“Say something bad to me- It’s okay!
Say something bad to my family- it’s not okay, but its okay!
Say something bad about my nation- now you are in trouble!”
INTRODUCTION
Should people have the right to incite violence against the government? This question has been posed in front of the judiciary since the time of independence. There have been currently 7 petitions pending in the Supreme Court challenging the constitutionality of this colonial law that is Sedition.
Sedition remains the most dubious law which requires re-examining and consequent orders from Supreme Court further put this law in question. This law of colonial times gives adequate powers to government to arrest the person spreading hatred, inciting violence or disrupting the peace but this law has been misused many times in the past. That’s why this topic requires comprehensible awareness everyone must know!
Our constitution doesn’t talk about sedition but it’s present in section 124 of Indian Penal Code, 1860 as “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[1]”.
In the landmark judgment of Kedar Nath Singh v. State of Bihar[2] which upheld the constitutionality of this law, it was ruled that citizens have the right to criticize the government as long as they don’t incite violence. Since then, limits of section 124A have been defined various times. However, governments have continued to misuse this law by taking coercive actions against the dissenters whether they are activists such as Binayak Sen, writers such as Arundhati Roy, protestors against CAA such as Disha Ravi and other students protesting with slogans but lower courts often fail to reach any rationale. National Crime Records Bureau (NCRB) reports of 2019 stated that the conviction rate of sedition is merely 3.3% in 2019 just because of the lower courts that often refuse to grant bail and don’t examine thoroughly.
DETERMINANTS OF SEDITION
The most pertinent question that revolves around sedition is its determinants whether it’s just mens rea or the consequences. One of the main essentials of sedition is mens rea or malafide intention to incite violence or attempt to incite violence which can be determined only from the content of the language used. Sedition can be determined
on the basis by the content of the language used to cause disaffection, hatred or contempt as ‘intention or mens rea’ to incite or attempt to incite violence can be determined from the content of the speech which is sufficient to constitute the offense of sedition. The content when read as a whole by general people can be used to determine intention to incite violence which further can establish the offense of sedition.
As observed in the case of Satyaranjan Bakshi v. Emperor[3], for the offence to be seditious, it is essential that the intention behind the usage of such language is as described in the Section 124 of the Indian Penal Code, 1860. It has to be proved to a prima facie standard that such an intention existence on part of the accused.[4]
Given the ambiguity of various judgments, the legal maxim ut res magis valeat quam periat[5] should be implied which clarifies that court should consider validated things than the invalid ones and robustly incline towards any construction which renders a statute valid.[6] Mostly courts have laid down violence or public disorder as the threshold for sedition.[7] Also, the Supreme Court in Kedar Nath Singh v. State of Bihar[8] clearly differentiated between “advocacy” and “incitement”, clarifying that only incitement to violence should be penal. Even U.S. laws also state ‘imminent lawlessness’ as an important ingredient for sedition.[9] Therefore, incitement to violence should be considered for conviction under Sec. 124-A.
DOES SEDITION VIOLATE ARTICLE 19?
Article 19 (1) of the Indian Constitution deals with the right to freedom of speech and expression but this freedom is not absolute and subjected to certain restrictions namely, interests of the sovereignty and integrity, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.[10]
Sedition is made an offence to tackle the anti-national elements who intend to disrupt public harmony and incite violence.[11] This offence is called upon when the accused incites disaffection towards the government established by law.[12] The restriction under Sec. 124-A serves the purpose of protecting public order. The restriction has a direct and proximate nexus with the same as it punishes those actions which have a tendency to disrupt public peace and tranquility.[13] Kedarnath Singh ruling of Supreme Court of India limits the interpretation of sedition to public disorder causing speech and doesn’t make it easy to be invoked against all dissenters as it clearly differentiates criticism of the government or any law from sedition resulting in public disorder. And this section strikes a correct balance between individual fundamental rights and the interest of public order. Such interpretation is also compatible with free speech guaranteed under article 19(1) (a) of the constitution as article 19 also includes some reasonable restrictions for public interest and security.
Also, §124 takes into account future eventualities and due to ambiguity of different decisions of courts, legal maxim ut res magis valeat quamperiat[14] should be considered which implies that courts should strongly lean against any construction which renders a statute futile. Therefore, §124 is valid and constitutional. Thus, Sec. 124-A clearly falls within the ambit of preventing public disorder and hence is a reasonable restriction to free speech.
Author(s) Name: Chhavi Sardana (Rajiv Gandhi National University of Law, Patiala)
References:
[1] Section 124A of Indian Penal Code, 1860.
[2] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
[3] Satyaranjan Bakshi v. Emperor, (AIR 1927 Cal 698).
[4] Manzar Sayeed Khan v. State of Maharashtra, AIR 2007 SC 2074
[5] Tinsukhia Electricity Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709.
[6] T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481; Indian Medical Association v. Union of India, (2011) 7 SCC 179.
[7] Shreya Singhal v. Union of India, AIR 2015 SC 1523.
[8] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
[9] Brandenburg v. Ohio, 395 U.S. 444 (1969)
[10] Article 19(a) of Indian Constitution, 1949.
[11] Niharendu Majumdar v. K.E. 1942 F.C.R. 38.
[12] Balwant Singh v. State of Punjab, AIR 1991 SC 2301.
[13] Kedar Nath Singh v State of Bihar, AIR 1962 SC 955.
[14]Tinsukhia Electricity Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709.
