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What the Constituent Assembly Thought About Sedition

The Constituent Assembly had excluded the sedition law from the original Constitution, since several members were deeply concerned by how vague and unrestrained it is. Even other countries that used to have a sedition law have since repealed it. India’s continued use is a betrayal of the freedom struggle.

Sedition has become the profane argot for both the citizenry and political worthies in recent times. Citizens must now weigh between expressing their angst against the government and being imprisoned for exercising their fundamental right to speech and expression.

History reveals that the sedition law famously played out in times of war. At least in America, the Sedition Act of 1918 curtailed the free speech rights of U.S. citizens during this period. Passed on 16 May 1918, the Act provided limitations on the freedom of speech that was otherwise taken for granted. Those prosecuted under the Sedition Act at the time were typically those who opposed the war effort, pacifists, anarchists, and even to a great extent, socialists. Violations could lead to a prison sentence of up to 20 years and a fine of $10,000.

In the long run, however, its passage was viewed as unacceptable.

In India, Section 124A of the Indian Penal Code (IPC) has been resolutely bestriding India’s legal and political legacy. The inglorious British imperials found it easier to gag the Indians who tried to question, rebel or revolt against the regime, and seven decades after they packed their bags, we still cling on to a draconian law for political primacy.

It is imperative to note what the law tells us:

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.

The complexity of these words seems to have far more lasting consequences than other sections of the IPC.

In 2021, Chief Justice NV Ramana questioned the validity and utility of this archaic law. “This was the law used by the Britishers to silence Mahatma Gandhi,” he remarked. “Do you think this law is still necessary?”

Gandhi called the Section on sedition “the prince among the political sections of the IPC designed to suppress the liberty of the citizen.” Nehru, on the other hand, phrased it as “objectionable and obnoxious”. But it was ultimately his government which fortified Section 124A through the First Amendment to the Constitution in 1951.

While sedition may have been necessitated by war, it is imperative to ask: Do we now need a law that gags citizens at various levels of the social, political and economic hierarchy, in order to facilitate governments that go rogue from time to time, especially in states like Uttar Pradesh where the rule of law seems to have been replaced by hooliganism and lawlessness?

In the case of Vinod Dua, who was also booked for sedition, the courts held that every journalist is to be protected from the charge of sedition. But in that case, why is Siddique Kappan still in jail?

The landmark judgment that the courts are currently bound by is Kedar Nath Singh vs State of Bihar, 1962, in which a Constitution Bench ruled in favour of the constitutional validity of Section 124A, but had added a critical caveat: that a person could be prosecuted for sedition only if his acts amounted to “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

It is here that law enforcement agencies lose the plot. When a cartoonist caricatures the Prime Minister or the Leader of the Opposition, he is not on a buccaneering expedition to commit a crime against the state; he does so in the capacity of a satirist. Would this be reason enough to have him relieved of his job and be branded seditious? If a WhatsApp group has young people discussing the state of the nation and one of them – in the encrypted world of private virtual communication – seeks to share a dissenting opinion, would it amount to sedition?

Opposition in the Constituent Assembly

While the Constituent Assembly had excluded the Section in their original version of the Constitution in 1950, sedition was revalidated through the much-criticised First Amendment, after 16 days of going back and forth.

In the Constituent Assembly, reservations were brought against libel, slander and sedition, in conjunction with Article 13. Sardar Hukum Singh of erstwhile East Punjab stated: “If they [the laws] are to continue in the same way as before, then where is the change ushered in and so loudly talked of? The main purpose of declaring the rights as fundamental is to safeguard the freedom of the citizen against any interference by the ordinary legislature and the executive of the day.”

He further pressed that the government was particularly precluded from infringing these Fundamental Rights, except under “very special circumstances”. But who decides the ambit of the phrase “very special circumstances”? Is it the government, an organisation or a third party?

And while the Section on sedition prohibits hatred or contempt towards “the Government established by law”, there is still no water-tight answer on whether this means the government of the day or the actual foundation of the state.

Sardar Hukum Singh states with some resistance: “All that the Supreme Court shall have in terms of power of adjudication would be whether the law enacted relates to ‘sedition’ and if it does, the judiciary would be bound to come to a finding that it is valid the Judge was disallowed from probing into the matter whether the actual provisions are oppressive and unjust.” 

Here, he mentions something more ominous: “If the restriction is allowed to remain as it is contemplated in 13(2), then the citizens will have no chance of getting any law relating to sedition declared invalid, howsoever oppressive it might be in restricting and negativing the freedom promised in 13(1)(a). The ‘court’ would be bound to limit its inquiry within this field that the Parliament is permitted under the Constitution to make any laws pertaining to sedition and so it has done that.”

Time to Repeal Sedition Law

Upon careful reflection, one realises that even our founding fathers were but flawed human beings like any one of us. But are we not supposed to change along with changing times?

The subsistence of this law renders the entire constitutional framework weak, for the lack of well-defined legal limitations within which this particular law can be exercised.

The same British rulers who imposed the law on India decided to countermand the law of sedition in the UK in 2009, branding it meaningless in a modern democratic society where the freedom of speech and expression must be upheld. Most other developed countries, including Australia, have also completely done away with this law.

India must follow suit.

Katherine Abraham has completed her MA LLB, MBA and is currently pursuing her second Master's degree in Political Science. She is the author of Every Sunset Has a Story and The Rice Bag's Argument. She is an international freelance journalist (INS), public speaker, teacher and international photographer.