A Higher Threshold Should Be Set for Prosecution Under Sedition Law

Narrowing the ambit of sedition would not only protect the fundamental right to free speech and citizens’ right to criticise the government but also prevent its massive abuse.

The recent sedition charge against cricketer-turned-politician Navjot Singh Sidhu for hugging Pakistani Army chief Qamar Javed Bajwa during Prime Minister Imran Khan’s oath-taking ceremony shows the extent to which sedition law has been abused in India. A law that should have no place in independent India, sedition has been used time and again to silence journalists, politicians, intellectuals and social activists whose views are not conducive to that of the ruling power. Author Arundhati Roy, activist Uday Kumar, student leader Kanhaiya Kumar and human rights organisation Amnesty International are just a few of those who have faced sedition charges for speaking against the government in recent past.

Section 124A of the Indian Penal Code includes sedition as an offence to bring or attempt to bring into hatred or contempt, or excite or attempt to excite disaffection towards, the government established by law in India by words, either spoken or written, or by signs, or by visible representation. Although convictions under the sedition law are rare, India’s slow judicial process means that those facing sedition charges suffer for years before a judgement is made. Between 2014 and 2016, at least 165 people were arrested under 112 sedition cases, out of which only three were convicted. These numbers exemplify how sedition charges are often filed frivolously although the courts have, time and again, marked a clear distinction between generating discontent against the state and criticising the acts or policies of government.

(L-R) Activist Uday Kumar, author Arundhati Roy and student leader Kanhaiya Kumar. They have all faced sedition charges in the recent past. Credit: PTI

In the Kedar Nath Singh v. State of Bihar case, the Supreme Court laid down a clear meaning of what constituted sedition: any written or spoken words, etc., which have the effect of bringing contempt or dissatisfaction or the idea of subverting government by violent means will be seditious, and if the comments, however strongly worded, do not have the tendency to incite violence, they will not amount to sedition. In the Balwant Singh v. State of Punjab case, the Supreme Court ruled that mere raising of pro-Khalistan slogans, which evoked no response from the other members of the community, would not attract the charges of sedition.

Similarly, in the Bilal Ahmed Kaloo v. State of Andhra Pradesh case, the Supreme Court directed the courts to exercise care in invoking charges of sedition, reminding them that graver the nature of offence, higher the amount of care that needs to be exercised so the liberty of a citizen is not interfered with. In the Common Cause v. Union of India case, the Supreme Court said that authorities, while dealing with the offences under Section 124A of the Indian Penal Code, will be bound by the principles laid down in the Kedar Nath Singh v. State of Bihar case, and sedition charges cannot be invoked for criticising the government.

It is clear from the above rulings that the sedition law cannot be invoked for expressing a mere dissent with the government or the views of those in power, and that an incitement to violence is necessary for booking a person under sedition.

British colonial legacy

In the UK, where sedition law came from, it was used to punish those who expressed contempt or dissatisfaction against ‘his majesty’, i.e. the King of England. [In the UK, the sedition law was abolished in 2009 by the Coroners and Justice Act. Claire Ward, then UK’s Justice Minister said that “sedition and seditious and defamatory libel are arcane offences from a bygone era when freedom of expression wasn’t seen as the right it is today. Freedom of speech is now seen as the touchstone of democracy and the ability of individuals to criticise the state is crucial to maintaining that freedom.”] British colonial rulers incorporated it in the Indian Penal Code to punish colonial subjects who spoke against the policies of the British Monarch. The sedition law, along with other draconian legislations such as Vernacular Press Act and the Newspapers (Incitement of Offences) Act, were used to suppress activities of Indian freedom fighters and to instil fear among among those who criticised the government.

Mahatma Gandhi, who, like freedom fighters Bal Gangadhar Tilak and Bhagat Singh, had been charged under the sedition law, had said that the sedition law was “designed to suppress the liberty of the citizen” .Jawaharlal Nehru had said it was “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.”

There was a huge uproar in the fundamental rights sub-committee of the Constituent Assembly for including the word sedition as a ground for restriction on freedom of speech and thereafter, due to widespread protest by the members, it was eventually dropped from the constitution. It is clear that the members of the constituent assembly did not want the sedition to be included as a restriction on freedom of speech and expression. The intent of the drafters of our constitution should be taken into consideration for understanding the ambit of the sedition law, i.e. free speech and expression of political dissent should be prioritised over prosecuting people for speaking up against own government.

The constitution of India guarantees freedom of speech and expression to every citizen as a fundamental right. Every citizen, therefore, is entitled to free speech, and all the laws have to be read in a manner so that they are in consonance with the fundamental rights. Constitutional morality also demands that the government is bound to respect citizens’ right to freedom of speech and expression and not impose unreasonable restrictions upon them in the garb of punishing seditious speech.

