What unites Arundhati Roy and Hardik Patel, two individuals as different from each other as chalk and cheese? The answer is a provision of the Indian Penal Code: Section 124A, which defines and penalizes the offence of “sedition".

Both Roy and Patel have been booked under this section; the former for advocating a plebiscite in Kashmir, and the latter for his Patidar reservation agitation.

Section 124A penalizes exciting “disaffection" against the government established by law, or bringing it into “hatred or contempt", and allows for life imprisonment in case of conviction. Strong medicine for mere words, one might think.

Indeed, sedition has survived numerous attempts to get rid of it. Interestingly, in the original Indian Penal Code, drafted in 1860, it didn’t even exist (hence, the ‘A’ after Section 124, signifying a later amendment). It was incorporated into the code in the 1870s, as a response to the rising Wahabi movement.

Initially, the section only used the term “disaffection", which was interpreted by colonial judges to refer to acts or speeches that incited people to disobey the government. However, once the British realized that clever Indian nationalists were taking advantage of the loophole in the law to frame incendiary speeches that made no mention of disobedience, they added the words “hatred" and “contempt", more or less turning the offence into one for capturing thought crimes. Under the sedition provision, the colonial government persecuted nationalist politicians, journalists and press owners, as well as writers and poets.

Despite the widespread opprobrium and contempt in which sedition was held, as a tool of the colonial rulers, in a rather surprising turn of events, the Fundamental Rights Sub-Committee of the Constituent Assembly expressly included it as grounds for restricting free speech in its first draft of the fundamental rights. The Assembly objected strongly, with Somnath Lahiri sarcastically asking Sardar Vallabhbhai Patel whether he needed even more protection from his own people than the tyrannical British did. The next day, sedition was quietly removed from the draft, only for it to make another appearance during the second reading of the Constitution. Once again, the Assembly protested vehemently, with many members recalling their own prosecutions during the nationalist movement; and once again, it was swiftly withdrawn. When Article 19(1)(a) finally came into being, “sedition" was not among the permissible restrictions under Article 19(2).

Immediately after the Constitution came into being, the Supreme Court struck down government restrictions upon a communist magazine called the Cross Roads, as well as the Rashtriya Swayamsevak Sangh magazine, The Organiser. Immediately after that, the first Parliament amended Article 19(2) substantially, broadening its scope by including “public order" among the permissible grounds of restriction of free speech, while also narrowing its operation by adding the word “reasonable" before “restrictions".

During the parliamentary debates on the amendment, Jawaharlal Nehru—echoing the nationalists before him—expressed his desire to “get rid" of the sedition provision as quickly as possible. Nonetheless—surprisingly—Parliament itself made no move to repeal Section 124A, and so, inevitably, the battle moved to the courts.

Before the amendment to Article 19(2), the Punjab high court had already held that sedition was incompatible with free speech in a democratic republic, and had struck it down as unconstitutional. After the amendment, the Allahabad high court did the same. Ultimately, the matter wound its way up to the Supreme Court, which handed down its decision in 1962.

In a landmark judgement in the Kedar Nath Singh vs State of Bihar case, five judges of the Supreme Court upheld sedition as constitutional. Kedar Nath Singh had been brought to court for making a rather intemperate speech, which he began by saying, “Today the dogs of the CID are loitering around Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well...," continuing in this vein and calling for a general revolution. He was charged with sedition, and ultimately his case went up to the Supreme Court, where the constitutionality of the provision itself was challenged.

To uphold sedition, the Supreme Court was obliged to indulge in a degree of textual acrobatics, since at least on the face of it, “disaffection", “hatred", and “contempt" did not fit within any of the clauses of Article 19(2). However, the court held that in pre-Independence India, there had been two views about the interpretation of Section 124A. The dominant view was that sedition was determined simply by the content of the language used, and whether it was such as to cause disaffection, hatred or contempt. There was a minority view as well, propounded by Sir Maurice Gwyer of the Federal Court which, borrowing from English common law, effectively saw sedition as a crime against public order. In the Kedar Nath Singh case, it was this latter view that the Supreme Court latched on to: only insofar as seditious speech tended to incite public disorder, it held, could it be punished under Section 124A. Anything else was exempt.

Of course, Section 124A makes no mention of public order. Effectively, to protect the provision’s constitutionality, the court had to read into it a phrase that was absent from the text, and indeed, never meant to be part of the definition. This perhaps explains why Section 124A remains one of the most misused and abused provisions of the penal law: the Supreme Court’s peroration that the interpretation of sedition be limited to public disorder-causing speech sits uneasily with its wide language, which makes it easy for it to be invoked against dissidents almost at will.

One of the important arguments relied upon by the Supreme Court in upholding Section 124A was that the phrase “reasonable restrictions… in the interests of… public order", in Article 19(2) of the Constitution, was of particularly wide ambit. In particular, the term “in the interests of" allowed the state significant leeway to regulate speech that it felt might be inimical to public order.

Let’s take two examples: an article written in a newspaper or magazine praising or defending the Naxalite movement might possibly, if it persuades enough people, eventually lead to them joining the Naxals and creating public disorder. On the other hand, inciting a raging mob to immediately destroy property also has a link with public disorder, but here the link is much more proximate. Effectively, the court, in the Kedar Nath Singh case, held that the term “in the interests of" was so wide that it allowed the state to criminalize both forms of expression, without any need to distinguish between the two.

Interestingly, however, that point of view has been bypassed by subsequent judicial developments. Later judgements, keenly aware of the importance of free speech, and hesitating to trust the state with too much power, have insisted on a close and clear link between the suppressed speech and the feared public disorder. For instance, in a case called S. Rangarajan Etc vs P. Jagjivan Ram, the Supreme Court insisted that the relationship between speech and disorder be like that of a “spark in a powder keg".

In 2011, while deciding a case under now-defunct Terrorist and Disruptive Activities (Prevention) Act (Tada), the court held that a member of a terrorist organization could not be convicted for mere membership, unless he had been involved in inciting people to lawless action. And most recently, in the famous Shreya Singhal case, the court distinguished between “advocacy" and “incitement", and held that only the latter could be punished consistent with Article 19(2).

Consequently, there is now a difference between a Naxal-defending article and the incitement of a mob: only the latter may be punished in a manner that is consistent with the right to free speech.

This suggests that the time has now come to review the Kedar Nath Singh case, which upheld sedition. The case’s broad and vague “tendency to disrupt public order" formulation has been replaced by a much tighter “incitement" standard. And it is very clear that no matter how much you twist or stretch the English language, it is impossible to squeeze out an incitement requirement out of the terms “disaffection", “hatred" and “contempt". In technical terms, these provisions are “over-broad": that is, they punish speech which the state is permitted to (i.e., speech that incites violence), as well as speech which the state is not (i.e., speech that might spread hatred against the state, but stops short of incitement).

However, the chances of the Supreme Court reviewing a 50-year old judgement, and indeed, constituting a seven-judge bench that may overrule it, are negligible. Consequently, sedition will probably continue to remain in the news; and the responsibility will continue to lie upon trial lawyers to demonstrate how sedition complaints or charges are completely frivolous, and upon the lower judiciary, to quickly throw out cases that fail to meet the Supreme Court’s standard of incitement to imminent lawless action.

Gautam Bhatia is a Delhi-based lawyer. His book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (OUP 2015) is available on Amazon.

Case Studies is a series that looks at why we have the laws that we have and what it means to change them.

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