Updated: Feb 25
The Britishers introduced numerous laws in India, to maintain they stronghold and to resist freedom movements, out of which many were amended with time, to suit the modern needs of the country. One such law of the pre-Independence era is the law governing seditious activities in India. It has been modified and interpreted to cater to the needs of modern society. However, it continues to act as an effective way to curb free speech and dissent towards the Government.
“Freedom of press is a precious privilege that no country can forego.” ― Mahatma Gandhi
Freedom of speech and expression is a part of the basic structure of the constitution as well as the backbone of a democracy. Dissent is essential to keep a check on the policy-making and governance of the state. Looking in the preamble of the Constitution of India, the emphasis on the people and the citizens, who have given this constitution to themselves and they are the main stakeholders of the democracy, in itself proves that the role of citizens acting as a watchdog of the state in quintessential and cannot be challenged. However, this right as others has its own limitation as set by the Supreme Court of India from time to time. In the cases of Ramlila Maidan in 2012 and the Anti-CAA Protests in 2020 the Hon’ble Court held that the citizens have a fundamental right to assembly and peaceful protest that cannot be taken away by an arbitrary executive or legislative action, however, the demonstrations expressing dissent have to be in designated places alone.
“Let me never fall into the vulgar mistake of dreaming that I am persecuted whenever I am contradicted.” ― Ralph Waldo Emerson
The idea is that instead of trying to suppress these kinds of protests and agitating the citizens of the country, it is the responsibility of the state to take steps at the initial stages to reduce the friction as much as possible through explanations and healthy dialogue. The state had, has and will have this responsibility of explaining the reforms through any means possible or required, towards its citizens. Taking the current scenario in consideration, the farms' act, 2020 is not an absolute promotion of the capitalism in the country but it also paves the way for the farmers for newer and greater opportunities, which the state was not able to and is not willing to take responsibility to explain these reforms. The intent behind such dissents is never to shaken the governance or law and order of the country but have the opportunity to be heard, they are inflicted out of a need of survival and livelihood so that the state can make better decisions for the citizens. Why is it wrong to hear an opinion of the people for whom you are bringing in reforms?
“Everyone is in favor of free speech. Hardly a day passes without its being extolled, but some people's idea of it is that they are free to say what they like, but if anyone else says anything back, that is an outrage.” ― Winston Churchill
Let’s talk about a paradox which is almost a century old and still, it is used to fulfil political agendas and allowed by people knowingly – The Sedition vs. Freedom of Speech & Expression.
Sedition – 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 excite disaffection towards, the Government established by law in, 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.
Article 19 of the Constitution of India, 1950 – Protection of certain rights regarding freedom of speech etc.,
All citizens shall have the right
1. to freedom of speech and expression;
2. to assemble peaceably and without arms;
The above provisions have a huge impact on the country because one forms a part of the Substantial Criminal Law and other is a fundamental right guaranteed by the constitution of India. The democracy is following provision which at one hand ensures healthy criticism or dissent and on the other punishes to whoever delivers it. Sedition came with IPC in 1860, majorly to gain control over India’s chances of freedom struggle and regulate criminal jurisprudence for centuries. When the freedom struggle started during the 19th and 20th Centuries in India, the citizens of India started to analyze and criticize the British Government and its rule in India. Many leaders and freedom fighters made speeches and printed news criticizing the British Government in numerous languages. Hence, the Britishers drafted major Acts like the Dramatic performances Act, 1876, and the Vernacular Press Act, 1978, which were passed to control oral, written, pictorial, or performance-based creative expressions and for controlling the Indian Newspapers and journals. Regardless of these measures, the freedom struggle continued. To curb this fast-spreading dissent, the British Government enacted stricter laws, and as a result, the sedition laws came into play. Various leaders like Bal Gangadhar Tilak, Mahatma Gandhiji, etc., were charged and arrested under sedition. The Constituent Assembly itself debated against the law of sedition and opined –
“If we find that the government for the time being has a knack of entrenching itself, however had its administration might be it must be the fundamental right of every citizen in the country to overthrow that government without violence, by persuading the people, by exposing its faults in the administration, its method of working and so on. The word `sedition' has become obnoxious in the previous regime. We had therefore approved of the amendment that the word `sedition' ought to be removed, except in cases where the entire state itself is sought to be overthrown or undermined by force or otherwise, leading to public disorder; but any attack on the government itself ought not to be made an offence under the law. We have gained that freedom and we have ensured that no government could possibly entrench itself, unless the speeches lead to an overthrow of the State altogether.” ― Shri M. Ananthasayanam Ayyangar
In furtherance of which, the Constituent Assembly concluded that sedition is a restriction on the Freedom of Speech and Expression was termed as a shadow of colonial times that should not see the light of the day in free India. They were unanimous in having the word ‘sedition’ deleted from Article 13 of the Draft Constitution, as a result of its vehement opposition.
It was the decision of the Hon’ble Supreme Court of India in Kedar Nath v State of Bihar in 1962 because of which Sedition is still an offence under IPC.
The Court upheld the validity of Section 124-A by drawing a line between the terms ‘Government established by law’ and ‘the persons for the time being engaged in carrying on the administration’. It was observed that ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing it into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency of the public disorder by the use of actual violence or incitement to violence.
“A citizen has a right to say or write whatever he likes about the Government or its measures by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of destroying the public order,” said, the Court.
Abraham Lincoln defined democracy as of the people, by the people and for the people; where people not only play a role in elections but day to day affairs of governance. It is not only their right but also a duty to have an opinion about the functioning of the democratic government and question it when and if necessary and the state is obligated to answer but if that raised question threatens the very existence of the government due to its actions then it cannot be said that the question itself is anti-national because the question is not against the nation, neither it has the intention to encourage public violence, it is just a question asked to understand and opine over a government’s action – A QUESTION.