1) Whether it is appropriate to repeal the S.124-A of the Indian Penal Code. It is submitted that the ideal democratic system has one top notch goal of abiding its constitution and achieving the objectives of the framers of the constitution. The framers of the constitution has attempted to remark the abolition of the provision for the offence of sedition.
At the time of the Indian movement for independence from British rule, the law of sedition was applied against great nationalists, such as Annie Besant, Bal Gangadhar Tilak and Mahatma Gandhi, as a tool to curb dissent. Keeping such excesses in mind, the Freedom of Speech and Expression was originally encompassed in Article 13 of the Draft Constitution. In its original form, this provision guaranteed this right subject to restrictions imposed by Federal Law to protect aboriginal tribes and backward classes and to preserve public safety and peace. 57
A proposal for an amendment to this provision was moved in the Constituent Assembly to permit the imposition of limitations on this right on the grounds of “libel, slander, defamation, offences against decency or morality or sedition or other matters which undermine the security of the State.”58 However, in light of the biased nature of judicial pronouncements pertaining to cases of sedition in India, along with a precipitous rise in the abuse of sedition law to incarcerate nationalists, the final drafters of the Constitution felt the need to exclude sedition from the exceptions to the right to freedom of speech and expression.59 A prominent objection to the inclusion of sedition as an exception to the freedom of speech and expression was raised by Sardar Hukum Singh, who noted that in the United States of America, any law that limited a fundamental right is mandatorily subjected to judicial scrutiny and must be deemed constitutional. However, by granting a blanket protection to any sedition law that the Parliament may legislate upon, the courts in India would be incapacitated from striking down an errant law for violating the right to the freedom of speech and expression.60 He also criticised the validation of laws on the ground that they were “in the interest of public order” or undermined the “authority or foundation of the state” as classifications that were too vague.61 There was a clear consensus among the members of the Constituent Assembly on the oppressive nature of sedition laws. They expressed their reluctance to include it as a ground for the restriction of the freedom of speech and expression. The term ‘sedition’ was thus dropped from the suggested amendment to Article 13 of the Draft Constitution..
57 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth 17 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June 10,2016) 58 Id. 59 Soli J. Sorabjee, Confusion about Sedition, August 12, 2012, available at http://www.indianexpress. com/news/confusion-about-sedition/987140 (Last visited on March 10, 2014); See also Soli J Sorabjee, Aseem Trivedi’s cartoon’s don’t constitute sedition, September
15, 2012, available at http://newindianexpress.com/opinion/article607411.ece (Last visited on March 10, 2014) (The most vocal opposition to such an inclusion came from the renowned activist and lawyer Dr. K.M. Munshi. To support his position, Dr. Munshi cited the wide divergence in the judicial interpretation of the term “sedition”. Further, he believed that public opinion with respect to sedition had evolved over the years, and taking cognizance of the changing nature of public opinion, a line needed to be drawn between constructive criticism of the Government which was crucial to address the grievances of the people, and an incitement to violence which would undermine security and disrupt public law and order). 60 Constitutional Assembl y Debates, December 7, 1948, speech by S.H. Singh 16 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on March 10, 2014). 61 Id. Historical or genesis: The law relating to the offence of sedition was first introduced in colonial India through Clause 113 of the Draft Indian Penal Code (‘Draft Penal Code’), proposed by Thomas Babington Macaulay in 18371. The offence of sedition was incorporated under §124A of the IPC on November 25, 1870, and continued without modification till February 18, 1898 2. After the initiation of the law of sedition in 1870, it was allowed to remain in force, unaltered, for a period of 27 years. Throughout this period, one of the primary objectives of the British Government was to strengthen this law. By the 18th century, the crime of seditious libel was viewed as a harsh and unjust law that was used by the ruling classes to trample any criticism of the Crown. 3 However, given its utility; it was seen as a convenient tool in the hands of the rulers. Thus, when a penal code was being drafted for colonial India, where the rulers had the task of suppressing opposition, it was only obvious that seditious libel would be imported into the territory of India. Therefore, it ultimately approved the enactment of two cognate laws: the Dramatic Performances Act XIX of 1876 (‘DPA’) and the Vernacular Press Act (IX) of 1878. These Acts came to be popularly referred to as ‘preventive measures’ 4. While the former law was 1 Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle in Nationalism And Social Reform In A Colonial Situation 54 (2005). 2 The Indian Penal Code, 1898, §124-A (read as follows:“Whosoever, by words, either spoken or intended to be read or by signs or by visible representations or otherwise excite or attempts to excite feelings of disaffection to the Government established by Law in British India, shall be punishable with transportation of life … to three years to which fine may be added.”).
3 Roger B. Manning, The Origins of the Doctrine of Sedition, 12(2) Alb ion 99 (Summer 1980). 4 Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle in Nationalism And Social Reform In A Colonial Situation 54 (2005).
primarily introduced to keep a check on seditious activities in plays, 5 the latter was formulated to actively suppress criticism against British policies and decisions in the wake of the Deccan Agricultural riots of 1875-76.10 Since it came into operation in 1870, the law of sedition has continued to be used to stifle voices of protest, dissent or criticism of the government. While the indeterminate invoking of the provision has put it in the media spotlight, there has been very little academic discussion with respect to the nature of the law and its possible repeal. The punishment for seditious offences is known to be especially harsh compared to other offences in the IPC. It is a cognisable, non-bailable and non-compoundable offence that can be tried by a court of sessions. 6 However, its application is limited to the extent that the information had to necessarily be a representation of facts as the truth. 7 Thus, truth was a valid defence to the act.8 It may attract a prison term of up to seven years if one is found guilty of committing seditious acts.9 It is very difficult for a person accused of sedition to get bail.10 The highly subjective nature of the offence makes it necessary that courts determine on a case-to-case basis if any threat is caused to the stability of the State or its democratic order. Leaving such a determination to legislative or executive feat only enables a repressive government to undermine the free speech guarantee.11 5 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth 17 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June 15, 2016).(The institution of the Dramatic Performances Act of 1876 was prompted by the allegedly seditious nature of the two plays – Cha Ka Darpan in Marathi and Malharraoche Natak in Bengali. It was in acknowledgement of the provocative nature of these plays that Mr Hobhouse, while introducing the Act, observed that “drama has been found to be one of the strongest stimulants that can be applied to the passions of men. And in times of excitement no surer mode has been found of directing public feeling against an individual, a class or a government than to bring them on stage in an odious light”).
6 The Code of Criminal Procedure, 1973, Schedule I. 7 Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 669 (1985). 8 Id. 9 The Indian Penal Code, 1898, §124-A. 10 See PSA Pillai, Criminal Law 1131 (K.I. Vibhute eds., 2009). 11 Eric Barendt, Freedom of Speech 170 (2006).
In this paper, we attempt to make a case for scrapping the provision for sedition in the IPC and any other laws making seditious acts an offence. In Part II, we examine the judicial application of the law of sedition in India since the colonial era to highlight their vagueness and the non-uniform way in which it has been applied. In Part III, we discuss the findings of the court in Kedar Nath v. State of Bihar 12 (‘Kedar Nath’), which upheld the constitutional validity of §124A, and demonstrate that the law has evolved considerably since then. In Part IV, we analyse two specific aspects of the offence of sedition: the nature of the ‘government established by law’ and the effect of the shift to a democratic form of government post independence. In Part V, we undertake an analysis of all sedition cases that have come before the high court’s and the Supreme Court of India between 2000 and 2015. We will draw from the English experience with the crime of sedition, explaining why it should find no place in a modern democracy. Finally, in Part VI, we provide some concluding remarks to our discussion. D. DEVELOPMENTS I N THE L AW POSTINDEPENDENCE After India attained independence in 1947, the offence of sedition continued to remain in operation under §124A of the IPC.62 Even though sedition was expressly excluded by the Constituent Assembly as a ground for the limitation of the right to freedom of speech and expression, this right was still being curbed under the guise of this provision of the IPC. On three significant occasions, the constitutionality of this provision was challenged in the courts. These cases shaped the subsequent discourse in the law of sedition. Following the decision in Niharendu Majumdar, §124A was struck down as unconstitutional in Romesh Thappar v. State of Madras,63 Ram Nandan v. State,64 and Tara Singh v. State65 (‘Tara Singh’). In Tara Singh, the East Punjab High Court relied on the principle that a restriction on a fundamental right shall fail in toto if the language restricting such a right is wide enough to cover instances falling both within and outside the limits of constitutionally permissible legislative action affecting such a right.66 During the debates surrounding the first amendment to the Constitution, the then Prime Minister Jawaharlal Nehru was subjected to severe criticism by members of the opposition for the rampant curbs that were being placed on the freedom of speech and expression under his regime.67 This criticism, accompanied by the rulings of the courts in the aforementioned judgments holding §124A to be unconstitutional, compelled Nehru to suggest an amendment to the Constitution.68 Thus, through the first amendment to the Constitution, the additional grounds of ‘public order’ and ‘relations with friendly states’ were added to the Article 19(2) list of permissible restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a).69 Further, the word ‘reasonable’ was added before ‘restrictions’ to limit the possibility of misuse by the government. 70 In the parliamentary debates, Nehru stated that the intent behind the amendment was not the validation of laws like 12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.
sedition. He described §124A as ‘objectionable and obnoxious’71 and opined that it did not deserve a place in the scheme of the IPC. 62 The Indian Penal Code, 1860, §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 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”). 63 Romesh Thappar v. State of Madras, AIR 1950 SC 124. 64 Ram Nandan v. State, AIR 1959 All 101. 65 Tara Singh v. State, AIR 1951 SC 441. 66 Id. 67 Narrain, supra note 42. 68 Id. 69 Id. 70 Id. 71 Id.
The Court in Kedar Nath’s case stated that the section related to sedition was a reasonable restriction both on grounds of ‘public order’ and ‘security of the state’. Further, the addition of the phrase ‘in the interest of public order’ in Article 19(2) through the first constitutional amendment with retrospective application was seen as an attempt to validate the interpretation given by Fazl Ali, J. in Brij Bhushan v. State of Delhi83 (‘Brij Bhushan’) whereby ‘public order’ was allied to ‘security of thestate’.84 Consequently, the amendment was seen as a validation of the law of sedition. Since then, however, a clear distinction has been drawn by courts between the terms ‘public order’ and ‘security of the state’.86 The difference, essentially, is one of degree. While the terms have not been precisely defined, public order is synonymous with public safety and tranquillity and has only local significance. Security of the
state, on the other hand, would involve a national upheaval such as revolution, civil strife or war.87 Thus, an argument that a law justified ‘in the interest of public order’ would also consequently be justified in the interests of the ‘security of the state’ would not stand. Further, it would also be difficult to argue that the law could be saved on the grounds of being ‘in the interests of public order’. For the purpose of above mentioned permissible restriction, the breach of public peace may be categorised as: offences against ‘law and order’, ‘public order’ and ‘security of the state’. According to the judgment of the Supreme Court in Ram Manohar v. State of Bihar88 (‘Ram Manohar Lohia’) these may be viewed as three concentric circles, with ‘law and order’ forming the outermost circle, ‘public order’ the next circle and ‘security of the state’ the innermost circle. These form a hierarchy of disturbances of peace, with security of the state possessing the highest standard of proof. Thus, if a restriction is to be justified on the grounds of ‘security of the state’, it would have to be subjected to a higher standard than that applied in cases of ‘public order’. As has already been stated, sedition is an offence against the State and punishes an act intended to subvert the government established by law. It is difficult to imagine how the mere disturbance of public order could attract a charge for an offence against the state, given that the term ‘in the interests of public order’ is used in an extremely localised context.89 These could include punishing loud and raucous noise caused by noiseamplifying instruments in public places or preventing utterances likely to cause a riot. It is submitted that the appellants have failed to prove that under which of the three circle the charged offence of sedition belongs. Thus it is for the appellant to bring the circle or circles alongwith the such corresponding standard of proof for the purpose of conviction.
