Development in interpretation of ‘sedition’ law in India

Freedom of speech and expression is considered as mother of all liberties as it has been recognized as an essence of a free society. The exercise of freedom of speech and expression can only be limited under the procedure established by law. Sedition laws are also among various restrictions that can be imposed to curtail free speech in the interest of public order. Sedition refers to the writing or uttering of words or doing of acts intended to bring the state into hatred or contempt or to excite disaffection against the established government. The recent increase in the number of sedition cases has raised concerns about the validity of such law as a reasonable ground for restricting the valuable right of freedom of speech and expression.

The law on sedition was introduced by British in India as an amendment to the IPC in the year 1870 to smother the Wahabi movement, which aimed at reviving Muslim power in India by overthrowing the government.  Since then, it has been used by the government to suppress the voices of opposition, dissent, or critique, even when they are faithful to right and legitimate critiques or to express public demands. The irony is that even after 75 years of independence, this colonial era law is often misused by the country’s own institutions at their own whims.

The law of sedition has been interpreted numerous times by the precedents of the Indian Judiciary and still the interpretation was not uniform. The confusion was finally cleared by the Supreme Court in the case of Kedar Nath Singh v. State of Bihar[1]. The apex court upheld the constitutional validity of offence of sedition and observed that the law laid down by the Federal Court reflects correct stand, that is ‘intention’ and ‘incitement to violence’ are essential ingredients of offence of sedition and must be read into the section 124A of IPC.

The Supreme Court had reiterated these necessary safeguards and in the case of Shreya Singhal & Ors. v. Union of India[2]. The Court emphasised the distinction between “advocacy” and “incitement,” as well as how Article 19(2) restrictions should be strictly interpreted to exclude “innocent speech.” According to the Supreme Court, “The intelligible differentia is clear – the internet gives any individual a platform which requires very little or no payment through which to air his views.” 

In the case of Kanhaiya Kumar v. State (NCT of Delhi)[3], the petitioner, who was charged under section 124A of the IPC, applied to the Delhi High Court for bail. In reaching a decision on the issue, the Court stated: “while exercising the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, one has to remember that Part-IV Article 51A of the Constitution provides Fundamental Duties of every citizen, which form the other side of the same coin”. 

Even after these landmark decisions of Supreme Court, the observation made by the Supreme Court has unfortunately not been followed in true spirit. The recent incident involving a journalist, Vinod Dua, has reignited the debate of sedition vis-a-vis freedom of speech and expression.

Despite these criticisms, the Sedition law is often helpful to maintain public order, national integrity and security, create a sense of fear among the anti-national groups and to prevent damage to the public property from unruly mobs. It has its utility in combating anti-national, secessionist and terrorist elements. Furthermore, it protects the elected government from attempts to overthrow the government with violence and illegal means. Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.

In nutshell it is not conducive in the present circumstances prevailing in India to completely abolish the law of sedition on the ground that its presence has a chilling effect on the fundamental freedom of speech and expression. The law of sedition needs reformation to protect freedom of speech and expression of those who do not encourage strife but only propagate their opinion. Therefore, there is a need to understand that freedom of speech and expression also includes freedom to express dissenting opinion.

[1] Kedar Nath Singh v. State of Bihar, AIR 1995 SC 1785

[2] Shreya Singhal & Ors. v. Union of India, (2013) 12 SCC 73

[3] Kanhaiya Kumar v. State (NCT of Delhi), 2016 SCC OnLine Del 1362