A Constitution Bench of the Supreme Court, in its landmark decision titled Kedar Nath Singh v. State of Bihar traced the history of the law of sedition in India. Originally, section 113 of Macaulay’s Draft Penal Code of 1837-39 contained provisions on sedition, but this was omitted from the Indian Penal Code of 1860. Only in 1870 was sedition incorporated to the Code via section 124A and has since gone through several iterations. The amendment of 1898 was significant in that it replaced the single explanation to the section with three separate explanations as they stand today. Successive changes were made to the provision in 1937, 1948 and 1950, as a result of the Constitutional changes in India. However, these changes, predominantly to the body of the section, were to reflect the election of a democratic government in India.

One wonders, if the law provides this protection, then why is this archaic, yet powerful law often used to quell political dissent?

The challenge, in 1962, to the constitutional validity of Section 124A in the Kedar Nath case was primarily on the ground that the law of Sedition was “inconsistent” with the right to free speech and expression, enshrined in Article 19(1)(a). The Constitution Bench, rejected such contentions, upheld the Constitutional validity and noted that it fell within the contours of being a reasonable restriction on free speech as provided in Article 19(2). The Bench held “the provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim 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. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order.” The Constitution Bench went on to observe that when “interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress…Viewed in that light, we [Court] have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

The Supreme Court further noted that, “the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.”

The above extracts make amply clear that dissent is not sedition. In fact, free speech, discussions on matters of government functioning and their criticism and freedom of press are “essential for the proper functioning of the processes of popular government.” Of course, “a freedom of such amplitude might involve risks of abuse.” But as noted by James Madison, father of the First Amendment to the American Constitution “it is better to leave a few of its noxious branches to their luxuriant growth, then, by pruning them away, to injure the vigour of those yielding the proper fruits.”

Consequently, a citizen has the right to say or write whatever she likes about the Government, or its measures, by way of criticism or comments, so long as she does not incite people to violence against the Government established by law or with the intention of creating public disorder. One wonders, if the law provides this protection then why is this archaic, yet a powerful law, often used to quell all forms of political dissent? The answer, even if overtly simplistic, is poor implementation of the law and the authorities not following directions laid down by Courts.

Following the Kedar Nath case, the Bombay High Court, in the case of cartoonist Aseem Trivedi, issued guidelines to be followed by the police while 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. For this reason, the Court also directed that a legal opinion be obtained in writing from a law officer of the district which gives reasons addressing these pre-conditions. This needs to be immediately followed by a legal opinion from the public prosecutor of the State.

And while Courts have on numerous occasions cautioned law enforcement agencies not to misuse the provisions relating to sedition, regrettably, they are grossly ignored, which has resulted in the filing of several petitions to seek their implementation. The problem therefore lies in the poor implementation of the law.

This is evident from recent reports based on data from the National Crime Records Bureau (NCRB), which details that between 2016 and 2019, the number of cases filed under Section 124A have increased by 160% while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016. Notably, many of those charged were individuals protesting executive decisions or certain actions of the government, which as per the Constitution Bench in Kedar Nath, falls outside the ambit of sedition. Consequently, the staggering numbers have got people to comment that “the aim is not to punish or convict anyone but to incarcerate them… the process itself is the punishment.”

This data and the gross misuse of the legal provisions compel one to state that even though a Constitution Bench has 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 law cannot afford to remain static. The law must keep pace with the changes and expectations of society and the needs of the vulnerable.

Relying on a celebrated decision of the House of Lords, another Constitution Bench of our Supreme Court held “law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise... We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order.”

Interesting, the present situation is the reverse. United Kingdom repealed the offence of sedition in 2010 and we in India are holding onto a relic of the British Empire which was intended to serve a very different purpose in relation to the rule of the Crown. As recent as 2018, the Law Commission of India took note of this and issued a consultation paper seeking suggestions on how far it is justified to retain section 124A, especially in view of the fact that there are several statutes which take care of various acts which were earlier considered seditious. It also 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. Response was also invited on whether sedition needs to be redefined and what possible safeguards could be introduced to ensure that this law is not misused. And while the outcome of this consultative paper is unknown, the latest NCRB data lends support to the fact that the discussion needs to be rekindled.

Till that happens and till the law on Sedition continues on our statute books, the Courts must prescribe and adopt what some Western countries, where Sedition laws exist, do – follow an effect-based test, which examines the effects of the Seditious text, rather than a content-based test, which reviews the text alone. One hopes this will help mitigate the ill-effects of the law and its implementation.

As an Additional Sessions Judge who heard Disha Ravi’s bail plea recently noted while granting bail in another case on sedition “the law of sedition is a powerful tool in the hands of the state to maintain peace and order in the society. However, it cannot be invoked to quieten the disquiet under the pretence of muzzling the miscreants.”

Not for a minute is one saying that the perpetrators of violence must not be brought to book. They must, but following the process established by law.

The issue is not about liberals or right-wing or conservatives and left-wing. It’s about India as one nation. It’s about following our syncretic traditions and accepting that in a country of 1.2 billion people our unity rests in our diversity. After all, Vedic spirituality as one of its core ideas postulates “Aano Bhadrah Kratvo Yantu Vishwatah” - Let noble thoughts come to us from all directions.

Following this sagacious advice, rather than asking those with a different view or belief system to prove their nationalism, let us prove ours by respecting the principles of Justice, Liberty, Equality and Fraternity as noted in the Preamble to our Constitution which assures to all individuals dignity and unity and integrity of the nation above all-else. Instead of repeatedly calling into question the allegiance of those who dare to think differently and muster up the courage to voice their dissent let us prove ourselves by reforming our mind-set and accepting that in a healthy democracy there simply cannot be a fixed procrustean rule.

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 details the #Rule Of Law and our commitment to it and the values it puts forward as regards executive excesses and judicial restraint. What we must ‘disseminate’ on all social media outlets is our allegiance to due process, the need for speedy trials and our commitment to the doctrine of presumption of innocence. 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.”

The author is an advocate based in New Delhi. A graduate of Harvard Law School, he is admitted to practice in India and New York.

Incidentally, he is the grandson of the lawyer who represented the Attorney General for India in the Kedar Nath Singh Case and connected appeals. He can be reached at svarma@indlawchambers.com.