MUCH HAS been said about the abuse of the law of sedition. The granting of bail by the Supreme Court to human rights activist Binayak Sen has further stoked the debate. Patent misuse, abuse and misapplication aside, sedition is bad law; it infringes upon the Constitutional right of every citizen to freedom of expression.
Freedom of expression is not absolute; other laws can limit it, but in order for these to be legitimate they must be “reasonable restrictions”, which protect other important interests such as State security and public order. In light of the developments in international law, there is a need to re-examine the law now, nearly 50 years after the Constitution Bench of the Supreme Court in 1962 held Section 124A (the sedition section of the Indian Penal Code) constitutional. The offence of sedition cannot meet those international standards that are required for any law, which limits freedom of expression. An analysis of the reasoning employed by the Supreme Court in 1962 will show why it is not applicable today.
In 1962, in the case of Kedar Nath Singh vs the State of Bihar, the Supreme Court decided on the scope of Section 124A and narrowed its ambit; holding only those matters that had the intention or tendency to incite public disorder or violence would be made penal by the section. The court rejected the interpretations of early cases and that of the Privy Council in 1944, which brought far more acts within the section and made it easy for the colonial government to class any criticism of the State seditious. The Supreme Court endorsed stricter interpretation given to the section by the Federal Court in 1942.
That brings us to the question: What is ‘sedition’ in 2011? There are two scenarios where a person could be guilty of sedition. One, where he makes a speech or publishes a pamphlet that actually results in violence or public disorder. Two, the words or acts of a person do not actually result in any violence or public disorder; however, the police and the court feel that the words or acts had this “tendency”, or he had the subjective “intention” to cause this mischief. Both persons are guilty of sedition.
India is bound by the International Covenant on Civil and Political Rights. This international treaty provides that “everyone shall have the right to freedom of expression”. Again, this right is not absolute, and may be restricted. International law sets out three requirements that need to be met for restrictions to be permissible: (a) they must be provided for by law; (b) they must be necessary; and (c) they must protect respect of the rights or reputations of others, be it for the protection of national security or of public order, or of public health or morals. The United Nations Special Rapporteur in his 2010 annual report commented on the frequent phenomenon of nations using laws as political tools; limiting freedom of expression arbitrarily in order to silence dissent or criticism. The UN has developed guidelines to ensure that any restrictions conform to these three criteria. India is one such State and the law of sedition in India falls foul of these requirements.
In the aforementioned second scenario, the crime of sedition is too vaguely defined to be comprehensible to ordinary people. Seditious “intention” and “tendency” are entirely subjective terms. These vague provisions are susceptible to wide interpretation by both the authorities and those subject to the law. If someone speaks at a rally, and his words fail to excite any violence or disorder, the authorities still have a wide measure of discretion in assessing whether his words had a seditious “intention” or “tendency”. Vague provisions also fail to provide sufficient notice of exactly what conduct is prohibited. Clarity of Section 124A, therefore, is of particular importance, given the potential penalty of life imprisonment. In instances where the conduct falls short of actually causing violence or public disorder, sedition falls short of the international standard of legality. On the other hand, where there is nothing vague, the requirements of actual violence and public disorder make what is prohibited very clear. Here, 124A fails to meet the international law requirement of “necessity”.
Necessity entails that restrictions on freedom of expression are not overbroad and are proportionate. If a restriction is “necessary”, it is entailed that but for the restriction, the undesirable social or criminal conduct would not be prohibited. Hence, if a person causes violence and public disorder, he would simultaneously be liable for offences under various other legislative provisions. India’s criminal law sufficiently covers the field when an action creates violence or public disorder. The law already criminalises incitement to violence and abetting an offence. “Public mischief” and “waging war against the State” are sufficiently provided for in the penal code. Various offences under the Unlawful Activities (Prevention) Act and the Public Safety Act, in addition to individual State security legislation, would sufficiently punish anyone who caused disorder or violence. Therefore, sedition is not necessary, since all overt acts it seeks to punish are covered by other penal sections anyway. Perhaps the biggest critique of Section 124A is that it represents a disproportionately serious interference with democratic debate. Any benefit it may bring to protecting public order is outweighed by the harm done to freedom of expression in its most important guise as an underpinning of democracy.
Similar arguments have led to the repeal of sedition laws in democracies around the world. In 2001, 2007 and 2009 Ghana, New Zealand and the UK respectively repealed their sedition laws. Reform commissions in Australia, Canada and Ireland have recommended the abolition of existing sedition offences. They are undesirable in light of their political nature and history, and inappropriate in modern liberal democracies, where it is accepted that it is a fundamental right of citizens to criticise and challenge government structures and processes. In 2010, the Ugandan Constitutional Court declared the offence of sedition unconstitutional. Similarly, the Nigerian Federal Court has held sedition laws unconstitutional. A major factor in the recommendations for repeal in these democratic countries was the strong association between sedition laws and politically motivated prosecutions. In India, sedition has a similar association, it has long been used by colonialists as a tool in the suppression of nationalism. The importance of freedom of expression has been recognised the world over and in India in 2010, the Supreme Court expressed that “change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government”.
In 1962, the Supreme Court held that there was no doubt that Section 124A violated Article 19 (1)(a). However, the court held that sedition, so newly defined, was a reasonable restriction as it protected the interests of public order and State security. In keeping with the worldwide trend — even the UK has repealed sedition laws — the time has come for reassessment.
THE ISSUE of vagueness did not come up in 1962. Furthermore, the idea of “public order” in 1962 reflected the colonial mindset of “suppressing the unruly natives”, rather than the genuine protection of members of Indian society. In contrast, the current view is best reflected by the 2007 dicta of the Delhi High Court expressed recently that “the criticism of the government is the hallmark of democracy... the essence of democracy is criticism of the government”. It is evident that in 1962, freedom of expression was seen as taking second place when competing with interests of State security. The court had expressed: “Freedom has to be guarded against becoming a licence for vilification and condemnation of the government established by law, in words which incite violence or have the tendency to create public disorder.” This dicta reflects the judicial attitude that freedom of expression was a second order when competing with matters of security of the State. Contrastingly, in 1995 the Supreme Court expressed that “the freedom of expression is a preferred right, which is always very zealously guarded by the Supreme Court”.
International guidelines on the limitation of freedom of expression make sedition an unreasonable restriction on freedom of expression in 2011.
Margaret Stride is a New Delhi-based rights activist