Introduction

Every country, irrespective of the form of the government which it follows, has a duty to protect itself from the external as well as internal aggression. The state has an obligation to be ever vigilant and be armed with the power to punish those who, by their actions, raise an situation of mayhem in the nation.The law of sedition helps in doing the same. Sedition is an act which consists of the acts, spoken or written; actions; or writings intended or calculated in the circumstances of the time, to bring hared, disaffection, contempt, hatred or cause violence against the state; but, these laws put an obligation on the states too, to keep a check that these provisions are not used arbitrarily, which if happens would cause more harm than good, as freedom to speech and expression (within the limit of reasonable restrictions) is a right which every person should be allowed to enjoy.

Understanding Section 124A

The law of sedition, in India, is similar to law of treason in England. Lord Macaulay, when he was drafting the Penal Code for India in 1837, put it in Sec 113 of the draft, but due to some reasons it was not given the place when the code was enacted. The need for the provision, however was felt in 1870 when it was added and since then several minor changes have been done [K.I. Vibhute, PSA Pillai’s Criminal Law, LexisNexis, 12th ed.], but the crux of meaning of Sedition as contained under Sec. 124 A of the Indian Penal Code, 1860 (IPC for short) remained same andpresently it reads as,

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excites disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

To bring about a case in which a person may be held guilty under sedition, the following ingredients must be proved, firstly there must be some overt act, be it in any form i.e. words, signs or anything other; secondly it must bring hatred or contempt; thirdly must cause disaffection which means disloyalty or enmity; and fourthly it must be against the government established by law, which means ‘the Central Government’ and ‘the State Government’ as under Sec. 17 of the IPC, the government here is to be distinguished from the bureaucrat or the person carrying on the administration[KedarNath v State of Bihar, AIR 1962 SC 995].The law has developed from being construed strictly to being construed liberally now.There were times (pre-independence) even when the expression of disapproval of the act of the government was also charged with sedition to the present day when it is held by the Apex court that a speech can be branded seditious only when it instigates imminent lawless action or violence [Arup Bhuyan v State of Assam, (2011) 3 SCC 377].

The BAD

“The quality f a nation’s civilization, it is said can largely measured by the methods it uses in the enforcement of criminal law.” [RampalPitwaRahidas v State of Maharashtra, 1994 Supp (3) SCC 73.]

Recent times, however have seen a widespread and arbitrary application of charges of sedition against individuals as well as organizations, which has rightly led to the people claiming that the said law is used to curb dissent and right to speech and expressions of the general masses. The case of Aseem Trivedi, where a cartoonist was charged with sedition on painting some cartoon related to Parliament, is not old; the Bombay High Court ultimately acquitted him. The Supreme Court as well as several High Courts have warned on the casual way the police invokes offence under Sedition, but this seems unstoppable in the present scenario. In 2014, in Jammu and Kashmir, a group of students was charged with sedition for supporting Pakistan cricket team, coming to more recent times in February 2016, Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya, students from JNU were charged with sedition for raising “anti-India” slogans; in June 2016, Shridhar Venugopal president of Akhila Karnataka Police Mahasabha was charged with sedition for calling a state-wide protest by the police personnel to put forward their personal demands.Skipping others, the two more recent ones are Sedition cases filed against Amnesty International as in their meet for discussion on Kashmir issue “anti-national” slogans (azadi) slogans were raised and on Actress turned politician DivyaSpandana alias Ramya because of her statement in which she praised people of Pakistan and their hospitality.

Amnesty Case, falls on somewhat similar lines to that of JNU incident where an event was organised for a discussion on human rights issues in Kashmir, some azadi slogans were raised and A.B.V.P. complained that seditious slogans were raised.If some perspective is poured in, then this is not the first case and Kashmir is not the first state for which independence is asked, same has been done in relation to Khalistan, by Nagas (for free Nagaland) and by Mizos too. There was no call for imminent violence and as is settled by the Supreme Court in various occasions that mere raising of slogans in not seditious, it must be coupled with some resort to violence or imminent danger[Balwant Singh v State of Punjab, AIR 1995SC 1785]. The raising of slogans cannot be termed as illegal, but at the same can be called illogical.

The case of DivyaS pandana goes a level above, the actor turned politician who made a remark praising people on the other side of the border for their hospitality, and thus rebutting the earlier statement,“going to Pakistan and going to hell are same” made by the Defense Minister ManhoharParrkiar. She faced a wide spread criticism for the same and a complaint case was filed against her by KatmaneVittal Gowda, a local lawyer. The lawyer has been asked by the court to prove that how the present case fulfills the essential elements of the Sec. 124A [India Today, Ramya sedition case: Court seeks justification under relevant sections, hearing adjourned to Oct 19]. It can be clearly argued that the elements of Sec 124A are not fulfilled in any manner, and though there may be a lack of cordial feeling for Pakistan among the masses the case does not fall within the ambit of sedition.

The NCRB data shows that there is a decline in the cases of Sedition registered in the past few years, but what needs to be there is a system of checks that such type of cases, where prima facie there is no element of crime present, and only cause harassment to the accused are not taken up at the first instance.

Aggrieved by the way things are happening, a petition is filed before the Supreme Court to challenge the of Sec. 124A by Common Cause, a NGO and S.P. Udayakumar, one of the prayers is to pass an order or direction making it compulsory for the concerned authority to produce a reasoned order from the director general of police (DGP) or the commissioner of police, as the case maybe, certifying that the ‘seditious act’ either led to the incitement of violence or had the tendency or the intention to create public disorder, before any FIR is filed or, any arrest is made on the charges of sedition against any individual[The Wire, Petition Challenges Sedition Law in Supreme Court].

Conclusion

Mahatma Gandhi once commented on Sec 124A saying that “Section 124-A, under which I am happily charged, is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen” but at the same time it is a necessity to have in the Penal Code.What is required is to monitor how it is applied. It can be conclusively held that at present the provision on Sedition is invoked in a very arbitrary manner and there is a need to devise a mechanism so that both the provision can be kept in the statute book as well as be made sure that it does not arbitrarily hampers anyone’s rights. The provision of Sedition has been put up for judicial scrutiny many a time in front of various courts and it has been held constitutional by the Supreme Court in case of KedarNath v State of Bihar, the present petition filed may give finally a way in which both the provisions of Sedition and the Right to freedom of Speech and Expression can harmoniously exist.

The state has a duty to maintain the public order and peace, and for that it is necessary to control the activities which may disrupt the peace, which makes laws like Sedition a necessity.Even if they are considered evil by some, they are the evil we need.