A. MAINTENANCE OF PUBLIC ORDER AS A LIMIT ON FREE SPEECH
81 Narrain, supra note 42.
82 While it was widely accepted by various scholars and authorities that sedition was essentially an offence against public tranquillity and was represented by any form of public disorder, the Judicial Committee had stated that the intention or tendency to incite disorder was not an essential element of the crime of sedition as defined in the IPC. 83 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525. 84 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, ¶29. 85 Id., ¶33 (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to support this contention). 86 V.N. Shukla, Constitution Of India 135 (M.P. Singh, 2008). 87 Id. 88 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709. 89 Id. 90 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785. B. POST-INDEPENDENCE CHANGE IN NATURE OF GOVERNMENT It must be noted that the Court was still driven by the notion of sedition as a crime that affected the very basis of the State. It had thus been included under the section related to ‘Offences against the State’ in the IPC. The rationale for the criminalisation of such acts is generally that it fosters “an environment and psychological climate conducive to criminal activity” even though it may not incite a specific offence.96affecting the foundations of the state. This change in the form of government has made a law of the nature of sedition obsolete and unnecessary. Lastly, it has also been emphasised that the courts must take into consideration the growing awareness and maturity of its citizenry while determining which speech would be sufficient to incite them to attempt to overthrow the government through the use of violence.101 Words and acts that would endanger society differ from time to time depending on how stable that society is. Thus, meetings and processions that would have been considered seditious 150 years ago would not qualify as sedition today.102 This is because times have changed and society is stronger than before.103 This consideration becomes crucial in determining the threshold of incitement required to justify a restriction on speech. Thus, the audience must be kept in mind in making such a determination. In S. Rangarajan v. P. Jagjivan Ram104 (‘Rangarajan’), the Court held that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”105 It gives an indication of what sort of acts might be considered seditious, when it observes that the film in question did not threaten to
overthrow the government by unlawful or unconstitutional means, secession or attempts to impair the integrity of the country. 97 Cass R. Sunstein, Free Speech Now, U. Chi. L. Rev. 260 (1992). 98 Id. 99 It must be remembered, however, that a call to alter the form of Government is not punishable under this section. 100 See Tara Singh Gopi Chand v. State, 1951 Cri LJ 449 (per Eric Weston, C.J.). 101 Seervai, Constitutional Law of India 718 (2010). 102 Id. 103 Bowman v. Secular Society Ltd, 1917 AC 406 . 104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574. 105 Id., ¶¶20. 104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574. 1. Clear Acquittal Cases
In one such case, P.J. Manuel v. State of Kerala,106 the accused affixed posters on a board at the Kozhikode public library and research centre, exhorting people to boycott the general election to the Legislative Assembly of the state.107 The poster proclaimed, “No vote for the masters who have become swollen exploiting the people, irrespective of difference in parties.” Consequently, criminal proceedings were initiated against him under §124A of the IPC for the offence of sedition. The Kerala High Court observed that it needs to be examined whether the publication or preaching of protest, or even questioning the foundation or form of government should be imputed as “causing disaffection towards the government” in a modern democracy. The content of the offence of sedition must be determined with reference to the letter and spirit of the Constitution and not to the standards applied during colonial rule. In support of its view, it cited authority to demonstrate that even the shouting of slogans for the establishment of a classless society in line with the tenets of socialism would not be punishable as sedition.108 Further, it noted that §196 of the Code of Criminal Procedure, 1973, (‘CrPC’) mandates that the government must expressly authorise any complaint filed for an offence against the State (under Part VI of the IPC) before the Court can take cognisance of such an offence. It thus held that the impugned act did not constitute the act of sedition and quashed the criminal proceedings against the petitioner. Courts have also consistently found that criminal conspiracies and acts of terrorism did not constitute seditious acts. In Mohd. Yaqub v. State of W.B.,117 the accused had admitted to being a spy for the Pakistani intelligence agency ISI. He would receive instructions from the agency to carry out antinational activities. He was thus charged for sedition under §124A of the IPC. Citing the elements of sedition that were laid down in Kedar Nath, the Calcutta High Court found that the prosecution had failed to establish that the acts were seditious and that they had the effect of inciting people
to violence. Thus, the accused were found not guilty as the strict evidentiary requirements were not met.
106 P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793. 107 Id. 108 Alavi v. State of Kerala, 1982 KLT 205; Balw ant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785. 117 Mohd. Yaqub v. State of W.B., (2004) 4 CHN 406
A recent Convention organized by People’s Union of Civil Liberties (PUCL) and participated in by other Human Rights organizations heard accounts of widespread and systematic misuse of the sedition law across India. All forms of democratic struggles - from farmer’s agitations to citizens protesting against state policies - have been criminalized and prosecuted under sedition laws. Consequently, thousands of ordinary citizens have not only suffered violation of fundamental freedoms and liberties but also forced to undergo major personal, emotional and financial hardships due to imprisonment and in the process of seeking legal remedies. The Convention, therefore, resolved to launch a nation-wide signature campaign to collect at least a million signatures to present it to Parliament demanding the immediate repeal of Sedition Law, i.e., Sec. 124 (A) IPC. Colonial era sedition law contained in section 124 A of the Indian Penal Code, makes creating hatred or contempt for or disaffection towards the government established by Law in India, an act of sedition punishable with imprisonment for life, whether such disaffection, hatred or contempt is created by words spoken or written or by signs or visible representation. This section forms part of chapter VI of the Indian penal Code that deals with “offences against the State”, a passage that deals with serious offences including waging war against the State. Section 124 A was introduced by the British Government in 1870 when the colonial government felt that such a draconian law was needed to suppress the freedom struggle. Some of the most famous sedition trails of 19th and early 20th centuries were those of Indian nationalist leaders including Tilak, Gandhi and Maulana Azad. All the repressive laws used by the British against the freedom struggle have been retained in Independent India, despite constitutional provisions mandating scrutiny.Jawaharlal Nehru’s views were totally against this provision when he said in 1951, “Take again Section 124 (A) of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, in any body of laws that one might pass. The sooner we get rid of it the better.”In fact, it is the constitutional right of every citizen to expose the misdeeds of the government he/she disapproves of and create disaffection and disloyalty among the people and work for throwing it out of power through democratic means – of course without resorting to violence. Hence, the law is incompatible with democracy in which anybody who is dissatisfied with the government has the right to create disaffection against it and seek its removal at the next election. In fact, it is the legitimate right of every citizen to expose the misdeeds of the government it disapproves of, create disaffection and disloyalty among the people and work for throwing it out of power. Disloyalty to a government is different from disloyalty to the State. Of
late this provision is being used by the State to suppress the peaceful people’s movements and Human Rights activists. Using sedition law to silence peaceful criticism is the hallmark of an oppressive government. The Indian parliament should immediately repeal this Colonial Era Sedition Law. http://www.pucl.org/Topics/Law/2011/sedition.html, last visited on 16, July 2016.
Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M. Business laws, Imperial Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5, 2016, ISSN: 2454-1362 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. 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. 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.
A case against the sedition law Kaleeswaram Raj http://www.niyamasabha.org/focus/Focus-Mar-2016.pdf Henry Ward Beecher (1813-87), the American preacher and social reformer, said: “It takes a hundred years to make a law; and then after it has done its work, it takes another hundred years to get rid of it.” The Jawaharlal Nehru University episode evocatively makes out a formidable case for junking Section 124A (sedition) of the Indian Penal Code (IPC) once and for all. The textual or literal tone of the provision is per se undemocratic, for it penalizes dissent with an obfuscating vocabulary. The provision criminalizes words bringing, or attempting to bring, “hatred or contempt” or “disaffection” towards the government. By prescribing a disproportionate optimum punishment of life imprisonment even for the words spoken, it designs a nefarious power structure that is inherently illiberal and dangerously oppressive. Section 124A finds its legal legitimacy in the Constitution Bench decision in Kedar Nath Singh vs State of Bihar (AIR 1962 SC 955). The judgment, which is apparently ambivalent and intrinsically wrong, needs to be reviewed by a larger bench insofar as it validates the provision. The reasoning in the judgment does not stand the test of constitutional experience of the country or the subsequent developments in the concept of freedom across the world. The binary of individual liberty and state security is no longer a contested concept, for a synthesis of these “opposing ideas” has been vividly demonstrated by many modern democracies. Parliament is unlikely to repeal the provision, for those in power often have needed it and even benefited from it. An introspective gesture from the apex court alone seems to be the way ahead for those who believe in the cause of liberty of thought and imagination. It is high time Section 124A was held void, for it is legally unnecessary, constitutionally invalid and democratically untenable. There are at least four prominent reasons for invalidating Section 124A by recalling the ratio in Kedar Nath, which is an epitome of an obsolete precedent insofar as it retains Section 124A. KEDAR NATH IS AMBIVALENT The validation of Section 124A in Kedar Nath is neither categorical nor assertive. In paragraph 25 of the judgment, the court said: “ .... (I)f it is held .... that the gist of the offence of sedition is incitement to violence, in other words bringing the law into line with the law of sedition in England was the intention of the legislators when they introduced Section 124A into the IPC in 1870, ... (then) the law will be within the permissible limits laid down in clause (2) of Article 19 of the Constitution. If on the other hand, we give a literal meaning to the Section ... it will be true to say that the Section is not only within but also very much beyond the limits laid down in
clause 2 (of Article 19).” In paragraph 26, the court has resorted to a dialectical logic and validated the provisions: “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lien in favour of the former construction.” Thus, Kedar Nath laid down the law: If activities do not create disorder or have the pernicious tendency to create public disorder, there is no offence. If otherwise, it is a punishable offence. Therefore, according to Kedar Nath, the provision is reasonable in terms of Article 19(2) of the Constitution. Thus, the question of constitutionality is decided by the bench in contextual and contingent terms. Even while accepting the possibility of interpreting the provision as unconstitutional, Kedar Nath has validated it by construing the law, which is otherwise vague, at least to the extent to which it needed a construction. This hermeneutical error in Kedar Nath contains inherent dangers. The penal provisions, unlike the other statutes, are primarily interpreted and invoked by the executive. As such, there is an enormous element of subjectivity in invoking Section 124A. Although theoretically, the Kedar Nath judgment advocates an objective test, the question whether the words spoken by the accused has a tendency to create disorder is again a matter of subjective decision by the executive, which runs the police-the jury on the street. Kedar Nath himself was an activist of the Forward Communist Party. The charge against him specifically refers to his speech. In a folkloric rhetoric, he, inter alia, said: “The Forward Communist Party does not believe in the doctrine of vote itself. The party had always believed in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a government of the poor and the downtrodden people of India.” The Kedar Nath judgment also considered the speeches by a Bolshevik Party leader from Uttar Pradesh and one Ishaq Ilmi, the chairman of the reception committee of the All India Muslim Convention in Aligarh. Thus, literally it was the speech that invited sedition charges in many of the appeals considered by the Supreme Court in Kedar Nath. Having found that mere words, unless accompanied by an intention to scuttle “law and order”, cannot lead to sedition, the court should have gone further into the realm of legal realism. The country had to pay a heavy price in terms of liberty for retaining Section 124A in the IPC. The inhospitable history of the provision shows that it was used to stifle democratic dissent. Many journalists, writers and activists have been booked for dissent. The voices of thousands of Koodankulam anti-nuclear plant activists, who led peaceful agitations, were muffled with sedition charges. It is time to rethink the “unbearable reluctance” in Kedar Nath to do away with the provision. If Section 124A punishes only the pernicious activities against the state, it is no longer necessary in the IPC. There are other provisions in the IPC that take care of such offences more effectively. In Kedar Nath, the Supreme Court has not examined the sufficiency of other provisions even after noting the inherent dangers of the sedition part. Apart from Section 124A, the court, in Kedar Nath, dealt with Section 505 of the IPC relating to “statements conducing to public mischief’. The court, however, did not analyse the more visible forms of offences to topple the regime. Sections 121, 12lA and 122 deal with the offence of “waging war against Government of India” or in any way facilitating such a war. Going by judicial interpretation, the word “war” has a wide and varied meaning. Section 121 says that insurrection against the government is punishable with death or life imprisonment.
