007

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-5, 2016 ISSN: 2454-1362, http://www.onlinejournal.in

Autonomy Is As Autonomy Does- Law of Sedition in India Hetal Chavda LL.M. Business laws. Abstract : The dictionary meaning of sedition is conduct or speech inciting people to rebel against the state. Its legal meaning is inciting violence towards insurrection of established order and lawful authority, including subversion of the Constitution. Section 124A of the Indian Penal Code, which does use the word sedition, defines it as any action, by words, signs or visible representation, which “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards a government established by law”. It is a draconian law from the colonial era making such an act punishable with imprisonment for life. The charge against those arrested in JNU for sedition was simply not sustainable even under the existing law, for reasons set out by so many legal luminaries. It is also not feasible in the turbulent politics of the Republic of India, which is a strong, vibrant and participative democracy. What is more, it seeks to negate the very idea of universities, where freedom, inquiry, questions, dissent and debate constitute the essential foundations of learning that make for good citizens in a democracy. Veterans have given justified judgements in past cases but autonomy is as autonomy does. Key words: Law of sedition; article 124A and article 19(1), Luminaries and Law Origin of Sedition Law The origin of sedition law in India is linked to the Wahabi Movement of 19th century. This movement, centred around Patna was an Islamic revivalist movement, whose stress was to condemn any change into the original Islam and return to its true spirit. The movement was led by Syed Ahmed Barelvi. The movement was active since 1830s but in the wake of 1857 revolt, it turned into armed resistance, a Jihad against the British. Subsequently, the British termed Wahabis as traitors and rebels and carried out extensive military operations against the Wahabis. The movement was fully suppressed after 1870. British also introduced the term “sedition” in the Indian Penal Code 1870 to outlaw speech that attempted to “excite disaffection towards the government established by law in India”. Sedition Law and

Imperial Journal of Interdisciplinary Research (IJIR)

Independence Movement British used the sedition law to quell the Indian freedom struggle and retain imperial power. The first known use of Sedition law was against Jogendra Chandra Bose, editor of “Bangobasi”,who was charged in 1891 for his criticism of the “Age of Consent Bill” whereby he said that the bill was disastrous to religion and was being forcefully imposed on Indians. He later apologized for what he had written. During freedom struggle, targets of this law included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie Besant. Later Bal Gangadhar Tilak was also was also tried under sedition law, who criticised the killing by Chapekar brothers but also blamed the British government for bringing the situation in the country to a brink, thus instigating the revolutionaries. Tilak was convicted and sentenced to six years imprisonment to Mandalay jail. Later Mahatma Gandhi was tried in 1922 for his articles published in the magazine Youth India. What is sedition? Indian constitution's chapter VI deals with offences against the state and sedition is charged under Section 124A of the IPC. The punishment includes imprisonment for life and added fines. Imprisonment can be for life-time or for three years based on the nature of seditious charges. Simple Definition  The crime of saying, writing, or doing something that encourages people to disobey their government  Incitement of resistance to or insurrection against lawful authority 124A. 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 1India, 1 shall be punished with 1imprisonment 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.

Page 30

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-5, 2016 ISSN: 2454-1362, http://www.onlinejournal.in 

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.

Classification of offence Punishment— Imprisonment for life and fine, or imprisonment for 3 years and fine, or fine—Cognizable—Nonbailable—Triable by Court of Session—Noncompoundable. Comments The offence of sedition under section 124A is the doing of certain acts which would bring the Government established by law in India into hatred or contempt, or create disaffection against it; Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) Sedition is any form of speech, action, writing that incites hatred against the established order and harms the systematic peace of the country. Seditious words written against the ruling government and authority is called 'seditious libel'. Any act within the meaning of section124A, which has the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words under lawful means used to express disapprobation of the measures of the Government with the view to their improvement or alteration would not come within the section. Similarly, comments, however, strongly worded, expressing disapprobation of

Imperial Journal of Interdisciplinary Research (IJIR)

actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of the those acts or measure by lawful means that is to say, without exciting those feelings of enmity and disloyalty which imply excitation to public disorder or the use of violence. This section requires two essentials:1. Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards, the Government of India. 2. Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, (iii) by visible representation. But, Article 19(1)(a) of the Indian Constitution says, all citizens have the right to freedom of speech and expression. This right to freedom of speech and expression incorporates protection for austerely censuring existing government structures, policies, and administrative schemes, coupled with protection for suggesting and recommending the development of other system. Article 19 (2) of Indian Constitution says that, every citizen of the country holds the right to air his or her opinion through print or electronic media with restrictions imposed. In the case of Ram Nandan v. State of U.P. The Hon’ble High Court held that section 124-A imposed restriction on the freedom of speech which is not in the interest of the general public and hence declared 124-A as ultra vires. But this decision of the Hon’ble High Court was overruled by the Hon’ble Supreme Court in the case of Kedarnath Das v. State of Bihar, and held Section 124-A, intra vires. In Tara Singh v. State of Punjab, section 124-A, of Indian Penal Code was struck down as unconstitutional being contrary to freedom of speech and Expression guaranteed under Art 19(1) (a). To avert the constitutional difficulty as a result of the above referred case. The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest import, wiz., “in the interest of” “public order”. Thereby including the legislative restrictions on freedom of speech and expression. The advocates of the other view held that section

