The enormous increase in registration of criminal cases for sedition under Section 124A of the Indian Penal Code in the wake of anti-national slogans, agitation against C.A.A. and messages calling people against India on Facebook and Whatsapp etc. posted by several persons including speeches made by Zakir Naik, Sharjeel Imam, Jafarul Islam Khan and others have sparked off the debate over sedition vis-à-vis freedom of speech and expression.

It is contended that the law of sedition is a British legacy, a colonial relic, an obsolete and archaic law confronting the freedom of speech guaranteed by the Constitution.

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The offence of sedition under Section 124A is a cognizable, non-bailable and non-compoundable offence which can be tried only by a Court of Session. It is very difficult for a person accused of sedition to get bail.

The offence of sedition often covers slander and libel also. Since the provision is very harsh and directly affects the right to freedom of speech and expression, its constitutional validity was challenged in the case of Kedar Nath Singh Vs. State of Bihar 1962 AIR 955.

It was averred that India confronts challenges from Naxalites, Maoists, terrorists and secessionists working in organized groups getting financial and logistic support from foreign countries.

There are fidayeen terrorists who remain on the prowl and number of cases involving murders of innocent people are on the increase. No other country in the world faces as many challenges as India faces.

A five-judge Constitutional Bench, while upholding the provision of Section 124A in above case, held that freedom of speech cannot be overstretched to include freedom to rebel against the country or incite disharmony and disaffection.

The provision was considered essential in the national interest as threat perception had acquired more propensities than before and accordingly the same was upheld and retained.

However, the line of demarcation between freedom of speech and sedition remains subject to the security of the state and it was held that seditious speeches will not attract the charge of sedition unless it is established that these incite violence or create disaffection or public disorder.

Article 19 refers to public order and security of State as reasonable restrictions and this being the position, freedom of speech cannot be an unbridled license to work against the interests of the country.

The Congress which had itself brought a draconian provision under Section 66A in the Information Technology Act, virtually moved a private Bill in the Lok Sabha for seeking amendment in Section 124A of IPC according to which raising anti-Indian slogans would no longer be an offence.

Section 66A provides inter alia that any person found giving offensive information which is menacing in character shall be punished with three years imprisonment. A look at the words “offensive” and “menacing” in Section 66A would reveal that these are without any definition.

What is offensive is subjective term. One may find a thing offensive while another may not.

Due to inherent contradictions, the Bill to amend Section 124A IPC could not be passed and thus the law of sedition remains on the statute book already held Constitutionally valid by Apex Court. Section 124 A of IPC lays down – “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law shall be punished with imprisonment which may extend to three years.”

The objective of sedition is to induce discontent and insurrection and stir up opposition to the government and bring the administration of justice into contempt.

Sedition is described also as disloyalty in action and the law considers as sedition all those practices which incite disaffection and create public disturbance or instigate civil war. In the case of Gurjatinder Pal Singh Vs. State of Punjab, the F.I.R. filed against accused was quashed because the seditious speeches were not followed by action in that direction. In this case, accused was charged under Section 124A and Section 153B of IPC stating that at a religious ceremony organized in memory of martyrs during Operation Blue Star, petitioner delivered a speech advocating for setting up a buffer state named Khalistan between Pakistan and India.

He told his audience that the Constitution was a worthless book for Sikhs.

The supporters of the petitioner raised slogans against the country and even brandished naked swords in the air. The High Court of Punjab and Haryana relied upon the decision of Supreme Court in Balwant Singh Vs. State of Punjab and held that mere casual raising of slogans a couple of times without intention to incite people to create disorder would not constitute a threat to the Government of India.

The FIR was quashed. Thus it is not merely the raising of slogans alone but some acts done in furtherance that make out an offence. It is debatable because slogans may not immediately transform or galvanize people into action. We have seen from history how slogans were used for revolutions including in communist countries.

An idea never dies and it is like a powerful seed that could sprout at any stage to become a large tree. Why should the idea of such revolt not be nipped in bud? Words, when used to arouse passion, become powerful and we have seen how Nazism, Fascism and Communism firmed up their roots through slogans. Slogans like Great Leap Forward wreaked havoc in China resulting in massacre of about 3 crore people.

