USE AND MISUSE OF SEDITION LAW
Updated: Apr 9, 2021
Author: Dimple Manghnani, IV Year of BBA.,LLB from Bharti vidhyapeeth new law college, Pune.
Ço-author: Akshay Kotwal, IV Year of BBA.,LLB from Bharti vidhyapeeth new law college, Pune.
Co-author: Raghvendra Bajpai, II Year of B.A.,LL.B(Hons) from Institute of law Nirma university.
A citizen is a person who by birth, nationality or naturalisation is granted rights and responsibilities of the nation. As a citizen of India, a person enjoys some fundamental rights, among which is the right of freedom under article 19(1)(a) of the Indian constitution. In which there is a right to freedom of speech and expression in which a person can express his feelings, hold opinions, information and ideas and can express them. Unfortunately, some of the citizens distort the meaning of rights in showing political and sociological biases causing discordance in the society in a fashionable manner to strike at the base of our national integrity.
Herein comes the sedition law which is under section 124-A of the Indian Penal Code to protect the integrity of the country because it states that when a person does any act by his words, signs or representation which is disapproving towards the government of India. The maximum punishment is life imprisonment. When people cannot take care of the words uttered by them, then the authorities take the responsibility to punish and fine them if necessary.
In simpler meaning, sedition is an act which brings hatred or attempts to bring it or brings disaffection against the government, then he is punished for it. It has been a topic of crucial importance since the time of Elizabeth. The controversies over the law of sedition have been seen even before independence, of it being constitutional or not. Before 1832 the sedition law was more strict than in today’s time. Earlier, it was not necessary to be suspect to speak something that led others to use arms against the government. But however, it changed after 1832.
A draft was passed by the Indian law commission headed by T.B. Macaulay. Section 113 of this draft made it an offence to create disaffection towards the government. But this draft, due to some reason, could not make entry and was rejected at time. So section 113 was omitted as it was not complimenting with England because at that time India was a trial country for Britishers to test their laws. Then an amendment came to insert section 113 in IPC, and then sedition became a crime. Though at the time there was fear from Muslims, but the first person to be booked under
sedition was a Hindu who was Bal Gangadhar Tilak. He was charged in the case Queen Empress vs Bal Gangadhar Tilak There was a case in which there were many controversies and the decision was ruled many times. Shortly after the Constitution came into being, in November 1950, the High Court held Section 124-A to be unconstitutional.
However, thereafter the first amendment to the Constitution was passed in 1951, and the words “public order” were inserted as an exception to the right to free speech.Soon, in Kedar Nath vs State of Bihar (AIR 1962 SC 955), the Apex Court held that Section 124-A was a valid restriction on the fundamental right to free speech. It was held that Section 124-A was aimed at “rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence”. Merely arousing “bad feelings” or feelings of enmity or hatred towards the government would not be considered seditious.
Thereafter, in Balwant Singh vs State of Punjab, [(1995) 3 SCC 214], the appellants had been convicted for raising slogans such as “Khalistan Zindabad” in a crowded place on the day Prime Minister Indira Gandhi was assassinated. The Supreme Court held that the “raising of some slogans, a couple of times by two individuals, without anything more”, “which neither evoked any response nor reaction from anyone in the public”, was insufficient to create sedition, that “some more obvious act was necessary”. The fact that the appellants did not intend to “incite people to create disorder” and that no “law and order problem” actually occurred was held sufficient to acquit them from the charge of sedition.
SEDITION AS A LAW
Speech is a powerful weapon in this democratic country. Here people by their speech motivate people, express their views and emotions. People those who are ignorant of the happenings of the world rely on the media reports. So somewhere or the other speech is really important to the world. But sometimes we have to take care of the words uttered from our mouths and the authorities also take care of it and punish people. Here is when the law of sedition enters. The law of sedition, i.e., section 124-A of the Indian Penal Code, 1860, states that if any individual by words, visual representation or any signs brings hatred towards the government will be punished. The maximum punishment can be life imprisonment. From the British era it had be seen if you said anything about the king or queen, you were punished. Even our freedom fighters, i.e.,
Mahatma Gandhi and Bal Gangadhar Tilak, were punished because of sedition. Sedition since then was a wider law, but to govern it there were some acts passed.
Starting from Terrorist and disruptive activities, which was the first anti-terrorism act which came into force in 1985 to stop terrorist activities. This act defined terrorist activities, put restrictions on the grant of bail and gave powers to detain the suspects and attach the properties. Separate courts were set up to hear cases under TADA. In 1994, there were around 70,000 cases under trials across India under TADA. It was repealed in 1995 because of its misuse. Even the famous Sanjay Dutt case, he was in jail for many years with a tag of terrorist though in the later stage TADA was removed from his name and he was given punishment in another act for keeping the riffle without license.
