SEDITION LAW (124A): PAST, PRESENT AND THE WAY FORWARD

ABSTRACT
“Colonialism attacks the present, the past, and the future” -Frantz Fanon.1 How true are
these words? Well, one should look at the history and the contemporary times of a colonised
nation, and the puzzle pawns fit in. Or have a conversation with the citizens of a colonised
nation, they; they will never deny it, or in the worst case, they can never tell the difference.
Such is the way colonial practices are embedded within the local culture. However, labelling
all the colonial hand-downs as damaging would be an overstatement. Sedition Law and the
Common Law system are a few of the remnants of Colonialism in India, but how each has
paved its way through India has been different. While the common law system was adopted
after overcoming a rough patch, the sedition law flowed with its rigours and flaws and did
not sit well with the post-colonial era. The astounding fact is that Sedition Law in the modern
era is used to suppress opinions as done during the colonial era. How to remedy this error?
by By unlearning and tweaking the colonial law. Unlearn the manner, and reasons the law
was imposed and tweak the same definition of the sedition law to meet the current socio-
political scenario of the country. Judicial Activism and the role of the Legislature play a
significant part in the formation and execution of the law, which is further discussed. Finally,
it would not be an understatement to mention that Sedition can only survive in India by
garnering a new outlook.
Keywords- Sedition Law, Colonisation, Judicial Activism, Legislative Role.

Introduction

The common law system is often praised for its ease of adaptability to various nations, and
India was one such nation that adopted this system after overcoming a rough patch.2 Sedition
was one of the laws that was inherited, and so were its rigours and flaws. Sedition has been
misused over the years, by amending the definition for the existing needs of the then-current
situations. This has left a garb of ambiguity around the law, which has led governments to
misuse and exploit this lacuna. Utmost cautiousness and certainty must be exercised while
deciding the cases related to this law.
The paper will look at how the balance between Judicial activism and the role of the
Legislature should guide the right usage of Sedition Law and discuss certain casessome
instances of the post-colonial and present times to evaluate the usage of the draconian Law

1
Suleyman M. Demi, ‘Reclaiming cultural identity through decolonization of food habits,’ in N. N. Wane et al.
(eds.), Decolonizing the spirit in education and beyond: Resistance and solidarity Decolonizing the Spirit in
Education and Beyond, Spirituality, Religion, and Education, (2019).
2
Arudra Burra, ‘What Is ‘Colonial’ about Colonial Laws’ (2016) 31 AM. U. INT'l L. REV. 137
and its need in the country. Finally, it would not be an understatement to mention that
Sedition can only survive in India by garnering a new outlook, where its 1) definition is
rendered clearer 2) Applied to the right individual or section of people 3) not used as a tool of
suppression of criticism.
Sedition – the beginning.

The need to understand the advent of the sedition law becomes significant to fathom and
adjudge the contemporary situation. This law first found its place in the draft of the IPC
designed by Lord Macaulay in 1837, however; however, it did not make it into the final
version of the IPC.3 The reasons for this move are quite unclear, many believe that Macaulay
himself did not want to include such a regressive law. 4 Some also attribute this exclusion to
Lord Canning, the then Governor General of India, who garnered a liberal outlook in his
ideals and believed in criticizing criticising the government in the right manner.5 Few
scholars also term it as a mere accident, 6 this reasoning does not hold value, if; if it was were
an accident, it would have notnot have taken the government 10 ten years to reintroduce
sedition in the IPC. Therefore, why the Sedition Law was not included in the final Act (1860)
remains an unsolved question. Nevertheless, it was included in the act through an amendment
in 1870 by James Stephen, and this move can be attributed to the Revolt of 1857 and the
Wahabis Movement.
Does Sedition Law have a place in Post-colonial India?

One can ascertain the use of Sedition law in colonial times, as it was used by the colonisers to
suppress the native natives and their freedom of speech. But why did this colonial deterrent
flow to the newly found Democracy? Numerous debates took place in the Constituent
Assembly, where KM Munshi and TT Krishnamachari called for boycotting this colonial
law.7 But Sardar Vallabhbhai Patel and C Rajagopalachari made a valid assumption that India
was a very new country, and keeping in mind the then social and political scenarios, the
presence of many destabilising forces called for the retainment of the draconian law. 8
However, the sedition law is inherent with quite a few rigours, the definition being too broad
gives way to manipulation of the framers’ intent. From time immemorial, this law is has been
known for its misuse, but if truly used in the right manner it can strike the right balance in the
society. This misuse by the government can be solved by the balance between two
components: Judicial Activism and Legislative role.
Judicial activism

