The slippery slope of constitutionality
Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression, subject only to Article 19(2).
This states that any law may impose ‘reasonable restrictions’ on the following grounds: interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation etc.
In the 1940s, debates sprung up in the Parliament, debating whether sedition should be added as a reasonable restriction. The makers of the constitution were against it – barring a handful of ministers, and it was almost unanimously rejected.
Jawaharlal Nehru, the first Prime Minister of India, said that Section 124A was ‘highly objectionable and obnoxious and …[t]he sooner we get rid of it the better.’ However, it was never repealed from the Indian Penal Code.
In 1962, a five-judge bench of the Supreme Court ruled in the case of Kedar Nath v. State of Bihar that Section 124A was valid and constitutional.
The Court held that ‘public order’, which is one of the ‘reasonable restrictions’ under the right to freedom of speech and expression under Article 19 should be kept in mind while discussing the validity of this law.
Since then, the Supreme Court has not had the opportunity to discuss the issue of its constitutionality.
Regardless, it is an established principle that if a law has multiple interpretations, with one interpretation calling it unconstitutional and the other one calling it constitutional, the court will favour the latter.
In 2017, 17 men across the states of Madhya Pradesh and Karnataka had been charged with sedition for allegedly cheering in support of rival nation Pakistan’s cricket team in a match against India.
In response, the Chairman of the National Commission for Minorities Ghayorul Hasan Rizvi was found saying that those who support Pakistan by celebrating their sporting achievements should cross the border and go to there, ‘or better still, be deported there.’
In spite of the rapid increase in cases, the conviction rate in 2019 was only 3.3%. Of the 96 people charged that year, only 2 could be convicted of sedition.
Legal experts say that several are being accused despite not meeting the sedition criteria allegedly to silence dissent.
In 2017, a tribal movement began in the state of Jharkhand demanding land rights. The movement was called ‘Pathalgadi’, which means the laying of stones.
As a part of the movement, tribals began erecting stone monoliths that were engraved with some provisions of the Indian Constitution; these provisions highlighted the special autonomy that was granted to them. In response, the police filed FIRs against more than 10,000 tribals.
In another case, about 9,000 people in the state of Tamil Nadu had been booked for sedition between 2011 and 2013 for opposing the establishment of a nuclear facility. In fact, the demonstrations started soon after the Fukushima nuclear disaster in Japan.
The protestors lived in close proximity to the nuclear power plant and were opposing the facility because it would be difficult to evacuate during a nuclear emergency.
The state government reacted by ordering the police to file FIRs against the demonstrators and detain them.
The argument to retain Section 124 A
A major part of the criticism that the law receives is that it is being blatantly misused.
Solicitor General Satya Pal Jain pointed out that there is no law that cannot be misused in a news panel debate. He further implied that to do away with Section 124 A because of its false application is not an apt solution to the abuse of power.
Vikas Singh, a senior advocate at the Supreme Court, said that the Parliament should amend Section 124 A to bring it in line with the Kedar Nath v. State of Bihar judgement.
This would include an explanation that specifically mentions that there must be ‘incitement of violence’ in order for an act to qualify as sedition.
In reality, it is the judiciary and the executive’s job to protect citizens’ freedom of speech.
Hence, it is the duty of the Parliament to ensure that legislations do not violate fundamental rights and the court must ensure that innocent citizens do not get imprisoned for a crime that they did not commit.
Section 124 A is a pre-constitutional law that was created by the colonial regime to stifle the voices of freedom fighters.
The very government that introduced sedition in India abolished their own sedition law in 2009.
Some say that the law is archaic and draconian, while others argue that the law is not to be blamed- its application is.
But this isn’t a simple ‘right or wrong’ issue; the law has been in existence for decades and has become a very complicated matter overtime.
So, is Section 124 A an infringement of the right to freedom of speech or is it a reasonable legislation that must be retained? You decide.