In the case of Reg v. Alexander Martin Sullivano, Fitzerald, J. observed that sedition is an offence against the society, and it encompasses all those actions that are designed to disrupt the tranquilly of the State, whether by words or writing, to lead misguided citizens to try and sabotage the government and the laws of the land. In India, the British introduced Section 124-A of the Indian Penal Code which, to this day, is used as a mechanism to silence dissent. Although most modern democracies have done away with sedition laws, this obsolete British law still finds a place in our criminal code and has become a very controversial topic over the years.
Sedition is often described as a crime against the leaders of the land – which could be a democratic government, a dictator or a monarch. While sedition may have almost the same ultimate impact as treason and treachery, it is typically confined to the crime of organizing or supporting agitations against the authorities – which may include speeches and published articles.
The modern-day definition of sedition finds its roots in England. The term “sedition” was first mentioned in history by the legislation passed to defend the monarch and the government from future rebellions.
In English common law, the publishing of seditious writing (“seditious libel”) or the utterance of seditious expression (“seditious words”) has been a crime for a long time. But modern laws became more descriptive. From time to time, the display of a certain flag or the promotion of a certain ideology like criminal syndicalism had been declared to be seditious. After World War II, loyalty oaths for certain government officials were enforced in the United States, and inquiries and expulsions of some public employees were carried out on the grounds of their connections with dubious causes and organizations.
Sedition Laws In England
Countries around the world use various types of legislation to curb uprisings against the government. The first country to use such a law was England, where the laws of sedition date back centuries and were initially intended to defend the Crown and the state from any rebellious acts. All acts, speech, or writings that were made with “seditious intent” were prohibited by the law. This intent was defined as “encouraging the violent overthrow of democratic institutions”. The punishments for these crimes were pretty severe in the olden times, where physical harm was inflicted upon the perpetrators and re-offenders were sentenced to death.
In 1977, taking into cognizance the changing scenario of the world and the impetus of free speech, a Law Commission working paper proposed the removal of these obsolete sedition laws in England and Wales. However, this proposal was not incorporated until the year 2009, when Section 73 of the Coroners and Justice Act 2009 finally scrapped the crimes related to sedition in England.
Sedition In The United States of America
In the United States, Congress claimed in the late eighteenth century that the State should be shielded from “false, scandalous and malicious” critiques. The Sedition Act of 1798, which allowed the criminal prosecution of people who wrote or spread false facts about the State or its authorities, was passed by Congress. The act was expected to terminate with President John Adams’ tenure.
The Sedition Act failed abysmally. The act was criticized by Thomas Jefferson, and widespread criticism for the act increased after he was closely elected president in 1800. In 1801, the act expired, but by then, the then-President Adams had already used it to prosecute several prominent followers of Jefferson. However, post coming to power, Jefferson pardoned each individual who was convicted under this Act.
The present-day sedition laws in the USA are tied to movements against slavery and the Civil War. Before the Civil War, the US Congress passed seditious conspiracy laws directed at people seeking independence from the United States.
Section 3 of the Espionage Act of 1917 made it a federal offence, punishable by up to 20 years of incarceration and a fine of up to $10,000, to intentionally disseminate fake news of the American army or navy to impede its activities or to promote rebellion in its ranks, or to prevent recruitment. The Sedition Act of 1918 modified this Act of Congress, which extended the application of the Espionage Act to any declaration undermining or criticizing the United States government. However, this Act was repealed in 1920.
During the Second World War, the United States Congress enacted the Smith Act to outlaw seditious activities. However, presently, the conviction rates under the Smith Act are very low, to promote the spirit of democracy and free speech.
Sedition Laws in India
Sedition Laws were introduced by the British in colonial India via Clause 113 of the Indian Penal Code (‘Draft Penal Code’), as suggested in 1837 by Thomas Babington Macaulay. But, when after a period of 20 years, the Indian Penal Code (IPC) was eventually enforced, the aforementioned portion concerning sedition was inexplicably excluded in 1860. The omission was called a mistake by the British, but various other reasons also came to the forefront. However, with the increasing number of mutinies against the British government, the addition of a sedition law became a necessity for the British to continue their rule. Thus, in the year 1870, Section 124-A was added to the Indian Penal Code by Sir James Stephen, which reads:
“Whosoever, by words, either spoken or intended to be read or by signs or by visible representations or otherwise excite or attempts to excite feelings of disaffection to the Government established by Law in British India, shall be punishable with transportation of life … to three years to which fine may be added.”
The British aimed to use this legislation as an instrument for destroying the growing dissent and opposition by Indian nationalists and to reinforce their foothold in India. Other Acts, such as the Dramatic Performances Act, 1876 and the Vernacular Press Act, 1878 were also enacted to monitor the depiction of seditious acts in plays and censor vernacular mass media.