Section 126 makes “depredation on territories of power at peace with the Government of India” a punishable offence. Chapter VII of the IPC, by way of Sections 131 to 140, deals with offences relating to the Army, the Navy and the Air Force. More importantly, any violence or call for overturning the law and order situation or to disrupt public tranquility is otherwise punishable under the provisions of the Code, outside the scope of Section 124A. Thus, the law and order requirement of Section 124A is met by other parts of the IPC, which is its very basic object. As such, the retention of Section 124A is rendered unnecessary by the Code itself. Since it is capable of being put to unconstitutional use (not misuse) as noted by the apex court, its retention defies constitutional logic and empirical thinking. The lack of a comprehensive analysis of the provisions in the IPC has rendered the Kedar Nath ratio dangerously incomplete. FOUNDATION SHATTERED The foundational reason adopted by the Supreme Court for validating the provision was the retention of the sedition law in England at that time. The court said: “This species of offence against the state was not an invention of the British government in India but has been known in England for centuries. Every state, whatever its form of government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the state ... “ (Paragraph 15). After extracting the British equivalent of sedition law, the court said that “the law has not changed during the course of the centuries ... “. Now that law is changed. It was abolished in Britain as it was found untenable in the light of the Human Rights Act, 1998. The emphasis on free speech by the European Convention on Human Rights (ECHR) accelerated the process of expulsion of sedition laws from many democracies. New Zealand followed suit after noting that in the United States, Canada and Australia, the law is practically in disuse. Nigeria also abolished its sedition law. The judgment of the Federal Court of Appeal in Nigeria struck down the part of Criminal Code of Eastern Nigeria, saying: “(T)he law of sedition which has derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the 1979 Constitution more so when this cannot lead to a public disorder as envisaged under Section 41(a) of the 1979 Constitution ... “ [State vs Arthur Nwankwo, (1985) 6 NCLR 228]. Therefore, it is clear that the Kedar Nath ratio, in as much as it justifies itself on the basis of the erstwhile British legislation, is no longer a good law in the legal or political sense. But since the law has not been scrapped, the Supreme Court had to exonerate the accused in Bilal Ahmed Kaloo (1997) 7 SCC 431 and Balwant Singh (1995) 3 SCC 214 where the charges were inter alia under Section 124A. It happened likewise in many unreported cases as well. As explained by Salvador J. Antonett Stutts, an attorney in Puerto Rico, often obsolete precedents are not revaluated “because of habit”, as the “habitual adherence to precedent” could lead to “incorrect results”. The citizen’s long journey to the Supreme Court to free himself of the charges is a sad commentary on the Indian sedition law. TRAPPING THE INNOCENT Kedar Nath identifies two possible interpretations of Section 124A, thereby indicating that the provision is vague. Vagueness of a penal statute (as distinct from its potential for misuse) is not sufficient enough to invalidate the provision. The Supreme Court recently accepted this principle in Shreya Singhal vs Union of India (2015) [5 SCC 1], while dealing with the validity of Section
66A of the Information Technology Act, which the court struck down. The “open-ended” and “vague” terminology in the penal provisions could be even deceptive, for it might “trap the innocent”. As held in United States vs Reese [92 U.S. 214J, “the Constitution does not permit a legislature to set a net large enough to catch all possible offenders and leave it to the court to step in and say who could rightfully be detained and who should be set at liberty”. The court in Shreya Singhal also refers to Grayned vs Rocliford [408 U.S. 104 (1972)J to say that “vague laws may trap the innocent by not providing fair warning”. It noted the warning by Justice Brandeis that “public discussion is a political duty”. “Vagueness” in itself is a ground to invalidate a statute. However, its linkage with the potential for misuse of the provision is an added reason to do away with it. The modernity and modernism in Shreya Singhal reflect an updated constitutionalism. Kedar Nath also needs thorough modernisation surgery, ‘which precisely means annulling Section 124A. DEBATES OVERLOOKED The fundamental error in KedarNath, however, seems to be that it followed the minority view of Fazal Ali (J) in Brij Bhushan (1950), which attributed a strange reasoning for not incorporating sedition as an exception to freedom of speech, as part of Article 19(2). Fazal Ali (J) said: “The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word ‘sedition’ should be used in Article 19(2) and if it was to be used, in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and on the other hand there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.” FazalAli (J) seems to have not correctly appreciated the spirit of the objections raised by K.M. Munshi, T.T. Krishnamachari and Seth Govind Das in the Constituent Assembly. Sedition was initially incorporated under Article 13 of the draft Constitution, which is the equivalent of the present Article 19. Munshi lamented: “Our notorious Section 124A of (the) Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124A. But the public opinion has changed considerably since and now that we have a democratic government” (Constituent Assembly Debates, 1948; Book No.2; Vol. No. VII; page 731; Lok Sabha Secretariat; 6th Reprint, 2014). Krishnamachari felt even the word “sedition” needed to be “resented”. He spoke unflinchingly against the draft Constitution, which contained the word sedition under Article 13, as an exception to freedom of speech and expression. He said: “Students of constitutional law would recollect that there was a provision in the American Statute Book towards the end of the 18th century providing for a particular law to deal with sedition which was intended only for a period of years and became more or less defunct in 1802” (Ibid, page 773). Fazal Ali’s apprehension that sedition per se would undermine the “security of the state” does not appear to be reasonable when examined in the light of the opinion expressed in the Constituent Assembly, which were well received and accepted by the makers of the Constitution. In Kedar Nath, unfortunately, the bench relied on the dissent on the basis of assumptions and presumptions by Fazal Ali (J) rather than by invoking any interpretative technique. The reference to the amendment to Clause (2) of Article 19, occurring in paragraph 22
of the judgment, does not erase this basic infirmity. Had there been an assimilation of the spirit of liberty in the Constituent Assembly debates, the analysis in Kedar Nath might have turned more organic, vibrant and libertarian, which in turn would have led to a different conclusion about the validity of the provision. Viewed in this light, after 145 years of its horrendous existence, Section 124A calls for its own annihilation by the world’s most powerful Supreme Court. http://decipherias.com/currentaffairs/sedition-vs-free- speech/;%20last %20visited%20on%2026%20July,%202016 Tilak & Gandhi Section 124A was not part of the IPC when it was enacted in 1860. It was introduced through an amendment in 1870. The monograph traces the contemporary understanding of the sedition law to the interpretation placed on it by Justice James Strachey, who was asked by the British government to preside over the sedition case against Bal Gangadhar Tilak, who was convicted of sedition in 1897 but released in 1898. Tilak’s counsel argued that the so-called seditious articles written by Tilak were consistent with his loyalty to the state. Strachey held that the term “feelings of disaffection” as used in Section 124A meant “hatred”, “enmity”, “dislike”, “hostility”, “contempt” and every form of ill will to the government. The Judicial Committee of the Privy Council upheld his interpretation. In 1898, Section 124A was amended to reflect Strachey’s interpretation. The terms “hatred” and “contempt” were included along with disaffection. Disaffection was also stated to include disloyalty and all feelings of enmity. Tilak was again tried for sedition in 1908. Despite a spirited defence from Mohammad Ali Jinnah, his counsel then, the amended Section 124A helped the British judges to sentence Tilak to six years’ rigorous imprisonment with transportation. Mahatma Gandhi, when he was charged under the Section in 1922, famously told Judge Strangman, who heard his case: “Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law.” Constituent Assembly & section 124 A It is almost an accident that Section 124A survived after India’s Constitution came into force in 1950. The provision must have died a natural death in view of Article 13 of the Constitution, which states that all laws in force in the territory of India immediately before the commencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, dealing with Fundamental Rights, shall, to the extent of such inconsistency, be void. Those who defend Section124A today must learn from history. The Draft Constitution had included “sedition” as one of the grounds on which the
fundamental right to speech could be restricted. But owing to the efforts of K.M. Munshi, the word “sedition” was deleted from the exceptions to the right to freedom of speech and expression under Article 19(2) when it was finalised. Bizarre cases imposed in the name of Sedition: Some of the cases of sedition are bizarre. In 2010, a lecturer, Noor Muhammed Bhat, in Gandhi Memorial College, Srinagar, was arrested because he added questions on the unrest in Kashmir Valley in an examination. He was granted interim bail by the Jammu and Kashmir High Court in 2011. The Times of India’s resident editor at Ahmedabad, Bharat Desai, faced charges, along with a senior reporter and a photographer, in 2008 for questioning the competence of police officers and alleging links between them and the mafia. The case was dismissed by the court for lack of evidence. In the case against Sudhir Dhawale, a reputed Dalit social activist and editor of Vidrohi, published from Gondia, Maharashtra, the police alleged that a State Committee member of the banned Communist Party of India (Maoist) had stated in an interrogation that he had given his computer to Dhawale. Dhawale was arrested in 2011. A sessions court acquitted him in 2014. NCRB data The list of cases of misuse of Section 124A given here is not exhaustive. The National Crime Records Bureau (NCRB) records that in 2014, 176 cases of offences against the state were reported. Of these, 47 were reported under section 124A IPC. Conclusion: The NCRB may well provide data regarding the number of persons convicted and sentenced for sedition. The number will, no doubt, be minuscule, thus confirming that the trial and the appellate courts hardly find the evidence convincing enough to sustain the charges. This proves that Section 124A is often a handy tool in the hands of the government to inflict procedural punishment against its critics, just in order to harass, threaten and intimidate. http://www.uniassignment.com/essay-samples/law/the-pre-text-of-origin-lawconstitutional-administrative-essay.php bibliograpgy:
Table of Authority Cases Bengal Immunity Co. Ltd. v. State of Bihar, A.I.R. 1955 S.C. 661 17
Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106, 138 3 Bowman v. Secular Society Ltd., [1917] AC 406, 466 16 D.C. Saxena (Dr.) v. Hon’ble The Chief Justice of India, (1996) 5 S.C.C. 216 ¶29 3 Dhirendra Nath Sen v. Emperor, A.I.R. 1938 Cal 721, 723 17 Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh, A.I.R. 1955 All 193 8 Emperor v. Sadashiv Narayan Bhalerao, A.I.R. 1947 P.C. 82 16 Hunt et al. 29 C&P 91 4 In Re Cottingha'n, (1919, Colo.) 182 Pac. 2 10 Joy Chandra Sarkar v. R, 12 Cr.L.J. 348 17 Kedarnath v. State of Bihar, A.I.R. 1962 S.C. 955 4 King Emperor v. Sadashiv, 1947 (74) I.A. 89 4 LIC v. Manubhai D. Shah (Prof.), A.I.R. 1993 S.C. 171 ¶ 23 3 Namboodiripad E.M. Sankaran v. Ma,biar T. Narayanan, A.I.R. 1970 S.C. 2015 3 Nazir Khan v. State of Delhi, A.I.R. 2003 S.C. 4427 16 Niharendu v. King Emperor, (1954) F.C.R. 38 4 O'Connell et al. v. The Queen, (1844) 11 Cl.&Fin. 155 4 P. Hemalatha v. Government of Andhra Pradesh, A.I.R. 1976 A.P. 375 17 Parmanand v. Emperor, A.I.R. 1941 All 156, 157 16 Queen Emperor v. Bal Gangadhar Tilak, (1897) I.L.R. 22 (Bom.) 112 6 Queen Emperor v. Jogendra Chandra Bose, (1892) I.L.R. (Cal.) 35 6 R. v. Sulliva, (1868) 11 Cox CC 54 17 Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223 3 Ram Chandra v. Emperor, A.I.R. 1930 Lah. 371, 374 17 Ram Nandan v. State, A.I.R. 1959 All 101 7 Rangarajan S. v. Jagjivan Ram P., (1989) 2 S.C.C. 574 3 Re S.S. Batliwala, A.I.R. 1938 Mad 758 (763) 17
