A Rights-Based Critique of the Law of Sedition in India
- Sumit Chatterjee*
The law of sedition has been used as a political tool by the majoritarian government to silence any form of dissent or contrary opinion which is raised against it, since India attained independence in 1947. This has resulted in the large-scale curtailment of civil liberties, especially the right to free speech and expression. Sec. 124A of the Indian Penal Code (‘IPC’) has been invoked in cases wherein the government felt that there are significant questions being raised against its legitimacy and validity. It is, thus, used as a tool to suppress minority opinions and acts as a stifling mechanism and a deterrent to poignant and pertinent criticism levelled against the government. The hallmark of liberal democracy is the protection of the civil liberties of its citizens, even though they might be advocating for something which is unpleasant or contrary to the interests and beliefs of the majority. It places the duty to protect the individuals’ rights of citizens at an insurmountable pedestal. However, as a result of the prevalence of draconian provisions like Sec. 124A of the IPC, it is often observed that the government has prioritised its own interest. These are meretriciously anointed as ‘in the interests of the security of the state’ or ‘public order’, which are wholly detrimental to the idea of a rights-based government which values and endeavours to uphold the individual rights of its citizens.
Through this post, it will be argued that the law of sedition is detrimental to the interests of the citizens of India as it gives the government unbridled authority to curtail the civil liberties of its citizens, for which the citizens have to pay the heavy price of a prison sentence which may extend to life imprisonment. It will also be argued that the law of sedition, as it prevails in India, is superfluous, as the harm it seeks to eradicate already has corresponding provisions in the law which provide for redressing the same.
Ronald Dworkin, in his seminal work, Taking Rights Seriously, has argued that the right to free speech and expression is a sacrosanct prerogative provided to each citizen by the State, which, as a corollary, implies that it would be wrong for the government to curtail this right of citizens even though they might justify the same based on utilitarian grounds such as the benefit to a majority of people. He argues that in a paradigm where the government regards and respects the rights of citizens as sacrosanct, and assumes the role of the protector of those rights, there is no absolute duty on the citizens to obey the law. Thus, in such a paradigm, the citizens are not obligated to comply with a law with which they have moral qualms or compunctions. The government, therefore, cannot abridge the rights of a citizen, especially one as salient as the right to freedom of speech and expression, on the grounds that the general respect for the law would decrease if a law which has curbed free speech were not to be followed by the citizens of that nation.
However, what is being observed in India is completely antithetical to the idea of personal rights of an individual and the civil liberties which Art. 19 of the Constitution of India and India’s international legal obligations under the International Covenant on Civil and Political Rights (‘ICCPR’) and the Universal Declaration on Human Rights (‘UDHR’) mandate it to uphold. Thus, when Aseem Trivedi is booked under the law of sedition for drawing caricatures of the Parliament, the Constitution and the Members of Parliament for their questionable activities, or when protesters at the Kudankulam Power Plant are booked under Sec. 124A of the IPC even though the protest was completely peaceful and all the participants in the protest were completely unarmed and did not make any inflammatory statements inciting violence against the state, reflects how this law is just a weapon in the hands of the government to silence dissenters who oppose their ideologies and views. How is this any different from a totalitarian regime which seeks to shove a single ideology down its citizens’ throats and expect complete compliance as a compulsion?
The fundamental problem with the law of sedition is this: The state, by stifling dissent, is not really safeguarding the interest of the state or maintaining public order, all of which are empty phrases thrown by the government to justify its arbitrary application of a draconian law. It is just safeguarding the interests of the majority, who feel threatened by the voices of the minority and will grab at any opportunity to ensure that any voice in opposition to what they seek to preach and propagate is nipped in the bud. This is why, most people who are booked under the law of sedition have not even committed acts which would qualify the ingredients of Sec. 124A of the IPC, but are still charged by the police and the lower courts, who are afraid to acquit or leave people scot-free under the law of sedition, and placed under judicial custody for an indeterminate period of time.
What makes the defence of the law of sedition in India, in a rights-based paradigm, all the more untenable is that the government has essentially chosen what Dworkin referred to as the first model wherein the government performs a balancing act between the rights of an individual and the cost borne by the government to satisfy the demands of the society at large. Except even while adopting this model, the government is not really safeguarding the interests of the society at large but ensuring that the majoritarian viewpoint is protected. For, as we saw in the case of the 9000-odd people booked for sedition in the Kudalkulam Nuclear Power Plant protest incident, the aim of the government’s move was extremely clear: to ensure that there was a fear instilled in the minds of the protestors of criminal charges pursued against them for their actions. The protection of the interest of the state or of public order is never a consideration for the government while undertaking such measures. Nor is it to act in the interest of competing rights, which, as Dworkin mentions, is a situation in which the government might discriminate between the two rights which seem to conflict with each other.
In the case of the Kudalkulam nuclear power station protest, the very fact that it was a peaceful, non-violent protest meant that the people were just exercising their fundamental right under Art. 19(1)(b). Even though convictions under Sec. 124A have been few and far between, it is the gruelling process itself which becomes the punishment.