The first recorded case under Section 124-A of the IPC was Queen Empress v. Jogendra Chunder Bose [(1892) ILR 19 Cal 35] where the editor of the ‘Bangobasi’ newspaper was charged with the crime of sedition. He was charged for the publication of an article that strongly criticized the British Government’s ‘Age of Consent Bill’. In this case, the jury could not arrive at a unanimous conclusion regarding the fate of the editor. The judge did not accept a verdict that had been pronounced. Eventually, the editor was freed from prison on bail and the case against him was dropped after he issued an apology. However, the Court explained the meaning of “disaffection” in the context of sedition in this case by holding that it is the usage of words spoken or written to elicit a condition in the minds of those to whom the phrases were addressed to, to not respect the government’s lawful authority or to fight that authority.
In Queen Empress v. Bal Gangadhar Tilak [ILR (1898) 22 Bom 112], the Court, transcending the claims of both sides, expounded Section 124-A of the IPC as primarily thrilling “feelings of disaffection” towards the government, including feelings such as hatred, hostility, dislike, animosity, disdain, and other types of ill-will within its domain. It broadened the scope of the offence and held that it was not the seriousness of the action or the severity of the hatred the perpetrator harboured that mattered, but it was the mere existence of such feelings is what truly mattered and even the smallest attempt to instigate such feelings amongst people was sufficient to be called an offence.
The most monumental case with regards to sedition in independent India is that of Kedar Nath Singh v. State of Bihar [AIR 1962 SC 955]. In this case, the Supreme Court laid the concept of the sedition law as it is known today. The question of the constitutionality of Section 124A of the IPC in the light of the provisions of Article 19(1)(a) of the Constitution was questioned. “Incitement to violence” was mentioned as a prerequisite to the offence of sedition. To find clarity around the matter, the Court looked at the history and opposition around Article 19 in the debates of the Constituent Assembly. It was observed here that sedition was expressly excluded as a legitimate reason to limit freedom of speech and expression although it was included in the Draft Constitution. This reflected that sedition cannot be considered a valid anomaly when confronted with the freedom of speech and expression. Consequently, sedition could fall within the limits of constitutional validity only if it could be incorporated into any of the six grounds referred to in Article 19(2) of the Constitution. The “security of the state” was regarded by the Court as a potential basis for upholding the constitutionality of IPC Section 124A. The Court applied the principle that where a legal provision can be interpreted in more than one way, it must uphold the interpretation which renders the provision constitutional. Any meaning that makes a clause ultra vires of the Constitution must be disregarded. Thus, while such a provision is not implied by a clear reading of the clause, it was considered to be essential that any seditious act must be followed by an attempt to stir up violence and disorder.
In Brij Bhushan v. State of Delhi [AIR 1950 SC 129] “public order” was enmeshed with “security of the state” In Article 19(2), the addition of the words ‘in the interest of before public order’ was seen as empowering the State with a broad range of powers to curb freedom of speech. Accordingly, the provision was seen as a justification for the law of sedition.
However, since then the courts have drawn a strong distinction between the words “public order” and “state security”. Although the meanings have not been specified exactly, public order is associated with the protection and tranquillity of the public and only has community value. On the other side, the defence of the state will require social instability, such as revolt, civil unrest or war. As a result, a law justified “in the interests of public order” will also be justified in the interests of “state security”.
Sedition laws have historically been used as a tool to suppress dissent. Be it in the case of the USA, UK or India, sedition laws have been used to curb individuals’ freedom of speech and expression. On paper, it might seem like an essential law to prevent anarchy, but in most cases, it is seen as a tool to silence the masses, which is why many countries have decriminalized sedition. Even the country that laid the foundation of legal reforms against seditious acts has done away with those provisions in an attempt to promote freedom of speech. This movement, however, has yet to reach Indian soil.
In a democracy, there is a need for people to be able to criticize the government freely. This is because the government is accountable for its actions. It was voted into power by the people and hence, the people of the nation should have the right to voice their opinions without being called prosecuted. In recent years, there has been a surge in convictions under Section 124-A of the IPC teamed with the Unlawful Activities (Prevention) Act, 1967. The data published for the year between 2014 and 2016 by the National Crime Records Bureau shares some insightful numbers. The report indicates a total of 179 arrests for sedition. However, in more than 70 per cent of the cases and just two convictions during this time, no charge sheets were filed by the police.
Since the Kedar Nath judgement, the Supreme Court has reiterated that citizens have the right to criticize the government. But in many cases, this law remains heavily misused. A recent example of this was seen during the anti-CAA and NRC protests across the country, where according to the National Crimes Bureau, almost 194 people were charged under sedition since 11th December 2019.
Writer George Orwell had once said, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” In the case of India, we are a free country with an extensive constitutional framework to ensure that our fundamental rights are always protected. However, until and unless we have the freedom to utilize the freedom of speech and expression to hold people in positions of power accountable, our freedom would not have its intrinsic value.