Similarly, slogan of Cultural Revolution had the effect on China from 1976 onwards resulting in mass murders of Professors, Doctors, Teachers and elitist segment of society. Therefore, it cannot be said that mere slogans do not make out any case.

Slogans in fact are a prelude to subsequent events. There is no reason why slogans, if they affect social harmony or security of the state, should be ignored. Courts go by material placed before them and do not beyond it to apply hidden implications or historical narrations.

The word disaffection used in the law is important. In the Kedar Nath judgment speaking foul language against a political party was not considered as disaffection so as to constitute offence of sedition.

It is relevant to mention that the accused was arrested and tried in court on the charge of sedition. The contents of his speech dated 26th May, 1953 at village Barauni are as under :- “Today the dogs of the C.I.D are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers – mazdoors and Kisans is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the peoples court along with these Congress goondas.”

While considering the above unpalatable speech, the Supreme Court held that such speeches do not amount to disaffection so as to attract the law of sedition. Freedom of speech has to be reconciled with law of sedition. To avoid such controversies, the Government of India enacted another legislation titled as ‘The Unlawful Activities (Prevention) Act, 1967. The provisions contained in this UAPA 1967 are mutatis mutandis analogous to the provisions contained in Section 124A IPC.

Unlawful Activity as defined under this Act relates to any act done by an individual or association whether by words either spoken or written or by signs or by visible representation which is intended or supports any claim to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union or which incites any individual or group of individuals to bring about such cession or secession or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India.

It is a cognizable and punishable offence. Thus the definition of ‘Unlawful Activity’ appears to contain more specific ingredients of sedition than Section 124A IPC. The punishment prescribed for unlawful activities under Section 13 of this Act of 1967 is for a term which may extend to seven years and also liable to fine.

During British rule, law of sedition was initially not incorporated in Indian Penal Code, 1860. It was inserted as Section 124A in 1870 to deal with the rising incidents of activities relating to nationalism and freedom struggle.

This section was used against leaders like Bal Gangadhar Tilak, Annie Besant, Mahatma Gandhi, Lala Lajpat Rai, Bhagat Singh and a large number of other leaders and workers.

Lord Maurice Gwyer, than Chief Justice of Federal Court had held at that time that – ‘mere presence of violent words does not make a speech or publication of seditious material. Instead, in order to be brought under the ambit of sedition, the acts or words complained of must either incite disorder or must be such as to satisfy the reasonable man that there exists such intention or tendency.’ Recently, sedition cases which have hit the headlines include charges raised against Sharjeel Imam, Arundhati Roy, Binayak Sen, Kedar Nath Singh, Aseem Trivedi and now Kanhaiya Kumar, Dr. Jafarul Islam khan and others.

If the raising of antiIndia speeches and slogans are permitted, they may not instantaneously arouse passion to revolt but may build circumstances which may gain momentum at a subsequent stage.

When the Constituent Assembly discussed the fundamental right to freedom of speech and expression, members were aware of the draconian nature of Section 124A of the IPC as they had experienced the same during freedom struggle. A proposal for an amendment to the provision of Section 124A was brought in the Constituent Assembly to permit the imposition of limitation on this right on the grounds of libel, slander and offences against decency or morality or sedition or other such matter which undermines the security of the state.

But Constitution makers decided to exclude sedition from the exception to the right to freedom of speech and expression.

There was a clear consensus amongst the members of the Constituent Assembly on the oppressive nature of sedition law. They expressed their inhibitions to include the same. Freedom of speech is encumbered by law of defamation also about which nobody is talking.

What would happen to law of defamation if raising anti-India slogans are permitted and legalised. Sedition law is not a new phenomenon. Almost all countries have their own sedition laws which are more stringent than what we have in our country. Amongst the countries which make provision for sedition as criminal act, Saudi Arabia, Malaysia, Iran, Uzbekistan, Sudan, Senegal and Turkey are prominent. U.S.A. has a more stringent law of Treason.

Section 18 of US Code 2381 provides that whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000 and shall be incapable of holding any office under the United States. Compared to Section 124A IPC, this provision is far more stringent and draconian.

Australia too has sedition law with stringent measures and imprisonment up to 12 years. It is fallacious to hold that mere slogans do not make out a case. This analogy is grossly contradictory to historical facts.

The writer is an Advocate, Delhi High Court.