Another aspect which is worthy of consideration is the ruling of the Supreme Court with respect to the law of sedition and its application in the case of Kedar Nath v. State of Bihar. Even though it was held by the Supreme Court that the essential component which needs to be looked at in cases of sedition is whether the impugned act, symbol, words, etc. incited violence against the government or not, the same has been conveniently disregarded by law enforcement agencies, and the police. And, as mentioned above, the lower courts are reluctant to acquit in cases of sedition, which then means that an innocent person accused of sedition will only get respite once the case goes on appeal to a higher court. The dichotomy between inflation and infringement of rights is one which was elucidated prolifically by Dworkin, and the government, by invoking Sec. 124A against social activists, critics of the government, and journalists has placed all its eggs firmly in the ‘infringe’ basket, something which, in a Dworkian paradigm, liberal democracies do seek to emulate, is completely antithetical to the idea of rights and civil liberties of citizens.
As a result of all these glaring problems with the law of sedition, there has been a strong movement which argues for the repeal of Sec. 124A and sedition in general. A consultation paper written by the Law Commission of India called for the judicious use of sedition law as dissent is an essential component of democracy. The call for the repeal of Sec. 124A has been spearheaded by those cognizant of its potential for abuse and malice. There have been numerous instances in the recent past of activists and student who have been charged under Sec. 124A for anti-government slogans and expressing disagreement with the government’s policies. The sentiment against the provision has led the Indian National Congress to promise the repeal of the provision if voted to power in the 2019 general elections.
Sedition law has been repealed in other countries across the world, including the country of its genesis. The United Kingdom, which introduced the offence of seditious libel which led to the law of sedition in the first place, has repealed the same, saying that the “it may have a chilling effect on freedom of speech and sends the wrong signal to other countries which maintain and actually use sedition offences as a means of limiting political debate.”
The need to repeal the law of sedition is also supported by the fact that the harm which Sec. 124A of the IPC was intended to eradicate can be dealt with under other provisions of the IPC as well as other legislations. As J.S. Mill once stated, “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others”. Essentially, the rationale behind the law of sedition, at least for its introduction in India was to effectively deal with the Wahabis. The law of sedition was, thus, never really based on a foundation of a strong harm to society or to individuals which it sought to address. And its potential for abuse was something which had been well documented and recognised by the constituent assembly members, who very sagaciously did not include it in the grounds for reasonable restrictions under Art. 19(2).
The interests of the state, national security, and public order are all considerations which are generally associated with the curbing of civil liberties and the right to free speech. Sec. 124A was thus a measure against any person inciting violence, overthrow or disaffection towards the government. However, when the meaning of the section is expanded to include public disorder and interest of the state, as has been done in multiple cases, and in the present context as well, then the section becomes problematic. Sec. 124A becomes completely superfluous when one juxtaposes the harm which it is supposed to address to the already existing provisions in the IPC and in other legislations dealing with that harm.
Chapter VI of the IPC deals with offences which are related to waging or attempting to wage war against the state, while chapter VIII of the IPC deals with offences which affect public tranquillity. The offences under these particular chapters not only envisage the kind of harm which Sec. 124A seeks to redress, in so far as public order and interest of the state are concerned, they are also free from the broad and vague terms which have the potential for abuse that Sec. 124A suffers from. Furthermore, legislations like the Prevention of Insults to National Honour Act, 1971, and the Unlawful Activities Prevention Act, 1967 envisage those situations which apply to the instances where Sec. 124A is wrongly invoked by the police and other law enforcement agencies.
Cases under sedition law are a textbook example of the criminal process itself becoming the punishment for the accused. Under the Criminal Procedure Code, 1973, sedition is a cognizable, non-compoundable and a non-bailable offence. The punishment prescribed for the offence of sedition ranges from fine to a minimum sentence of three years, which can be extended to a life imprisonment sentence. The social repercussions for this offence, however, are triggered as soon as the accused is charged with the offence. Any person charged with sedition is instantly branded as an anti-national, prohibited from holding a passport and forbidden from applying for government jobs. Furthermore, the cost of defending the charge, right from the court fees to the lawyer’s fee for defending the accused against the charge, means that the accused is financially drained in defending a claim which is not legally sustainable in the first place.
As the recent charge-sheet filed in the JNU sedition case proved, it takes an enormous amount of time for the charge against an accused to reach the judiciary, and explains why almost 90 percent of the cases under Sec. 124A are still pending. The figures for the conviction rate in cases filed under Sec. 124A are even more shocking. The data from the National Crime Records Bureau shows that out of the 182 cases filed between 2014-2016, data after which period has not been released, 156 cases did not even complete the investigation against the accused, and therefore are still pending. The cases which do reach the courts either see the court dismiss the allegations before the trial could begin or a paltry number of convictions. To exemplify, in the 11 cases that did go to trial in 2015, no accused was convicted, while in 2016, out of the 3 cases which did go to trial, one was convicted while the others were acquitted.
The harassment, the anguish and the trauma which the accused suffer as a result of the charge of sedition are only compounded by these institutional failures and procedural technicalities.
