Section 124a of IPC:
Section 124A of the IPC, which deals with sedition, states, "Whoever, 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 in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine."
1.Explanation 1 – The expression “disaffection” includes disloyalty and all feelings of enmity.
2.Explanation 2 – Comments expressing disapprobation of the measures of the attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
3.Explanation 3 – Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”
The constitutionality of sedition was challenged in the Supreme Court in KedarNathVs State of Bihar (1962). The Court upheld the law on the basis that this power was required by the state to protect itself. However, it had added a vital caveat that "a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace".
The court held that "a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder".
There are many cases regarding sedition in India. Some of them are mentioned as follows:
1.Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani and others were booked on charges of sedition by Delhi Police for their “anti-India” speech at a seminar in 2010, for advocating independence for the disputed Kashmir region.
2.BalGangadharTilak. First in 1897 for exhorting to act against Rand, the Plague Commissioner. Second in 1909 in respect of certain articles published in the “Kesari” in May and June 1908, for which he was deported to Mandalay.
3.The law on granting sanction for prosecution imposes a duty on the government concerned to apply its mind to the facts of each case and render a decision based on its assessment whether, prime facie, a case has been made out. The process cannot be based on a uniform policy. The AamAadmi Party (AAP) regime’s justification that it cleared the prosecution of former JNU students’ union leader Kanhaiya Kumar and others on charges of sedition and conspiracy because it adopts a policy of non-interference in judicial matters is completely unacceptable. Superior courts have repeatedly stressed that giving sanction is not a mechanical process, but requires application of mind.
It is argued by many that sedition is against freedom of speech. The constitutional validity of Section 124A has to be read in the context of Article 19 of the Constitution of India. Thus, it is clear that advocating any new cause however unpopular or uncomfortable it may be to the powers that be, it must be permitted. Majoritarianism cannot be the law. There is another very important aspect of this interplay between freedom of expression and the law of sedition, and here I would also discuss the offence of creation of disharmony under Section 153A and criminal defamation under Section 499-500 IPC. Sedition can arise only against a Government established by law.
Government is an institution, a body and not a person. Criticism of persons cannot be equated with criticism of the Government. In this way, there are many arguments in support and against sedition. Of course, it is essential to protect national integrity. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon. However, the section should not be misused as a tool to curb free speech.