RMD Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628 17 Romesh Thappar v. State of Madras, 1950 S.C.R. 594, 602 3 Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305 (315) 4 Trial of Redhead Yorke, 25 St. Tr. 1003 4 Statutes Pen. Code, §124A (1860) 4 Other Authorities 2 HalsBury’s Laws of England, 479 ¶812 (4th ed 2007) 10 7 Lok Sabha Secretariat, Constituent Assembly Debates, 731 (2008). 7 Law Commission of India, 42nd Law Commission Report, 149 (1971). 18 Manoj Mitta, Jawaharlal Nehru Wanted Sedition Law Out as Early as 1951, The Times of India (Mumbai) Sept. 11, 2012 at 9 7 Conventions & Treatises International Covenant on Civil and Political Rights (ICCPR), (1966) Art. 1 12 International Covenant on Economic, Social and Cultural Rights,(1966) Art. 1 12 United Nations General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948 12 Constitutional Provisions Constitution of Afghanistan (2004) Article 4 11 Constitution of Algeria as amended in 1996 (1989) Article 6 11 Constitution of Bangladesh (2004) Article 7 11 Constitution of Belarus as amended in 1996 (1994) Article 3 11 Constitution of Brazil (1983) Article 1 11 Constitution of France (1958) Article 3 11 Constitution of Libya (1969) Article 1 11 Constitution of Mexico (1917) Article 39 11 Constitution of the People’s Republic of China as amended through March 2004 (1982) Preamble, Articles 1 and 2 11 Constitution of the Republic of Indonesia (1945) Article 1 11
Constitution of Venezuela (1999) Article 5 11 Indian Const., art. 19 § 1 cl. a 3 Indian Const., art. 19 § 2 4 The Constitution of the Republic of Mali (1991) Preamble and Article 25 11 The Constitution of the Russian Federation (1993) Article 3; The 1945 11 Books 2 James Stephen, History of the Criminal Law, 299 (1883) 4 3 Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, 254 (Steve Spheppard eds. 2003) (1600). 5 Aravind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response, in Engaging Terror: A Critical and Interdisciplinary Approach 98, 99, (M. Vandalos, G.K. Lotts et al eds. 2009) 6 Bodin, Six books of Republic, 35 (Tooley trans. 1980) (1576). 11 Durga Das Basu, Shorter Constitution of India, 278 (Justice A.R. Lakshmanan et al. eds. 14th ed. 2011). 3 John Hoffman, Sovereignty 97 (1998) 12 John Locke, Second Treatise of Civil Government, 65 (Thomas Hollis ed. Hackett Publishing Company 1980) (1764). 13 Kurt Mills, Human Rights in the Emerging Global Order A New Sovereignty, 39 (1998) 12 M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, 247 (8th ed 2010) 11 Manning, The Mind of Jeremy Bentham, 53 (1968). 11 Marlin Randal, Propaganda and The Ethics of Persuasion, 228 (2002) 3 McIlwain, Growth of Political Thoughts in the West, 268 (1968) 11 R. Dhavan., Only the Good News: On the Law of the Press in India, 287 (1987). 6 Ratanlal & Dhirajlal, The Indian Penal Code, 660 (V.R. Manohar ed. 2010) (1896) 5 S.K. Sarvaria, RA Nelson’s Indian Penal Code, 1101 (10th ed 2008) 16 W. Ullman, Principles of Government and Politics in the Middle Ages, 72, 139, 150 (1961) 11 W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, 1 (1911). 6 Articles Bernad L. Shientag, From Seditious Libel to Freedom of Press, 11 Brook. L. Rev. 125, 129 (1941) 9
Cathy Packer and Johanna Cleary, Rediscovering The Public Interest: An Analysis Of The Common Law Governing PostEmployment Non-Compete Contracts For Media Employees, 24 Cardozo Arts & Ent. L.J. 1073, 1114-1115, 1117 (2007) 15 Cindy G. Buys, Burying Our Constitution In The Sand? Evaluating The Ostrich Response To The Use Of International And Foreign Law In U.S. Constitutional Interpretation,1 BYU J. Pub. L. 1, 18 (2007) 15 Helen Stacy, Relational Sovereignty, 99 Am. Soc'y Int'l L. Proc. 396, 2034 (2005). 13 Hurst Hannum, The Status Of The Universal Declaration Of Human Rights In National And International Law, 25 Ga. J. Int'l & Comp. L. 287, 348 (1995/1996) 12 Jean d'Aspremont, Legitimacy Of Governments In The Age Of Democracy, 38 N.Y.U. J. Int'l L. & Pol. 877, 884 (2006) 15 Johan D. van der Vyver, Sovereignty And Human Rights In Constitutional And International Law, 5 Emory Int'l L. Rev. 321, 328 (1991) 14 Joy M. Purcell, A Right To Leave, But Nowhere To Go: Reconciling An Emigrant's Right To Leave With The Sovereign's Right To Exclude, 39 U. Miami Inter-Am. L. Rev. 177, 182 (2007). 12 Lorie M. Graham, Reparations, Self-Determination, And The Seventh Generation, 21 Harv. Hum. Rts. J. 47, 62 (2008) 12 Michael J. Kelly, Pulling At the Threads of Westphalia: "Involuntary Sovereignty Waiver" - Revolutionary International Legal Theory or Return to Rule by The Great Powers?, 10 UCLA J. Int'l L. & Foreign Aff. 361, 390 (2005) 12 Michel Rosenfeld, The Rule Of Law And The Legitimacy Of Constitutional Democracy, 4 S. Cal. L. Rev. 1307, 1332 (2001) 15 Roger B. Manning, The Origin of the Doctrine of Sedition, 12 Quatr. J. Con. Brth. Std. 99 (1980) 5 Ronald A. Brand, External Sovereignty And International Law, 18 Fordham Int'l L.J. 1685, 1687 (1995) 15 Srinivas Aravamudan, Sovereignty: Between Embodiment And Detranscendentalization, 41 Tex. Int'l L.J. 427, 430 (2006) 12 W. Michael Reisman, Sovereignty And Human Rights In Contemporary International Law, 84 Am. J. Int'l L. 866, 867 (1990) 12 William E. Conklin, The Origins of the Laws of Sedition, 15 Crim. L. Q. 277, 284 (1972). 4 Internet Sources Arlen Specter, Electorate Quotes, Brainy Quote http://www.brainyquote.com/quotes/keywords/electorate.html 3 India Today, Throw Out ‘Sedition’ from the Penal Code, (Dec 28, 2010) available at http://indiatoday.intoday.in/story/throw-outsedition-from-the-penal-code/1/124784.html 6 Jean Jacques Rousseau, The Social Contract, (1762) Book 1, Chapter 6 at http://www.constitution.org/jjr/socon_01.htm 14 NLSIU & ALF, Sedition Laws and The Death of Free Speech in India, 9 (2011) 6 PA Media Lawyer, Criminal Libel and Sedition Offences Abolished, Press Gazette – Journalism Today (Jan. 13, 2010) http://www.pressgazette.co.uk/node/44884 10
Introduction It is indispensable for the operation of the democratic system [1] and for self-development and setting up a homogeneous egalitarian society. [2] Democracy is extolled because of the freedom of speech and expression present in it. This freedom comes with the freedom to critique, to critique government policies, government laws and administration. As Thomas I. Emerson say that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay", [3] it shows the requirement of criticism in a democracy. If freedom is the depiction of democracy, informed electorate is its element of survival. The former U.S. Senate from Pennsylvania, Arlen Specter has once said that the essence of the democracy is an informed electorate. [4] A well-informed voter is the foundation of democratic structure. [5] The State cannot prevent open discussion and open expression however hateful to its policies, [6] or criticism of the incapacity of the Government. [7] Merely exciting ‘disaffection or bad feelings towards the Government’ is, therefore, no ground for restricting the freedom of speech and expression, under Art. 19(2). [8] If belief is necessary for the continuity of the democracy, criticism is must for the avoiding such democracy not to be turn cripple. An old axiom is not to follow blindly. We all live in a democratic country, and we all have right to speech and right to choose. If we have selected the government, then we should also have the right to comment on that government. This is the essence of democracy. If the people, the electors would not be having the right to criticise their own representatives then there will be no difference left, whatsoever, between a democracy and a monarchy. Ideally, there should be no law for the curtailment of freedom of speech and expression, but for the sole reason that there cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint for that would lead to anarchy or disorder, [9] we have restrictions over freedoms. But these restrictions shall be reasonable. In our constitution, we have been granted right to freedom of speech and expression under article 19(1)(a) [10] , and we also have reasonable restriction under article 19(2). [11] Section 124A [12] is a substantive provision, which is a reflection of the reasonable restrictions enumerated in the Constitution. But, the restrictive clauses in Cls. (2) – (6) are exhaustive, [13] and are to be strictly constructed. [14] Though in the case of Kedarnath v. State of Bihar, [15] the Supreme Court has saved Sec. 124A of the I.P.C. from unconstitutionality by giving it a narrow construction following the view of the Federal Court in Niharendu v. King Emperor [16] and rejecting the interpretation given to it by the Privy Council in King Emperor v. Sadashiv. [17] But the question remains the same. If we live in a free-democratic country, then why should we have such anti-democratic laws on the first place? The cases of Dr Binayak Sen and Aseem Trivedi have once again initiated the debate over this draconian law.
Sedition and India The Indian Penal Code, which is a comprehensive code, intended to cover all substantive aspects of criminal law and which is the main criminal code of the country was prepared by the first law commission, which was headed by Lord Macaulay. The section corresponding to section 124A, the law that defines sedition in the IPC, was originally section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the IPC as it was enacted in 1860. [31] James Fitzjames Stephens, the architect of the Indian Evidence Act, 1872, has been quoted as saying that this omission was the result of a mistake. [32] Another explanation for this omission is that the British government wished to adopt more wide ranging strategies against the press including a deposit-forfeiture system and general powers of preventive action. [33] In 1898, Section 124A was incorporated in the Code, and for the first time, India came across to the word Sedition. The word ‘sedition’ does not occur in section 124A or in the defence of India Rule. [34] It is only found in the marginal note to Section 124A n dos not an operative part of the section but merely provides the name by which the crime defined in the section will be known. [35] The British Parliament debates reveal that it was inserted to deal with freedom fighters. [36] The first case on Section 124A was Queen Emperor v. Jogendra Chandra Bose. [37] Bose, the editor of the newspaper, Bangobasi, wrote an article criticising the Age of Consent Bill for posing a threat to religion and for its coercive relationship with Indians. [38] His article also commented on the negative economic impact of British colonialism. [39] Bose was prosecuted and accused of exceeding the limits of legitimate criticism, and inciting religious feelings. [40] However, the proceedings against Bose were dropped after he tended an apology. [41] But the most famous case of sedition was the Bal Gangadhar Tilak’s Case. [42] The fundamental moral question that Tilak raised was whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha). [43] The question raised by Tilak was of up most importance then as well as today also. As per the interpretation given by the Courts across the nation, a statement against the government can also be held crime under Sedition laws. But the question is that it is the nation to whom the people pay their gratitude, and the government is merely the chosen representatives of the people, by the people. Any statement against the country, against the motherland can be termed as traitorous, but a statement against the government will only amount to criticism. We have selected the government; hence we have the full right to question their judgements, to analyse their
policies and to cherish them as well as criticise them. As it was stated earlier that criticism of the government is an essential part of democracy, and if it would be clogged then that would amount to death of democracy.
