By Maj Gen SG Vombatkere VSM (Retd)
This writer is not a legal practitioner and not educationally qualified in law. However, being one among the several Petitioners challenging the sedition law IPC Section 124A in the Hon’ble Supreme Court of India, in which the cases are sub judice, what follows is a layperson’s understanding on some of the prominent aspects of sedition.
Genesis of Section 124A
The so-called Great Indian Rebellion, also called the 1857 Sepoy Mutiny by the British, happened during the rule of the English East India Company. This upset the British Parliament sufficiently, to cause the ruling British monarch Queen Victoria, to issue a proclamation in 1858 that India would be governed by and in the name of “the Crown”. Thereby, the British Territory of India and the British Government of India, were both embodied in the ruling British Monarch. Every Indian had the political status of being a subject of the ruling British Monarch.
British control over Indian subjects
Thus, an Indian subject who expressed disaffection by conduct or speech, or by association with freedom-seeking organizations, was seen to be threatening the Crown by inciting people to rebellion. Preventing rebellion was the reason for Macaulay drafting the sedition law which was enacted finally in 1870, as Section 124A in the IPC. This law defined sedition, and prescribed the punishment for sedition against British rule.
The first case of sedition was against Jogendra Chandra Bose in 1891, for criticizing the ”Age of Consent” Bill in his journal Bangobasi. So also, Bal Gangadhar Tilak in 1897 and again in 1908, for his speeches and his writings. Mohandas Karamchand Gandhi was charged with sedition for taking part in protests against the colonial government. Jawarharlal Nehru was jailed twice for sedition, and Abul Kalam Azad and Vinayak Damodar Savarkar were also charged with sedition. These are the better known freedom fighters, but there were many others less well known, who were charged with sedition and other charges, and suffered police violence, prosecution and vicious incarceration. Our freedom did not come cheaply, as some are today led to imagine.
The British used Sedition law primarily to suppress writings, speeches and protests of prominent Indian nationalists and freedom fighters, howsoever they expressed dissent with British colonial rule. Thus, Section 124A was all about British control over Indian subjects. The British used surveillance and police intelligence agencies to detect, trace and punish what they saw as incitement to rebellion against British rule.
On 15 August 1947 we won our Independence, and on 26 January 1950, We the People declared India as a Republic, to be governed with the Constitution of India as its primary “Rule Book”. From being British subjects, Indians became citizens.
Constituent Assembly debates
The leaders of our struggle for freedom from British rule and political independence, thought of a Constitution long before Independence. Perhaps the first mention of a Constitution was by M.K.Gandhi, writing on Parliamentary Democracy in his weekly journal “Young India” dated 10 September 1931. On page 255, he wrote: “I shall strive for a Constitution, which will release India from all thralldom and patronage…”.
A Constituent Assembly was the instrument for creating a Constitution. With remarkable foresight, it was formally proposed in 1934, formed in November 1946, and assembled for the first time on 9 December 1946.
Among the many, many issues, ideas and concepts debated in 166 sessions of the Constituent Assembly, ‘Sedition’ was debated on 01 December 1948. It is archived in Volume 7 of the Constituent Assembly Debates. It is worth reading the opinions of some Constituent Assembly members concerning sedition, and the liberty and rights of citizens.
Eminent lawyer K.M.Munshi, who was also a member of the Drafting Committee, spoke [7:64:164 & 7:64:167]: “… the word ‘sedition’ is of doubtful and varying import … it is an equivocal word”. Munshi argued that the word “sedition” should be removed from the Draft Constitution, because “… it is a word which has created considerable doubt in the minds of not only members of this House, but of Courts of Law all over the world”. He also spoke that sedition “… was sometimes so widely construed” that criticism of a District Magistrate was considered as sedition, and presciently said:“… sedition cannot be invoked to minister to the wounded vanity of government”, and “… now that we have a democratic government, a line must be drawn between criticism of a government which should be welcome, and incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State”.
