Thursday, 18 October 2012

Sedition Laws in India: Why the “Prince among political sections of IPC” needs to go.

The recent arrest of cartoonist Aseem Trivedi has generated a lot of debate on the sedition law of India and whether it is repugnant to the fundamental right of Freedom of Speech and Expression guaranteed by the Constitution of India. Let us first understand what constitutes ‘Sedition’ under Indian law. The expression ‘sedition’ does not occur in the IPC except as a marginal note to Section 124A

         Section 124A of the Indian Penal states that anyone who “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government,” with disaffection meaning “disloyalty and all feelings of enmity can be sentenced for a imprisonment for a term of life imprisonment.

In Mr. Trivedi’s case, it was being used to punish cartoons deemed insulting to the nation, including one that replaces the four lions of the Indian national emblem with blood-hungry wolves and the inscription “Satyamev Jayate” (truth alone prevails) with “Bhrashtamev Jayate” (corruption alone prevails). Mr. Trivedi has also been accused of insulting national emblems and violating India’s information technology law.

Majority Indians would concur that the cartoons were crude and rather distasteful. But were they enough incitement to invoke public violence? What immediate danger did Aseem Trivedi’s cartoons possess that he had to be put away behind bars?

The Bombay High Court has pulled up the Mumbai Police authorities for arresting Aseem Trivedi “on frivolous grounds” and “without application of mind”, thus “breaching his freedom of speech and expression”. It required public outrage and a PIL to receive this judicial opinion. What constitutes an insult or causes offence and can be construed as hate are deeply subjective issues. This ambiguity gives governments the legal handle to exercise an insidious form of censorship and control that goes well beyond the “reasonable restrictions” on free speech that the Constitution allows under Article 19. 
Let us examine the origin and history of sedition law in India. The Indian Penal Code was originally framed in 1837 by the First Law Commission, chaired by Thomas Babington Macaulay, and it included similar wording to section 124-A in what was then section 113 of the draft law.  However, after subsequent revisions, the final draft of the Penal Code was enacted in 1860 with section 113 omitted.

This section was later re-introduced in 1870 on the pretext of dealing with “increasing Wahabi activities between 1863 and 1870.”  The section was amended in 1898 in order to expand the scope of the law by including the terms “hatred” and “contempt” along with disaffection.

From here on, the law was used to crush the Indian rebellion against the British rule which had been gaining momentum. In the 19th and early 20th centuries the sedition offense was used primarily to suppress the writings and speeches of prominent Indian nationalists and freedom fighters.  The first known instance of the application of the law was the trial of newspaper editor Jogendra Chandra Bose in 1891.

Many political leaders right from Gandhi ji to Bal Gangadhar Tilak were charged under sedition law. Gandhiji was infact jailed for six years for his columns he wrote for the journal “Young India”. Gandhiji pleaded guilty to the section and launched a scathing attack on the law of sedition stating that it was 

“designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence”

In the draft Constitution of India, one of the heads mentioned for restricting freedom of expression under Article 19 was ‘sedition’. K M Munshi moved an amendment for its deletion. In the course of the debate in the Constituent Assembly, Munshi stated that “even holding an opinion against, which will bring ill-will towards government, was considered sedition once. … now that we have a democratic government a line must be drawn between criticism of government which shuld be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. … As a matter of fact the essence of democracy is criticism of government.”

India’s first Prime Minister Jawaharlal Nehru was also one of the fiercest critics of this law. He had stated in the parliamentary debate centred around freedom of speech in 1951. “Now as far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place…in any body of laws that we might pass. The sooner we get rid of it the better.” But this was not the case, the law of sedition was retained and continues to be used against intellectuals, journalists and cartoonists.

The constitutionality of this section was challenged post Independence in the case of Kedar Nath vs State of Bihar in the year 1961,where SC upheld its constitutionality but  clearly explained that it  should be applied  only to cases where an accused person intended to create public disorder or incite violence. The constitutionality was challenged on the ground that it violated the fundamental right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. Supreme Court dissented from the Privy Council judgments which had construed sedition to include any statement that was liable to cause ‘disaffection’, namely, exciting in others certain inimical feelings towards the government, even though there was no element of incitement to violence or rebellion. It limited the application of the section to acts or expressions which have the tendency to create disorder or incitement to violence and on that premise upheld its constitutionality.
Accordingly, raising slogans against the government or uttering abusive words at a meeting or dubbing the government corrupt or inefficient and seeking its removal and replacement by a different political party is not punishable as sedition so long as there is no advocacy of overthrow of government by force.
The Centre for the Study of Social Exclusion and Inclusive Policy and the Alternative Law Forum has also asserted the Court upheld the constitutionality of the sedition law, but at the same time was “curtailing its meaning and limiting its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

