Singing from a different songbook: The role of the courts and the police in curbing the filing of frivolous Sedition cases

Sidharth Luthra & Chitranshul Sinha
Sidharth Luthra & Chitranshul Sinha

Over the past few months, Sedition charges have been pressed against many persons voicing their opinions against the government, its laws and policies.

The Karnataka authorities have been especially trigger-happy while invoking Section 124A of the Indian Penal Code, the provision that deals with Sedition. Not even school students and teachers have been spared.

The Bidar Police recently arrested the management of Shaheen Educational Society under this provision, for staging a purportedly anti-CAA play. However, better sense prevailed when the court granted bail to all persons booked in the Bidar Sedition matter.

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The Shaheen School in Bidar was hauled up over a play that was staged by students of classes 4,5 and 6.
The Shaheen School in Bidar was hauled up over a play that was staged by students of classes 4,5 and 6.

Another student, Nalini Balakumar, was recently arrested for Sedition for holding a "FREE KASHMIR" poster during CAA protests. She was, however, granted bail by a Mysuru Court.

But the courts haven't always acted as a fail-safe when sedition cases have been filed. In a highly problematic order, a court in Dharwad recently denied bail to three Kashmiri engineering students who were booked for Sedition for allegedly raising “Pro-Pakistan” slogans and posting the same on social media.

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With such arrests on the rise, and the courts being inconsistent in their application of precedents on the issue, it is pertinent to understand the legal framework behind Sedition.

Understanding the law

Section 124A defines the offence of sedition in somewhat uncertain terms.

Section 124A of the Indian Penal Code
Section 124A of the Indian Penal

Sedition, being a non-bailable offence, calls for a punishment ranging from imprisonment of up to three years to a life term.

Sedition – Silencing Dissent?

As held in a host of court judgments, dissent and criticism of the government are essential features of a democracy. The right to question and criticise the dispensation is protected by the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

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A consultation paper on Sedition prepared by the Law Commission in 2018 reads,

"Expression of strong condemnation towards the State or State institutions can never amount to sedition for the simple reason that no institution or symbol alone embodies the whole country in entirety."

Time to repeal?

At this point, it is relevant to note that there are other provisions in the IPC and the Unlawful Activities Prevention Act (UAPA) that penalize "disrupting the public order" or "overthrowing the government with violence and illegal means."

One can argue that these provisions are sufficient for protecting national security and integrity. Given this fact, the need for Section 124A under the current legal regime is questionable.

However, the Central government reportedly confirmed that it has no plans to repeal the provision, as it is needed to effectively combat anti-national, secessionist and terrorist elements.

Lawyer Chitranshul Sinha, who recently released a book titled The Great Repression: The Story of Sedition in India, told Bar & Bench,

"Even though it’s a pre-independence provision that should have been repealed after 1947, all these governments have kept the law because it is very convenient to have it on the books. It is easy for them to use it as a weapon to silence dissenters. So that is why I don’t think there is a political will to repeal the section.

Even when the UAPA was enacted, it was sort of enacted against sedition itself. If you look at the language, it is the same line. It is against seditious activities. Now that was a time when there was a lot of militancy in the country. But today, after all that ending, I don’t think it is really required anymore. There are lot of laws and provisions that can be used against any act which threatens the sovereignty or integrity of the country."

Advocate Chitranshul Sinha at the launch of his book 'The Great Repression: The Story of Sedition in India'
Advocate Chitranshul Sinha at the launch of his book 'The Great Repression: The Story of Sedition in India'

On similar lines, Sidharth Luthra, Senior Advocate at the Supreme Court and former Additional Solicitor General stated,

"I don’t think anything stands in the way of Sedition being repealed. Historically, Sedition was relevant at a time when there were kings and rulers, and disloyalty to the rulers was punishable as an offence. Today, in a democratic republic, people have the right to freedom of speech. Though the Kedarnath judgment has limited the application of sedition, we increasingly see the use of sedition being applied too liberally and extensively."

