Sedition And Free Speech: An Antithesis

The conflict between a person’s free speech and the laws and norms curbing it, ostensibly in the larger interest of the society, has been a perennial issue since the advent of social structures and primitive democracies.

I strongly believe that no norm or law is static, but is dynamic. Its contours are shaped with the ravages of time and history. India was a melting pot in the mid-20th century. Not only was it emerging from its imperialist doom and slavery, but it was also struggling to deal with deep-rooted biases and differences within Indian society, riddled with every kind of problem that can be envisaged. Racism, casteism, and regionalism were only the obvious ones. A regular conflict on basis of religion, caste, and gender was running deep in our veins. In this background of colonial slavery and internal conflict, our founding fathers were challenged with the mammoth task to give to us a polity free of these evils. I would say this job was not worthy of any persons but for the 500 odd giants who unceasingly worked at granting us a constitution which would stand the onslaught of authoritarianism, discrimination and oppression.

The bulwark of an effective democracy is undaunted, fearless and independent thought and speech.

The Constituent Assembly Debates

The initial Article 13 of the Draft Constitution, introducing a truncated concept of fundamental rights, initially toed the British model by proposing in Article 13(2) that the State would have the authority to make any law relating to libel, slander, defamation, sedition, or any other matter which would offend against the decency or morality, or would undermine the authority or foundation of the State.

This draft provision drew heavy criticism, along with passionate and heated debates in the Constituent Assembly. A seminal concern was raised by Damodar Swarup Seth, a fiery socialist from the United Provinces. He argued that giving the Legislature the unbridled and unchallenged authority to enact laws posing these wide restrictions cancels the very guarantees of Article 13, and places the rights of people in the high handedness of the legislature.

He was vociferously supported by many members, notably, by Professor KT Shah (Bihar) and Sardar Hukum Singh (East Punjab). Pandit Thakur Dass Bhargava moved an amendment to Article 13 incorporating the mandate that all restrictions imposed by the Legislature must be “reasonable”. This safeguarded against the high-handedness of the Legislature, and made the judiciary the final arbiter of the nature of the restriction, imposing a heavy and unenviable duty on the judiciary to uphold the spirit and the mandate of the Constitution.

What Constitutes Sedition?

It is interesting to know that the specific exceptions initially worked into the draft Article 13, i.e. saving of laws relating to libel, slander, defamation, sedition were finally deleted from the final Article 19(2), and a stronger test on the touchstone of reasonableness as proposed by Pandit Bhargava was imposed. This thus gave the opportunity to even strike down unreasonable provisions in a reasonable law. Also laws on subjects like libel, sedition, obscenity etc. which are universally recognised as those, where greater harm than good can be done, were now subject to strict scrutiny so as not to become tools of curbing the guaranteed freedom to express our opinions.

The answer to this question is obvious. Yes, of course. But is the government not likely to misuse this power, and utilize it to curb our independent thought process? The answer to this question is again, yes of course.

It is because of this danger that our founding fathers were more than anxious to provide us with a Constitution which would safeguard us against governmental authoritarianism.

Singed by the trial of Balgangadhar Tilak, charged with sedition in 1898, the leaders were aware that sedition cannot be interpreted as mere “disaffection” or “absence of affection” towards the government, as it was to convict Tilak. A ready tool in the hands of the British to deal with any kind of demur, protest or expression of independent opinion could not be passed on to a constitutional government.

Citing the judgment of the Federal Court pronounced in 1942, in the case of Niharendu Dutt Majumdar v King Emperor, where it was held that “sedition is not made an offence in order to minister to the wounded vanity of the Governments, but because Government and law ceases to be obeyed…(and then) only anarchy can follow”, it was argued that every dissent or criticism should not amount to sedition.

The members of the Constituent Assembly thus ensured that the protection given to the laws on sedition by virtue of the draft Constitution was deleted from the draft Article 13(2). Free of any constitutional protection, it was now up to the courts to assess the reasonability of sedition laws if challenged.

‘Sedition’ In Early-Independent India

Post independence the context of sedition naturally underwent a sea change. In its very first year, a Constitution Bench of the Supreme Court had occasion to examine this provision in the case of Romesh Thappar (1950). The Supreme Court significantly noted that the deletion of the word ‘sedition’ from draft Article 13(2) exhibited that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of State, or tends to overthrow the State.

Later, a 1962 case, Kedar Nath Singh’s, became the landmark judgment on the vires of sedition law. In this case, despite there being bolder judgments of three High Courts, striking down the provision, the Supreme Court upheld the constitutional vires of Section 124A. Guided by Article 19(2), the Constitution Bench set the benchmark, i.e., an act could be of sedition only if it has an intention or tendency to “create disorder or disturbance of public peace by resort to violence”.

Criticism Treated As Sedition

Recently we have seen a spate of cases where the government or police authorities are slapping the charge of sedition even in cases where persons voice their criticism without having the intention to create disorder or use violence. Cases of Kanhaiya Kumar from the Jawaharlal Nehru University and the South Indian actress Ramaiya have already made headlines. The concern is serious because the very inherent feature of a democracy, i.e. free speech and fair criticism cannot be cowed down under threat of action.

While the Supreme Court stands steadfast to the principle enunciated in Kedar Nath’s case, this is now an opportune moment to tighten the misuse of this provision. It is now time to clarify more certainly the acts which fall foul of this provision. It is now time to declare that sedition ultra vires the Constitution. The Indian democracy is today a far more robust and dynamic, devoid of the weak edifice of a foreign rule. Today criticism is an essential feature of our democracy where voicing of every voice, even of dissent and discontent, is a valuable right with a valuable consequence. Stifling difference of opinion will result only in one end, which is of majoritarianism and fascism.

Controversies arise every now and then, and not all reach the Supreme Court. In the 1990s, many cases were filed against Maqbool Fida Husain for hurting religious sentiments by painting Bharat Mata as a naked woman, raising the question whether he had the artistic freedom to do so.

The issue of government’s misuse of these provisions still remains a burning issue. For example the arrest of Shaheen Dhada for questioning the total shutdown of Mumbai for Bal Thackeray’s funeral in a Facebook post, and also her friend Renu Srinivasan for liking her post, are cases which make us question the over extensive use of these provisions.

Although no religious issues were involved, these two were charged under Section 295A for hurting religious sentiments, apart from Section 66A of the Information Technology Act 2000.

Supreme Court Steps In

In a landmark judgment (Shreya Singhal v Union of India, 2015), the Supreme Court eventually struck down the restrictive provision of Section 66A of the Information Technology Act, 2000. The Supreme Court minutely examined the content of Article 19(1)(a) and the extent of restriction that could fetter this invaluable right. It held that we have the echoes of the test of “clear and present danger” enunciated by the U.S. Supreme Court in our laws as well. It was in this context that our Supreme Court held that Section 66A would not pass muster “as it has no element of any tendency to create public disorder which ought to be an essential ingredient of an offence that it creates.”

Paragraph 87 of the judgment penned by Justice Rohinton Nariman puts out the red flag to the dangers of over expansive terms curbing free speech and thought.

I would say that that our freedom of speech and expression is inviolable. Our courts must zealously limit the curb or restriction to free speech by strict applicability of the reasonability test, which can only be justified in case of ‘clear and present danger’, and no degree of trepidation or apprehension of the parens patriae State can justify an expansive curb.

Vibha Datta Makhija is a Senior Advocate practicing in the Supreme Court of India.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.