The Supreme Court on Thursday expressed concern over the abuse of the sedition law and lack of Executive accountability for the same. Authorities have enormous potential to misuse it, and this poses a threat to the functioning of democracy, Chief Justice of India NV Ramana had said.
The top court was hearing retired army official SG Vombatkere's plea challenging the constitutional validity of section 124A of the Indian Penal Code (IPC) which penalises sedition. Earlier this year in February, the top court issued notice on journalist Kishorechandra Wangkchem's plea challenging the constitutionality of the sedition law.
Increasingly, criticism of the ruling-dispensation is viewed as creating disfavour and disaffection toward the country. According to the National Crime Records Bureau (NCRB), between the years 2016-2019, the number of sedition cases rose by 160% even as the conviction rate dropped to 3.3% in 2019 from 33.3% in 2016. BJP-ruled states like Karnataka (96), (17), and Uttar Pradesh (10) registered the maximum number of cases in 2019. Jammu & Kashmir with 11 cases was under the President's rule at the time.
In May 2021, Justice DY Chandrachud observed that a law like sedition had no place in modern democracy and it was time "to define the limits of sedition" while barring Andra Pradesh from taking coercive action against two Andhra-based news channels for their coverage of COVID in the state.
In fact, while hearing the matter prior to this one, Justice Chandrachud made a backhand comment when he stated about how he had read a news report about a dead body thrown into river and whether a sedition case has been filed against the news channel yet.
Justice Chandrachud's comment reflects the phenomenon which suggests that there is an uptick in the number of sedition cases against government critics.
The evolution of sedition can be traced from Britain's oldest laws like the Statute of Westminster 1275 when principles of the feudal society's and the divine right of the King could not be questioned, to its introduction in Thomas Macaulay's Indian Penal Code till 1973. The then Prime Minister Indira Gandhi made it a cognizable offence, which means you can be arrested without a warrant.
What is Sedition?
According to Section 124A of the Indian Penal Code, 1860, any act which tries to incite hatred, disaffection, or contempt towards the nation is sedition. Those who are charged with sedition are looked upon as anti-nationals and if convicted can attract a jail term of a period of three years to life, with or without a fine.
From freedom fighters like Mahatma Gandhi and Lokmanya Tilak to modern-day political activists like former JNU student leader Kanhaiya Kumar and environmental activist, Disha Ravi have faced charges of sedition. Journalists and political leaders alike have been booked for sedition.
Thomas Macaulay, who drafted the Indian Penal Code, had introduced sedition under section 113. However, for reasons unknown, sedition did not make it in the final IPC, which was enacted in 1860. 10 years later, the IPC was amended to include sedition under the title "Exciting Disaffection" at the suggestion of James Fitzjames Stephen, who handled government affairs at the time. Sedition has undergone several amendments pre- and post-independence, however the current version is similar to the amendment done in 1898.
Mahatma Gandhi and Lokmanya Tilak's sedition trials are historically famous. It was during his trial when Gandhi referred to sedition as "the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".
The Use or Misuse of sedition in the modern context
Sedition is a tool that has been equally used or rather misused by all political parties in power. In 1951, while introducing the First Amendment to the Constitution in Parliament, then Prime Minister Jawaharlal Nehru—who had been tried and convicted for sedition during British rule—had said, "Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better."
However, he had added, "We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in variety of ways and apart from the logic of the situation, our urges are against it."
An independent database compiled by Article-14, suggests that since 2010 nearly 11,000 individuals have been booked in 816 cases. Of these, 65% of the cases were registered after 2014, when Prime Minister Narendra Modi came to power.
NCRB data says even as registration of sedition cases has increased 160% between the years 2016-2019, the conviction rate fell from 33.3% in 2016 to 3.3% in 2019.
Those who have been critical of the ruling dispensation are bearing the brunt of the law's misuse. Article-14's data suggests BJP-ruled states filed 22 of 25 sedition cases involving 3,700 people in the aftermath of the protest movement against the Citizenship Amendment Act (CAA), 2019, and 26 of 27 sedition cases involving 42 persons after the Pulwama attack.
In 2019, the Uttar Pradesh government had arrested journalist Prashant Kanojia for a Twitter post targeted at the state Chief Minister Yogi Adityanath. However, Kanojia is not alone in facing government ire. Journalists like Arundhati Roy, Kishorechandra Wangkchem, Bastar-based Kamal Shukla, Vinod Dua, Rajdeep Sardesai, Mrinal Pande, Vinod Jose, Zafar Agha, Paresh Nath, and Anant Nath are among a few who are facing or have faced sedition charges. Wangkchem has challenged the constitutional validity of sedition, and the court will hear his matter soon.
