Striking a balance between Sedition Law and Right to Freedom of Speech & Expression | Important Acts and Laws for Judiciary Exams PDF Download

Introduction and History

• Many times, confusion arises between sedition and freedom of speech. Sedition involves inciting citizens against the government, while freedom of speech allows individuals to express their views under Article 19(1)(a) of the Indian Constitution.
• Sedition, a criminal offense, criminalizes speech disloyal or threatening to the state. It was introduced in the Indian Penal Code in 1870 to prevent actions that incite discontent and opposition to the government.
• Examples of historical figures facing sedition charges include Gandhiji and Bal Gangadhar Tilak, who were charged for actions perceived as disloyal or inciting disaffection towards the government.

Constitutional Interpretation of Sedition

• The courts emphasize that criticizing the government is essential for a functioning democracy and not all criticism constitutes an offense.
• For an expression to be considered seditious, it must incite discontent, provoke opposition, and lead to rebellion.
• When determining if a speech is seditious, the key intent behind the words must be considered.
• In the case of Pankaj Butalia v. Central Board of Film Certification, the court highlighted the importance of examining the overall intent behind seditious statements rather than focusing on isolated parts.
• In Balwant Singh and Ors v. State of Punjab, the Supreme Court addressed a situation where slogans were shouted following the assassination of former Prime Minister Indira Gandhi. The court found that for Section 124A to apply, there must be intent to incite disorder or create law and order issues.
• In Sanskar Marathe v. State of Maharashtra, the court deliberated on whether political cartoons by Assem Trivedi constituted sedition by spreading hate and disrespect towards the government.
• The criteria for determining sedition include bringing the government into contempt, incitement to violence, and creating public disorder.
• Criticism of the government with the aim of lawful change is not seditious under Section 124A.
• Obscenity alone is not a factor in deciding sedition cases.
• Legal opinions from the defender of the district and prosecuting officer of the state are necessary in sedition cases.
• In Arun Jaitley v. State of U.P, a case involving criticism of a Supreme Court judgment, it was established that seditious speech must have a tendency to incite public disorder or disrupt law and order.

Arguments for the Sedition Law

• Section 124A of the Indian Penal Code (IPC) is seen as a tool to combat anti-national, extremist, and terrorist elements, aiming to protect the elected government from violent attempts to overthrow it. The stability of the State relies on the existence of a government legally established.
• In various districts across states, there are instances of Maoist insurgency and rebel groups operating quasi-governments, openly advocating for the government's overthrow through revolution. Repealing Section 124A solely based on a few misapplications might not be wise.

Arguments against the Sedition Law

• Section 124A is a remnant of colonial rule and seems out of place in a democratic setup. It restricts the legitimate exercise of constitutionally guaranteed freedom of speech and expression, important for a vibrant democracy.
• Dissent and criticism of the government are vital components of a healthy democracy and should not be treated as criminal acts. The terms used in Section 124A, such as 'disaffection,' are vague and subject to arbitrary interpretation by authorities.
• Existing laws like the IPC and the Unlawful Activities Prevention Act already have provisions to address actions that disrupt public order or aim to overthrow the government through violent means. Section 124A is considered unnecessary and prone to misuse.
• The misuse of sedition laws to stifle political dissent contradicts India's commitments to international standards of freedom of expression, as exemplified by the International Covenant on Civil and Political Rights (ICCPR) ratified by India in 1979.

Sedition vs. Freedom of Speech

• The right to freedom of speech and expression is a fundamental right in a democracy, enshrined in Article 19(1)(a) of the Indian Constitution.
• This right allows individuals to express their ideas and opinions, but it is not absolute; reasonable restrictions can be imposed by the State in the interest of sovereignty, integrity, security, public order, decency, or morality.
• Sedition, as defined in Indian penal law, involves any act that attempts to bring hatred, contempt, or disaffection against the legally established government of India, whether through words, signs, or visible representations.
• The interpretation and application of Section 124A, the law on sedition, have raised significant conflicts with the right to freedom of speech and expression in India.

Arguments on Section 124A

• Debates exist on whether Section 124A of the Indian Penal Code is in line with Article 19(1)(a) of the Constitution.
• Courts have deliberated on the narrow boundaries set by Article 19(2) and the impact of Section 124A on the freedom of speech and expression.
• Various cases have tested the constitutional validity of Section 124A, with differing opinions on whether it is ultra vires or partially valid.
• Legal precedents like the Kedar Nath case have established the essential elements required to constitute sedition, emphasizing the incitement of violence as a key factor.

Landmark Cases

• Cases such as that of Kanhaiya Kumar and Aseem Trivedi have sparked controversies around sedition laws in India.
• The Shreya Singhal case notably struck down Section 66A of the IT Act, emphasizing the importance of free speech in the digital age.
• Analysis of NCRB data reveals low conviction rates in sedition cases, often attributed to political considerations.
• The judiciary has clarified that criticism of the government or its policies does not necessarily amount to sedition, emphasizing the importance of differentiating between legitimate criticism and actions inciting violence.

Interpretations and Recommendations

• The legal landscape surrounding sedition laws in India remains controversial, with calls for aligning Section 124A with constitutional provisions.
• Proposals have been made to ensure that sedition cases are scrutinized based on individual circumstances and facts, applying higher standards of proof for conviction.
• The Law Commission of India suggests that sedition laws should evolve in line with global standards, considering the balance between freedom of expression and national security.
• It is crucial to understand that freedom of speech is not absolute and should be exercised responsibly, avoiding actions that incite violence or threaten public order.

Conclusion

• India, being the largest democracy globally, emphasizes the importance of free speech and expression as fundamental to democracy. Disagreeing with the government's policies should not be considered offensive. The Law Commission rightly stated that expressing frustration with the state of affairs should not be labeled as sedition. However, it's crucial to safeguard national integrity while ensuring that Section 124A, which deals with sedition, is not misused to stifle free speech.
• The Supreme Court, in the Kedar Nath case, outlined conditions necessary for an expression to be deemed seditious, emphasizing the need for a clear distinction between criticism and sedition. Although the court upheld the constitutionality of Section 124A, there remains a gap between its principles and actual implementation, leading to calls for its amendment.
• While national security concerns may lead to strengthening sedition laws, there's a need for a precise delineation of freedom of speech to prevent its misuse. The judiciary must carefully differentiate between incitement to action and mere expression of ideas. The current interpretation of sedition law, as seen in the Kedar Nath case, has raised concerns about its potential misuse by intolerant governments.
• There's a consensus among the public that Section 124A should be either amended or repealed. Upholding its validity contradicts popular sentiment and prolongs a problematic provision. As society evolves, legal institutions must adapt to meet the needs of the new era, which may require revisiting outdated laws and doctrines.
• The Supreme Court's decision in the Kedar Nath case falls short of expectations, prompting calls for a re-evaluation of freedom of speech principles. It's essential to ensure that freedom of expression is protected, while also maintaining public peace and order.