Q . The mere possibility of misuse of a provision does not per se invalidate the legislation. Discuss the above statement with respect to section 124A of the Indian Penal Code which is in the news recently. (10 marks, 150 words, GS-2)
- Introduction about the Section 124A i.e. Sedition to be in the first para.
- The second para to include the Law Commission and SC’s view on Sedition.
- The next para to be about arguments against the sedition law.
- Final para could include further steps and measures.
Free speech is an important principle of democracy. However, such freedom of speech often poses difficult questions at times exceeding the limit of reasonable restrictions. Thus, it becomes important to differentiate between freedom of speech and expression guaranteed by the Constitution, reasonable restrictions imposed on such freedom and grounds on which sedition can be imposed by State authorities.
Article 19(1) guarantees freedom of speech and expression subject to reasonable limitations under Article 19(2) on grounds of –
- interests of the sovereignty and integrity of India,
- 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.
What Amounts to Sedition?
- Sedition as defined in Indian Penal Code under section 124A. “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, 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.”
- The expression “disaffection” includes disloyalty and all feelings of enmity.
- 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 sedition.
- Comments expressing disapprobation of the administrative or other action of the Governmentwithout exciting or attempting to excite hatred, contempt or disaffection, do NOT constitute an offence under this section.
Law commission views on Sedition:
Some of the important observations of Law Commission in its consultation paper (released in August, 2018) are:
- Dissent and criticism of the government are essential ingredients of a robust public debate in a vibrant democracy. Thus, if the country is not open to positivecriticism, there lies little difference between the pre- and post-Independence eras.
- Right to criticise one’s own history and the right to offend are rights protected under free speech under Article 19 of the Constitution. While it is essential to protect national integrity, it should not be misused as a tool to curb free speech.
- Every restriction on free speech and expression must be carefully scrutinised to avoid unwarranted restrictions.
- In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way.
- An expression of frustration over the state of affairs cannot be treated as sedition. For merely expressing a thought which is not in consonance with the policy of the government of the day, a person should not be charged under the provision of sedition.
- The Commission also asked whether it would be worthwhile to rename Section 124A and find a suitable substitute for the term – sedition.
Thus, mere criticism of the government or its policies does not amount to sedition. Such a dissent or criticism MUST BE ACCOMPANIED BY INCITEMENT TO VIOLENCE OR INTENTION OR TENDENCY TO CREATE PUBLIC DISORDER OR CAUSE DISTURBANCE OF PUBLIC PEACE which is against the interests of sovereignty and integrity of India or security of the state – for invoking charges under sedition.
SC ON USE OF SEDITION BY THE STATE VS CITIZEN’S FREEDOM OF SPEECH
Courts have interpreted 124A of Indian penal code in many cases relate to 124A section:
- Kedar Nath Singh Vs State of Bihar 1962: constitutional bench of Supreme Court made clear that allegedly seditious speech & expression may be punished only if speech is an incitement to violence or public disorder.
- Indra Das vs. State of Assam & Arup Bhuyan vs State of Assam: Supreme Court stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised.
- Therefore, advocating revolution or advocating even violent overthrow of State, does not amount to sedition, unless there is incitement to violence & more importantly, incitement is to imminent violence.
- 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 21 and 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.
- The judgment saved the citizens from unquestionable actions of Executive.
- Balwant Singh v. State of Punjab: In one of most important judgements in this regard, Supreme Court overturned the convictions for sedition(124A IPC) and Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc (153 A IPC).
- In this case, accused raised slogans such Khalistan Zindabad, Raj Karega Khalsa (Khalsa will rule) & Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da (Hindus will leave Punjab, we will rule) i.e. a few hours after Indira Gandhi’s assassination.
- Despite the slogans clearly undermining Indian sovereignty and government, SC acquitted or free from charge or verdict of not guilty the accused because the slogans did not imminently incite violence.
- Thus, even advocating secession of country or violent overthrow of government, does not attract sedition unless there is imminent incitement to violence.
- ‘Incitement’ rather than ‘advocacy’ is the important element of section 124A.
- Educate law enforcing agencies: The word ‘sedition’ is thus extremely nuanced and should be applied with caution
- All speech-related offences should be made bailable offences; this would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising their rights under Article 19(1) (a). The chilling effect on freedom of speech and expression must be erased.
- Awareness building: Forming a committee involving Government and renowned civil society members while deciding cases under section 124 A.
- To limit the discretionary power as much as possible through better and comprehensive drafting of guidelines.
- The offences should be made non-cognisable so that there is at least a judicial check on the police acting on the basis of politically motivated complaints.
- In the case of offences under Sections 153A (“promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony”) and 295A of the Indian Penal Code, it is mandatory under Section 196(1) of the Code of Criminal Procedure to obtain prior sanction of the government before taking cognisance of the offences. This needs to be extended to the offence of sedition under Section 124A.
- In the case of hate speech, it is important to raise the burden of proof on those who claim that their sentiments are hurt rather than accept them at face value.
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