Sedition and Constituent Assembly The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the statute books of independent India was not lost on those drafting the Constitution. [44] In 1951, the first Prime Minister of India, Jawaharlal Nehru had said that "[N]ow so far as I am concerned that particular section [Sec. 124A] is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass; The sooner we get rid of it the better". [45] The freedom fighters had witnessed the ill effect of this law, and probably that is why a leader like Jawaharlal Nehru stood against its incorporation in Indian Penal System. While in their Draft Constitution, the Constitutional Framers included ‘sedition’ as a basis on which laws could be framed limiting the fundamental right to speech (Article 13), in the final draft of the Constitution sedition was eliminated from the exceptions to the right to freedom of speech and expression (Article 19 (2)). [46] This amendment was forwarded by K.M. Munshi. As K.M. Munshi said that "I was pointing out that the word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of Law all over the world; Its definition has been very simple and given so far back in 1868; It says "sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government"; But in practice it has had a curious fortune". [47] He also went to the extent of saying that "the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should 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". [48] Thus the framers of our Constitution were clearly aware of the tainted history of sedition laws and did not want the right to free speech of independent Indians restricted by these draconian provisions. [49] By removing sedition from the terms included in Article 19(2) the Constitution makers signalled their wish to move away from the colonial order where legitimate dissent was denied to Indians. [50]
Interpretation of the Judiciary; Ram Nandan v. Kedar Nath The two most important judgements in this regard will be Ram Nandan v. State [51] and Kedar Nath v. State of Bihar. [52] Both the cases were decided during the same period, but the interpretation of the law was different in both the cases. On a critical examination, both judgements could be termed as sound, but on a practical approach, it is very difficult to ascertain. The constitutionality of the provision was challenged in both the cases. On one hand, in Ram Nandan, the Allahabad High Court held the provision unconstitutional on the grounds of its contrariness to Article 19(2). The court relied upon the decision of Romesh Thappar v. State of Madras; [53] court took into account the interpretation of the word ‘public order’ made by the learned bench in the aforesaid case. The court looks into the history of the law, and its draconian use. They felt that in a free and civilised society, there is no place for such laws. Relying upon Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh [54] and held that right grated under article 19(1) is absolute in nature.
Though, practically, the judgement of sound nature; It is true that in a democratic environment we don’t need laws like sedition. Sedition is a law which supress freedom of speech and expression, and it is the shield for those who are dreaded by the power of free speech. The democratic society is been found the founding stone of freedom. Freedom of speech is the essence of it. Hence there is no area of doubt left for the execution of the law. Despite of the philosophy involved in the interpretation of the law, Supreme Court overruled the judgement of Ram Nandan in Kedar Nath. In this case, Supreme Court analysed the earlier decisions of the Privy Council and of the Federal Court. But in doing so, the Supreme Court forgot the circumstance and state of affairs prevailing in the past and in the present. Earlier, India was not free. We were not having freedom of speech. We were ruled by a foreign state, on the power of force and compulsion. That administration was not having the faith of the masses. The lack of support and the growing sagacity of rebel in the country had constrained the Britishers to rule on the basis of power. Their prime motive was to protect their empire from getting out thrown. For that, they could have gone to any extent. Sedition laws were a part of that extent. The courts were the puppets of them, and hence their interpretation was in such a manner which relishes the rulers, not the people. Even if, it is argued that Federal Court took into existence after the independence, and it was not pressurised by the britishers, despite of the fact, it also judge the law on the line of Privy Council only, means that the interpretation of the earlier court was unbiased and correct, can’t be taken. Even though the Federal Court was unpressurised, but the fact that during their regime we were not having a Constitution in effect, questions their judgement too. Judges have to put their judgement on the basis of the existing law. If that has to be taken into account then the Federal Court was right in Niharendu v. King Emperor. [55] But, when we have a constitution into effect, then the laws shall be interpreted accordingly, which was done by Allahabad High Court. But the irony is that the Apex Court failed to judge in the same lines.
Do We Need Sedition Laws When we look behind in the past, we see that earlier, freedom of speech and expression was not given the amount of weightage as it is given nowadays. Earlier, the concept that was ruling across the world was of that the "Kind can do no wrong". Coke's idea of a libel may be stated generally to have been "written blame, true or false, of any man public or private, the blame of public men being a more serious matter than the blame of a private man". [56] With the view that the King and his Counsellors were the masters, that they were superior and not to be subject to censure, there naturally developed the conception of seditious libel as anything written that expressed dissatisfaction with the existing government and censure upon those by whom its authority was exercised. [57] It was a reflection of the old idea that "the King can do no wrong". [58] For a subject to suggest otherwise was a serious criminal offense. The essence of the offence of treason lies in the violation of the allegiance owed to the Sovereign. [59]
Importance of Sovereignty in Sedition Sedition law was made in a time when freedom of speech was not given due weightage. It was an easy step from the dogma, the king can do no wrong, to the corollary, the king's councillor, the king's chancellor, the court can do no wrong. [60] The courts are fallible, though some of us seem fearful of admitting it. [61] It was due to this simple reason we find laws like treason and sedition. The whole idea of these laws was protection of the Crown from rebel as well as criticism. After the dawn of democracy, people started recognizing the importance of the right of speech and expression. As Justice Minister Clair Ward has said that "[F]reedom of speech is now seen as the touchstone of democracy, and the ability of individuals to criticise the state is crucial to maintaining freedom". [62] Once, the spring of democracy started, ideally such laws should not be in effect any more. Earlier, the Crown and the Church was not selected by the people, they use to inhere the supremacy. This non-involvement of people created a fear among the royals. This was the fear of getting overthrown. This fear was the cause of such draconian laws. It is reflected from the discussions of the British Parliament; when they wanted to incorporate sedition in the IPC, the debate happened on the same grounds, and the reason that was put forward was of the threat of revolution present in the country after the revolt of 1857.
But now the scenario is changed. Now the governments are selected by the people, for the people. Governments are not like earlier monarchs, now they contest for the power, and it is the people who choose them. The days of inheritance have bygone. Now, it is the rule of the people.
Transformation in the Concept of Who is Sovereign Earlier, the concept was that the king is sovereign. The modern doctrine of sovereignty derived essentially from two lines of development which heralded the end of the medieval period. [63] On the one hand there was the rise of the new national states anxious to assert their total independence in a new age of economic expansion and to reject all feudal notions of overlordship or papal interference; on the other, a departure from the medieval idea of law as being fundamentally custom, legislation as merely a form of declaring the existence of new customs. [64] On the contrary each national territory was now recognized as constituting both a self-sufficient unit and an independent legal entity, so that the notion naturally followed that, within each such nation state, there must be located some supreme power, the decisive feature of which was its virtually unlimited capacity to make new law. [65] This doctrine was more than a reassertion of the earlier theory that rex est imperator in regno suo. [66] For it emphasised in a way that the earlier theorists would have been unacceptable the idea of unfettered legislative capacity. [67] The new approach was secular and positivist, and though lip-service continued to be paid to a notional subjection to override natural law, [68] the supporters of legal sovereignty tended increasingly to whittle down him one of the creators of the welfare state. [69] The change in the political arena of the world has compelled the law makers to rethink on the past laws. Sedition laws were part of the legal system during the period when king was the sovereign. Current the people are sovereign. The phrase "sovereignty in the people" captures the true identity of the sovereign in whom the rights of sovereignty are vested. While traditionally the state was treated as the sovereign, or the government acting on its behalf, domestic and international law supports the shift of sovereignty to the people. From the most liberal democracies to the most autocratic of states, most constitutions proclaim that the people are sovereign. [70] Sovereignty in the people also likely forms part of customary international law. The Universal Declaration of Human Rights (UDHR) states in Article 21(3) that: "The will of the people shall be the basis of the authority of government." [71] As a declaration, the UDHR is non-binding; however, many academics and practitioners believe that its provisions are customary international law. [72] To the extent this assertion is true; all governments then must abide by sovereignty in the people regardless of whether their domestic law or constitutions expressly adopt the concept. Sovereignty in the people also receives support as a principle of customary international law to the extent sovereignty is treated as synonymous with self-determination, [73] which is an accepted principle of customary international law. [74] At its most basic, self-determination is the right to govern oneself; [75] sovereignty in the people then would grant "the people" the right to govern themselves. More broadly, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights define selfdetermination as the right of peoples to "freely determine their political status and freely pursue their economic, social and cultural development." [76] If the people are sovereign, then the benefits of sovereignty belong to them. The people then can choose how to exercise that sovereignty. In practice, they transfer their rights as sovereign to representatives that serve as the government. [77] The government then conducts the state’s domestic and international affairs as the people’s representatives and receives the benefits of sovereignty as such. [78] Governments, however, are not inherently deserving of the rights and protections of sovereignty; rather, they receive them only if the people choose to grant them. Governments then must act based on the will and common good of their constituencies. Any government that controls the state against the wishes of the people does not receive sovereign authority. It may have the power to enforce its will against the people, but the illegitimate government is not entitled to sovereign rights. The Jurisprudence behind the Belief of Sovereignty of the People The theoretical underpinnings of this understanding of "sovereignty in the people" derive from centuries-old thinkers such as John Locke and Jean-Jacques Rousseau. Locke theorized about sovereignty in the people or popular sovereignty in his Second Treatise of Civil Government (1690). He starts by describing the formation of a political community to counter the violence that can occur when individuals pursue their interests without regard for others and without a superior body to protect them. [79] To protect against such chaos, individuals consent to a social contract in which they agree to follow the laws of a government that will act based on the common good of the community. [80] Each individual agrees to turn over his/her natural rights as an individual to a government to better protect his/her interests. The majority of the political community determines the common good the government protects. [81]
Locke expected the government, now holding sovereign authority, to regulate relationships between individuals and protect their property rights– that of life, liberty and property. [82] He describes these as natural rights that transcend claims of sovereignty. The government is not permitted to deprive individuals of any of these rights; [83] if it does, the people have a right to revolt against the government or to secede from the territory under its control. [84] Through the social contract, the people give the government the authority to act for their common good; if the government uses its authority to violate natural rights, the authority is revoked. [85] Rousseau developed the concept of sovereignty in the people along similar lines. [86] Like Locke, Rousseau believed that individuals reach a social contract for their self-preservation. [87] They place their natural rights in government hands to protect their interests and the common good; these rights are returned to the people if the government violates the social contract. [88] Rousseau believed that individuals must relinquish some of their natural liberty, which is determined by their individual strength to pursue their own interests, when forming a political community. However, he considered the rights the individuals receive in return, including to justice, to be greater than those surrendered. [89] These greater rights are determined by the will of the people as a collective and are intended to be shared equally. [90] When the government uses its strength to override the will of the people, then according to Rousseau, the government becomes the master, not the sovereign. [91] Under Rousseau’s theory, the people vest their sovereign authority in a legislature that is chosen by the people. [92] As the people’s representative, the legislature has the absolute authority of the traditional concept of sovereignty. [93] Rousseau did not foresee any potential conflict of interest between the people and the legislature: The sovereign legislature thus was identified by Rousseau with the general will of the people. As such, the legislature could never enact a law which it could not break, and since the subordinates of state authority are also constituent parts of the volonté générale [general will], those subjects and the general will can never have conflicting interests. [94] Both theorists saw the social contract as a mechanism for organizing the domestic affairs of the political community. It is an agreement between individuals to establish a government that must abide by the will of the majority and act on the basis of the common good of that community. [95] Individuals relinquish their rights to the government for their protection and the government receives sovereign authority. Individuals, however, always retain the power to revoke the social contract when the government violates those rights. As with traditional rules of international relations in which states must consent to limit their sovereignty, domestic relations depend on the consent of the sovereign individual to limit his or her sovereignty. The works of Locke and Rousseau greatly influenced the French and American revolutions and are credited with establishing the basis for democracy and human rights. [96] These two philosophers and the movements that followed them began to shift the title of sovereign to the people. [97]
Time for Change: Repeal Sedition Law Relying on Locke and Rousseau’s concept of a social contract and supported by constitutional and international legal guarantees of sovereignty in the people, governments do not have the power to act independently of their people. They serve as the representatives of the people, not the state, which is merely a territorial unit in which a political community lives. As representatives of the people, the government is tasked with protecting the political community from domestic and international threats to their security and the common good. [98] Since, now it is the people who are sovereign, there is no need of laws like sedition. Sedition prevents the government from criticism due to the sole reason that they are Sovereign. Since, they are no more sovereign, they are not entitled for this protection. This is the reason why sedition laws are getting repealed across the world. New Zealand, England, Australia are the countries who have repealed the law of sedition. The vagueness involved in the definition of the crime has also acted significantly in its dissolution. Apart from it, the stiffness, which got created due to the uprising of freedom of speech and expression, also played an important role in creating a dilemma on the legitimate use of the law. The whole idea of freedom of speech and sovereignty of the people left no scope of execution for the law. When the reason for which the law was made is itself no more in existence, there is no other purpose left for carrying such law any further. This is the point which human right activists and the advocates of free speech are raising across the globe. Countries like New Zealand, England and Australia has acknowledged the change and worked accordingly.
