The way Section 124A is phrased appears so wide that it would douse any attempt at criticising the functioning of the Government of India. Wide interpretation of this Section and the punishments make this law draconian in nature.
In 2021, the Supreme Court took a step towards the re-examination of its sedition law through three separate decisions. On May 31, 2021, in M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. (W.P. (Cr.) No. 217/2021), a three-judge division bench of the Supreme Court observed that the limits of the Indian sedition law needs to be defined. In addition to this, on June 3, 2021, in the case of Vinod Dua v. Union of India (LL 2021 SC 266), a two-judge division bench of the Supreme Court of India quashed an FIR lodged against Vinod Dua, a veteran journalist for his alleged comments against Prime Minister Narendra Modi in his YouTube telecast, placing reliance on the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955). Previously in 2021, in the case of Kishorechandra Wangkhemcha & Anr. v. Union of India (W.P. (Cr.) No. 106/2021), the Supreme Court also agreed to re-examine whether the sedition laws in India are constitutional in nature. Considering these circumstances, it is crucial to analyse the sedition law in India and create awareness regarding the various fundamental rights it violates.
The Legal Framework of Sedition laws in India
Section 124A of the Indian Penal Code reads as follows:
“124A 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 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.”
It was inserted in the criminal jurisprudence of India in 1870 as it was derived from British Sedition Act of 1661. Although it was abolished in Britain in 2009 stating that it was against the freedom of speech that is guaranteed to its citizens, it still continues to be a part of the Indian legal framework. This offence is also a non-bailable offence and one who commits this offence would be punished with imprisonment for life, along with a fine, or three years’ imprisonment, along with a fine, or with fine.
Analysis of Section 124A
To analyse the unconstitutionality of Section 124A of IPC, one will have to look into the several threats that it poses to the Indian Constitution and the democracy of the country.
Firstly, this provision infringes upon a person’s right to freedom of speech and expression that is guaranteed under Article 19(1)(a) of the Constitution of India. The fundamental freedom under Article 19(1)(a) can be reasonably restricted for the purposes mentioned in Article 19(2) and these restrictions must be justified on the anvil of necessity, and any limitation on the exercise of right beyond the scope of restrictions enlisted in Article 19(2) would not be valid. It is important to keep in mind that the “harm principle” applies when a State attempts to restrict free speech, which means that the speech must do some sort of harm for it to be restricted by the State and the harm must be of an intensity that poses a threat to the very existence of the society and disrupts public order. Section 124A, on the other hand, is vague in nature and can be interpreted in a wide manner to curb the freedom of speech that is guaranteed to people. In conclusion, it can be stated that this provision violates Article 19(1)(a) as it is a disproportionate restriction on the freedom of expression and does not fall within the ambit of Article 19(2).
Secondly, the over-breadth test must be applied to provision to test its constitutionality. If a provision’s ambiguity leads to an expansive breadth, it would lead to problems in interpretation of the provision in the statute. Section 124A is vague and can be widely interpreted, considering how it encompasses all forms of expression- “words, either spoken or written”, “signs”, “visible representation” or “otherwise”. The provision gives no clear interpretation as to what behaviour is prohibited and the elements that constitute the offence are ambiguous in nature, throwing it open to misuse through the means of subjective interpretation. In Shreya Singhal v. Union of India ((2013) 12 SCC 73), the Hon’ble Court, inter alia, struck down Sec. 66A of the IT Act due to the vagueness in the language. This case also speaks in length about how regardless of the degree of insult, there needs to be certain level of proximity between the utterance and possibility of public disorder. Moreover, it has been in The State of Bombay & Anr. v. F.N. Balsara (1951 AIR 318) by the Supreme Court that:
“The words “which frustrates or defeats the provisions of the Act or any rule, regulation or order made thereunder” are so wide and vague that it is difficult to define or limit their scope.”
Bearing in mind the wide interpretation that could be given to this provision and the punishment, this could be used as a means to further abuse of power and arbitrariness. Therefore, Section 124A is draconian and unconstitutional in nature.
Lastly, the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955), while considerably limiting the scope of Section 124A, clarifying what sedition is not and stating that the provision cannot be interpreted literally, also upheld the constitutionality of the provision. Despite its attempt at decoding the constitutional intent of the provision, the guidelines that were established in the case are insufficient to provide clarity on the scope of Section 124A. The prevailing circumstances are not in consonance with the judicial intention at the time of the judgement. Therefore, sedition law in India needs to be held unconstitutional in nature.
The way that Section 124A is phrased appears so wide that it would douse any attempt at criticising the functioning of the government of India. The wide interpretation of this Section and the punishments make this law draconian in nature. It also intervenes with the freedom of speech and expression under Article 19(1)(a), making it unconstitutional in nature. This also interferes with the elements that characterise a democracy. Although India has progressed substantially through the years, this sedition law poses a threat to its growth. Therefore, there is a need for sedition law in India to be re-examined, as ruled by the Supreme Court recently.
While looking into the provision, India has to consider it from the point of the public in order to understand how the lacunas in the provision would impact the lives of people by crippling their freedom of speech. Furthermore, it also needs to be considered that this law interferes with the rights and livelihood of journalists as well. If the country decides to not altogether strike down sedition law but only partially hold the section to be unconstitutional, the scope of the section must be altered in such a way that it cannot be widely interpreted and gives exact actions that would fall within the ambit of the section. Individual definitions and scope of terms and punishments would also reduce the arbitrariness involved in sedition law to a great extent, so much so that it does not curb the freedom of speech and expression but only imposes a reasonable restriction on it.