Page 31

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-5, 2016 ISSN: 2454-1362, http://www.onlinejournal.in 124-A, of I.P.C is constitutional and is not in contravention of Art 19(1) (a) as it is saved by the expression “in the interest of public order” in Art 19(2). It has been stated that the expression in the interest of public order is of wider connotation, and includes not only the Acts which are likely to disturb public order but something more than that. In accordance with this interpretation, section 124A, I.P.C. has been held intra vires of the constitution. This view found blessings from the Supreme Court in the case of Kedarnath v. State of Bihar wherein it was held that any law which is enacted in the interest of public order may be saved from the voice of constitutional invalidity. The court had further observed in the said case that the right guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the purview of clause (2), to Art 19 which comprises (a) security of the State, (b) friendly relations with foreign states, (c) public order, (d) decency or morality, etc. with reference to the constitutionality of section 124-A, of the I.P.C, as to how far they are consistent with the requirements of clause (2) of Art 19 with particular reference to security of state and public order, the section, it must be noted penalizes any spoken or written words or science or visible representations, etc, which have the effect of bringing, or which attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards “the government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the state would be in jeopardy, where the government established by law is subverted. A.E. Rama Kurup, Editor "Malayali" vs the United State of Travancore, Cochin In this case from 1949, after independence but prior to the enactment of the Constitution, a Full Bench of the Kerala High Court examined the matter of an order of cancellation of license to publish a newspaper owned by the Petitioner. The Court found some of the published content seditious so. Romesh Thappar vs The State of Madras Within 4 months of the Constitution of India coming into force, the newly established Supreme Court of India ruled on the issue of sedition in two cases decided on the same day. In the matter of Romesh Thappar, a Constitution Bench of the Apex Court held by a majority of 4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violated the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

Imperial Journal of Interdisciplinary Research (IJIR)

The Apex Court also held in these cases that the offence of 'sedition' is an offence against public tranquillity and order also although Section 124A is to be found in the Chapter on Offences against the State and sits in the category of other offences such as 'treason' and 'waging war against the State'. In response to these two judgements the Central Government proceeded to amend Article 19(2) to insert "public order, decency and morality" as grounds for restricting the exercise of free speech and expression through the very first amendment to the Constitution. The amendment which contained several other grounds for restricting free speech and expression was made applicable retrospectively. Kedar Nath Singh The speech by Kedar Nath Singh was, "Today the dogs of the C.I.D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. To-day these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well". After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under S.124A and 505-(b) of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year. The convicted persons preferred an appeal to the High Court of Judicature at Patna, the Court upheld the convictions and the sentence and dismissed the appeal. Finally it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right. Sukhdev Singh vs Union Territory In this case a Full Bench of the Punjab and Haryana High Court while denying bail to the accused explained what may be construed as 'sedition' under Section 124A, IPC. Maneka Gandhi versus Union of India In this case, the Apex Court held that the freedom of speech and expression is not confined to geographical limitations and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad too. As per the judgement, criticising and drawing general opinion against policies and governmental decisions within a reasonable limit

Page 32

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-5, 2016 ISSN: 2454-1362, http://www.onlinejournal.in that does not incite people to rebel is consistent with freedom of speech and expression. Balwant Singh & Anr. vs State of Punjab The Appellants were government servants who were convicted for the offence of 'sedition' because they shouted slogans in front of a crowd at a public ceinam hall on the day the Late Prime Minister Mrs. Indira Gandhi was assassinated Arun Jaitey vs State of U.P. In this case, decided less than four months ago, a single Judge Bench of the Allahabad High Court threw out a charge of 'sedition' against the Petitioner who is also the Finance Minister under the Central Government. A Judicial Magistrate took suo motu cognizance of an article written by the Petitioner containing critical view of a judgement of the Supreme Court of India issued in the National Judicial Commission Act case In 2009, V Gopalaswamy (Vaiko) was slapped with sedition charges for his statements against India’s sovereignty in speech on Sri Lanka’s war with LTTE In 2007, Binayak sen was arrested for sedition charges due to his help to carry messages to Maoists in Chhattisgarh. Arundhati Roy case In 2010 Arundhati Roy and others were charged under sections 124A (sedition), 153A (promoting enmity between classes), 153B (imputations, assertions prejudicial to national integration), 504 (insult intended to provoke breach of peace) and 505 (false statement, rumour circulated with intent to cause mutiny or offence against public peace when she spoke at "Azadi-the Only Way" ?conference in Jammu and Kashmir. The filing of the FIR came following a directive from a local court on a petition filed by Sushil Pandit who alleged that Geelani and Roy made anti-India speeches at a conference on a senior police official said. Roy and Geelani had shared the dais with Maoist sympathiser Vara Vara and others. Geelani was heckled by the audience. Binayak Sen In 2010 Binayak Sen was accused of sedition by the Chhattisgarh government for allegedly supporting the outlawed Naxals and thereby violating the provisions of the Chhattisgarh special public security act (CSPSA) and the Unlawful Activities (Prevention) Act 1967. He was later acquitted due to lack of evidence. In 2010, Noor Mohammad Bhat, a lecturer from Gandhi Memorial College was arrested for setting an anti-India question paper.