Recommendations and Conclusions
It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene and provision of law. [99] Thus, when a pledge of a Society and the establishment of the socialist State for which others are already working under the lead of the working classes, it was held that it was open to the members of the Society to achieve these objectives by all peaceful means, ceaselessly fighting public opinion that might be against them and opposing those desired the continuance of the existing order of society and the present Government; that it would also be legitimate to presume that they desire desired a change in the existing Government so that they could carry out their programme and policy; that the mere use of words ‘fights’ and ‘war’ in their pledge did not necessarily mean that the Society planned to achieve its objective by force and violence. [100] The provisions of section 124A are very wide and strictly speaking they would cover everything amounting to defamation of the government if one excludes from the meaning of that term and criticism in good faith of any particular measures or acts of administration. [101] The language of 124A, if read literally, even with the explanations attached to it, would suffice to make a surprising number of persons in the country guilty of sedition. [102] Meetings and processions are now held lawful, through 150 years back they would have been held to be seditious, and this is not because the law is weaker now or has changed, but because, the times having changed, society is stronger than before. [103] Since the decision of their Lordships of Privy Council in Emperor v. Sadashiv Narayan Bhalerao, [104] India has attained Independence, and article 19(1)(a) of the Constitution of India guarantees to all citizens the right to freedom of speech and expression, subject only to reasonable restrictions as laid down in clause (2) of that article. [105] It is well settled that in interpreting an enactment, the court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. [106] It is also well settled that if a provision of law comes within the constitutional powers of the legislature by adopting one view of the matter and limit its application accordingly, in preference to the view, would make it unconstitutional. [107] The truth of otherwise of the aspersions cast upon the government is immaterial and it has no jurisdiction for seditious utterance. [108] If certain alleged facts are used is a peg on which to hang seditious comments, the truth of the facts does not excuse the seditious commentary. [109] On the other hand, fair criticism of the government is no offence, and it is quite possible to express dissatisfaction without exciting disaffection. [110] It has been said that in the present day an attempt to remove from power the ministers on office or any agitation for the repeal of an Act of Parliament cannot be seditious if no unlawful means are employed. [111] It was laid down in R. v. Sullivan, [112] that a journalist may canvass and censure the acts of the government and their policy and indeed it is his duty. The irony of the law is in the very fact that it allows for criticism of the government but doesn’t allow truth as its defence. When it is the duty of the people to comment fairly upon the government, how truth could be neglected as a defence of the crime. The nature of this crime is vested in the concept of sovereignty and the authority of it. It is not the government which is sovereign, it is the country which is sovereign, and it is the people which are sovereign. Now when the government is no more the sovereign, they don’t have the right to possess the protection against sedition. Another important aspect of the crime was pointed out by Allahabad High Court in Ram Nandan v. State [113] that we can’t make presumption that public order will get disturbed due the speech. The court very categorically pointed out the fact that the response of the people towards the words can’t be ascertain. Hence, by the time, public order is not disturbed, we can’t hold someone libel for sedition in presumption of disturbance of public order. Cases of Dr Binayak Sen and Aseem Trivedi are perfect examples of the abuse of the interpretation of the law. In both the cases, no public disorder took place, but only on the grounds of presumption of disturbance of public order and on the argument of pre-emptive measure. The changes in circumstances now want change in law. The reason for which this law was made is no more in existence, and hence this law shall go. Other countries have started repealing this law. Astonishingly, the defects of the law were found at an early stage only. Law Commission of India, in its 42nd Report had mentioned about the defects of sec. 124A. very categorically they pointed out that the exclusion of mens rea is making the provision unsound in front of article 19(2) of the Constitution. [114] The section has been found to be defective because "the pernicious tendency or intention" underlying the seditious utterance has not been expressly related to the interests of integrity or security of India or of Public Order. [115] If, the recommendations of the Law Commission of India would have been accepted and if the interpretation of the judiciary would have been more practical in this regard, then this chaos would not have taken place. In the modern era of freedom of speech, when even international forums are also advocating for freedom of speech, such laws have no place. We need to think over the very existence and need of the law. If countries like England can scrap the law, where the law was in effect from past 400 years, and where the parliament is treated as sovereign, then why can’t we do the same? The need of the hour is to rule out such draconian laws, and to give freedom to the people, so that democracy could survive.
http://www.outlookindia.com/magazine/story/a-stick-called-124a/281402 Why ‘sedition’ rings hollow in India 2012 The law Section 124(A) of the Indian Penal Code, 1870; non-bailable offence The definition 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 The accusers Other than the State, even individuals are free to file charges The punishment 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 misuse While the Supreme Court has specifically laid down that the provisions of section 124(A) are only made out where there is a tendency to public disorder by use of violence or incitement to violence, the clause has been grossly misused. While convictions are rare, the long and tortuous legal process is seen as a deterrent to others. The victims The law is being used to punish fierce critics of the government, including political dissenters, human rights activists and journalists Global status UK abolished sedition laws in 2010 New Zealand repealed it in 2008 ***
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rakash Ram, a farmer from a village near Haldwani in Uttarakhand, had never heard of Mao Tse Tung.
Ironically enough, his first lesson on Chairman Mao and his ideology came not from some gun-toting guerrilla but the Uttarakhand police. Accusing him of being a Maoist, they arrested him oncharges of sedition on August 30, 2004. It has taken eight years for the 28-year-old to be finally cleared of the taint, by the Rudrapur sessions court this month. “I spent two of the best years of my life behind bars (he was granted bail in 2006) and six more years in my legal battle for justice,” he says. “I may be free now but this arrest has spoilt my reputation and will make it difficult for me to get work. Who will pay for this? Will someone be held responsible?” The dark days of Emergency, rung in 37 years ago this week, may have become a distant memory for some, but for many others, an Emergency-like situation is a recurring reality. Just as in 1975 and the year after, when the State suppressed dissent and abolished civil rights, the democratic republic of India continues to target disaffected voices and accuse of sedition anyone it sees as a threat. Lost years Prakash Ram, a farmer from Haldwani, accused of being a Maoist. (Photograph by Tribhuvan Tiwari)
Rajinder Sachar, a retired chief justice of the Delhi High Court, thinks the situation today is actually worse. “In 1975,” he says, “the Emergency was more of a political game played by one political party but now everyone is restricted from speaking. One law after the other is passed, stopping one from speaking openly. A situation is being created where anybody can be declared anti-national. We are actually going through an undeclared Emergency.” One of the latest victims of Section 124(A), a law that deals with sedition and which is a handy tool for the government to target trenchant critics, is Seema Azad and her husband Vishwa Vijay. A journalist couple from Allahabad, they had written fearlessly about corruption and illegal mining in Uttar Pradesh. Charged with sedition, the two were sentenced to life imprisonment and a fine of Rs 70,000 by a sessions court in Allahabad on June 8.
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Seema and Vijay were arrested in February 2010 at the Allahabad railway station on their return from New Delhi. They were accused of being members of the banned CPI (Maoist) group simply because the police deemed the literature recovered from them to be “anti-national”. Their advocate Ravi Kiran Jain argues that this verdict ignores the observations the two-judge bench of the Supreme Court made in 2011 while hearing the bail plea of Dr Binayak Sen, who too was charged with sedition. “If someone has the autobiography of Gandhi at his home, will he be called a Gandhian,” the apex court had famously asked the prosecution lawyer. “Even in this case,” says Jain, “Seema and her husband were simply in possession of some literature on Maoism. This does not make them Maoists.” The advocate now plans to file an appeal on behalf of the duo in the Allahabad High Court. Mission aborted Salem’s Piyush Sethia
Other than Dr Sen and the Allahabad couple, there were at least six other high-profile cases involving sedition in 2010. They include Arundhati Roy, who was booked under Section 124(A) for making a speech supporting azadi in Kashmir, and Salem-based environmental activist Piyush Sethia, who was accused of sedition for disrupting a Republic Day ceremony in Salem in 2010 by attempting to distribute a controversial anti-mining leaflet. In fact, things took on a farcical turn when Srinagar-based lecturer Noor Mohammed Bhatt was slapped with the sedition charge in December the same year for including a question in an English paper asking if stone-pelters were the real heroes and asking students to translate from Urdu to English a passage that read, “Kashmiri blood is being spilled like water, Kashmiri children are being killed by police and Kashmiri women are being showered with bullets.” There is no official record of the total number of cases involving sedition, but the sudden spurt in such cases has generated much concern. Civil rights groups have launched a nationwide campaign to have the law repealed. Says veteran journalist Kuldip Nayar, who was in jail during the Emergency, “The sedition law is a weapon in the hand of the State which evokes doubts, suspicion and hatred in the mind of the people against whom the charges are made. Such an undemocratic and anti-people law must be repealed immediately. In fact, it should have been done many years back.” Most of these cases (see Memories of Another Day) have targeted people who have fearlessly spoken up for the rights of the marginalised, especially the Dalits and tribals. It was for this reason that Sudhir Dhawale, a Dalit rights activist from Mumbai, was picked up by the Maharashtra police from Wardha in January last year for being a “Naxal supporter”. Still lodged in a Nagpur jail, many speculate the real reason he was picked up was his writings and activities that helped mobilise Dalits for their rights. Like him, Gananath Patra, the 73-year-old convenor of Chasi Muliya Adivasi Sangh in Narayanpatna in Orissa, too was charged with sedition and put behind bars in January 2010. He was released on bail earlier this month due to poor health but on the condition that he must not engage in any activism. He had earlier helped tribals in and around Narayanpatna take back around 10,000 acres of land that had been forcefully acquired from them. Of course, it is activism in areas under the grip of left-wing extremism that the government is extremely sensitive about. Sethia, the Salem-based activist, found himself in the crosshairs precisely for this. Carrying pamphlets criticising Operation Green Hunt, he was set to spread his message cycling all the way to Sivaganga, the constituency Union home minister P. Chidambaram represents. However, the Tamil Nadu police arrested him in Salem itself, even before he could distribute the pamphlets at the R-Day ceremony there. Out on bail since February 2010, the sedition charges still hold. The real cause for his arrest though, Sethia believes, is his fight against illegal mining in the region. He was the main litigant in a case in the Madras High Court that resulted in the closure of a local mining unit that belonged to Vedanta. Funnily enough, there has not been a single hearing in Sethia’s case so far. “Either they should drop the charges, or they should go ahead with the case and finish it off. It is a sort of leash on my activities,” says Sethia, whose questioning gaze encompasses areas like the Forests Rights Act and water pollution and privatisation.
