Author: Ritika Ranjan, USLLS
To the Point
Sedition, currently placed in Clause 150 of the Bhartiya Nyaya Sanhita (BNS), 2023, and earlier under Section 124A of the Indian Penal Code (IPC), 1860, continues to be a subject of serious legal scrutiny. Although originally this rule was brought to suppress resistance against the British regime, this law has outlived its colonial purpose, now at cross purposes with the foundational values of the Indian Constitution.
There lies a critical conflict between individual freedom and state authority. Despite the constitution provides a constitutional guarantee in the form of right to freedom of speech and expression under Article 19(1)(a), it is also important to remember those reasonable restrictions under Article 19(2) in matters concerning public order, national security and integrity of the nation which the legislature has imposed. The Sedition law is vague and ambiguous because of the phrases like “disaffection” or “contempt” used in its definition which can be interpreted subjectively and as a result of which this provision has frequently been used not against violent rebels and riots, but against students, journalists, activists and ordinary citizens who tries to dissent government policies. This misuse creates a chilling effect, where individuals refrain from expressing their thoughts out of fear.
However, the Supreme Court in many landmark cases related to the issue has upheld and laid down strict conditions stating that only certain acts which incite violence or create public disorder will amount to Sedition. But this judicial guideline is often overlooked in real-world cases, leading to legal consequences even in cases lacking any provocation or rebellion.
Even though the BNS seeks to reframe criminal law, the inclusion of sedition under the new clause without any substantial changes in the provision raises serious concerns about the intention behind legal reforms. Sedition represents a serious constitutional dilemma, where the right to dissent is pitted against concerns of national security, leading to criticism of the government and a hallmark of democracy.
Abstract
The law of Sedition in India, now codified under Clause 150 of the Bharatiya Nyaya Sanhita, 2023, and originally under Section 124A of the Indian Penal Code, 1860, has become a concerning constitutional debate nowadays. Originally designed to curb the misuse of Freedom of Speech and expression, this law has now resulted in the abuse of the right to dissent the government actions, often triggering students, journalists, activists and politicians, thereby raising questions about its constitutionality and compatibility with democratic values and fundamental rights.
This discussion critically scrutinised the constitutional conflict between the sedition law and the right to freedom of speech and expression under Article 19 of the Indian Constitution. While the law permits reasonable restrictions under Article 19(2), the vague language of the sedition law, particularly terms like “hatred”, “contempt”, has allowed for broad interpretation and abuse. Despite the efforts taken by the Courts and judiciary for interpreting the correct application of Sedition law, it continues to pose threats to civil liberties. The article further explores how the Bharatiya Nyaya Sanhita, while reframing the criminal laws, has kept hold of the sedition law with minimal reform, therefore failing to address the underlying constitutional concerns. The write-up continues to discuss legal doctrines such as “chilling effect”, “public order” and “clear and present danger”, and assess the law in light of constitutional morality and democratic ideals.
Use of Legal Jargon
This article contains key constitutional principles and statutory terms and references such as Article 19(1)(a), which looks after the right to free speech and expression, Article (2), which allows lawful restrictions to take hold on public order, and Article 21, which ensures the right to life and personal liberty. The offence of Sedition, initially found in Section 124A of the Indian Penal Code, 1860, has been retained under Clause 150 of the Bharatiya Nyaya Sanhita, 2023, with its core elements largely remaining the same.
This write-up also relies on legal doctrines like the “clear and present danger”, the “public order” framework, and the “chilling effect” doctrine, which illustrates the potential of laws to suppress legitimate expression. Commonly used legal expressions such as “mens rea” i.e. criminal intent, “actus reus” i.e. wrongful act, “ultra vires” (i.e. beyond legal authority, “overbreadth”, “vagueness doctrines” and “constitutional morality” form the analytical lens through which sedition is evaluated. In addition, principles like “due process of law”, “natural justice”, and “judicial review through writ jurisdiction” under Articles 32 and 226 ensure that arbitrary application of laws can be legally challenged.
The Proof
The offence of Sedition in India, originally codified under Section 124A of the Indian Penal Code, 1860, was introduced during the British colonial rule to curb the growing nationalist movement. It says “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India, shall be punished…”.
The terms used in the provision are vague and broad, which makes it subjective for interpretation. Terms like “disaffection”, “hatred”, or “contempt” are not adequately defined, allowing for wide discretionary power in their enforcement. Such vague and broad phrasings can be problematic in a democratic state where citizens are given a fundamental right to express themselves. Although the Indian Constitution allows reasonable restrictions under Article 19(2) in the interest of sovereignty, integrity, public order, and security of the state but the main question which comes into effect is whether sedition, as defined under Section 124A, passes the test of “reasonable restriction” or it unduly infringes upon the right to dissent or oppose.
There are several landmark judgments of the Supreme Court where the judiciary tried to mitigate the sweeping nature of the Sedition law. The Supreme Court narrowed the scope of Article 124A by ruling that only those statements or actions that try to incite violence or public order would lead to the offence of Sedition and not mere criticism of governmental actions. Despite all these judicial safeguards, discrimination has been seen during the application of laws. Many individuals, journalists, students, activists, politicians and ministers have been charged under Sedition for acts which do not even seem seditious, yet they have been forced to deal with judicial proceedings and many a time been convicted under the law. The lack of a clear definition for what constitutes “incitement to violence” leads to misunderstanding, even peaceful criticism of government policies.