However the misuse of sedition to silence speech has a long and infamous history in this country. Critics have long asserted that the lower trial courts have disregarded or ignored the interpretation of the law as laid out by the Supreme Court of India. Moreover, it is asserted that state authorities have misused the law to target critics and activists who, rather then inciting violence against the state, are simply expressing legitimate criticism of state activities. 

 Notable among those charged with sedition in recent times are Dr Binayak Sen (Chhattisgarh), Dr E. Rati Rao (Karnataka), Piyush Sethia (Tamil Nadu), Manoj Shinde (Gujarat), and Seema Azad and Vishwa Vijay (Uttar Pradesh). Another recent example is the Tehelka report on approximately 8,000 people, including children, having been charged under IPC Section 124 for protesting against the planned construction of a nuclear power plant in the fishing village of Idinthakari, Tamil Nadu. Their crime was that as a sign of protest, on Independence Day this year, the villagers had refused to hoist the national flag, and put up black flags instead. Another case is of Sudhir Dhawale, a Dalit activist, actor and publisher-editor of the bi-monthly Marathi Magazine, Vidrohi. Despite continuous condemnation and demand of his immediate release, he is languishing in jail since January 2011. In his case, even the minimum legal requirements for arrest and seizure were not followed. Similar is the case of activist-journalist Seema Azad and activist Vishwvijay. They were released on bail, ordered by the Allahabad High court, after two and half years.

Binayak Sen, a doctor and human rights activist, was found guilty of sedition and sentenced to life imprisonment for his alleged links to Maoist rebels. He was later granted bail by the Supreme Court of India because of lack of evidence. After the ruling in the Binayak Sen case, the then Law Minister Verappa Moily had called for a review of the law. However the only reasonable thing to do would be to repeal it immediately. 

Even Soli Sorabjee the Former Attorney General of India had in his column in New Indian Express  wrote that “A better course would be to repeal Section 124A and replace it by another provision enacted in conformity with Supreme Court’s judgment in the Kedar Nath case. The newly enacted provision should by means of explanations expressly state that certain acts will not be covered by the Section. Most important, there should be no mention of the eight-letter dirty word, sedition, anywhere in the newly enacted Section. Prosecutions for sedition should become bad dreams of the colonial past which have no place in a liberal democracy.”

Hence the time has come to get rid of the section which Gandhiji rightly referred to as “The Prince among the political sections of the IPC designed to suppress the liberty of the citizen and be replaced with a more appropriate one.

Nilufer Bhateja  

The author is a student of law, pursuing BA.LLB (H) from Dr RML National Law University, Lucknow and takes keen interest in law, politics and religion.


  1. Shall or can the context of use of a law especially like Sedition law threaten its own existence? Shall that be the mean to such end?

    1. Thanks for your comment. Through the various examples cited above in d blog we can see how it has been conveniently used to clamp down on legitimate forms of protest. The law needs to be replaced with a more appropriately worded provision which clearly defines what constitutes sedition leaving no room for ambiguity.

    2. Thanks for the answer. But i haven't got the answer for what i asked. let me put it in a different way- apart from this normative conception, i am inquisitive about whether the constant evolution ( natural or deliberate) in the operation theater of a law can render it autoimmune towards its basic essence and procedures and thus serving a termination? is there such capacity and possibility with such laws? especially when we are encountered with sea changes in the socio-political contexts of a country like ours? does it happen?

    3. Of course it does happen. Law is constantly evolving to changing times. Laws which have outlived their purpose have to be modified. For e.g. the IPC provision which made homosexuality a criminal offence was struck down recently. It served no purpose other than harassing the members of the gay community. Such change might not have been possible say 50 years back when societal norms were different. Similarily reservation law, anti terror law etc are made to serve a purpose. If say 30 years from now there is no problem with terror or inequality in society then such laws will serve no purpose. Laws which are unconstitutional are struck down by courts and can be repealed by Parliament as well.
      In this case the sedition law need not only be struck down but also replaced and making of law should generally be left to the legislature. Hopefully that answers your question. Feel free to drop in some more.