Damodar S. Seth, argued for “Freedom of the Press” to be inserted in the Constitution [7:64:12, 7:64:13 & 7:64:15]. He feared that if it was not included, “… we will not have any greater freedom of the press than we enjoyed under the cursed foreign regime, and citizens will have no means of getting a sedition law invalidated, however flagrantly such a law may violate their civil rights”. He said that the sedition law was of a “repressive character”.
While K.T.Shah did not speak specifically of sedition, he spoke about the liberty of the individual [7:64:129 & 7:64:130], saying: “… the autocrat, the despot, has always wished, whenever he was bankrupt of any other argument, just to shut up those who did not agree with him. It was therefore, that at any time the slightest difference of opinion was expressed, the slightest inconvenience or embarassment was likely to be caused by any individual, the only course open to those who wanted to exercise autocratic power, was to imprison or arrest or detain such a person without charge or trial”. Speaking in 1948, K.T.Shah was also thinking decades ahead of his times, like K.M.Munshi.
Consequently, the word “sedition” in Article 13(2) of the Draft Constitution was deleted from Article 19(2) of the final Constitution. This indicates the validity and strength of the arguments against the repressive nature of sedition, which goes against the fundamental rights and liberty of the People.
Even though the word “sedition” was removed from the Constitution, IPC Section 124A remains as law even today. On the other hand, Britain, which introduced sedition into the IPC in 1870 to suppress rebellion, repealed their own 1661 sedition law in 2009, for the reason that the offence of sedition was redundant, and it was not necessary to have any offence of sedition.
Rule of law vs. Rule by law
While delivering the P.D.Desai Memorial Lecture, Hon’ble CJI Sri N.V.Ramana opined [N.V.Ramana; “Rule of Law vs Rule By Law“; <https://indianexpress.com/article/opinion/columns/n-v-ramana-pd-desai-memorial-lecture-indian-judiciary-state-rule-of-law-constitution-7385031/>; The Indian Express; July 2, 2021] that in the most general sense, ‘law’ is a tool of social control used by government, but that the difference between a “just law” and an “unjust law”, are according as the ideals of justice and equity are “imbibed within” the law.
By this yardstick, sedition law is an unjust law. British colonial rulers enacted laws including the sedition law, to serve as a tool of political repression, and used them mercilessly to control their Indian subjects. That was Rule by Law, because government ruled by using laws which were devoid of justice and equity.
This was remedied by We the People as citizens, enacting the Constitution of India, which incorporates fundamental rights, and organically links laws with justice and equity. Although not justiciable, the Directive Principles of State Policy enshrined in the Constitution, are the guide-book for governments to govern by Rule of Law, and provide equity alongwith social, economic and political justice, to the People.
However, over the 75-years since Independence, successive governments of different political ideologies at centre and states, on innumerable occasions, have used Section 124A, to control people. Such control instils fear among people who may legitimately and peacefully wish to dissent from, object to, criticize or oppose governments’ proposals, programs, policies or projects, which impinge on their livelihoods, health, welfare, etc. This amounts to Rule by Law.
Let us recall K.M.Munshi saying (in December 1948) that “criticism of a government … should be welcome”, and it is different from “incitement which would undermine the security or order on which civilised life is based, or which is calculated to overthrow the State”.
The propensity of successive central and state governments to throw Section 124A at dissenters, objectors and protestors, has paradoxically increased with the maturing of our Republic, rather than diminishing. It has caused a sense of ‘chilling’ fear of arrest, of being targetted, victimised, etc.
The term “chilling effect” is adopted from the human biological stress response of hands or feet getting cold with fear. The common term “getting cold feet” denotes the apprehension or doubt of pursuing a course of action. Undeniably, a situation which may be “chilling” to one person, and cause him/her to refrain from some speech or action including self-censorship, may not be “chilling” to another person.
