India is often referred to as the largest democracy in the world. Granting such a title may have some credit, especially given the government capacity needed to run such a vast and populous nation while combating bureaucratic nightmares, military constraints and conflicting demographic appeasement. However, arguably, what good is a ‘democratic’ regime if the ruled have no means or mechanism to reprimand the governor? Wouldn’t the lack of such media undermine the very foundation of democratic principles?
When we examine Section 124-A of the Indian Penal Code, which covers the offense of sedition, such disturbing questions come to our mind. Even a cursory reading of this provision by loyalists of a Governing Body should stir their conscience. Because, its wording is so general and loose that practically any form of disgruntled behaviour, even a mild form of constructive criticism, can interpretively come under the purview of Section 124-A.
It is in this context that we want to discuss the Indian laws of sedition (an instrument in the hands of the governor) and free speech (an instrument in the hands of the government). Our sedition law was originally introduced in British India by Lord Macaulay in 1837 as Section 113 of the then draft Indian Penal Code (IPC), which is currently in line with Section 124-A of IPC, 1860. Actual Act passed in 1860, Sir James Stephen, then law member in the Viceroy’s Council, held that the omission of Section 113 in the Penal Code was wrong, and introduced Section 124-A in the IPC in 1870, as a “corrective measure”. . This introduction can be seen in its contemporary context, at that time the British rule was facing serious opposition and resistance with the intention of overthrowing it completely. Interestingly, one of the reasons Stephen introduced 124-A was that, in the absence of such provisions, the offense would be punished under the more severe common law of England, resulting in transportation for life. could. Remarkably, it seems that an unelected power chose to talk about the public good—a reminder of the time that was drawing near—in line with a changing world order and changing views. This clause was touted as providing some protection from a harsh English law.
What followed was even more disturbing than the origins of 124-A. Originally enacted by a British government to detain and silence those who, through their voices and actions, catalysed condemnation of British colonial rule in India, this provision was not only made after 1947 , in spite of severe opposition, certainly managed to remain, but in the meantime, it was strengthened. Indira Gandhi government’s tenure by converting the offense into cognizable.
Thus 124-A has persisted as a law that was clearly conceived as a coercion to quell free and fair speech, and which, for all practical purposes, was a deterrent to an overthrown imperialist regime. Serves as a monument to this, the stench of which still lingers from some corners of our country. Improper retention and strengthening of this provision in modern times amounts to a clear abuse of the Constitution of India, which is the foundation of our administration and system of law.
Ironically, the tool that was once used by agents of the British Raj to suppress the freedom of the Indian people is still being used today in a country celebrating 75 years of independence. The number of sedition cases before various fora of the judiciary this year should remind us how we still need to work towards ensuring that our legal provisions are in line with the freedom assurance spirit of the Constitution of India.
There are many examples of law enforcement on weak grounds. It is worth mentioning here that there is a recent Supreme Court judgment in which the said court restrained the present Andhra Pradesh government from taking adverse action against two Telugu news channels booked under Section 124-A of the IPC. In this regard, Justice DY Chandrachud’s statement should be noted: “Not everything can be anti-national. It is time we define what is sedition and what is not.”
This is only one instance amidst the growing number of cases before the judiciary, where the executive has been reprimanded by the courts for wrongly applying Section 124-A. However, despite judicial resistance against it, custodial attacks allegedly due to ‘seditious’ actions continue to increase. The statistical analysis of registered sedition cases published by the National Crime Records Bureau between 2014 and 2018 clearly shows a huge increase in such cases.
Therefore, the need for legislative intervention that clearly redefines the parameters by which something is equivalent to a ‘seditious act’ under Indian law is undeniable. While it can be argued that the provision for sedition is still needed to counter the extreme circumstances and dire circumstances of communal violence, etc., Section 124-A, as it is today, was not allowed to exist. should be known, especially within the framework of a justice. system that prides itself on its liberalism.
Nishikant Nayak is a lawyer attached to the office of the Supreme Court of India, J Krishna Murari as a Judicial Intern.