Adrija Guhathakurta
National Law University, Odisha
Introduction:
Rulers tend to treat acidulous critique everywhere as efforts to arouse discontent and ingratitude. That may be the only reason why, under British rule, Section 124-A of the Indian Penal Code emerged and still continues to stay on the statute book. Center and state regimes were frequently shown in bad light after invoking the section against militants, naysayers, authors, and even cartoonists. Many, since independence, have seen the irony of maintaining a clause that was used widely to suppress the fight for liberty. Specifically, the report raised the very apposite question: to what extent is it reasonable for India to maintain an offence established by the British to curb the fight for liberty when it was abolished ten years earlier by Britain itself? In 1968, the Law Commission had dismissed the concept of abolishing the chapter. In 1971, in addition to the government to be established by law, the panel sought to expand the section’s ambit to accommodate the Constitution, the legislature and the judiciary as institutions against which ‘disaffection’ should not be countenanced.
As the Indian Law Commission’s Consultation Paper on Sedition (2018) states, section 124A should only be implemented in instances where the purpose responsible for the commission of any act is to interrupt public peace or stage a coup by force of arms and illegal means hence, putting forth a clear demarcation between ‘freedom of speech’ and ‘sedition.’ Any irresponsible exercise of freedom of expression and speech cannot be called seditious. An individual should not be prosecuted under the section for simply voicing a thought that is not in line with the day’s government policy.
I. UK & INDIA:
The offence of sedition can be traced back to 1275 when the King was to be deemed as the owner of the Divine Right. Not only was the reality of the speech but also the intention taken into account in order to prove the sedition commission. The offence of sedition was originally established in order to avoid discourses contrary to the government’s required regard. One of the earlier cases in which seditious libel was punished, whether true or false, was the De Libellis Famosis. It was the case of R v. Sullivan which gave the definition of sedition. The case described sedition as any deed, irrespective of whether written or verbal, which turned out to be derogatory towards the state and responsible for disturbing societal harmony. In 1977 when UK law commission referred to the judgement passed by Supreme Court of Canada in the case of R v. Boucher and declared that only those acts that incite violence against the government could be considered as seditious, the movement to abolish seditious libel began. After Human Rights Act, 1998 was enacted the concept of seditious libel began to be considered to have contravened the tenets of the Act and the European Convention on Human Rights. It was the section 73 of Coroners and Justice Act, 2009 that led to the deletion of the concept of ‘seditious libel’.
Sedition Law in India came about as a result of Macaulay’s draft penal code which contained the section 113 although it was omitted from IPC when it was enacted in 1860. However, it was enacted as an offence under section 124 of IPC through Special Act XVII of 1870. But it was again amended in 1898. Various rulings and constitutional debates followed which will be discussed in the later part of this project. At present Sedition is defined as an offence under IPC s124. It is defined as an act that is or an attempt to wage a coup against the government or results in any behavior that excites violent rebellious attitude towards the government.
Even though UK did away with the Sedition law, India hold on to it today. A colonial-era law aimed at suppressing the voice of liberty is still in force in India, but Britain itself abolished sedition as a criminal offence in 2009 as a relic from an era in which freedom of speech was not regarded as a right as it stands today.
II. US & INDIA:
In spite of there being a lot of debates regarding whether eliminating seditious libel would be a sensible option, it remains as an offence in the US albeit having almost been treated as a dead law. In the United States the Sedition Act of 1798 resulted in it being treated as a punishable offense. In 1820, this Act was abolished. In 1918, the U.S. passed the Sedition Act again as congress, in the First World War, wanted to safeguard the American interests. In Schenck v. United States, the Court set out a definite and current risk test to restrict liberty of speech, adjudicating the validity of the 1918 Sedition Act.
The Alien and Sedition Laws have been defined as “the efficient weapon against what has been seen as a particularly pernicious and harmful type of -domestic resistance in wartime.” While the federalists claimed that the English common law sedition was tory, they also announced Blackstone’s laws ‘ rigors. It resulted in the intention of the speaker as well as his words both being a crucial element in determining seditious libel. In addition, the truth was permitted and the jury was made the judge of the crime of words.
Much later, in 1969, in Brandenburg case, Supreme Court held that, “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.
In case of US, the law specifically mentions “use of force” or “violation of law” whereas the Sedition law in India merely considers “any act that brings or attempts to bring into hatred or contempt”, thus, increasing the ambit of the offence albeit the interpretation of the law has been referred to as something to disrupt the public. But critics of government or political functionaries cannot be considered under sedition. More importantly, words aren’t enough to slap this charge. The most important ingredient for the crime of sedition is incitement to violence.
III. AUSTRALIA & INDIA:
The Crime Act of 1920 was the first legislation that contained the sedition offence. The definition of Sedition in the Australian law covered a much broader ambit as compared to the English Common law. It was recommended by the Hope Commission in 1984 that the Australian law definition of the law must be in alliance with the commonwealth definition. After the review by the Gibbs Committee in 1991, it was put forth that the sedition law shouldn’t be done away with instead should include acts that were violent in nature and incited tensions against the authority. Amongst the various amendments made to the Schedule 7 of the Anti-Terrorism Act (No 2) 2005, sedition law was one of them. After a thorough review of whether the term ‘sedition’ was apposite for defining offences under the 2005 amendment, the Australian law Report Commission suggested that the term ‘sedition’ should be removed from the federal criminal law. In the National Security Amendment Act 2010, ‘sedition’ was replaced with ‘urging violence offences.’
Police ruled in 2006 that books advocating suicide bombings and anti-Australian conspiracies can be sold in the Muslim community because the new sedition laws were not infringed. The government initially regarded stronger sedition legislation as a reaction. It subsequently referred the books for a review of their classification and asked for State and Territory view on the subject: evaluation of the classification to consider hate content, press release of Attorney General, June 9, 2006. This incident helps us get a fairly recent look into how sedition laws are dealt with in Australia.
When we compare Australian Sedition law with India’s, again the same difference stands clear. The usage of the word “violence” which changes the provisions of the law altogether
Conclusion:
The section 124 of IPC does not specify the ‘use of force’ or ‘act of violence’, hence is harboring a gap that is being misused to its greatest extent. The wrong usage of the law is slowly paving a way towards a democracy devoid of complete freedom and a democracy of such nature is not the democracy we know, in fact, is not democracy.
The law should be amended to specify the ‘use of violence’ to justify the gravity of the offence. Either that or it should be done away with completely which, although sounds acceptable, is not sensible.
As Ishan Liberhan concludes in his essay (cited below), critical criticism of public policies and choices that do not incite individuals to rebel complies with liberty of speech and expression within a sensible threshold. The part is currently being flapped without fairness against any discordant entity. It is this gray zone that must be rectified. It will examine how these regulations affect citizens’ abilities to speak freely and restrict the capacity to criticize or express dissent against governments in a constructive manner.
It remains to be used in India for the purpose of chilling freedom of expression.