Possibly the first time the term “chilling effect” with the same meaning was used in legal circles, was the US Supreme Court in Wieman vs. Updegraff (1952). But chilling effect as a doctrine was established only in 1967, with Justice Brennan’s dissenting opinion in Walker v. Birmingham 388 U.S. 307 (1967).
The term “chilling effect” which has since been adopted into jurisprudence, is not uniquely defined or understood. For example, “chilling effect” in USA, refers to the concept of deterring free speech and association rights, which are protected by the First Amendment, as a result of government laws or actions that appear to target expression. This perhaps arose from the McCarthy era, during which FBI chief Edgar Hoover had conducted surveillance, and collected dossiers on the political beliefs and associations of millions of American citizens on suspicion of holding un-American views, or engaging in activities which were considered undesirable.
“Chilling effect” is also described as the inhibition or discouragement of the legitimate exercise of natural and legal rights by threat of legal sanction. Chilling effect may be caused by the threat posed by a law like Section 124A.
The law of criminal defamation in IPC Section 501, has a “chilling effect” because it has been used by wealthy or powerful persons or big corporations, against individuals who lead protests opposing their projects or policies. Strategic lawsuits against public participation (shortened to SLAPP), are slapped on critics or opposers with the intention of burdening them with the cost of a legal defense and other consequences, thereby effectively censoring, silencing or intimidating them. Laws such as these, enable governments and powerful non-statal entities to rule by fear, and without justice and equity. [There are other laws which have a “chilling effect”, but they are not discussed here].
In the context of journalism, the “chilling effect” of some laws reduces, suppresses, discourages, delays or retards reporting events or people’s concerns, because it may embarass powerful persons or governments. This works against the principles of true journalism.
Punishment by process has “chilling effect”
The IPC is a legal tool available to government officials to handle law and order situations. The IPC has historically been used to control individuals and groups. Over several decades, government officials have been legitimately, and perhaps as often falsely or motivatedly, filing FIRs against individuals.
In more recent times, individual citizens have also begun using these laws to file FIRs to further personal or political agendas including vendetta, for supposed insult or criticism, or even for criticizing some third person holding high office. This, combined with the willingness of lower courts to readily admit cases, causes a “chilling effect”.
False or motivated FIRs are a flagrant misuse of law. The person named in a FIR becomes embroiled in a criminal justice process that saps his/her resources. Those who misuse the law in this way, are often well aware that the offence named in the FIR is unlikely to stand in a Court, and that the person named is likely to be acquitted. But false or motivated FIRs are filed precisely because cases drag on for years, the person named remains an “undertrial” in custody, and in any case, even if bail is granted, their reputation is irretrievably damaged, and they are socially and economically ruined. Even if the trial ends in acquittal, the individual is effectively punished by the criminal justice process. This has been named “punishment by process”.
The threat of being targeted, and subjected to physical confinement and possible ill-treatment in custody, and to punishment by process, has undoubted “chilling effect” of inhibiting free speech and association rights assured by Article 19(1).
Laws like Section 124A have a “chilling effect”, because of the combination of unaccountability and arbitrariness in exercise of power, the in-built official intransparency and, most regrettably, the unwritten presumption that the accused person is guilty until he/she proves otherwise.
There are thousands of sedition cases filed over the decades since 1950, and Courts have expressed their concern on the arbitrariness with which cases are filed.
Some recent views on sedition
One view is that Section 124A must be amended to make it less prone to misuse, but retained in the statute book. Another view trivializes the principled opposition to sedition law, saying that arguments opposing it are not really against the law per se, but against the ease with which sedition can be applied, thus skirting the “chilling effect” of sedition.
In the on-going bunch of Petitions opposing Section 124A in Supreme Court, Union of India (Government) was arguing in support of Section 124A, especially for protecting the country’s integrity and sovereignty. However, in an Affidavit, Government unexpectedly altered its stance, and offered to review Section 124A, without indicating a time-line or the agency for its review.