Not only does the law of sedition stick out like a sore thumb in India’s legal paradigm, but as has been shown above, it also forms an extremely problematic element of the same. Not only does it seriously undermine the values which are enshrined in our Constitution, but also seriously hampers our international legal obligations under the ICCPR and the UDHR. The calls for the repeal of the law of sedition is not something unique to India, but is being echoed in a lot of other nations which continue to compromise the rights and liberties of its citizens as a result of its enforcement, and prime examples in this regard are the south-east Asian countries of Malaysia and Singapore. Thus, it is high time that India initiate the process of repealing and abolishing the law of sedition for good and set an example on the global front for other developing countries and liberal democracies still trapped in the mire of this draconian law.
*Sumit Chatterjee is a 2nd year student at the National Law School of India University, Banglore.
 Sec. 124A Indian Penal Code, 1860. Sedition: 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 India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1. —The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2. —Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3. —Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
 Ronald Dworkin, Taking Rights Seriously 193 (1st ed. 1977).
 Jason Burke, Indian Cartoonist Aseem Trivedi jailed after arrest on sedition charges, The Guardian (September 10, 2012), https://www.theguardian.com/world/2012/sep/10/indian-cartoonist-jailed-sedition (last visited January 3, 2019).
 Arun Janardhanan, 8,856 ‘enemies of state’: An entire village in Tamil Nadu lives under shadow of sedition, The Indian Express (September 12, 2016), https://indianexpress.com/article/india/india-news-india/kudankulam-nuclear-plant-protest-sedition-supreme-court-of-india-section-124a-3024655/ (last visited January 4, 2019).
 Jayshree Bajoria and Linda Lakhdhir, Stifling Dissent: The Criminalisation of peaceful expression in India, Human Rights Watch (May 24, 2016), https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india (last visited January 3, 2019).
 Siddharth Narain, ‘Disaffection’ and the Law: The Chilling Effect of Sedition Laws in India, 46(8) EPW 33, 35 (2011).
 Bajoria and Lakhdhir, supra note 6.
 Dworkin, supra note 2 at 196.
 Dworkin, supra note 2 at 196.
 Kedar Nath v. State of Bihar AIR 1962 SC 955.
 Jayshree Bajoria, How India’s archaic laws have a chilling effect on dissent, Human Rights Watch (May 24, 2016), https://www.hrw.org/news/2016/05/24/how-indias-archaic-laws-have-chilling-effect-dissent (last visited January 5, 2019).
 Any person who has dared to voice their opinions against the ruling government has faced the wrath of the government, which has used its almighty weapon in Sec. 124A to stunt the dissent and silence their critics. The case of Arundhati Roy is a prime example, where she was booked under Sec. 124A for claiming that Kashmir was not an integral part of India. See Gethin Chamberlain, Arundhati Roy faces arrest for Kashmir remark, The Guardian (26 October 2010), https://www.theguardian.com/world/2010/oct/26/arundhati-roy-kashmir-india (last visited January 4, 2019).
 S Kovan, a folk singer in Tamil Nadu faced arrest and was detained for his songs about the failings of government and the corruption it practiced through the state-run liquor shops. See India: Stop Treating Critics as Criminals, Human Rights Watch (May 24, 2016), https://www.hrw.org/news/2016/05/24/india-stop-treating-critics-criminals (last visited January 4, 2019).
 Law Commission of India, Consultation Paper on “Sedition” (2018).
 Sudeep Chakravarti, Congress Manifesto holds promise on security front, LiveMint (April 04, 2019), https://www.livemint.com/opinion/columns/opinion-congress-manifesto-holds-promise-on-security-front-1554321535464.html (last visited April 15, 2019).
 Law Commission Report, supra note 15 at para 3.5.
 J.S. Mill, On Liberty 23 (1859).
 Law Commission Report, supra note 15 at para 4.2.
 Chapter VI: Of Offences against the State, Indian Penal Code, 1860.
 Chapter VIII: Of Offences against Public Tranquillity, Indian Penal Code, 1860.
 First Schedule, Criminal Procedure Code, 1973.
 Suhrith Parthasarathy, Sedition and the Government, The Hindu (October 18, 2016), https://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece (last visited April 30, 2019).
 Atul Dev, A History of the Infamous Section 124A, The Caravan (February 25, 2016), https://caravanmagazine.in/vantage/section-124a-sedition-jnu-protests (last visited April 28, 2019).
 Ananya Srivastava, Kanhaiya Kumar charged with sedition, Firstpost (January 15, 2019, https://www.firstpost.com/india/kanhaiya-kumar-charged-with-sedition-section-124-of-ipc-potent-political-tool-but-low-conviction-rate-shows-law-has-outlived-utility-5898501.html (last visited April 28, 2019).
 National Crime Records Bureau, Crimes in 2016 Statistics 461 (Ministry of Home Affairs).
 Richard C. Paddock, Malaysia to Repeal Death Penalty and Sedition Law, The New York Times (October 11, 2018), https://www.nytimes.com/2018/10/11/world/asia/malaysia-death-penalty-repeal.html (last visited January 5, 2019).
 Y.L Tan, Sedition and its new clothes in Singapore, 1 Sing JLS 212, 225 (2011).