Then came the Prevention of terrorist activities act POTA which replaced the TADA and POTO. The act mainly came to strengthen the anti-terrorist activities. The suspect can be kept for 180 days in custody without filing a FIR, and in this confession made to the police can be taken as evidence.Then repealing it came the Unlawful Activities Prevention Act and defined terrorism act as a crime and granted powers to the Central government to declare an organisation as unlawful and put a ban on it. Section 2(0) which defines unlawful activity under the 2004 amendment is marked with great ambivalence: It covers spoken and written words, along with any visual representation “which causes or is intended to cause disaffection against India”. This procedurally vests the government with the power to penalize any dissenting view, belief or person, which threatens the ruling dispensation. These amendments also gave the police enhanced powers of interrogation.
In this, an individual can also be seen as a terrorist. Earlier only organisations were seen. This act was stricter, and because of it many people were arrested. Some of them were very famous personalities like Kanhiya Kumar, union president of JNU, Umar Khalid, a student of JNU due to their slogans in the Delhi riots,
Tilak was charged with sedition before the Bombay High Court, in Queen Empress V Bal Gangadhar Tilak (1897).. For Strachey, sedition means “every potential type of unhealthy feeling to the government”, and that “amount and the intensity of the disaffection” was “absolutely immaterial”. It had not necessary for the suspect person to incite “mutiny, or any kind of actual disturbance, nice or small” so as to be guilty. In different words, the pre1832 in English law of seditious libels currently became the law of sedition in India. Justice Strachey delivered the charge to the jury in broad terms. He said that sedition means “the absence of affection”, that it means “hatred, enmity, contempt, and every form of ill will to the government” The IPC was amended in 1898, and Strachey’s definition of sedition replaced Macaulay’s in Section 124-A.
Kartar Singh v State of Punjab
In this case many writ petitions were filed against the terrorist affected areas, 1984 and TADA. Petitioners believed that the central legislature do not have legislative competence. Also, they believed their fundamental rights were getting violated.
The supreme Court held that the central government has the authority to make legislative competence under article 248 read with 97 of list I and entry 1 of list I with the name Defence of India. Also Central government has the authority to declare any place as a terrorist affected area.
Supreme Court also held that section 3 and 4 to be struck down as they provided some laws as the local laws, and it was not clear when a person could be prosecuted. Section 8 of terrorist and disruptive activities, 1987 is not a violation of articles 18 and 21 of the Indian constitution.
Section 9(7) of TADA act was held valid and the supreme court held that the tenure of the judge should be decided at the time of selecting him or her. Section 15 of the TADA Act was upheld for not being a violation of Article 14 and Article 21 of the Indian Constitution.
Section 19 of the Act is also not constitutionally invalid. Section 20(7) does not deprive any person of its personal liberty guaranteed under Article 21 of the Indian Constitution. Also, hon’ble High Court has the jurisdiction to entertain a bail application under the Article 226 of the Indian Constitution and may pass the orders relating to the cases under the TADA Act, 1987. But the Sec. 22 of the TADA Act was struck down for being violative and against the due,fair and reasonable procedure enshrined under Article 21 of the Indian Constitution.
Yakub Menon v State of Maharashtra
This was also a very famous case. Yakub was a famous Indian terrorist in the Mumbai blast 1993. He helped in the conspiracy and booked flight tickets of six accused of Dubai and Pakistan. He ordered arms and ammunition and purchased vehicles for them. Moreover, stockpiled the weapons.
According to CBI he was arrested on 5 Aug 1994, but he had already surrendered in July 1994 in Nepal. After his arrest, the trial was conducted under the terrorist and disruptive activities courts by P.D. Kode, and he held yakub guilty and awarded death penalty for the involvement, helping the terrorist, keeping their weapons on 27th July, 2007. Yakub filed an appeal before the supreme court under section 19 of TADA.
The Hon’ble Supreme Court advocated the decision of the lower court on 21st March, 2013, and confirmed Memon’s conviction and death sentence for participation in the conspiracy of the terrorist attack by financing it. The court held that not only connection between the mastermind and other accused, but also he helped by keeping weapons and explosive bags hidden with him, and this was stated by many co-accused in their confession. He was also engaged in hawala transactions.
And the presiding officers held him the ”mastermind” and “driving force”, behind the blasts and bombings, while Menon was claiming innocence. He filed the review petitions many times, but it was rejected. So as a last resort, the memon’s lawyer filed a plea for 14 days stay execution. Finally he was hanged on 30th July 2015 in Nagpur Central Jail.
These laws were not enough to protect sedition; that’s why the government is bringing more laws day by day and is becoming stricter towards this crime. In today’s world people are more affected by media and social media. This is affecting our sovereignty and integrity. People have started fighting among themselves on the basis of religion and caste. Moreover, this has created a hatred and disaffection towards the government too. The right to free speech and expression does not mean to speak anything. We have a right from our constitution, but to choose our wisely is our responsibility and government’s duty to punish everyone creating hatred in society.