The nuclear flashpoint Koodankulam agitators are viewed with suspicion Advertisement
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uclear energy is another area that the government, including at the state level, has begun to get touchy about.
The slightest whiff of opposition is promptly dismissed as anti-national. Little wonder then that as many as 3,500 protesters were charged with sedition in the aftermath of the Koodankulam protests in Tamil Nadu, where locals were agitating against the construction of a nuclear power plant. Says V. Suresh, an advocate at the Madras High Court and someone who has spent time with the locals, “While laws are meant to protect the people, in this case, the sedition law has been clearly misused by the government to further its interests.” Anand Swaroop Verma, Delhi-based editor of monthly journalSamkaleen Teesri Duniya, expresses concern at a different level. This crackdown by the State, he says, has been met with only rare instances of media criticism and scrutiny. He attributes this to a media cooption strategy which ensures reporting of sedition cases is largely favourable towards the government. “Six years back, the PM, in a conference on internal security with CMs, had urged them to coopt the media and get them to play a more positive role in the fight against terrorism,” he adds. The media, of course, often colludes wilfully. Even when filed on flimsy grounds, the legal hassles and harassment the sedition charge involves serve as a deterrent to others, forced as they are to think twice before taking on the might of the State. Ask E. Rati Rao, vice president of the People’s Union for Civil Liberties in Karnataka. While she was booked under sedition for asking uncomfortable questions on encounter deaths in the Malanadu area in October 2007, the case against her was dismissed in September 2010 after the police failed to file a chargesheet. “All they wanted to do was just terrorise me, and by doing so, terrorise others,” she says. “This sedition law and democracy do not go together. It is leading the State towards fascism.” For a Congress-led government that draws its inspiration and legacy from Jawaharlal Nehru, it would do well to act on what the country’s first prime minister had to say on the sedition clause in a parliamentary debate in 1951 on the First Amendment to the Constitution. “Now so far I am concerned that particular section (124-A) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons...the sooner we get rid of it the better.” *** Memories Of Another Day How a repressive 19th-century law is being indiscriminately unleashed on citizens fighting for the rights of their fellow citizens Jogendra Chandra Bose The first case, in 1891, when the editor of Bangobasi was
charged for criticising the British govt’s move to raise the age on consensual sex from 10 to 12, and for commenting on the negative economic impact of British colonialism Mahatma Gandhi Charged, along with Shankerlal Banker, the proprietor of Young
India, for three articles in the weekly. Convicted in 1922. Balgangadhar Tilak The British govt alleges his speeches instigated the murder of
two British officers. Convicted in 1897, 1905, 1916. Manoj Shinde Editor, Surat Saamna, charged in Aug ’06 for using “abusive words” against Narendra Modi in an editorial alleging administrative failure in tackling the Surat flood situation
Kahturam Sunani Journalist, OTV, Charged in May 2007 in Sinapali, Orissa, for filing
a report that Pahariya tribals were consuming ‘soft’ dolomite stones in Nuapada district due to acute hunger. Binayak Sen Doctor & Human Rights Activist. Charged in May 2007 in Raipur for
allegedly helping courier messages to Maoist leaders. Sen had criticised the Chhattisgarh govt’s support to the vigilante group Salwa Judum. E. Rati Rao Resident Editor, Varthapatra, charged in Oct 2007 2010 in Mysore,
Karnataka, for an article alleging encounter deaths in Karnataka. Prashant Rahi, Journalist, charged in Dec 2007 for allegedly possessing Naxal
literature Bharat Desai Resident Editor, Times of India, AhmedabadGautam
Mehta Photographer, Gujarat Samachar Charged in Jun 2008 for articles and photographs alleging links between the Ahmedabad Police Commissioner and the underworld Kirori Singh Bainsla Gujjar community leader Charged in Jun 2008 in Bayana,
Rajasthan, for leading an agitation demanding ST status for Gujjars Lenin Kumar Editor, Nishan, Charged in Dec 2008 in Bhubaneshwar for publishing a
booklet on the Kandhamal riots entitled ‘Dharmanare Kandhamalre Raktonadhi’ (Kandhamal’s rivers of blood) Laxman Choudhury Journalist, Sambadh, Charged in Sep 2009 in Gajapati district,
Orissa, for allegedly possessing Maoist literature. Choudhury had been writing about the involvement of local police in illegal drug trafficking. V. Gopalaswamy (Vaiko) Politician, MDMK, Charged in Dec 2009 in Chennai for
allegedly making remarks against India’s sovereignty at a book launch function Piyush Sethia Environmentalist and Organic Farmer, charged in Jan 2010 in Salem,
Tamil Nadu, for trying to distribute pamphlets during protest against Chhattisgarh govt’s support to Salwa Judum Niranjan Mahapatra, Avinash Kulkarni, Bharat Pawar, others Trade union
leaders and social activists Gujarat police allege links with CPI (Maoist). Arundhati Roy, S.A.R. Geelani, Varavara Rao, Shuddhabrata Sengupta,
others Private complaint in Nov 2010 in Delhi alleging their speeches on Kashmir in a seminar are anti-India Noor Mohammed Bhatt Lecturer, Gandhi Memorial College, Srinagar, in Dec 2010
for setting a question paper for English literature students on whether ‘stone pelters were the real heroes’. Sudhir Dhawale Dalit rights activist and freelance journalist, Wardha. Maharashtra police allege links with CPI (Maoist) in 2011.
Also show procedural defect of s.196 Crpc. Although it is on side of appellant but no one in college would be able to make a rebuttal and hence it would be the best point to argue on procedural defect and thus arguing on respondent side becomes healthy.
Respondent Free Speech and the Law on Sedition
http://cis-india.org/internet-governance/blog/freespeech-and-the-law-on-sedition Siddharth Narrain explains how the law in India has addressed sedition. Sedition is an offence that criminalizes speech that is construed to be disloyal to or threatening to the state. The main legal provision in India is section 124A of the Indian Penal Code that criminalizes speech that “brings or attempts to bring into hatred or contempt, or attempts or attempts to excite disaffection” towards the government. The law makes a distinction between “disapprobation” (lawful criticism of the government) and “disaffection” (expressing disloyalty or enmity which is proscribed). The British introduced this law in 1898, as a part of their efforts to curb criticism of colonial rule, and to stamp out any dissent. Many famous nationalists including Bal Gangadhar Tilak and Mahatma Gandhi have been tried and imprisoned for sedition. After a spirited debate, the Indian Constitutional Assembly decided not to include ‘sedition’ as a specific exception to Article 19(1) (a). However section 124A IPC remained on the statute book. After the First Amendment to the Constitution and the introduction of the words “in the interests of public order” to the exceptions to Article 19(1)(a), it became extremely difficult to challenge the constitutionality of section 124A. In 1962, the Supreme Court upheld the constitutionality of the law in the Kedarnath Singh case, but narrowed the scope of the law to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. Thus the Supreme Court provided an additional safeguard to the law: not only was constructive criticism or disapprobation allowed, but if the speech concerned did not have an intention or tendency to cause violence or a disturbance of law and order, it was permissible. However, even though the law allows for peaceful dissent and constructive criticism, over the years various governments have used section 124A to curb dissent. The trial and conviction of the medical doctor and human rights activist Binayak Sen, led to a renewed call for the scrapping of this law. In the Aseem Trivedi case, where a cartoonist was arrested for his work around the theme of corruption, the Bombay High Court has laid down guidelines to be followed by the government in arrests under section 124A. The court reaffirmed the law laid down in Kedarnath Singh, and held that for a prosecution under section 124A, a legal opinion in writing must be obtained from the law officer of the district(it did not specify who this was) followed by a legal opinion in writing within two weeks from the state public prosecutor. This adds to the existing procedural safeguard under section 196 of the Code of Criminal Procedure (CrPC) that says that courts cannot take cognizance of offences punishable under section 124A IPC unless the Central or State government has given sanction or permission to proceed.
The serious nature of section 124A is seen in the light of the punishment associated with it. Section 124A is a cognizable (arrests can be made without a warrant), non-bailable and noncompoundable offence. Punishment for the offence can extend up to life imprisonment. Because of the seriousness of the offence, courts are often reluctant to grant bail. Sedition law is seen as an anachronism in many countries including the United Kingdom, and it has been repealed in most Western democracies.
IMPORTANT CASE LAW Kedarnath Singh v. State of Bihar, AIR 1962 SC 955 Supreme Court, 5 Judges, Medium: Offline Brief Facts: Kedarnath Singh, a member of the Forward Communist Party, was prosecuted for sedition related to a speech that he made criticising the government for its capitalist policies. Singh challenged the constitutionality of the sedition law. The Supreme Court bunched Singh’s case with other similar incidents where persons were prosecuted under the sedition law. Held: The law is constitutional and covered written or spoken words that had the implicit idea of subverting the government by violent means. However, this section would not cover words that were used as disapprobation of measures of the government that were meant to improve or alter the policies of the government through lawful means. Citizens can criticize the government as long as they are not inciting people to violence against the government with an intention to create public disorder. The court drew upon the Federal Court’s decision in Niharendru Dutt Majumdar where the court held that offence of sedition is the incitement to violence or the tendency or the effect of bringing a government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the state. While the Supreme Court upheld the validity of section 124A, it limited its application to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence.
Balwant Singh and Anr v. State of Punjab: AIR 1985 SC 1785 Brief Facts: The accused had raised the slogan “Khalistan Zindabad” outside a cinema hall just after the assassination of Prime Minister Indira Gandhi. Held: The slogans raised by the accused had no impact on the public. Two individuals casually raising slogans could not be said to be exciting disaffection towards the government. Section 124A would not apply to the facts and circumstances of this case.
Sanskar Marathe v. State of Maharashtra & Ors, Criminal Public Interest Litigation No. 3 of 2015, Bombay High Court, 2 judges : Case law in which I
can state that the law is under the procedural defect and thus under the defected law no one can be punished Medium: Online and Offline Brief Facts: The case arose out of the arrest of Aseem Trivedi, a political cartoonist who was involved with the India Against Corruption movement. Trivedi was arrested in 2012 in Mumbai for sedition and insulting the National Emblems Act. The court considered the question of how it could intervene to prevent the misuse of section 124A. Held: The cartoons were in the nature of political satire, and there was no allegation of incitement to violence, or tendency or intention to create public disorder. The Court issued guidelines to all police personnel in the form of preconditions for prosecutions under section 124A: Words, signs, or representations must bring the government into hatred or contempt, or must cause, or attempt to cause disaffection, enmity or disloyalty to the government. The words, signs or representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder. Words, signs or representations, just by virtue of being against politicians or public officials cannot be said to be against the government. They must show the public official as representative of the government. Disapproval or criticism of the government to bring about a change in government through lawful means does not amount to sedition. Obscenity or vulgarity by itself is not a factor to be taken into account while deciding if a word, sign or representation violates section 124A. In order to prosecute under section 124A, the government has to obtain a legal opinion in writing from the law officer of the district (the judgment does not specify who this is) and in the next two weeks, a legal opinion in writing from the public prosecutor of the state. ************************************************************************************
. http://archive.tehelka.com/story_main49.asp? filename=Op300411Not21st.asp .Not a 21st century law Abuse aside, sedition is an invalid law by international standards Margaret New Delhi
Stride
MUCH HAS been said about the abuse of the law of sedition. The granting of bail by the Supreme Court to human rights activist Binayak Sen has further stoked the debate. Patent misuse, abuse and misapplication aside, sedition is bad law; it infringes upon the Constitutional right of every citizen to freedom of expression.
