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Printed For: Jahnavi Jayasimha Rao, School of Law Christ University
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2017 SCC OnLine Blog OpEd 22

Sedition and the Right to Freedom of Speech and Expression

SEDITION AND THE RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

by
Ananya Kuthiala*
INTRODUCTION
In India, the right to freedom of speech and expression is endowed under Article 19
(1)(a) of the Constitution. Free speech allows the conveyance of an individual's ideas
and opinions. Its expression is instrumental in permitting individuals their aspiration
of achieving a sensation of self-fulfilment. A liberal democracy is characterised by
governance by the self (in India through a choice-based representation) and affording
the individual to market its modulating opinion across all hues. In such a society, a
conflict between the State and the individual's opinion is bound to exist. Punishing or
curtailing an individual for depreciating the authority of the judicial system or State
contradicts the abstract theory of the promotion of a right to free speech and
expression.
Jurisprudence on free speech and constitutional morality
According to Bhatia1 , two trajectories pertaining to Indian free speech exist. Firstly,
the “moral paternalistic” approach and secondly, the “liberal autonomous approach”.
The former does not endow individual's abundant freedom since it views individuals as
corruptible and intrinsically ferocious with a tendency to engage in violence. The latter
approach is relatively more tolerant and permissive viewing individuals as entities
competent to decide for oneself, this approach respects an individual's intellectual
capabilities has relatively fewer restrictions imposed on them. Bhatia further
constructs on Kant's ideology elucidating on the equality of individuals. Relying on the
premise that all individuals are equivalent, every individual's ability to communicate
and express oneself should be of equal. Subsequently, no fringe nor political nor
majoritarian group should be in a position to asphyxiate the expression of another. He
further relies on the Athenian philosophy that drew an inverse nexus between free
speech and slavery.2
Dworkin3 , similarly provided two justifications as the underlying basis for the
arguments advocating free speech. Firstly, permitting individuals to converse and
express themselves freely allows the promotion of good policies and serves as a check
on relatively poor ones, for this approach an inherent comprehension of the concept of
free speech is required. Secondly, a broader justification is the equal endowment of
autonomy to individuals and the corresponding appreciation and respect for their right
to speak freely.
Bhatia4 further stipulates the “constitutionalising” of all dimensions of free speech.
He promotes the extension of protection of free speech and in the scenario where such
protection is unfeasible and impracticable, it should be restrained solely by the
Constitution based on certain values and principles of the Constitution as opposed to
the prevalent social convictions of the qualifications of morality and decency which
have a tendency to be ambiguous and non-uniform.
Constitutionality of Section 124-A5 IPC
The Supreme Court had constitutionalised and limited the scope of sedition in Kedar
Nath Singh v. State of Bihar6 by restricting it to instances where individuals through
their speech and expression disrupt the law or provoke and incite violence. However,
in practice and past trend showcases that despite the existence of this stipulation,
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sedition charges are levied on individuals for mere criticism of the Government in the
public arena, mere expressions of detest and abhorrence for State policies, religion
and showcasing contempt against what is morally acceptable in our society.
Thus, prevailing present day practices are not in accordance with the judicial
intention at the time of articulation of the Kedar Nath judgment7 . Based on this
premise and the following grounds, certain reasons provide why sedition laws should
be repealed from the Indian nation State.
Firstly, the overbreadth test should be applied to a provision to gauge its
constitutionality. If a provision is excessively ambiguous, very subjective pertaining its
applicability and its breadth very expansive, this could lead to obscurity in its practice
and its overbreadth could serve to its detriment. Applying this test to Section 124 of
the Penal Code, the exact interpretation of the word “disaffection” is uncertain and
indeterminable. Despite, the elaboration of the terminology in the explanation to the
section to be inclusive of disloyalty and feelings of enmity, the skyline of this provision
is nebulous. Article 19(1)(a) endows individuals the fundamental right to freedom and
expression which is reasonably restricted by Article 19(2) in the interest of public
order when pertaining to sedition. However, in India, recent trend showcases the
application of sedition under the IPC being charged on individuals on grounds barring
the instances limited to interest of public order. Given the haziness in the practical
applicability of this provision, it should be rendered unconstitutional.
Secondly, this test is further extended to the vagueness test, whereby an individual
should be aware of articulation of the provision, what it seeks to condone and the
consequences attached. Given the obscurity attached with the provision, an individual
may be dubious to the horizons of the provision which would lead to a negative
externality such as the chilling effect.
Thirdly, Section 124-A IPC cements a certain chilling effect on the generic public.
This section identifies sedition as a criminal offence and attaches with the provision
excessive damages and penalties for instances of sedition. In India, however, sedition
charges in practice are not limited to solely instances “in the interest of public order”
but also extend to occurrences of defamation, deviations from the accepted standards
of morality and decency, etc. In the backdrop of substantial punishments, the
provision serves as a disincentive on the freedom of speech endowed to citizens under
Article 19(1)(a) of the Constitution.
Fourthly, despite limiting the scope in the 1962 provision, the Court did not