    4. If you read my blog carefully I have written that purpose of sedition law was mainly to suppress the voices of dissent against Britishers and now it is being used to suppress the voices against government policies. The "basic essence" of this law is questionable in itself! For eg. if I protest against Nuclear plants the government should counter my views in a court of law. The government should prove to the people by reasoning, why it thinks building a nuclear plant would be good for the country not put me in jail for daring to raise my voice against the government! What the government is doing is using a short cut way to suppress the voices of dissent and therefore not respecting the ethos of the Constitution.

  2. I want to ask more about the system of law as whole and not just contained in Sedition law. Do you think system of law is an organic system or can it be? something characteristics with market/social system. Will it be possible than to get rid of such ambiguous formulations and implementations of any law?

    1. Thanls for your comment, Gaurav. In a way, yes. When there is a need for them, then laws are developed (eg cyber laws). But it is not an automatic system dependent on "market forces". Codified Law can be formed, modified or repealed by certain agencies. Just because some law is unpopular or not of much use anymore (or if even not being implemented properly) does not mean it stops being the law of the country on its own. Also often there are ambiguities in interpretation of law , hence we have a system of courts to adjudge on the correct interpretation of the law.

    2. Thanks for the reply. Just an extension, what is or what should be the source of such organicity? Can we have a control over it? and isn't it to call constitution " a living document" somewhat misplaced especially when changes in it are not endogenous? or system of law has a different definition of Living/organicity. Shall we make an effort to really transform it into a living system? I might sound bit hypothetical but you can take your time to answer this cluster of queries.

    3. You are mixing two different things here. The Constitution is different from the "laws" which are enacted by the legislature from time to time. Constitution is described as a "living document" in America and same interpretation can be evolved in India as well. Lets take an earlier example, the provision which criminalized homosexuality has been enforced for a hundred years and many judgments have been given on them. In the Naz Foundation case when Delhi High Court struck down the provision it held it against the Fundamental rights guaranteed under Part 3 of the Constitution. Now the Constitution has been enforced since India's independence (over 60 years) but because of the changing social dynamic of the country the court gave an interpretation that criminalizing homosexuality was against basic human dignity and held the same to be "unconstitutional". The system of law is such that one challenge the constitutionality of any section and court has the power to strike them down. Similarly there are Law Commissions which review laws on a regular basis, the Indian Penal Code is all set for a major overhaul as many laws are outdated and not in order. The recommendations of Law Commissions then may be adopted or rejected by the legislature. Hopefully that answers your query.

    4. unfortunately it doesn't answer my query. Your answer is suitable to the question of "Difference between constitution and laws." Fortunately i am already aware of this difference. Never mind, you have written nice article. Congrats.

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  4. The morality not backed by force will be ignored by power hungry and ruthless people and as equally morality backed by force is an oppression to human mind and soul. above lines quite explicitly defines the contradictions between the liberties n regulations.
    As far as the sec 124A of IPC is concerned its authority n its limitations are well defined in the act itself. Exp. 1 the expression of disaffection includes disloyalty and enimty towards the goverment established by the law, while it in exp 2 clearly excludes an healthy crisitcism of the Govt or the govt personnels in exp. 2 & 3 which are "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" "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"
    The explanations on the plain reading quite clearly shows the ambit of the offence, n very clearly uphold the right of the citizens to criticize the govt or any action of it n mark there protest in it.
    As we live in a democracy we as the people choose whom we should be ruled by, n have very right to question the govt. which is servant to the people of India n If we are dis-satisfied with it, we have a well defined mechanisms in constitutions to throw it off, and put on the face we like n have confidence in it, but would it be expedient to allow to throw the democracy itself n establish some other insane order.
    India without its democracy, republic and sovereign is nothing more than a geographical term, these three words pulsates the life in the nation, changes a piece of land into country. any attempt to put them into jeopardy is not only unacceptable but also any attempt to disrespect it or to the rule of law in this nation must be resisted with the utmost force. *(1/n)

