Recent a spate of cases against stand-up comics Munawar Faruqui, Nalin Yadav, Edwin Anthony, politician Shashi Tharoor, journalist Rajdeep Sardesai and young climate activist Disha Ravi, have again questioned the relevance of repressive laws of all kinds, specially sedition and criminal defamation and there is a widespread outcry as to why these provisions, from the era of colonial regime, should not be scrapped.

Most recently, Supreme Court’s refusal to invoke sedition against Farooq Abdullah for his opposition to abolition of Article 370 again highlights the issue. These cases flag a fundamental infirmity in sedition law. It is alleged that police officers are prone to slapping charge of sedition against those whose actions and words incite opposition to the government, vitally ignoring the guidelines laid down by the Supreme Court in Kedar Nath Singh judgment, which require direct and immediate incitement to violence to qualify as sedition. There are calls for immediate safeguarding of the right to dissent – a basic feature of freedom of expression.

It is apposite to see the status of law of sedition globally. Upon recommendation of British Law Commission, given as far back as 1977, it was abolished by the Coroners and Justice Act, 2009, being considered a relic of a bygone era. New Zealand and Ireland, too, have done away with sedition clause in 2007 and 2009, respectively. In Australia, sedition clause was repealed and replaced in 2011 with another clause punishing offence of ‘urging violence’ against the lawfully elected government. Sedition remains a crime in the United States Code, a federal statute that punishes seditious conspiracy and outlaws advocating the overthrow of the federal government by force.

In this backdrop, a need to balance innate personal freedoms with the state’s existence is manifest. Contractarian school of thought, represented by Thomas Hobbes, John Locke and Jean Jacques Rousseau, propounds that society originated in a contract, explicit or tacit, to which individuals consented and so, removed themselves from the ‘state of nature’ and helped set in a regime of government under the laws. Most modern states profess to respect the vast congeries of civil liberties and are judged by the recognition and protection they provide for inalienable individual rights. The right to comment on public affairs and right to dissent are the touchstone of any free democratic society, yet if the comments wander off from criticism to calumny, they may impair the lawful governance of a State. The problem in such polities is to develop a just and workable reconciliation of two acknowledged goods – personal rights and community needs.

All legal systems recognise that at some point personal freedoms may be restricted. The difficulty is where and how to set that point so as to admit valid community claims and yet ensure the maximum of personal liberties. Various attempts have been made to formulate a rule or a test that would implement this premise. The “clear and present danger” concept (that speech can be restricted only when it threatens an immediate and serious evil) represents one such attempt; the “balancing test” (that speech can be restricted only when the state interest in suppression outweighs the private interest in freedom) represents another.
Constitutional arrangements for civil liberties offer several prescriptions, but two stand out: the British system where civil liberties are preserved by the traditions of governmental selfrestraint and the American system, with written bill of rights interpreted and enforced by judicial review. The device of a written bill of rights has been adopted by India and freedom of speech and expression has been made a fundamental right of a citizen, though this freedom must yield to public order. Munshi pleaded in Constituent Assembly to drop the word “sedition” from Article 13 (2) of the Draft Constitution [Article 19(2) of the Constitution of India] and substituted it by the term “which undermines the security of or tends to overthrow the state.”

In order to settle the then conflicting judicial opinions, the Constitution (First Amendment) Act, 1951 substituted Article 19 (2) and inserted the words “public order” in the Article. Thus, any reasonable restriction on freedom of speech and expression was made permissible in the interests of public order. Mr. Chief Justice BP Sinha held in Kedar Nath Singh’s case [AIR (1962) SC 955] that “Section 124-A strikes the correct balance between the fundamental rights and the interest of public order. We have no hesitation in so construing the provisions of Section 124-A as to limit their application to acts involving intention or tendency to create disorder, disturbance of law and order or incitement to violence.”
This interpretation of the Apex Court clearly indicates that intention (mens rea) of a speech or expression is vital and underlined a need to re-write Section 124-A. Echoing this, Law Commission of India has published a Consultation Paper On “Sedition” on 30th August 2018 in order to study revision of Section 124A. Law Commission expects a healthy debate amongst legal luminaries, lawmakers, government, academia, students, and above all, the general public will lead to public friendly amendment, because dissent and criticism of the government are essential ingredients of robust public debate in a vibrant democracy. A line must be drawn between criticism of government, which should be welcome, and incitement, which would undermine the security or order, or which is calculated to overthrow the state. In the words of KM Munshi “free speech includes not only the inoffensive but also the irritating, the contentious, the eccentric, the heretical, the unwelcome, and the provocative, as long as such speech does not tend to provoke violence.” Let us hope, the right balance will be struck between ‘rugged individualism’ and ‘collectivist society.’

By: Shrawan Sawhney (IAS Retd.)

The Views expressed by the author are personal.