Sedition: The conundrum between disloyalty against the government and freedom of speech

“Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder.” – Nazir Khan vs. State Of Delhi 2003 (8) SCC 461.

A relic of India’s colonial past — the law on sedition is defined in Section 124A of the Indian Penal Code, 1860 (IPC). From when it was introduced in 1870, the Courts and public alike have deliberated and debated upon the meaning of the word “sedition”, and the evolving jurisprudence has led to the understanding that the following constitutes sedition:

● Exciting Disaffection: Sedition is an attempt or an act to create feelings of hatred or contempt or disaffection (i.e. feelings of disloyalty or enmity) towards the legally appointed Government.

● Inciting Violence: Courts have held in Kedar Nath Singh v State of Bihar that a citizen has a right to criticize or comment against the Government, so long as he does not incite people to violence against the Government or create any public disorder.

● Word, Deed or Action: Sedition can be any act against the Government which may include those which are written, verbal or visual in nature.

If convicted for sedition, one may be charged with imprisonment up to 3 years and/or a fine, or imprisonment for life and/or a fine, or a fine. Before a case of sedition comes to Court, there has to be prior sanction to prosecute a person. This means that the government has to approve and sanction the chargesheet filed by the prosecution lawyers. Since there is only the requirement of sanction for trial, and no pre-arrest requirements for sedition, it leads to multiple arrests and misuse of power by the police. However, there is a large gap between the number of arrests made and the number of persons convicted. For example, as per the data reported by the National Crime Records Bureau in 2017, 228 persons were arrested while 4 persons were convicted on the grounds of sedition.

Seditious Literature

Given below are common scenarios discussed by Courts which may be considered as seditious:

Critiquing Government

Under the law on sedition, authorship, distribution or possession of seditious literature can amount to a convictable offence. In Raghubir Singh v. State of Bihar, it was held that one need not be the author of seditious literature; the mere distribution or circulation of seditious material is also sufficient for an arrest and subsequent conviction, depending on the facts of the case. However, in Romesh Thappar v. State of Madras, it was held that merely authoring one piece of mildly seditious literature does not amount to sedition. Further, in Dr. Vinayak Binayak Sen Pijush Piyush Babun Guha v. State of Chhattisgarh, it was held that possession of seditious literature can also be grounds for punishment under this law.

Slogans and Posters

The law on sedition under the IPC clarifies that comments that merely express disapproval of the measures of the government with the purpose of gaining its alteration through lawful means do not constitute sedition, and neither do comments that are expressing disapproval of administrative, or any other action of the Government. This view was upheld and validated by the judiciary in the case of Sanskar Marathe v. State of Maharashtra and Ors.

Involvement in a banned organization group

Raising slogans or the use of posters can be considered seditious only if there is an attempt/cause for hatred or contempt against the Government or if they lead to violence or public disorder. It was held in Balwant Singh and Anr v. State of Punjab that raising casual slogans which did not elicit any response from any community or person cannot be considered to be sedition.

Cartoons/Drawings

It was held in Arup Bhuyan v. State of Assam and Indra Das v. State of Assam that it is not an act of sedition if a person is merely a member of a banned organisation unless he causes/incites violence or creates public disorder by violence or incitement to violence. The same principle was upheld in Dr. Vinayak Binayak Sen Pijush v. State of Chhattisgarh case, but in this case, it was proved that the appellants had caused violence (such as, damaging police vehicles, attacking members of the armed forces, etc.) through the use of documents (nasality pamphlets, booklets, letters) to cause violence by damaging police vehicles, attacking and killing members of armed forces.

In the famous case of Sanskar Marathe v. State of Maharashtra and Ors. where the cartoonist Aseem Trivedi was booked for sedition, it was held that cartoons, caricatures, visual representations, signs, etc. can be witty, humorous, sarcastic or even express anger, but the right of speech and expression allows one to express one’s indignation towards the Government. As long as the cartoons, etc. do not incite violence or have the tendency to create any public disorder, it is not sedition.

The incidents given above are only an indicative list of acts that have or have not been considered as seditious in nature, but there is a chance that a person may be arrested or convicted under this law for other acts or incidents as well. Every case that appears before the Court, is tested against existing cases like Kedar Nath or Nazir Khan, but primary weightage is given to the facts of the case before the Court.

If you are arrested by the police for sedition, remember to contact a lawyer and request for bail. Many cases such as Sakal v. Union of India have discussed the right to freedom of speech and expression as an inherent right but since there are no pre-arrest requirements, there is a high chance of being arrested for sedition. Multiple lawyers have requested Courts to lay down guidelines or standards for arrest, like in the case of Common Cause v. Union of India requesting mandatory involvement of authorities like the Director General of Police or Magistrate to certify acts of sedition to prevent unwarranted arrests. Despite such requests, there has been no indication so far on any change in the way the colonial era law is going to be dealt with. Multiple discussions are taking place even today on whether this archaic law should be removed, but in the meanwhile, you should take all possible steps to stay safe in this politically charged environment where there is a very thin line between your freedom of speech and expression and the act of sedition.

Malavika Rajkumar is the Content Lead and Kadambari Agarwal is the Research Assistant at Nyaaya, an initiative of Vidhi Centre for Legal Policy, New Delhi.

Originally published at https://www.moneycontrol.com.