Sedition and Dissent: The Constitutional Quagmire
Mr Nipun Saxena
Sept 06, 2020
Clarence Darrow, widely recognized as one of the most celebrated lawyers of the twentieth century, while defending the famous Scopes Monkey Trial had made a compelling speech in favour of the freedom of thought, speech, expression and belief, the four cornerstones of the first amendment of the American Constitution. In delicate balance hung the study of evolution and on the other hand, lay the irrational law passed by the State of Tennessee which made it punishable for students to study “Charles Darwin” as part of their biology classes. As irrational as it may sound today, the Scopes Trial was the most defining moment, not only for America, but for the world, for a step in the wrong direction would have sent human advancement back to the 16th century. The Scopes Trial is considered to lay down the footprint for the greatest of evolutions, scientific discoveries and life altering inventions, which would not have otherwise been possible, had the Tennessee law survived making the study of human evolution a criminal offence.
So, what did Clarence Darrow argue? In his closing arguments, Darrow emphatically argued that the First Amendment was a written guarantee that the Government could place “no fetters on thought and actions and dreams and ideals of men, even the most despised of them’.
It is to this last part, that I shall allude to, for I believe the same to be of utmost essence. Disagreement with a statement made by the citizen and yet allowing the very same citizen to voice it nonetheless, is not an act of compassion or benevolence by the State. It is the very right of the Citizen, which is fundamentally guaranteed to them by the Constitution of this Country.
Enduring the harshest of criticism is not an act of magnanimity of the Welfare State, but it is in the nature of its fundamental commitment, that even though the State may not agree with the content of the statement, but the right to voice one’s opinion shall be guaranteed by the State, even if it is in the harshest of terms possible.
However, the Crown being cognizant of the fact that the no freedom is absolute, decided to impose certain “reasonable restrictions” on the exercise of such right, and it is in this light, that the present discourse around the law of Sedition emanates since Sedition is to deter citizens from hampering public order. Section 124A of the Indian Penal Code while defining Sedition lays down three important ingredients, which are conveniently reproduced as under:
Firstly, the Seditious content could be through words, spoken, or written, or through visual representation (defining the medium of seditious imputation);
Secondly, the seditious content should bring or attempt to bring hatred or contempt or disaffection;
Thirdly, the seditious content should be directed against the Government established by law in India (the object of seditious imputation).
Through judicial decisions, a fourth ingredient has also been carved out. This fourth ingredient presupposes that to bring home the charge under Section 124A, the seditious content ought to have caused violence, intention or tendency to disturb public tranquillity, to create public disturbance or to promote disorder.
The Supreme Court of India speaking through its Constitution Bench in its cassus classicus of Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 had the occasion to decide and determine whether a “disturbance to public order” was a necessary condition precedent to the invocation of Section 124 A of the IPC. The need to refer the matter to a Constitution Bench arose on account of two reasons. Firstly, the constitutionality of “Sedition” involved an interpretation of Article 19(1)(a) of the Constitution, and in terms of Article 145(3) of the Constitution, the same could only be determined by a bench of at least five Honourable Judges. Secondly, and more piquantly, there was a divergence of opinion, and the Supreme Court had itself held in Lohia’s Case  2 S.C.R. 821 that Section 124 A of the IPC also punishes those speeches which do not have the tendency to create public disorder, another consistent view which was adopted by the Privy Council, upholding the conviction of Bal Gangadhar Tilak by a 6 – 3 Jury in the celebrated case of Bal Gangadhar Tilak v. Queen Empress (1).
The Constitution Bench judgment, after a detailed deliberation conclusively held that incitement to violence or disruption of public order is a sine qua non for the imposition of Section 124 – A of the IPC, 1860. It was further held that while the provision itself is constitutional, the ends of justice would be best subserved if an additional requirement of establishing and proving “incitement to violence or disruption of public order” is cast on the prosecution. This will give the much-needed restrictive interpretation to the expression “public order” and would in turn give an expansive meaning to the right to freedom of speech and expression as recognized under Article 19(1)(a) of the Constitution.
However, an important caveat has to be made at this juncture. Strong words that are used to convey dissatisfaction with governmental measures, strongly worded comments that express disapprobation of actions of the Government, without generating inclinations amongst people to resort to causing public disorder by acts of violence, would not be penal. A citizen has a right to say or write whatever they wish about the Government, or its measures, by way of criticism or comment, so long as people are not incited to commit violent acts against the Government. What emerges out of this landmark judgment is that any speech or piece of writing must give rise to violence or public disorder, or incite tendencies amongst people of the same, to be penalised under sedition.
The law of Sedition has since seen a lot of transformation, in the current digital age. The Explanation appended to the provision has caused more conundrum than affording clarity. Regrettably, the recent spate of criminal prosecutions in the Country, speak otherwise. When the matter was raised before the Hon’ble Supreme Court of India by Common Cause, a registered society, the short but poignant order disposing off the petitions has clearly hit home with the following words: “we are of the considered opinion that the authorities while dealing with the offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs. State of Bihar case. Except saying so, we do not intend to deal with any other issue as we are of the considered opinion that it is not necessary to do so. The writ petition is accordingly disposed off.”
In the case of Kanhaiya Kumar vs. State of NCT 2016(1) Crimes764 (Del.), the Delhi High Court was called upon to examine whether students of JNU were liable for committing sedition. The High Court relied on Hardik Bharatbhai Patel vs. State of Gujarat & Ors. 2016 (1) RCR (Criminal) 542 to hold that the erstwhile students shall face trial for the seditious imputations made by them or made with their active concert and connivance. The trial shall take its own time, but it will raise a myriad number of questions, as I suspect, and until such time, the fate of “dissent” shall lie in a delicate balance.
About the Author:
Mr. Nipun Saxena is a practicing Advocate in the Supreme Court of India, and also appears before various High Courts throughout the country. An alumnus of National Law University Delhi, he has expertise in Constitutional, Criminal, Civil, as well as Real Estate law. Mr. Saxena has appeared in several significant cases. Most noteworthy of which is ‘Nipun Saxena v. Union of India’, wherein the Supreme Court issued directions for protection of the identity of victims of rape and sexual offences.