EDITORIAL ANALYSIS : Sedition — illogical equation of government with state

Source: The Hindu

• Prelims: Current events of national importance, sec 124A, Law Commission, IPC, democracy, covid, elections etc
• Mains GS Paper I and II: Important aspects of governance, transparency and accountability, institutions and other measures etc

ARTICLE HIGHLIGHTS

• In its 279th Report, the Law Commission of India has recommended the retention of Section 124A of the Indian Penal Code which contains the Law of Sedition.

INSIGHTS ON THE ISSUE

Context

Section 124A:

Law Commission recommendation:

• 279th Report, the Law Commission of India has recommended the retention of Section 124A of the Indian Penal Code which contains the Law of Sedition.
• It has recommended enhanced punishment for this offense in the name of national security.
• The Law Commission has suggested that the tendency to incite disorder should be incorporated in Section 124A.
• The commission defines tendency as a slight inclination.
• It is a policeman who will detect the tendency to incite disorder in a speech or article, and the citizen will be behind bars for seven years or even for life.

Background:

• Section 124A provides for a minimum imprisonment of three years, the commission recommends a minimum of seven.
• Section 124A was incorporated in the Indian Penal Code in 1870.
• The purpose was to suppress the voice of Indians who spoke against the British Raj, as the government did not want any voice of dissent or protest.
• Section 124A clearly reveals the intention of the colonial government.
• Sedition is an offense against the government and not against the country.
• The offense is in bringing or attempting to bring in hatred or contempt or exciting or attempting to excite disaffection towards the government established by law.
• The offense is committed by spoken or written words, by signs or by any other means.
• The gist of the offense is bringing a government into hatred or contempt or causing disaffection towards the government of the day.

Use during British rule:

• The law of sedition was defined and applied in two different ways during the British period:
  • Queen Empress vs Bal Gangadhar Tilak 1897 in which the Bombay Court found Bal Gangadhar Tilak guilty of sedition for writing a couple of articles in Kesari, a Marathi weekly, invoking Shivaji, which was interpreted as exciting disaffection towards the British government.
  • Niharendu Dutt Majumdar And Ors. vs Emperor:
    • Acquitting the accused Majumdar
    • Sir Mauris Gwyer, Chief Justice:“Public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offense.”

Interpretation of sedition law by British court:

• Sedition as disaffection: which was interpreted as ‘political hatred of government’ and comes within the mischief of sedition.
• The offense is committed only when there is incitement to violence or disorder.

Privy Council(the highest appellate court of that time):

• It approved the law stated by Justice Stratchy in Tilak’s case.
• The law declared by the Privy Council was final, according to which even a gesture which indicates political hatred towards the government comes within the mischief of sedition.

Court’s stand:

Interpretation of sedition by court in Kedarnath vs State of Bihar (1962):

• Kedarnath decided the constitutionality of sedition.
• It is constitutionally valid for two reasons:
  • Sedition, though an offense against the government, is against the state.
    • The government is a visible symbol of state and the existence of the state will be in jeopardy if the government is subverted.
  • Article 19(2) imposes restrictions in the interest of the security of the state which has wider amplitude and which includes the law on sedition.
  • Sedition is an offense against the government.
  • Anyone who causes disaffection towards the government is liable to be prosecuted under this law.
  • Disaffection: It is ‘political hatred’ towards the government.

Issues with sedition:

• Article 19(1)(a): It clearly violates the fundamental right to freedom of speech and expression.
• In a democratic republic where people have the freedom to change a bad government, disaffection towards a government cannot be an offense.
• Making it an offense directly conflicts with the fundamental rights of citizens.
• We cannot expect citizens to have any affection towards a bad government.

Why did the Court want to retain sedition?

• It was genuinely worried about an imminent communist revolution in the country, which Kedarnath, a local communist in BeguSarai in Bihar was advocating.

Issue with retention:

• The position taken by the court in Kedarnath is not radically different from Tilak.
• A tendency to incite disorder would amount to sedition, and actual disorder need not occur.
  • There is not much difference between Kedarnath and Tilak.

S.G. Vombatkere vs Union of India(2022):

• The Supreme Court had ordered a stay on all existing proceedings and on the registration of fresh cases under sedition upon the Union Government assuring the Court of a review of this law at the earliest.
• The Court’s stay order was in consideration of the fact that this law was widely misused by the law enforcement authorities.

Way Forward

• The Kedarnath judgment did not soften the law on sedition.
  • It has brought it closer to the judgment in Tilak without mitigating the rigor of the law.
• The recommendation for the enhancement of punishment defies common sense when there is a universal demand for the scrapping of this law.
• The commission needs to see the absurdity of a law which punishes citizens of a democratic country for making comments which may cause disaffection towards a government which they have the power to remove.
• The Law Commission failed or did not want to see the fallacy in the Kedarnath judgment which did not in effect soften this harsh law but declared that it is constitutionally valid.
• Kedarnath equates government with state, which is illogical in the context of a democratic republic.
  • Its attempt to bring sedition within the framework of reasonable restriction under Article 19(2) is constitutionally impermissible.

QUESTION FOR PRACTICE

On what grounds a people’s representative can be disqualified under the Representation of People Act, 1951? Also mention the remedies available to such person against his disqualification.(UPSC 2019) (200 WORDS, 10 MARKS)