Imperial Journal of Interdisciplinary Research (IJIR)

Aseem Trivedi In 2011, a nationwide anti-corruption movement India Against Corruption gathered pace in the leadership of a veteran Gandhian Anna Hazare demanding Jan Lokpal Bill. Aseem Trivedi joined the crusade and started a cartoon based campaign, Cartoons Against Corruption to support the movement with his art. He launched a website www.cartoonsagainstcorruption.com consisting of his sharp anti corruption cartoons targeting corrupt system and the politicos. He displayed his cartoons in the MMRDA ground, Mumbai during the hunger strike of Anna Hazare. But, his website was suspended by Crime Branch, Mumbai on the first day of the protest, when he received an email from BigRock, the domain name registrar with which his website was registered, saying, "We have received a complaint from Crime Branch, Mumbai against domain name 'cartoonsagainstcorruption.com' for displaying objectionable pictures and texts related to flag and emblem of India. Hence we have suspended the domain name and its associated services." In 2014 kashmiri Students from swamivivekanad subharti university in meerut who cheered for Pakistan during the Asia Cup were charged under sedition. Hardik Patel In 2015 The Gujarat government booked a Patel leader under sedition for sending messages containing “offensive language against the Prime Minister, the State Chief Minister and Amit Shah, the President of BJP”. These cases are indicative of a high level of intolerance being displayed by governments towards the basic freedom enjoyed by citizens. Democracy has no meaning without these freedoms and sedition as interpreted and applied by the police is a negation of it. Kanhaiya Kumar In February 2016, JNU, Jawaharlal Nehru university student union president Kanhaiya Kumar was arrested on charges of sedition under section 124-A of Indian Penal Code. However this arrest has raised a political turmoil in the country with academicians and activists marching and protesting against this move by the government. While those associated with JNU, past and present feel that the government is stifling and ruthlessly suppressing dissent, there is another part of the population that believes JNU for long has been supporting antiIndia activities and the students involved must be punished for this act. Protests by both sides are continuing. Kanhaiya Kumar is the president of JNUSU. On 2 March 2016 the videos purporting to show this activity were found to be fake and he was released after three weeks in jail.

Page 33

Imperial Journal of Interdisciplinary Research (IJIR) Vol-2, Issue-5, 2016 ISSN: 2454-1362, http://www.onlinejournal.in References Conclusion Yet, it is not the first time that the sedition law has been used in independent India. And it will not be the last time. It is neither rare nor frequent. But it happens often enough when it serves a political purpose. Governments invoke the law and the opposition cries foul. The irony of double standards is striking. The same political parties when in government cite the national interest and when in opposition wax eloquent about rights or freedom. In the present mess, there are no winners. There are only losers. The government runs the risk of losing support of young people, who are an important political constituency, and the wrath of students might spill over on to the streets. Moreover, it distracts the government from its priority tasks. That can help in progress of society in India. past judgments of the honorable courts have always became the tale between section 124A and article 19(1). where one deals with freedom of speech and one controls the autonomy. words against state is not a matter of freedom. Anything in against of national interest is subject to sedition. After all autonomy is as autonomy does.

Imperial Journal of Interdisciplinary Research (IJIR)

1. 2. 3.

4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

merriam-webster.com/dictionary/sedition ibid ) 1. Subs. by Act 4 of 1898, s. 4, for the original s. 124A which had been ins. by Act 27 of 1870, s. 5. 2. The words “Her Majesty or” omitted by the A.O. 1950. The words “or the Crown Representative inserted after the word “Majesty” by the A.O. 1937 were omitted by the A.O. 1948. 3. The words “British India” have successively been subs. by the A.O. 1948, the A.O.1950 and Act 3 of 1951, sec.3 and sch. to read as above. 4. The words “or “British Burma” ins. by the A.O.1937 omitted by the A.O.1948. 5. Subs. by Act 26 of 1955, sec.117 and sch., for “Transportation for life or any shorter term” (w.e.f.1-1-1956). AIR 1959 Alld. 101 Ulta virus- beyond the legal power or authority AIR 1962 SC 955 AIR 1950 SC 124 Supra Note 1 AIR 1950 Ker 83 AIR 1950 SC 214 1962 AIR 955, 1962 SCR Supl. (2) 769 (1986) 90 (2) PLR 109 AIR 1995 SC 1785 2016 (92) AllCC 352

Page 34