Related Nation outraged The Doctor, The Final Statement of Binayak Sen
by State,
Binayak And
A
Sen Sinister
verdict Freedom of expression is not Case absolute; other laws can limit it,
but in order for these to be legitimate they must be “reasonable restrictions”, which protect other important interests such as State security and public order. In light of the developments in international law, there is a need to re-examine the law now, nearly 50 years after the Constitution Bench of the Supreme Court in 1962 held Section 124A (the sedition section of the Indian Penal Code) constitutional. The offence of sedition cannot meet those international standards that are required for any law, which limits freedom of expression. An analysis of the reasoning employed by the Supreme Court in 1962 will show why it is not applicable today. In 1962, in the case of Kedar Nath Singh vs the State of Bihar, the Supreme Court decided on the scope of Section 124A and narrowed its ambit; holding only those matters that had the intention or tendency to incite public disorder or violence would be made penal by the section. The court rejected the interpretations of early cases and that of the Privy Council in 1944, which brought far more acts within the section and made it easy for the colonial government to class any criticism of the State seditious. The Supreme Court endorsed stricter interpretation given to the section by the Federal Court in 1942.
On flimsy ground Rights activist Binayak Sen being taken away to jail after he was charged with sedition Photo: Shailendra Pandey
That brings us to the question: What is ‘sedition’ in 2011? There are two scenarios where a person could be guilty of sedition. One, where he makes a speech or publishes a pamphlet that actually results in violence or public disorder. Two, the words or acts of a person do not actually result in any violence or public disorder;
however, the police and the court feel that the words or acts had this “tendency”, or he had the subjective “intention” to cause this mischief. Both persons are guilty of sedition. India is bound by the International Covenant on Civil and Political Rights. This international treaty provides that “everyone shall have the right to freedom of expression”. Again, this right is not absolute, and may be restricted. International law sets out three requirements that need to be met for restrictions to be permissible: (a) they must be provided for by law; (b) they must be necessary; and (c) they must protect respect of the rights or reputations of others, be it for the protection of national security or of public order, or of public health or morals. The United Nations Special Rapporteur in his 2010 annual report commented on the frequent phenomenon of nations using laws as political tools; limiting freedom of expression arbitrarily in order to silence dissent or criticism. The UN has developed guidelines to ensure that any restrictions conform to these three criteria. India is one such State and the law of sedition in India falls foul of these requirements. In the aforementioned second scenario, the crime of sedition is too vaguely defined to be comprehensible to ordinary people. Seditious “intention” and “tendency” are entirely subjective terms. These vague provisions are susceptible to wide interpretation by both the authorities and those subject to the law. If someone speaks at a rally, and his words fail to excite any violence or disorder, the authorities still have a wide measure of discretion in assessing whether his words had a seditious “intention” or “tendency”. Vague provisions also fail to provide sufficient notice of exactly what conduct is prohibited. Clarity of Section 124A, therefore, is of particular importance, given the potential penalty of life imprisonment. In instances where the conduct falls short of actually causing violence or public disorder, sedition falls short of the international standard of legality. On the other hand, where there is nothing vague, the requirements of actual violence and public disorder make what is prohibited very clear. Here, 124A fails to meet the international law requirement of “necessity”.
Sedition is not necessary. All acts it seeks to punish are covered by other penal sections
Necessity entails that restrictions on freedom of expression are not overbroad and are proportionate. If a restriction is “necessary”, it is entailed that but for the restriction, the undesirable social or criminal conduct would not be prohibited. Hence, if a person causes violence and public disorder, he would simultaneously be liable for offences under various other legislative provisions. India’s criminal law sufficiently covers the field when an action creates violence or public disorder. The law already criminalises incitement to violence and abetting an offence. “Public mischief” and “waging war against the State” are sufficiently provided for in the penal code. Various offences under the Unlawful Activities (Prevention) Act and the Public Safety Act, in addition to individual State security legislation, would sufficiently punish anyone who caused disorder or violence. Therefore, sedition is not necessary, since all overt acts it seeks to punish are covered by other penal sections anyway. Perhaps the biggest critique of Section 124A is that it represents a disproportionately serious interference with democratic debate. Any benefit it may bring to protecting public order is outweighed by the harm done to freedom of expression in its most important guise as an underpinning of democracy. Similar arguments have led to the repeal of sedition laws in democracies around the world. In 2001, 2007 and 2009 Ghana, New Zealand and the UK respectively repealed their sedition laws. Reform commissions in Australia, Canada and Ireland have recommended the abolition of existing sedition offences. They are undesirable in light of their political nature and history, and inappropriate in modern liberal democracies, where it is accepted that it is a fundamental right of citizens to criticise and challenge government structures and processes. In 2010, the Ugandan Constitutional Court declared the offence of sedition unconstitutional. Similarly, the Nigerian Federal Court has held sedition laws unconstitutional. A major factor in the recommendations for repeal in these democratic countries was the strong association between sedition laws and politically motivated prosecutions. In India, sedition has a similar association, it has long been used by colonialists as a tool in the suppression of nationalism. The importance of freedom of expression has been recognised the world over and in India in 2010, the Supreme Court expressed that “change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government”.
In 1962, the Supreme Court held that there was no doubt that Section 124A violated Article 19 (1)(a). However, the court held that sedition, so newly defined, was a reasonable restriction as it protected the interests of public order and State security. In keeping with the worldwide trend — even the UK has repealed sedition laws — the time has come for reassessment. THE ISSUE of vagueness did not come up in 1962. Furthermore, the idea of “public order” in 1962 reflected the colonial mindset of “suppressing the unruly natives”, rather than the genuine protection of members of Indian society. In contrast, the current view is best reflected by the 2007 dicta of the Delhi High Court expressed In 2001, 2007 and 2009 Ghana, New Zealand and the UK repealed their sedition laws
recently that “the criticism of the government is the hallmark of democracy... the essence of democracy is criticism of the government”. It is evident that in 1962, freedom of expression was seen as taking second place when competing with interests of State security. The court had expressed: “Freedom has to be guarded against becoming a licence for vilification and condemnation of the government established by law, in words which incite violence or have the tendency to create public disorder.” This dicta reflects the judicial attitude that freedom of expression was a second order when competing with matters of security of the State. Contrastingly, in 1995 the Supreme Court expressed that “the freedom of expression is a preferred right, which is always very zealously guarded by the Supreme Court”. International guidelines on the limitation of freedom of expression make sedition an unreasonable restriction on freedom of expression in 2011. Margaret Stride is
[email protected]
a
New
Delhi-based
rights
activist
Charges of the criminal conspiracy can be nullified by using the material of the IPC book
Legal provisions regarding prosecution for offences against the State under section 196 of the Code of Criminal Procedure, 1973. Section 196(1) of the Code of Criminal Procedure provides that no Court shall take cognizance of; (a) Any offence punishable under Chapter VI or under Section 153-A, Section 295-A or sub-section (1) of Section 505 of the Indian Penal Code, i.e., the offences against the State (like waging war against the Government of India, sedition, etc.), promoting enmity between different groups of people, imputations or assertions prejudicial to national integration, deliberate acts outraging the religious feelings of any class, statements conducive to public mischief, etc.; (b) A criminal conspiracy to commit such offence; or (c) Any such abetment, as is described in Section 108-A of the Indian Penal Code,
Except with the previous sanction of the Central Government or of the State Government. Section 196(1-A) of the Code of Criminal Procedure provides that no Court shall take cognizance of,— (a) Any offence punishable under Section 153-B or sub-section (2) or sub-section (3) of Section 505 of the Indian Penal Code; or (b) A criminal conspiracy to commit such offence, except with the previous sanction of the Central Government or of the State Government or of the District Magistrate. The object of this provision is to prevent unauthorized persons from intruding the matters of a State by instituting State prosecutions, and to secure that such prosecution shall only be instituted under the authority of the Government. The term ‘Government’ means either the President or the Governor acting on the advice of the Council of Ministers or on the advice of the individual Minister to whom the department concerned has been allocated under the Rules of Business. The sanction under sub-section (1) of Section 196 of the Code need not, in the case of the State Government, be signed personally by the Governor. It is enough if it is signed by one of his accredited and Gazetted officer. Unless duly authorized in this behalf, a Secretary to the Government cannot take the policy decision and accord the necessary comment under this Section on behalf of the Government without reference to the Minister-in-Charge. Section 196 of the Code does not control the powers of a Magistrate under the Code, but only prevents a Court from taking cognizance of certain offences without there being a complaint made by the Government. If sanction is not obtained, the Magistrate cannot take cognizance of a private complaint under Section 295-A of the Indian Penal Code. Sanction to prosecute under Section 196 of the Code is a condition precedent for taking cognizance of any such offence. Before according sanction, the concerned Government may order a preliminary investigation by a police officer not being below the rank of Inspector. A criminal case was registered under Section 153-B of I.P.C., investigation of the offence was done and the accused was arrested. Police submitted a report as a result of such investigation before a Magistrate without obtaining previous sanction of the Central Government or of State Government. It was held that previous sanction is necessary only for taking cognizance by a Court. Bar of sanction will not apply against registration of criminal case or investigation by police agency. It was held that passing of order of remand the accused to judicial custody in accordance with Section 167, Cr. PC. will not amount to taking of cognizance.
Prosecution for the offence of criminal conspiracy: Section 196(2) of the Code of Criminal Procedure provides that no Court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120B of the Indian Penal Code, other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings. However, where the criminal conspiracy is one to which the provisions of Section 195 of the Code apply, no such consent shall be necessary because, in case of such conspiracies the complaint of the concerned public servant or of the appropriate Court will be necessary to initiate the proceedings. Section 196(2) of the Code deals with the case of criminal conspiracy and not with that of abetment of an offence or an attempt to commit that offence. In case of conspiracies which are of pretty nature, private complaints should not be freely allowed and prosecution should be instituted only when they are necessary in the public interest. Before giving consent for initiating criminal proceedings in respect of criminal conspiracy under Section 196(2) of the Code, the State Government or the District Magistrate may order a preliminary investigation by a police officer not being below the rank of Inspector. http://www.shareyouressays.com/119526/prosecution-for-offences-against-the-statesection-196-of-crpc
http://www.frontline.in/static/html/fl2006/stories/2003032800270410 0.htm Under Section 196(1) of the Code of Criminal Procedure, (CrPC) no court would take cognisance of an offence punishable under Sections 153A and 505(1) of the IPC, except with the sanction of the Central government or the State government. Section 196(1A) of the CrPC makes it mandatory to obtain the sanction of the Central or the State government or the District Magistrate to enable a court to take cognisance of an offence punishable under Sections 153B and 505(2 and 3) of the IPC. Section 197 of the CrPC requires similar sanction for any court to take cognisance of an offence allegedly committed by a public servant, not removable from office except with the sanction of the government, in the discharge of his or her official duty.
