Sedition Law: Yay or Nay

Guest post by Pallavi Mohan

Recently, the Supreme Court started hearing a clutch of petitions challenging the validity of the provision which criminalises sedition in India. Sedition is a criminal offence under Section 124A of the Indian Penal Code. It punishes a person who incites (or attempts to do so) hatred or contempt, or disaffection towards the Government. It is a cognisable and non-bailable offence with a maximum punishment of life imprisonment.

Why is sedition criminalised?

The sedition law in India is a remnant of the colonial era. It was used by the British to repress the Indian Freedom Movement by bringing sedition charges against leaders of the movement. One of the most significant sedition cases from that time is Bal Gangadhar Tilak’s case, whose Marathi newspaper published articles urging people to defy the British Government’s efforts to contain the plague epidemic. He was held guilty of sedition and sentenced to 18 months in prison.

Does the sedition law contradict the freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution of India?

As such, the sedition law limits a person’s freedom of speech. Article 19(1)(a) is not absolute. It allows for reasonable restrictions on speech. This includes a restriction which prevents the incitement of an offence, or those in the interest of public order and maintenance of the sovereignty and integrity of India.

A Constitution Bench of the Supreme Court took this view in 1962 while deciding on the constitutional validity of Section 124A of the IPC. The Court upheld the validity of Section 124A.r It also defined the scope of sedition law. It emphasized that only when words, which have the tendency or intention of creating public disorder or disturbance of law and order, are used that the sedition law steps in to prevent such activities in the interest of public order.

On what other grounds is there a fresh challenge to the constitutional validity of the sedition law before the Supreme Court? 

In recent years, there are allegations that the sedition law is being misused to quell people’s right to freedom of speech arbitrarily, even when their speech is unlikely to create public disorder or disturb law and order. Two journalists, who have been charged with sedition, on account of their writing and cartoons, have challenged the validity of Section 124A of the IPC afresh.

The crux of this challenge is that the 1962 Supreme Court order correctly upheld the validity of Section 124A because striking it down would have created a legal vacuum. There were no laws to punish those creating public disorder. However, now there are laws such as the Unlawful Activities (Prevention) Act, the National Security Act, etc. which can be used to punish those who incite violence or public disorder. Another argument before the Court is the fact that many countries which had a similar sedition law have now repealed such a law, including the United Kingdom, New Zealand and Ghana. The Law Commissions of Australia and Canada have also recommended the repeal.

The final hearing on this matter has been scheduled for May 5, 2022 and the Supreme Court has stressed that there will be no further adjournments.