3
Abhineet Upadhyay, ‘Critical Analysis of the Sedition Law in India: With Freedom of Speech’ (2023) 6 (2)
IJLMH 2440
4
Vikas Kumar, ‘A Study of Sedition Laws in Democracy’ (2022) 12 ANUSANDHAN ANVESHIKA 67, 70
5
Shankar Suwan Kaushal, ‘Historical and Contemporary Analysis of Sedition in India’ (2022) 31 SUPREMO
AMICUS 230
6
ibid 233.
7
Arjun Raghvendra Singh, ‘Sedition: An Insight on History, Evolution, Shortcoming and Relevance of This
Law in Post Colonial India’ (2022) 28 SUPREMO AMICUS 121
8
ibid 123.
Judicial activism plays a significant role in interpreting statutes and the Constitution. As SP
Sathe rightly stated, “Courts cannot interpret a statute in a machinist manner,” they need to
make use of the Golden rule, Mischief rule and Purposive approach rather than the Literal
rule. The courts should also make sense of the Constitution with changing political and
economic situations as; as Justice Benjamin Cardozo stated, a court must give to the words of
a Constitution “a continuity of life and expression.”9 Here when we apply the same to the
cases of Sedition, we can assume how post-colonial India is better placed in the sense that,
we do not follow the ‘Parliament is the Sovereign system’ or the Westminster model which is
followed by England. Instead, our Parliament is constrained by the Constitution. The
Constitution of India is supreme. The sole interpreter and protector of the Constitution is laid
in the hands of the Supreme Court; hence one can understand the responsibility of the
judiciary to aptly interpret the Constitution with changing times.
After the sedition law was incorporated in the IPC, it was amended in 1898 after a few cases,
namely Queen Empress v. Jogender Chandra Bose,10 Queen-Empress v. Balgangadhar Tilak,
11
etc. The amendment caused more ambiguity by adding the word disloyalty. The gap was
again used by the British government to try people for the most trivial offences, thereby
discouraging any form of opinion on the government 12. A parallel to this situation was drawn
during the 1st Constitutional Amendment. In the newly adopted Constitution, the word
sedition was not mentioned under Article 19(2) as a restriction of freedom of speech in
Article 19(1)(a). This move by the framers can be interpreted to limitas limiting the powers of
the Executive to exploit the citizens’ freedom of speech.13
The courts in the cases Brij Bhushan v. State of Delhi14 and Romesh Thappar v. State of
Madras15 held the spirit of judicial activism by adjudging the intent of the framers of the
Constitution, hence filling in the gaps. The judges in the respective cases held a liberal
interpretation of the restrictions and considered public order and public safety to provide a
broad spectrum of limitations on free speech.16
Then came the 1st Constitutional Amendment, where sedition was reimposed and added
words like the “security of the State, friendly relations with foreign States, public order,
decency or morality, contempt of court, defamation, or incitement to an offence,” thereby
bringing more offences within this ambit. This move not only increased the government’s
power to charge more citizens under sedition but also increased the burden on the judiciary in
interpreting the meaning, hence leading to different understandings by different courts,
thereby breaking the uniformity and standardisation in the judgements, this in turn, in turn,
defeated the objective of codifying laws.

9
SP Sathe, ‘Judicial Activism: The Indian Experience’ (2001) 6 Wash. UJL & Pol'y 29, 31
10
Queen Emperor v. Jogendur Chandra Bose, (1892) 19 ILR35 (Cal).
11
Queen-Empress v. Balgangadhar Tilak, (1898) 22 ILR112 (Bombay).
12
Raghvendra Singh (n 7) 121.
13
Kaushal (n 5) 235.
14
Brij Bhushan v. State of Delhi, (1950) SCR 605.
15
Romesh Thappar v. State of Madras, (1950) SCR 594.
16
Kaushal (n 5) 239.
Though the government charges many people under this law, the conviction rate is alarmingly
low. This does show the active participation of the judiciary but, on the flipside, points to the
manipulation by the government and the trauma that the accused go through during the entire
process, which can be seen through a slew of cases mentioned below:

 The ordeal between the Andhra Pradesh government and two news channels gave the
court the opportunity to draw distinctions with reference to seditious acts. Justice DY
Chandrachud stated, "Everything cannot be seditious. It is time we define what is
sedition and what is not." The court held the spirit of Judicial activism and acquitted
the accused, considering the gravity of the situation.
 Similarly, in the recent Disha Ravi case, a college student was charged under the
draconian law for circulating a toolkit to help farmers protest against the farm laws.
The Delhi court held that “the government cannot put citizens "behind bars simply
because they chose to disagree with the state policies" and "the offence of sedition
cannot be invoked to minister to the wounded vanity of the governments."17.
Therefore, there are many such cases in contemporary times where the courts have used
judicial activism in the right manner. There are cases when two or more courts interpreted the
law differently due to the ambiguity present in the definition of sedition. This is
apprehensible when the definition is too broad. In Kedarnath Singh vs State of Bihar18, even
though the court tried to set a balance between restrictions and Freedom of Speech, keeping
in mind both the government’s role to maintain order, peace and tranquillity and the citizen’s
right to freedom of speech and expression, nevertheless, this line has been blurred by the
actions of the government as they have often misused it. 19 Hence, it would not be wrong to
assume that not only is judicial activism heading in the right direction, but also the Role of
the Legislature plays a vital role in removing the rigours of the Law.
Legislative role

