments and leading to an expansive interpretation. However, the application of this wider and harsh law disguised as liberal can only be witnessed if and when the Sanhita passes. It becomes important herein to ensure that the provisions are not misused or misconstrued and that citizens are not booked rampantly for every expression of dissatisfaction which would defeat the entire purpose of a criminal law revamp. However, it should also be noted that the threshold to declare someone guilty under the new Code is higher than that in the old one which can also lead to lesser cases and application of the provision only in extreme cases.