Two orders given by India’s Supreme Court in two separate cases early this month have, once again, brought into sharp focus the issue of the colonial-era law relating to sedition in the context of media freedom. Both cases involve journalists and their reporting.

One of the cases relates to the booking of two journalists of Telugu language news channels under Section 124A of the Indian Penal Code (IPC) for telecasting a speech by a dissident leader of Andhra Pradesh’s ruling YSR Congress Party. The other case pertains to an FIR filed against noted journalist Vinod Dua, who was accused of having made remarks against Prime Minister Narendra Modi and his government’s handling of the migrant labor crisis during the Covid-19 lockdown in 2020. In the hearings in both cases, the top court has made important observations that have a strong bearing on media freedom and the future of the sedition law.

Background

• Section 124A of the Indian Penal Code lays down the punishment for sedition. 
• The Indian Penal Code was enacted in 1860, under the British Raj. The then British government in India feared that Muslim preachers on the Indian subcontinent would wage a war against the government. Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law. 
• Throughout the Raj, this section was used to suppress activists in favor of national independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
•  Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
• In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.

What is Sedition?

• The Indian Penal Code (IPC) defines Sedition (Section 124A) 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.
• Sedition is a non-bailable offence.
• Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.

The debate around

Arguments in favor

• Section 124A is needed in combating anti-national, secessionist and terrorist elements.
• It protects the elected government from attempts to be overthrown with violence and illegal means.
• Many districts in different states are affected by Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution. Hence the abolition of Section 124A would be ill-advised.

Arguments against

• Before Independence, this charge was used by the British to suppress the freedom movement.
• Ironically, the same draconian law has become a tool that the country is now using against its own people.
• During the colonial period section, 124-A was interpreted by the Privy Council in a way to suppress every act that expressed discontent against the govt.
• Many freedom fighters were slapped with these charges for invoking feelings of nationalism and educating the people of India against the policies adopted by the colonial power.
• Instead of critically analyzing why citizens, be they in Kashmir or Chhattisgarh or Bhima Koregaon, are driven to dissent, the government is using an iron-fist policy with the sedition law playing a leading role to completely shut out contrarian views.
• Despite the clearly set out guidelines for applying the charge of sedition, lower courts have routinely failed to apply these parameters while considering sedition cases. There is a complete lack of percolation of settled judicial opinion to lower levels of the judiciary. Judiciary should address this systemic lapse.
• Magistrates have the power to order a police investigation into cognizable offenses. And the Supreme Court has, in Lalita Kumari vs. Uttar Pradesh (2013), laid down that registration of an FIR is mandatory if information received by the police discloses a cognizable offense, However, in recent cases, it is unclear how the court or the police could conclude that the contents were seditious.

Supreme Court judgments on it

• In 1962, the Supreme Court decided on the constitutionality of Section 124A in Kedarnath Singh v 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.
• Maneka Gandhi case, 1978:

• The Maneka Gandhi judgment was a balanced judgment and is one of the best judgments that Indian Supreme Court has ever given.
• The judgment’s importance can be seen today also because the way in which the bench construed Article 21and expanded its horizons has given way for the resolving of problems left unsolved by the Parliament.
• The SC stated that Criticizing and drawing general opinion against the Govt. policies and decisions within a reasonable limit that does not incite people to rebel is consistent with the freedom of speech.

• In 1995, the Supreme Court, in Balwant Singh v State of Punjab, held that mere sloganeering which evoked no public response did not amount to sedition.

Way Forward

• The sedition law should not be abolished as some measurements are needed to check communal violence & insurgency activities like Naxals.
• The court also needs to examine the classification of the offense of sedition as cognizable and non-bailable.
• India is the largest democracy in 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 the 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.