The role of Legislature plays a paramount role in the process of law-making, and The
Judiciary interprets these laws keeping in mind the ‘Legislative Intent’ and impends Judicial
Activism when there are gaps within the laws made, nevertheless; nevertheless, the intent of
the framers is kept in mind. This is the right Judicial activism one expects, but if the judiciary
goes overboard and makes laws, it surpasses its powers, as was done in Vishaka & Ors. v
State of Rajasthan & Ors.20 Hence, ‘Judicial Overreach’ should not happen in the case of
Sedition. Separation of Powers is important as one can adjudge it from Montesquieu’s idea
elaborated by Justice (RETD) Ruma Pal: “monopoly of powers, however, defined, by any
one of the different organs created and functioning under a constitution, written or unwritten,
leads to tyranny.”21

17
Kumar, (n 4) 71.
18
Kedar Nath Singh vs State of Bihar, (1962) AIR 955.
19
Kaushal (n 5) 241.
20
Vishaka & Ors. v State of Rajasthan & Ors., (1997) 6 SCC 241.
21
Ruma Pal, ‘Separation of Powers’ in Sujit Choudhry, Madhav Khosla and Pratap Bhanu Mehta (eds.) The
Oxford Handbook of The Indian Constitution (United Kingdom: Oxford University Press, 2016)
When it finally boils down to having a narrower, more specific, and less ambiguous
definition, the Legislative must take a front seat in amending the law in the most effective
manner, keeping in mind the suggestions and advice that will be given by the courts after the
review of the law.
[1.] One of the best ways in which the draconian law can be amended is to follow the
method prescribed by Professor Dipika Jain, where she calls for consultation and
deliberation from the connected stakeholders, scholars, experts in the field and
citizens during the pre-Legislativepre-legislative process. This process is two-fold: a)
Consultation and b) Deliberation. After receiving consultation, the parliament should
take into consideration these opinions and give reasons to the ones rejected as well,22
following; following this method not only increases the legitimacy of the law being
amended but also holds the ideals of democracy.
1.[2.] The parliament should have a strong opposition. This will ensure that the
government in power does not manipulate the definition of the law again and render
loopholes for further exploitation.
[3.] Taking into consideration the meaning given to Sedition Law in various other
countries: , Ssome countries like the UK, from whom we derived this draconian law,
have abolished the crime of sedition. However, it becomes important to look into the
various social-political condition that exists in respective countries to ascertain the
need for the law. In India, with the uprising of various insurgencies, it becomes
essential to have an effectively worded Sedition Law in place. Now when we examine
the definitions of various countries like the US, Australia, and Canada the ambiguity
is relatively removed by adding words like ‘force or violence’ whereas the Indian
definition includes broader terms like hatred and contempt which ropes in many
trivial acts. Hence the revamping of the definition can take inspiration from other
countries to bring in accuracy and specificity.
[4.] The difference between Incitement and Freedom of speech should be well-
illuminated within the newly worded definition. Given the fact that drawing a
distinction between incitement and the right to freedom of speech is quite thin, it
never rules out the possibility of making that distinction. With the usage of the right
skills, deliberations and the spirit of good intent, the parliament can certainly pave its
way through this ambiguous definition.
CONCLUSION
After looking into the problems posed, one can ascertain Sedition Law(124A) is very much
required, but the application of this law must be to the right individual or section of people. A
right balance between National security and Freedom of speech and expression must be
achieved.23 Since sedition has carried with it the negative connotation from colonial times, the
outlook people hold towards it is very harsh, therefore; therefore, revamping this law with a
new name would make a lot of difference. Considering the severity of punishment and the
22
Dipika Jain, ‘Law-Making by and for the People: A Case for Pre-legislative Processes in India’ (2020) 20
STATUTE LAW REVIEW 1
23
R. K. Misra, ‘Freedom of Speech and the Law of Sedition in India’ (1966) 8 JOURNAL OF THE INDIAN
LAW INSTITUTE 117
trauma faced by an individualan individual faces during a sedition trial, a higher standard of
proof must come into play.24 In recent years, the data provided by NCRB depicts that most of
the people charged under sedition law are youth aged between 18-30 years. 25 The government
should understand the opinions of these young minds in case it is to bring in a positive
change and not suppress it. Finally, it should be kept in mind that LAW IS MADE TO
EMPOWER ITS CITIZEN AND NOT TO WEAKEN THEM.

24
Mohammad Rasikh Wasiq, ‘Sedition in Respect of Freedom of Speech and Expression: Indian Legal
Perspective’ (2022) 4 INDIAN JOURNAL OF LAW AND LEGAL RESEARCH
25
Raghvendra Singh, (n 7) 126.