Section 124A of the Indian Penal Code

Section 124A of the Indian Penal Code lays down the punishment for sedition. The Indian Penal Code was enacted in 1860, under the British Raj. Section 124A forms part of Chapter VI of the Code which deals with offences against the state. Chapter VI comprises sections from 121 to 130, wherein section 121A and 124A were introduced in 1870. The then British government in India feared that Muslim preachers on the Indian subcontinent would wage a war against the government. Particularly after the successful suppression of Wahabi/Waliullah Movement by the British, the need was felt for such law. Throughout the Raj, this section was used to suppress activists in favour of national independence, including Lokmanya Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned. The section kept drawing criticism in the independent India as well for being a hindrance to the right to free speech.

Text

Section 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.[1]

History of development

Historical text (1870)

Section 124A. Exciting disaffection

Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation: Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority, of the Government, against unlawful attempts to subvert or resist that authority, is not disaffection. therefore, the making of comments on the methods of the Government, with the intention of against unlawful a exciting only this species of disapprobation, is not an offence within this clause.[2]

The section related to sedition initially had its place in the code, as Section 113, when Thomas Babington Macaulay drafted the Penal Code in 1837. However, for reasons unknown, it was omitted from the actual Code. It was finally added in 1870 on the suggestion of James Fitzjames Stephen, at the time handling legal issues in the colonial Government of Indian.[2] Due to increasing Wahabi activities, and fearing that Muslim preachers would incite religious war in the Indian subcontinent, the Raj introduced this section under the title "Exciting disaffection".[3]

Stephen's version of 1870 was amended to a large extent through IPC Amendment Act of 1898. The current section stands very much similar to this 1898's section; however minor alterations were made at various points in India's colonial and post-colonial history—in 1937, 1948, 1950, and by Part B States (Law) Act, 1951.[2]

Notable cases

Pre-independence

The first known registered case under the section was in Calcutta High Court in 1891; Queen Empress v Jogendra Chunder Bose. Bose's article, published in his own Bengali magazine Bangobasi, criticized the Age of Consent Act, 1891. The Act was described as "forced Europeanisation" and a gag on Hindus, who were described as legally incapable and prevented from rebelling against the Act. The authorities put forth a claim that Bose had incited rebellion; in his instructions to the jury, the Chief Justice William Comer Petheram explained the meaning of "disaffection" as "a feeling contrary to affection, in other words, dislike or hatred" and linked it with disobedience towards the government.[3] Bose was nevertheless released on bail, and the case was dropped.[4][5]

The sedition trial of 1897 against Lokmanya Tilak is historically famous. Tilak, a lawyer by training, was also politically active in support of independence. He established and published two dailies—Kesari in Marathi and Mahratta in English; both being published from Pune. In 1894, Professor R. P. Karkaria presented his paper on the Maratha king Shivaji to the Royal Asiatic Society in Bombay. This turned into an annual celebration commemorating the anniversary of Shivaji's coronation. Three years later, Tilak published reports of this celebration, as "Shivaji's Utterances"; this essay doubled as an attack on the colonial government. Justice Arthur Strachey, who presided over Tilak's case, widened the understanding of Section 124A. Under Strachey's definition, the attempt to excite "feelings of enmity" against government was also a form of sedition. Tilak was found guilty by the jury and sentenced to 18 months of rigorous imprisonment.[3][4] Tilak again faced charges against sedition for two Kesari articles, titled "The Country's Misfortune" (12 May 1908) and "These Remedies Are Not Lasting" (9 June 1908). He was again found guilty under the newly drafted section 124A, and sentenced to six years of imprisonment in Burma.[4]

In 1922, Mahatma Gandhi three articles for Young India resulted into his and Shankarlal Banker's imprisonment under the sedition section. While appearing in court, Gandhi referred to Section 124A as the "prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen".[6]

Post-independence

In 1951, the Punjab High Court ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech. The Government of India appealed to the Supreme Court of India, which in 1962 ruled that speeches against the government or political parties was not illegal, while upholding it as applicable to separatism by persuasion or force; this pronouncement had the effect of diluting the law.[7][8]

During the 21st century, various notable authors, creative professionals, activists and politicians have been charged with sedition under Section 124A. Cases include Praveen Togadia (2003), Simranjit Singh Mann (2005), Binayak Sen (2007), Arundhati Roy (2010), and Aseem Trivedi (2012), Rinshad Reera (2019).[9]

Criticism

In post-independence India, Section 124A came under criticism at numerous intervals, being singled out for its curbing of free speech. When the First Amendment of the Constitution of India was passed in 1951, Prime Minister Jawaharlal Nehru proposed to "get rid of it [Section 124A]" as written, and favoured handling sedition-related by other means.[8] In 2018, the Law Commission of India published a consultation paper that asked for a possible amendment or repeal of the law.[10] During the 2019 Indian general election, the opposition Indian National Congress (INC) included a specific proposal to abolish Section 124A in their manifesto.[11] However, while the INC-led United Progressive Alliance had been in power (2004–2014), the section had remained intact and was used to file charges on various citizens; following 2012-2013 protests against Kudankulam Nuclear Power Plant in Tamil Nadu, an "astonishing number" of citizens faced trial under Section 124A: 23,000 were in temporary custody, of whom 9,000 were arrested only for sedition.[12]

Several opinion-makers have called for the abolishing of sedition laws in the context of the 2016 protests at the Jawaharlal Nehru University.[13][14][15]

References

1. "Section 124A in The Indian Penal Code". Indian Kanoon. Retrieved 22 May 2019.
2. Gaur, Krishna Deo (2009). Textbook on the Indian Penal Code. Universal Law Publishing. pp. 220, 226–227. ISBN 8175347031.
3. Bhatia, Gautam (2016). Offend, Shock, or Disturb: Free Speech under the Indian Constitution. Oxford University Press. ISBN 9780199089529.
4. Saxena, Namit (8 July 2018). "A Look Back At Tilak's Sedition Trials". Live Law. Retrieved 28 May 2019.
5. "Panel Discussion on Free Speech and Sedition in a Democracy". The Hindu. 24 March 2016. Retrieved 28 May 2019.
6. "Republic of dissent: Gandhi's sedition trial". Live Mint. 25 January 2019. Retrieved 29 May 2019.
7. "Anti-sedition law needs the bin". Economic Times. 15 January 2019. Retrieved 27 May 2019.
8. Prakash, Satya. "To repeal or not: Nehruvian dilemma on sedition law". 10 September 2018 (The Tribune). Retrieved 27 May 2019.
9. "5 high profile sedition cases in India". Rediff. 13 September 2012. Retrieved 28 May 2019.
10. Rajagopal, Krishnadas (30 August 2018). "Law Commission calls for re-think on sedition clause". The Hindu. Retrieved 27 May 2019.
11. "Congress manifesto promises to do away with British-era sedition law". India Today. 2 April 2019. Retrieved 29 May 2019.
12. Biswas, Soutik (29 August 2016). "Why India needs to get rid of its sedition law". BBC. Retrieved 29 May 2019.
13. "Why India's sedition law needs to be buried". Mint. 18 January 2019. Retrieved 29 May 2019.
14. "The Indian State must scrap the sedition law". Hindustan Times. 15 January 2019. Retrieved 29 May 2019.
15. R, Jagannathan (24 August 2016). "The Sedition Law Sucks: Time For The Government To Water It Down To Limited Situations". Swarajya. Retrieved 29 May 2019.