Furthermore, the Bharatiya Nyaya Sanhita (BNS), 2023, which replaced IPC, has retained the offence in Clause 150 with negligible alteration in the language and penalises attempts to incite secession, armed rebellion, or subversive activities, but it also fails to address the core issue.
India, as a democratic nation, should align its criminal laws with constitutional morality and international human rights standards. Sedition, in its current form, is often termed as an expression of colonial oppression, yet it plays a vital role in the administration and control of laws related to free speech and expression. This law, which was originally used as an arsenal to suppress, is now being used as a restriction in modern India.
This is the constitutional existence, and misuse of the Sedition provision presents a great constitutional dilemma: can a democracy uphold liberty at the stake of preserving law?
Case Laws
Kedar Nath Singh v. State of Bihar (1962), citation (1962) AIR 955 SC
– This is a landmark as well as a foundational case on Sedition in independent India. The Supreme Court, while upholding the constitutionality of Section 124A IPC, narrowed its interpretation. The court ruled that sedition could only apply to acts that incite violence or have the tendency to create public disorder. Mere criticism of the government, however, does not amount to sedition. This judgment is crucial to maintain a balance between state security and the protection of rights.
Balwant Singh v. State of Punjab (1995), citation: 1995 SCC (3) 214
– In this case, the accused raised a pro-Khalistan slogan after the assassination of Prime Minister Indira Gandhi. The Supreme Court held that mere raising of slogans, without any incitement to violence or public order, did not amount to sedition. This case held that mere expression of unpopular opinions is not sedition unless there is a direct connection with public unrest.
Arup Bhuyan v. State of Assam (2011), citation: (2011) 3 SCC 377
– This case also held a similar reasoning. Here, the court held that membership in a banned organisation or expressing sympathy for its cause without inciting violence cannot be interpreted as Sedition or terrorism. The court invoked the “clear and present danger” test to limit the scope of punitive action.
Vinod Dua v. Union of India (2021)
The Supreme Court, in this case, quashed an FIR filed against journalist Vinod Dua for his comment on the government’s handling of the COVID-19 crisis. Here, the court held that journalistic expressions, unless inciting violence in public, are protected under Article 19(1)(a). This judgment reaffirmed that criticism of government policies does not amount to the offence of Sedition.
SG Vombatkere v. Union of India (2022)
This case is a recent and pivotal development in the law of Sedition, where the Supreme Court put the sedition law on hold and directed the centre and the state government to refrain from registering any new FIRs under Section 124A. The court observed that the provision requires re-examination in light of contemporary constitutional standards and democratic values.
Conclusion
Sedition as a law in India stands at the crossroads of democratic ideals and colonial legacies. Initially enacted by the colonial government to suppress the opinions of citizens during the freedom struggle, Section 124A of the Indian Penal Code, 1860 and now Clause 150 of the Bharatiya Nyaya Sanhita, has increasingly come under scrutiny for its capability to suppress constitutionally guaranteed freedoms. Despite judicial efforts to limit its misuse, the ambiguous nature of the provision continues to raise concerns.
Furthermore, it is said that the main issue is maintaining a balance between national security and upholding civil liberties. While it is vital for a sovereign nation to protect itself from real threats like insurgency or secession, it creates a chilling effect in the nation. This undermines the fundamental values of democracy.
Although the judiciary has, through landmark cases like Kedar Nath Singh and Balwant Singh, aimed at separating genuine threats and mere expressions of opinion but the law remains susceptible to exploitation, often hired by authorities to hush critics, journalists, activists and students. This has activated debates over whether laws have any place in the modern republic governed by the rule of law.
Given the evolving nature of democratic societies, it is appropriate to re-evaluate the relevance and necessity of Sedition as an offence. Ultimately, true patriotism is not forced but giving space for free, responsible and critical voices to grow.
FAQS
Is Sedition still a crime?
Yes, sedition is still an offence under the Indian Penal Code Section 124A and under Clause 150 of the Bharatiya Nyaya Sanhita, but its application is under judicial scrutiny and, for now, is suspended as of the year 2022.
What is Clause 150 of the BNS?
It is the new criminal law that replaces section 124A of the Indian Penal Code. It criminalises the act of Sedition, which involves inciting violence and a sense of rebellion in the public, leading to disruption in public order.
Does mere criticism of the government result in Sedition?
No, as per the landmark case of Kedar Nath Singh and Balwant Singh, criticism that does not incite violence or public disorder does not result in sedition.
Can the sedition be misused?
Yes, unclear and vague definitions and interpretations allow the misuse and abuse of this law to suppress dissenting voices, particularly political opponents or activists.
What are the two important case laws that shaped the modern application of Sedition law?
The landmark cases of Kedar Nath Singh and Balwant Singh are the two main cases that are always discussed while interpreting the Sedition laws.
