On the 30th of April 2021, the Supreme Court admitted a writ petition challenging the constitutionality of Sedition under Section 124A of the Indian Penal Code, 1860. The petitioners- Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla are journalists from Manipur and Chattisgarh respectively. They have both been charged under Section 124A on different occasions for posts made on social media.
The petitioners claim that Section 124A is archaic, reflecting colonial tendencies to curb the freedom of speech and expression. The petition also stated that in Kedar Nath Singh v. State of Bihar, the Supreme Court held that the Section 124A is a reasonable restriction under Article 19(2) on the right to freedom of speech and expression. The petitioners contended that the Kedar Nath judgement no longer applied on account of the changed socio-political scenario since 1962. It also relied on a comparative examination of sedition mainly in the United Kingdom (UK) and the United States of America (USA). In this post, we trace the legal history of sedition in the UK and USA and examine if sedition continues to be a free speech exception and a crime.
Sedition was Created to Prevent the Criticism of the King
Sedition was devised as a tool in 13th century Britain to suppress the freedom of the printing press and its ability to criticise the King. The Sedition Act, 1661 imposed punishment on anyone who wrote, printed or preached any words against the King. It evolved to mean slander and libel against the reputation or actions of government officials and judges. The goal was to protect the faith that the common person had in the government and to avoid a ‘breach of peace’ in society.
By the 18th century, the law had received much criticism in the U.K. However, its efficacy in controlling speech and expression in the country was noted and applied to India. Queen Empress v. Jogendra Chunder Bose was the first recorded case in India on sedition. To encourage the masses to resist the government or disobey its authority was considered seditious.
In 1977, a working paper was published by the Law Commission suggesting the abolishment of the Act. This suggested that several legislations existed that covered the issues under sedition and that a law based on ‘politics’ rather than the policy was unnecessary. Thirty-two years later, Section 73 of the Coroners and Justice Act, 2009 abolished the offence of sedition.
US Introduced Sedition to Protect the Federal Government
In 1798, the Sedition Act was passed under the presidency of John Adams, to criminalise the making of false statements against the federal government. It was designed to expire in 1801 since the justification for making these laws was the protection of the government during the Quasi-War.
The mention and criminalisation of sedition was next seen during World War I. Section 3 of The Sedition Act, 1918 was drafted to punish anyone making false statements that interfered with the U.S. war efforts. This included insulting the U.S. government, flag, Constitution or military.
The most prominent case in this regard is In Re Debs, where a socialist worker Eugene Debs was sentenced to 10 years in prison for an anti-war speech. Justice Oliver Wendell Holmes stated that the freedom of speech and expression could be curtailed under certain circumstances.
In 1921 the Act was repealed. The case of Sullivan v. New York Times upheld the freedom of speech under the First Amendment, which affected the treatment of libel. The U.S. Supreme Court held that unless a statement was made with malice or reckless disregard for the truth, the First Amendment protected the criticism of public officials.
Does India Still Need Sedition?
Both in the U.S. and U.K., the predominant argument for the abolition of sedition has been the protection of freedom of speech. The potential misuse of sedition to further government political agendas also became a factor to abolish sedition.
The working paper written by the Law Commission in the U.K. noted that a historical examination of the crime of sedition demonstrated that most often, the prosecution had a political motive. The U.S. Supreme Court cases of Eugene Debbs and Shenck v. the United States also highlight that the charge of sedition had a political persuasion. Both Debbs and Shenck were socialist activists at the time of the first World War.
The present petition against S. 124A also highlights instances of alleged misuse of the provision. The petitioners’ claim that the circumstances of civil unrest arising in 1962 when the provision was upheld in Kedar Nath Singh v. the State of Bihar no longer apply to India. A bulk of the charges filed are instances of political misuse.
Several such claims have occurred across India in 2021. TV5 News channel has filed a petition in the Supreme Court asking for an FIR filed under S.124A against the media house, to be quashed. In February 2021, two protesters were accused of sedition for posting on social media about the farmers’ protest, with old videos of a different protest. The District Patiala House Court held that sedition cannot be used to silence protesters. In relation to the farmers’ protest, the arrest of climate activist Disha Ravi for sedition also raised questions on the misuse of sedition laws. The court granted her bail, and the Additional Sessions Judge Dharmendra Rana condemned the jailing of individuals for dissenting with the government.
The current constitutional challenge will be crucial in settling if ‘sedition’ is still relevant and needed in India. And whether it forms a valid constitutional exception to free speech.