Sedition lies in the effect, not in content Â
Context: Recent charges of sedition against individuals have brought back focus to a law introduced in the Indian Penal Code in 1870.
Background:
- In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of sedition and noted it as being a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
- It made clear that a citizen has the right to say or write whatever she likes about the government, or its measures, by way of criticism or comments, as long as she does not incite people to violence against the government established by law or with the intention of creating public disorder.
Why the law needs a relook:
- Following the Kedar Nath case, the Bombay High Court, in the case of cartoonist Aseem Trivedi, issued guidelines which the police must follow prior to invoking the provisions of sedition.
- These inter alia include an objective evaluation of the material to form an opinion on whether the words and actions cause disaffection, enmity and disloyalty to the government as they must be of the magnitude that they incite violence or tend to create public disorder.
- The Court also directed obtaining a legal opinion in writing from a law officer of the district who must give reasons on how the pre-conditions are met.
- This needs to be followed by a second opinion from the State’s public prosecutor.
- And while courts have on numerous occasions cautioned law enforcement agencies not to misuse the provisions on sedition, and follow court directions, regrettably, they are grossly ignored. The problem therefore lies in the poor implementation of the law and guidelines.
- This data and the gross misuse of the legal provisions compel one to state that even though a Constitution Bench upheld the vires of the law of sedition, the circumstances now require a complete relook at the provision.
- After all, when the situation changes, the statute calls for a change as law cannot afford to remain static.
- In the Internet age, where we are all consumed by social media and where information travels at the speed of lightning, what can lead to public disorder has itself become debatable.
- The K. repealed the offence of sedition in 2010 and India is holding onto a relic of the British Empire.
- As recently as 2018, the Law Commission of India sought consideration on whether keeping Section 124A would serve any purpose and whether reducing the rigour of the law of sedition would be detrimental or beneficial to the nation. The outcome of this consultative paper is unknown, but the discussion needs to be rekindled.
An effect-based test:
- And till the law on sedition continues to remain on our statute book, courts must adopt what some Western countries follow: an effect-based test which examines the effects of the seditious text rather than a content-based test which reviews the text alone.
- The issue is not about liberals, the right wing, conservatives or the left wing. It’s about India as one nation. It’s about following our syncretic traditions and accepting that in a country of over 1.3 billion people, our unity rests in our diversity.
Conclusion:
- If we do this, the only ‘toolkit’ we all really need is our Constitution and the principles it enshrines to protect citizen freedoms, life and liberty.
- The hashtags we all need to spread and make trend are the ones which detail the #RuleOfLaw and our commitment to it and the values it puts forward as regards executive excesses and judicial restraint.
- It is not the alleged seditious acts that are creating fragments in our society; it is in fact the persecution of individuals and labelling them that are really creating cracks in our socio-politico ecosystem. In the words of Martin Luther King, Jr. “We must learn to live together as brothers or perish together as fools.”
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