(L-R) Freedom fighters Mahatma Gandhi, Bal Gangadhar Tilak and Shaheed Bhagat Singh. They all faced sedition charges during the Indian Freedom Movement. Credit: Wikimedia Commons

A higher threshold

The Twenty-First Law Commission of India has in it working paper observed that speaking against the government does not amount to sedition and people have a right to express dissent and criticise the government. This means that a higher threshold should be set in prosecuting the people under sedition law to protect their right of free speech and individual liberty, and to prevent frivolous complaints aimed at political vengeance. Sedition as an act of trying to destabilise the government should only be invoked in cases where there is a real threat or actual use of violent means to overthrow the democratically elected government. By the 44th amendment to the Indian constitution, the word ‘internal disturbance’ was replaced by ‘armed rebellion’. A similar standard of threat should be applied while prosecuting a person under the sedition law where a person’s words, conduct or action cause a real threat of armed rebellion or an actual violent uprising to remove the elected government and there should be a proximate cause between a seditious act and the actual act or incitement of violence.

The phrases “attempts to bring into hatred or contempt” and “attempts to excite disaffection” have often led to abuse of the sedition law because the use of the word “attempt” gives a very wide scope to the authorities and potential abusers to charge anyone for the offence. Hence, these words should be removed and only those forms of expression which result in actual breakdown of violence should be made punishable under the section. Similarly, the word “government” in the section has led to people getting booked merely for criticising the actions or policies of government.

A healthy constitutional and democratic practice demands that the citizens should have the rights to criticise their government, and doing that should not attract a sedition case. The phrase “government established by law” should therefore be replaced by the word “state” because the act of criticising the government is well within the freedom of expression and right to dissent in a democracy, and one can propagate its views about the ills of the government and even call for its removal. As recommended by the 42nd Report of Law Commission, 1971, mens rea, i.e. malicious intention to commit a crime, should be made an essential ingredient to decide culpability under sedition.

The only acts that should be punished are the ones which try to break down the democratic set up of the country by violent means or, as pointed out by Twenty-First Law Commission, only those acts that threaten the idea of the nation should come under the purview of sedition. Therefore, only acts of such grave nature which pose a danger to the existence of nation and aimed at disintegrating it through violent means should be termed as seditious acts. A narrow ambit of sedition would not only protect the fundamental right to free speech and citizens’ right to criticise the government but also prevent its massive abuse.

Legal recourse to false charges

The current recourse available to a person who has falsely been charged and prosecuted for are a complaint under Section 182 of the Indian Penal Code for giving false information with intent to cause public servant to use his lawful power to cause injury to another person, under Section 211 of the Indian Penal Code for maliciously prosecuting a person and under Section 499 for defamation can be filed against the complainant, in addition to compensation under tort law.

There should also be a check on the powers of the authorities registering the cases over zealously and their liabilities should be established in case they register an FIR or file a charge sheet knowing that the person in question is not guilty of the offence. The Supreme Court in the State of Gujarat v. Kishanbhai and Perumal v. Janaki cases had ruled that the policemen should be prosecuted in case they file a chargesheet against a person knowing that he was innocent. Additionally, Section 166 of the Indian penal code criminalises an act if an officer willfully departs from any direction of laws maliciously and disobeys any direction of law in order to cause injury to a person, and Section 166A punishes the act of a public officer willfully disobeying any direction of law to cause injury to someone. Both these sections can be invoked in case any police officer registers false complaints against any person. Similarly, Section 167 of the code punishes an act of public servant of knowingly making any false document to harm or cause injury to that person. If any police officer frames a person wrongly in any case, fabricates evidence and prepares a false report, etc. s/he can be charged under this section. There are also internal checks and balances in the police department itself, under which a police officer can be subject to departmental proceedings, prosecuted and removed from duty for negligently performing his/her duties which includes falsely framing an individual, as per Sections 7 and 29 of the Police Act.

Since the Supreme Court has in the judgements mentioned above laid down clear definitions of sedition, authorities who still register an false sedition cases should be made liable to contempt of court. Another recourse available to an individual wrongly charged with sedition is to claim compensation from the government. A person aggrieved can approach the high court by filing a writ petition under Article 226 or Supreme Court under Article 32 and claim compensation under Article 300 of the constitution for being wrongfully arrested, kept in prison or detained for what is called as constitutional tort for violating right to life and personal liberty under Article 21 of the constitution.

The Supreme Court in the Chairman Railway Board v. Chandrima Das case had remarked that “where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law.”

For a person who undergoes false prosecution for an offence as grave as sedition, it is not possible to return to normalcy. The person faces social stigma (the person is often labeled as gaddar) in addition to mental, physical and emotional trauma. There is often a loss of reputation, and the person might end up spending several precious years in confinement and fighting legal battle for the crime which s/he did not commit.

Compensation cannot be a remedy against the illegalities committed by the state and its instrumentalities. The amount of pain, suffering, harassment and trauma suffered by a person cannot be adequately compensated in monetary terms, and a liability regime should be established against the government officials or individuals acting negligently or maliciously. A higher threshold should, therefore, be set for prosecuting someone under the sedition law so that citizens are not subject to harassment for merely expressing dissent.

Prabudh Singh graduated from NALSAR University of Law, Hyderabad in 2018 and is currently working as a lawyer in Delhi.