Zirgham Hamid
India is a democratic country infact the largest democray in the world and is known for its diverse culture. In a democracy, govt changes with time and its fate is decided by the vote of the citizens. Those who get elected are known as representatives because they represent those who have elected them so if they do any such activity which generates a feeling of hatred among those who elected them that activity isn’t justified. The result is people criticize the government which is basically their fundamental right and no govt can afford to suppress the voice of the people unlike British Govt which always wanted to suppress the Indian voice and to fulfill this purpose, they inserted a section(Section 124A) in IPC which defines Sedition. Now lets analyse the definition of Sedition under Sec 124A of IPC. As per the definition “Anyone who brings or attempts to bring into hatred or contempt or excites or attempt to excite disaffection towards the Govt by word spoken or written or by signs or visible representation or otherwise is guilty of offence of sedition. This definition is so exhaustive that it doesn’t leave out of its purview any possible mode of expression simply by using the word “Or otherwise”. By defining sedition in this way, British govt found a powerful tool to suppress Indian voice and there was no corner left for the Indians to express the opinion or to show criticism against the British govt. Its almost an accident that Sec 124A survived after the Constitution of India came into force in 1950. Restrictions apart, Indian Constitution gives fundamental freedom in general and freedom to speech and expression in particular to its subjects. In that case the provision of sedition must have died a natural death. Even Article 13 of Constitution of India states that all laws in force in the territory of India immediately before the commencement of Indian Constitution in so far as they are inconsistent with the provisions of part 3rd dealing with Fundamental Rights shall to the extent of such inconsistency be void. Article 13 acts as a filter to refine the pre-constitutional laws and to extract the residuary which is inconsistent with the provisions of fundamental rights. But I think there was a hole in the filter through which Section 124A mixed with refined provisions and diluted it. Now the question is Who made that hole?
The benefit of this section is taken by Govt as it is a powerful tool in their hands to charge those who express strong criticism against them, to charge them with sedition and put them behind the bars. Every strong criticism of the Govt , a minister, a chief minister or prime minister causes some amount of disaffection towards them. When we hear about corrupt practices of the Govt what feeling we have for the Govt at that time, it would definitely be not that of love and affection but surely that of dissatisfaction and hatred. In democracy, Govt is responsible and accountable to the people and there are every chances of criticism, lesser or greater in degree, against them infact it has been truly stated that ” The test of democracy is Criticism”. So it never mean that some amount of disaffection toward the Govt always attract the provision of sedition under Section 124A.
Those who defend Sec 124A must learn from the history that Draft Constitution had included sedition as one of the grounds on which fundamental right to speech could be restricted, but later on after the Parliament seemed reluctant to declare sec 124A void, it was left to judiciary to interpret. While different high courts and subordinate courts at many occasions declared this section as unconstitutional, Supreme Court in Kedar Nath Vs State of Bihar declared it constitutional. Apex court held that Sec 124A could only be invoked when there is tendency to public disorder by use of violence or incitement to violence. Whereas interpretation given by Justice Starchey who presided over the Sedition case against Bal Gangadhar Tilak that ” feelings of disaffection as used in section meant ‘Hatred’ ‘Enmity’ ‘Dislike’ ‘Hostility’ ‘Contempt’ or every form of ill will to the Govt” would be in conflict with Fundamental Right under Article 19(1)A. As I mentioned feelings of hatred, dislike, disaffection among the people is natural. Going by the Supreme Court view that Sec 124A could be invoked only when there is tendency to public disorder by use of violence or incitement to violence, still there is an inherent danger because deciding whether an act has a tendency to public disorder or not is in the hands of Police at first instance. It is the ordinary police constable who will the first person to decide whether a brilliant speech made in a seminar or in a cultural programme by an eminent author or a cartoon made by a cartoonist will cause disaffection, contempt or hatred towards the Govt. In a country full of jingoists, there would be a great danger to the person who speak out against the Govt as is evident from the recent case of JNU where six students were charged with sedition who were in some way exercising their freedom of expression but the media morphed and doctored images and videos with sensationalism led them spend their precious time in police and Judicial custody which would otherwise would have been spent in studies.
Section 124A suffers from vagueness but vagueness of as provision isn’t sufficient to invalidate it. Courts work on the principle of “Presumption of Constitutionality” and ” Broad interpretation of Law” to nullify the effect of vagueness but it cant be exercised in case of Section 124A as it has potential for misuse too. The vagueness or potential for misuse could be even deceptive, reason being, it might ‘trap the innocent’. The Supreme Court in Shreya Singhal v. Union of India(2015) while referring to an American case held ” Vague laws may trap the innocent by not providing fair warning”. In an American case it was held “Constitution doesn’t 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 or who should be set at liberty. Vagueness isn’t a sufficient but still a ground to invalidate a statute and when it links with the potential for misuse, it becomes imperative to do away with such a statute. Pt. Jawahar Lal Nehru called sedition as obnoxious piece of legislation but his govt and all subsequent govts retained it and misused it. Such hypocrisy of Indian politicians kept alive the colonial law which booked many journalists, writers, activists for dissent.
Defending the Freedom of expression was one of the noble ideals that inspired India’s Freedom struggle. Article 51A(b) of the Constitution of India dealing with fundamental duties say “It shall be the duty of every citizen of India to cherish and follow these noble ideals. Therefore those who abuse Sec 124A against innocent persons are the ones who are truly guilty of violating the constitution. This duty also imposes an obligation to expose such abuse of law by the authorities in order to defend freedom of expression from unreasonable restrictions indirectly imposed by the State. Yes I agree that stringent laws need to be there to take care of the offences against the state in a more effective manner. Section 505 of IPC relating to ‘statements conducing to public mischief’. Sec 121, 121A, 122 deal with the offence of ‘waging war against Govt of India’. Other sections like 131-140 of IPC all are helpful in tackling with such offences in a more effective manner. Its time to rethink over this provision which is too colonial, too dangerous to retain in IPC pointing which Father of Nation, Mahatma Gandhi said ” Section 124A is the prince among IPC sections designed to suppress Liberty”