When asked how the existing law could be modified to prevent infringement of the freedom of speech and expression, Sinha opined,

"Another British law was enacted in 1919, called the Rowlatt Act. Now that law was very similar to UAPA and what they did then was that they created a safety valve within the law itself. They said that it can only be invoked in areas which can notified as disturbed and only after such notification is made and an emergency is declared in such areas can such a law be invoked.

Similar safety valves can be created in the UAPA and also the proviso to 124(A) and only then such a law should be invoked."

Judicial Precedents

Back in the 1950’s, the constitutional validity of Sedition was challenged in various cases. But it was in the case of Kedarnath v. State of Bihar that the Supreme Court upheld its constitutionality. The Court stated that this power was required by the state to protect itself. However, it also added that,

"a person could be prosecuted for sedition only if his acts caused incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace".

In the case, the Court additionally held,

"a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder".

The above principles were reiterated in the judgment of Common Cause v. Union of India.

Further, in the case of Balwant Singh v. State of Punjab, the Supreme Court had clarified that merely shouting slogans does not amount to sedition.

Moreover, the term "disaffection" mentioned in the definition of Sedition, is a very vague term that the authorities may tend to interpret according to their whims and fancies.

In order to curb this arbitrariness of authorities in invoking this provision, a petition was recently filed by activist Yogita Bhayana, praying to direct the Centre to constitute a committee to scrutinize Sedition complaints and adhere to judgments rendered by the Apex Court before registering an FIR under Section 124A.

However, in this regard, Luthra had a different point of view.

"I don’t think this is a very practical solution. When we bring in such extra legal and extra constitutional remedy, there is an absence in the effective functioning of our existing machinery. It is better to ensure that our existing machinery function effectively in consonance with the law, rather than creating another layer of consideration. A layer of consideration that is not supported by the criminal procedure or the relevant statutes will unnecessarily mean a delay to the trial, and perhaps without any benefit."
Senior Advocate Sidharth Luthra
Senior Advocate Sidharth Luthra
Senior Advocate Sidharth Luthra

The way forward

On one hand, it can be argued that safeguards against the arbitrary invocation of Section 124A already exist. But whether the directions issued by the Supreme Court are being followed is another question altogether.

Ideally, the police authorities should be given ample training in "what qualifies as sedition" in order to curb the issue of wrongful arrests.

On this aspect, Sinha stated that,

"Basically the thing is that sensitization is extremely important, but the Police also treat it [Sedition] as a tool to suppress movements. Police in Jharkhand and Tamil Nadu have gone to say that they have invoked this provision so as to strike fear in the hearts of the activists and protesters. So they have to be held accountable when they do things like this. Without proper accountability or a mechanism for such accountability, this will continue. At the end of the day, they [Police] just think that this a very convenient way to deal with people. Those who are unlawfully accused or unlawfully arrested for Sedition don’t even get compensation for unlawful arrest. So till the time accountability has taken form, nothing will change."
Advocate Chitranshul Sinha

Weighing in, Luthra says that the courts need to take a more proactive role.

"The Police are supposed to know the law. Everyone is supposed to know the law so they don’t breach the law. Abstract knowledge of law is not an excuse. Having said that, there is a need to sensitize the investigators to judgments interpreting the criminal law.

More than that, the corrective hand lies with the Court and the courts let these matters linger, and do not nip them at the outset. This is a functional problem that we have in the criminal justice system which requires a greater consideration and remedy."

In a democracy, it is natural that there will be different and conflicting interests. Therefore, any expression or thought that is not in consonance with the policy of the government should not be termed as "sedition". As held in Javed Habib v. State of DelhiThe criticism of the government is the hallmark of democracy”.

To cite a 2018 Law Commission consultation paper,

“In a democracy, singing from the same songbook is not a benchmark of patriotism. People should be at liberty to show their affection towards their country in their own way. For doing the same, one might indulge in constructive criticism or debates, pointing out the loopholes in the policy of the Government. Expressions used in such thoughts might be harsh and unpleasant to some, but that does not render the actions to be branded seditious.

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