establish a reasonable nexus8 between a speech and its role as an instrument to the
causation of public disorder. Although, in recent years the courts have initiated the
identification of occurrences whereby this nexus exists, there is no absolute provision
in existence. In the absence of such a provision with the restriction imposed in Article
19 of the Constitution, the chilling effect may supersede in society, which is in a direct
contradiction of the articulation of the freedom endowed under Article 19(1)(a).
In Shreya Singhal v. Union of India9 , the Court laid that regardless of the degree of
derogation and insult, a certain degree of proximity needed to exist between the
utterance and the potentiality of public disorder. This is progressive step in the
direction of laws pertaining to sedition as it further limits the scope of sedition. The
Court in the case positioned the requirement for a substantive and a procedural
analysis of the restrictive law concerned to determine its reasonability.
Thus, whilst applying the fundamentals of this case to Section 124-A IPC, a
substantive analysis would showcase the provision to be excessively broad in the
interpretation of “disaffection”, thereby fulfilling the overbreadth and vagueness test.
The procedural analysis of the punishment would prove it be a draconian provision.
Given the obscurity concerning the actual materialisation of disorder and violence, life
imprisonment as a punishment for the mere potentiality of inciting violence through
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speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the
restriction on free speech and its recognition as an offence under Section 124-A IPC
does not seem reasonable.
Schenck v. United States10 , elucidated the required proximity between the
utterance of speech and incitement of violence. It lays the possibility of danger or the
intent to bring it about must be imminent or immediate. This case established the
“bad tendency test”.11 Brandenburg v. Ohio12 , laid the “clear and present” danger test,
whereby the State was prohibited by the US Constitution from repressing speech and
its advocacy barring the possibility of it causing an immediate harm to law by an illicit
act or if it aimed at causing such an action. In the US under the 1st amendment,
further speech is promoted as opposed to necessitating silence to remedy bad or
injurious speech. Thus, in the US even though some sedition laws have been retained,
the courts are dispensing extensive protection to the right of free speech.
In India, such a linear demarcation does not exist and in the scenario where the
implementation of such tests are attempted, reasonable restrictions serve as a
hindrance. Even though such tests was applied in Arup Bhuyan v. State of Assam13 ,
the Supreme Court has rejected such tests in other cases resulting in no fixed
applicability.
India's sedition law is derivative from the colonial era. In 2009, the Britain
abolished its sedition laws to endorse the freedom of speech and expression. This
abolition was on the premise that such laws were in contradiction to Britain's human
rights commitments and were also responsible in inducing a chilling effect on the right
to freedom of speech and expression.
In 2007, New Zealand abolished its sedition law based on the Crimes (Repeal of
Seditious Offences) Amendment Act, 200714 . It has addressed comparable offences
under other conventional criminal provision.15
Conclusion
Thus, articulation of Section 124 of the Penal Code appears to subdue and
extinguish any forms of dissent present in society. Such a tendency contradicts the
inherent ingredients which characterise a democracy. The existence of such provision
in a State aiming to progress appears obsolete. The punishment associated with it
render the provision draconian. The continuance of such a provision induces a chilling
effect on the freedom of speech and expression, which is a supposed fundamental
right provided under Article 19(1)(a) of the Constitution. There is a need for India to
progress and alter its sedition laws in accordance with the transitions in society.
Further, given sedition covers a broad ambit of actions, each act should be governed
by its individual provisions, rather than one generic offence with such a stringent
punishment.
———
* 2nd year student of LLB, Jindal Global Law School, Sonipat.
1Bhatia, Gautam, 2016, Offend, Shock, or Disturb: Free Speech under the Indian Constitution. 1st Edn., Oxford
University Press, USA.
2 Mehta, Avantika, 2016, Offend, Shock, or Disturb: The limitations to free speech in India. Hindustan Times,
<http://www.hindustantimes.com/art-and-culture/a-new-book-looks-at-limitations-to-free-speech-in-
india/story-mF9tcylLiAxpiS255zL16H.html>.
3Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-
ed/how-free-can-free-speech-be/article8289947.ece>.
4
Venkataramanan, K., 2016, How free can free speech be?, The Hindu, <http://www.thehindu.com/opinion/op-
ed/how-free-can-free-speech-be/article8289947.ece>.
5 124-A. Sedition.—Whoever by 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
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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.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to
obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.

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.
6
1962 Supp (2) SCR 769 : AIR 1962 SC 955.
7
1962 Supp (2) SCR 769 : AIR 1962 SC 955.
8 Parthasarathy, Suhrith, 2016, Sedition and the Government, The Hindu,
<http://www.thehindu.com/opinion/lead/Sedition-and-the-government/article14082471.ece>.
9 (2015) 5 SCC 1.
10
1919 SCC OnLine US SC 62 : 63 L Ed 470 : 249 US 47 (1919).
11 Liang, Lawrence, 2016, Interview: Sedition and the Right to Freedom of Expression. The Wire,
<https://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression>.
12 1969 SCC OnLine US SC 144 : 23 L Ed 2d 430 : 395 US 444 (1969).
13 (2015) 12 SCC 702.

14 Crimes (Repeal of Seditious Offences) Amendment Act, 2007,

<http://www.legislation.govt.nz/act/public/2007/0096/latest/whole.html.
15 Dutta, Damayanti, 2016, The Sedition joke: Going from bad to worse, Indiatoday.intoday.in.
<http://indiatoday.intoday.in/story/sedition-law-india-government-offence/1/759345.html>.

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