A review conducted by Government – possibly including tabling in Parliament – can result in Section 124A remaining unchanged, or Section 124A being amended, or repeal of Section 124A. Whichever the outcome, the offer of review followed by a minister speaking of a “Lakshman rekha”, is difficult to understand without commenting on the possibility of political expediency as a strategem. Such a comment cannot find a place in this talk.
Brief post-1950 history of sedition and fundamental rights
Since sedition law Section 124A is closely connected with fundamental rights, it is interesting to look at court decisions on both matters, following the Constitution coming into force on 26 January 1950.
# The first instance of courts upholding fundamental rights of expression and association, is the Madras High Court ruling in V.G.Row vs. State of Madras on 14 September 1950. The Supreme Court upheld this decision on 31 March 1952 in State of Madras vs. V.G.Row’.
# The Punjab High Court struck down Section 124A in Tara Singh Gopi Chand vs. State of Punjab on 28 November 1950, ruling that it was contrary to the freedom of speech and expression, and unconstitutional.
# The Allahabad High Court in Sabir Raza vs. State (1958), ruled that Section 124A was ultra vires of the Constitution, and void.
# The Allahabad High Court in Ram Nandan vs. State (1958), ruled that Section 124A was ultra vires of the Constitution, and void.
# However, in Kedar Nath Singh v. State of Bihar (1962), the Supreme Court overturned the Allahabad High Court judgment in Ram Nandan vs. State (1958).
The Supreme Court upheld the constitutionality of Section 124A, but it differentiated between disloyalty to the Government, and making comments regarding the measures of Government, without inciting public disorder through acts of violence.
Therefore, even with Section 124A remaining in force, mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence, unless they are being used to incite mobs or crowds to violent action.
Basis of seeking abolition of sedition law Section 124A
The following discussion is with reference to the 1962 Supreme Court order in Kedar Nath Singh v. State of Bihar (1962), which upheld the constitutionality of Section 124A.
There are six fundamental rights set out in Article 14 through Article 35 of Part III of the Constitution.
A layperson in legal matters understands that the six fundamental rights form an integral whole, and are so connected, that loss of one freedom can adversely impinge upon another freedom. For the purpose of our present discussion on Section 124A, we may note the connection between the six parts of Article 19(1) (a) to (g), and between the Right to Freedom (Article 19), the Right to Equality before Law (Article 14), and the Right to Life and Personal Liberty (Article 21).
In legal terms, it is argued that the jurisprudence of fundamental rights was established by the decision in R.C Cooper v. Union of India AIR 1970, later reaffirmed and strengthened in Indira Gandhi v. Raj Narain 1975; Maneka Gandhi v. Union of India 1978; and I R Coelho v. State of Tamil Nadu 2007, and most recently in Puttaswamy v. Union of India 2018. These establish that fundamental rights in the Constitution are not to be read in isolation, but are to be read as if the content of each fundamental right animates the other.
106 years from Section 124A to International Covenant 1976
India ratified the International Covenant of Civil and Political Rights in 1976. This Covenant requires that speech-limiting action by the State needs to be backed by a law. It also requires that the State may take action to limit speech, when it is necessary to protect the rights and reputations of others, or for national security.
The jurisprudence of this International Covenant accepted by India in 1976, could not have entered the judicial mind in 1962 during Kedar Nath Singh v. State of Bihar, while interpreting the fundamental rights enshrined in our Constitution. However, the provisions of this International Convenant were considered in interpreting fundamental rights in 1980, in Jolly Varghese v. Bank of Cochin.
Testing Section 124A – intent, effect and reasonableness
In the context of Section 124A, merely testing whether its intent is covered under the exceptions to the freedom of speech under Article 19(2) of the Constitution, may not be an adequate test for a legislative provision to pass constitutional muster. For it to be adequate, the effect of Section 124A needs to be taken into account.