  5. The line which Mr. K M Munshi was talking about is clearly drawn in the explanations of the section itself n later by the court of law.
    While Gandhiji called it to be the prince of the political sections in the IPC as an opression to liberty, the other side of the coin is that the same Prince is the knight in the shining armour standing futhrer in the defence of the Democracy, Republic and SOvereingty n tranquilty n public safety in this nation.
    No right can be absolute n is subjected to rasonable restirictions in which people may differ to its reasonalblity of it because of the diff. circumstances they are exposed too, the diff. of viewpoint is often because of the place where one stands and view the things.
    The author had dealt with the superficial aspects n had left the complexities as a law n its application n practicability of the legislation itself.
    Recently in Kasab's case his defense counsel contended that he was a programmed robot brainwashed to do that, at the time of attack his age ws 20. It is contented by sec, agencies he was trained for five yrs which means when he joined he was a child of 15 yrs. the learned counsel said it he was not responsilbe for the crime rather the people whom turned him up to be one. some might hav trained him with martial skills n some might have brainwashed him up.
    It is improtant to uinderstand that the incitement to voilence may or may not be direct n depends on the capablity n understanding of the people who r listening to it. (Recently, An infamous statement my a cabinet min, was regarded as criminal intimidation by some n out of context misunderstood by some other). If the going on the interepation laid down in the Kedar Nath case the law enforcers have no right to arrest to such a person who in sum rherotic or metaphorical is inciting to disturb the order. While laying down its principle n even after 45 yrs of tht courts never found it neccesary to be circulated between law- enforcers as an obligatory direction as it does in the other cases. The implied meaning of the law is not a restriction of the enforcement agencies for the prima facie stages (which the only they deal with) until it is a mandatory direction to them. The apex court of this country never found it expedient to do so it clearly depicts that the courts r not in the opinion of curtailing its legitimate use n understands the practical complexities of it n knows the fine balance of it. (2/n)

  6. This particualr section is used in anit-insurgency activites in between the deadly woods where even in the brightest sun the visiblyity is no greater than 10mts n its impossible to recognise who is shooting from the rifle which has a range of 1km or 500mts. they don't call u up for open battles but rather hit and run, they come in hundreds of numbers to kill a 20-30 soldiers n run away, they live in the deadliset forests and come out only for either for buying grains n other things or for spreading about their henious cause, it is obvious they don't have label on their faces tht they are those radical elements, wht reveals their identity is same palmplets which they distribute or words they speak (which some may applaud to be their right) but at first when they are caught they are booked under the disputed sec. as d police cant keep them in custody fo r more than 24 hrs, later interrogated there details are cicrulated all over and then the crimes they did come out, the sec 124A gives an opportunity to the law wnforcers to investigate n further reveal. they are mostly of the border areas of diff. states n after getting recognised in one run away to other, n without the d disputed law it will b impossible for the enforcers to get a hold on him.
    It would have been better if the author had also told us how many police n armed forces ppl had laid down thr lives in such internal disturbances.
    There are several other practical issues involve it.

    When revolution becomes a tradition and obedience to law and order a mere enduring option the life, liberty, property of the individuals are at the stake.

    So there stands no contention to the fact that this law is a neccesary evil which is expedient.

    The legality n interpretation of the law is well settled both for it primary application for prima-facie n later for the conviction under the same. It won't be expedient to unsettle the settled.

    Abuse of the law is no defense against its legitimate use is a well settled principle of law. It cant be denied it is misused but that is no arguement against the legitimate use of the same, and scrapping the law for that will be like cutting the limb rather than curing it.
    If there is chances or history of abuse of certain laws what is needed is check and balance not its scrapping straight way. It would be far more better to develope such check n balances to this law too. One could be bringing up provision for prosecuting the enforcers for its malafide and vexatious n frivolous use, even actions of the such law enfrocers needs to be dealt harshly n cant b tolerated in a place whr rule of law prevails
    As Dicey says "In the matter of law neither the process nor the writing is important but rather it is the care which is fundamental" such care cant be replaced by a logical mathematical formula which most of the people today try to bring for every second thing. Care is crux which is irreplaceable n any attempt to replace with some formula will have dire consequences.

    Most of the ppl hav a great contempt abt this law becoz it ws written by our colonial masters n oppose it for the sake of opposing it, to have a feeeling of vicotry over them, such things are absolutely irrational. this provision was introduced by them to protect there rule here which was established here by thr law even if how much unjustified thr laws were is a diff. question but this particular law is a safeguard to the Rule. And We today in our country have rule of law so its acts as a safeguard to it.