India ranked 142 in the 2021 World Press Freedom Index, produced by Reporters Without Borders (RSF). India's ranking has steadily declined since 2016 when it was placed at 133. The report concluded that India is one of the world's most dangerous countries for journalism where they are exposed to attacks by police violence against reporters, ambushes by political activists, and reprisals instigated by criminal groups or corrupt local officials.
The Editor's Guild of India has called out the government excess against scribes by booking them for sedition. The Guild is also one of the challengers to the sedition law in the present case.
The Delhi Police has booked at least 18 individuals on charges of sedition (and other charges) for conspiring and allegedly orchestrating the February 2020 communal riots in North-East Delhi. Prominent individuals include student leaders and civil rights' leaders who participated in the CAA protests, which directly led to the riots.
Congress leader UT Khader faced sedition for his speech following the anti-CAA protests. Paediatrician Dr. Kafeel Khan too was booked for sedition for speaking against the CAA. In November 2019, Bengaluru police booked former chief ministers Siddaramaiah and H D Kumaraswamy, along with senior Congress leaders and the Janata Dal (S) leaders on sedition charges for protesting against the income tax department.
In fact, in 2015 senior BJP leader Arun Jaitley dodged the sedition bullet over a Facebook post criticising the Supreme Court's ruling in the NJAC case. If the Allahabad High Court had not intervened, Jaitley would be facing trial for allegedly trying to "excite disaffection towards the government established by law".
During 2017-2018, in the Khunti district of Jharkhand, BJP's Raghubir Das-led government booked at least 10,000 people with sedition for their support of the Pathalgadi movement. The pathalgadi movement is a tribal custom of the people of Jharkhand where stones are erected on a) tombs; b) to honour ancestors; c) announcement of important decisions; d) or simply to mark village boundaries.
Even Amnesty International, a global rights' organization is facing sedition charges.
India's ranking slipped two places to the 53rd position in The Economist Intelligence Unit's 2020 Democracy Index. EIU's report stated that India's ranking was affected by "democratic backsliding" and authorities' "crackdowns" on civil liberties.
The March 2021 reports published by US-based Freedom House report calling India a "partially free democracy" and Sweden-based V-Dem Institute's report saying India is an "elected autocracy" are damning indictments of the country's slide from democracy.
Criticism to sedition
Critics have called sedition tyrannical and a hangover from colonial times. Former journalist Aakar Patel, and executive director of Amnesty International India said "sedition" has become an easy tool to stifle dissent.
The Editor's Guild calls it "draconian" and has demanded the law be repealed. "We have noticed, with dismay, a growing trend in India in recent times where both central and state governments have routinely slapped sedition charges on journalists for articles, tweets, Facebook posts that criticise government policies…In January 2021, IWPC founder member Mrinal Pande and some other journalists were booked for sedition for tweets relating to farmers' protest," the Delhi-based Indian Women Press Corps (IWPC) said.
In 2019, ahead of the Lok Sabha election, ironically the Congress manifesto proposed to repeal sedition. However, it must be pointed, that Indira Gandhi made sedition a cognizable offence in 1973 when she was prime minister. In fact, sedition was introduced in the Constitution post-independence during Jawaharlal Nehru's—he was tried for sedition twice during British times—reign.
In an opinion piece, advocate Abhinav Chandrachud said that even though the British made sedition harsher in India than it was in England, independent India had made it more potent than ever.
What do courts say on sedition?
The Supreme Court has repeatedly underscored that criticism of the government is not sedition. In 1951, the Punjab High Court in Tara Singh Gopi Chand said Section 124A was unconstitutional. Eight years later, the Allahabad High Court said sedition struck at the very root of free speech.
In the landmark 1962 Kedar Nath Singh verdict, the Supreme Court upheld the constitutional validity of sedition but limited its scope. The court said only speech that incites violence or public disorder is seditious. Anything else is exempt.
"Mere strong words used to express disapprobation of the measures of the government with a view to their improvement or alteration by lawful means" is not sedition, the judgment had said.
In the 1995 Balwant Singh and Bhupinder Singh verdict, the supreme court had ruled that sedition did not apply in cases where slogans raised by individuals did not incite violence.
More recently in June 2021, the Supreme Court reminded the Himachal Pradesh government of its Kedar Nath ruling while absolving Vinod Dua of sedition charges.
British law still in use in UK?
Interestingly, Britain, which introduced India to the sedition law, abolished the same in 2009.
Claire Ward, the Parliamentary Under Secretary of State at the Ministry of Justice of UK at the time had said: "The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom. Abolishing these offences will allow the UK to take a lead in challenging similar laws in other countries, where they are used to suppress free speech."