The phraseology of Section 124A, includes words and phrases like disaffection and contempt toward government, which are ambiguous, or “of doubtful and varying import” or“equivocal”, to quote K.M.Munshi during the Constitution Assembly debates. This ambiguity allows wide interpretation or misinterpretation, erroneously or deliberately, to accuse a person of sedition under Section 124A. Thus, the effect of Section 124A is the creation of a “chilling effect” on speech, which may reasonably be understood as invasion of the right of free speech under Article 19(1)(a).
Therefore, the reasonableness of the restriction of free speech under Article 19(2) due to Section 124A, needs to be considered afresh, considering procedural as well as substantive due process embodied in Article 14 and Article 21.
The jurisprudence of testing legislation which may curtail fundamental rights, in respect of substantive and procedural reasonableness, necessity and proportionality, by reading Article 19 along with Articles 14 and 21, evolved from Maneka Gandhi v. Union of India 1978.
The foregoing leads to the understanding that the burden of showing the necessity to impose limitations on free speech in a democratic society, devolves upon the State.
The ‘reasonableness’ of restrictions in Article 19(2), also has to be tested on the basis of whether the State action limiting free speech is ‘proportionate’. The understanding of the doctrine of proportionality is that the burden of showing that the rights-limiting measure is the least restrictive of all available alternatives, devolves upon the State.
Indeed, in Gujarat Mazdoor Sabha v. The State of Gujarat 2020, Supreme Court held that a law interfering with fundamental rights
# Must be in pursuance of a legitimate state aim;
# The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties, must be based on the existence of a rational connection between those measures, the situation in fact, and the object sought to be achieved;
# The measures must be necessary to achieve the object, and must not infringe rights to an extent greater than is necessary to fulfil the aim;
# Restrictions must not only serve legitimate purposes, but must also be necessary to protect them; and
# The State should provide sufficient safeguards against the abuse of such interference.
The judicial mind may need to consider the probability of Section 124A causing a psychological barrier due to the “chilling effect”, in unfettered exercise of the right of free speech.
The constitutionality of Section 124A
Section 124A was inserted into IPC 1860, as an amendment in 1870. This was 80 years before the Constitution of India 1950. Hence there could not have been any consideration of constitutionality concerning inserting sedition into the IPC. Also, we should not forget that, based upon arguments against the word “sedition” in the Draft Constitution, the word “sedition” was omitted in the promulgated Constitution of India 1950.
The Court re-examined the constitutionality of IPC Section 377 in Navtej Johar v. Union of India (2018), and articulated that the substance of Section 124A, which is a pre-Constitutional legislation, cannot be presumed to be constitutional.
Significantly, UK repealed their own 1661 sedition law in 2009, for the reason that the offence of sedition was redundant and it was not necessary to have any offence of sedition.
The short and not-so-sweet-for-some conclusions of this discussion of sedition law Section 124A, are that:
# It is a pre-Independence, pre-Constitution law.
# It lacks justice and equity and is an unjust law.
# It is an unreasonable restriction on free exercise of fundamental rights.
# It has a “chilling effect” on freedom and free exercise of fundamental rights.
# It is amenable to easy misuse to inflict punishment by process.
# Amending the law cannot remedy its fundamental defects, and
# It is undesirable in a democracy.
For the foregoing reasons, Section 124A deserves to be struck down by the Hon’ble Supreme Court as being unconstitutional, and removed from the statute book.
[Acknowledgement: This is based on an Online Talk “Striking Down Sedition”, delivered at Citizens’ Forum India (CFI), <firstname.lastname@example.org>, Saturday June 18, 2022]
Maj Gen S.G.Vombatkere, VSM, joined the Indian Army in 1961, was commissioned into the Corps of Engineers, and retired in 1996, from the post of Additional DG in charge of Discipline & Vigilance in Army Headquarters, New Delhi.