    It is more expedient to develope a counter productive check over it rather than thrashing it. (3/n)

    1. Thank you once again for your comments Gaurav. Much appreciated. If you read my blog carefully I actually concur with your view and as proposed by Shri Soli Sorabjee (second last para of my blog)that the section should be modified to clear ambiguity and be more precise so that it is not misused against journalists, cartoonists and activists as it has been the case in the recent past. Thanks once again for taking so much effort to write such detailed comments.

    2. Foremost I am Not Mr. Gaurav. Secondly u had not wrote any specific conclusion of ur article, while the heading reads "Sedition Laws in India: Why the “Prince among political sections of IPC” needs to go." It talks about scrapping of it, not for a diff. interpretation. As, far as commment of Soli Sorabjee is concerned, yes india is a liberal democaracy but at the same time is not a banana republic which should be always kept in mind, the line which is to be drawn is clearly mentioned in explanation (1),(2) n (3) in the provision itself which clearly describes the inclusion n exclusion both. As a person dealing with law we know the ingredients which are essential for the conviction under a law are far more greater than ingredients required for prosecution or charging this is the line which is the crux of the criminal justice system, which cant be changed, for any particular offence. what Mr Sorabjee is trying to say is to have same ingredients defined in Kedar Nath for both initation of investigation against a person and conviction of the same under that law, both the things are absolutely diff. n cant be mixed. It is an absolutely irrational approach, The worst of Injustice is to ask a person conclusive evidence for merely entertaining his complaint which in Rule of law is unacceptable. Secondly, thr is hue n cry abt misuse of it, what the misuse is nobody defines? It is not the police who prosecute it is the court who do so, Its d court to decide whom to prosecute or not.

      Let us suppose the Police misuse it, Once the police imposes a section on a person he is taken to judicial magistrate for police custody then magistrate judicially decides whether the sections invoked are reasonable or not n decides about custody or repunges the offences to bailable offences n set accused on bails. Later after the conclusion of the investigation charge-sheet is submitted in the session court for the trial, The session judge under Sec. 227 crpc has all the authority to discharge the person if he finds the charges r unjustified. The accused has all the right to move for bail at anytime n also for quashing of FIR against him in HC n later on appeal of SC n the HC n SC 'll accept his plea if it carries merit. Now, in most of cases whether it was of Sen or ny other name u took n all other. Magistrate didnt find it expedient to interfere in it, Session judge didnt find it fit to discharge from particular offence, HC n SC denied to quash the charges. That clearly means that all the courts found enough material on record to prosecute particular person for that offence. So how come the Police alone can misuse it? after so many checks, It could be only possible if the whole judicial hiearachy of this country is cons-pirating against the accused with a malafide colluding with police which is not at all possible n is a very foolish thing to consider.
      So how come the Police can misuse it??????
      Now Suppose wrong conviction is reached by session court (which according to d said is in most of the cases) it only shows the incompetency of the defence at the trial court to convince the Judge of the innocence of the accused. How stupid it is to blame the law for the incompetency of the counsel? Now HC n SC didnt decide the same appeal on merit tht means thr r some unanswered lacunas in it so it prefers to bail the person for insufficency of evidence in conviction which in most of the cases in toher offences while admitting the appeal is. (1/N)

  7. Now, the things are publicised as if it was an accuqital n Court had found that the prosecution of the accused was not according to the process of law, Is this some joke or what? This is absolutely mockery of criminal justice system of this country, N then blame is on the law that it is misused. That is nothing more than epitome of manipulation.
    U had quoted up cases of 8000 in how many of them Session COurt discharged the Accused or HC or SC quashed the charges against him? None is the answer. So How the law is misused?
    As far as just because somebody is a journalist or cartoonist or activist doesnt mean that they will get an immunity from this law contrary to art 14, the rules of game will be same for every citizen of this country irrepsicticve of what one is? it could be only decided upon there actions.
    Accquitals in appeal of some cases of particular law doesnt mean that law is misused at all.there are other laws to which very closely effects the fundamental rights and r having higher accquitals in this does that mean they all need to be scrapped? This absoultely baseless n irrational.
    Conclusions can’t be reached on mere hunches without understanding the facts of the case n such conclusions will be always wrong. (2/N)

  8. Welcome on board Nilu.

    What an excellent start. The comment says it all.

    Waiting for another good read by you.