SG VOMBATKERE V. UNION OF INDIA: SEDITION LAWS AND THE TAPESTRY OF FREE SPEECH

Author: Annshika Bakshi, a student at Indian Institute of Management (IIM-Rohtak)

Any act, spoken word, or written expression that ignites hostility toward the established norms and jeopardizes a nation’s enduring peace is seditious. According to the Oxford Dictionary, “sedition” refers to behavior or speech that encourages rebellion against a state or monarch’s rule. Over time, figures like Bal Gangadhar Tilak, Annie Besant, and Mahatma Gandhi faced targeting under section 124A IPC, a legislation aimed at sedition, both before and after India’s independence.

Mahatma Gandhi famously labeled section 124A of the IPC, designed to curb citizen freedoms, as the crown jewel of that section. India’s sovereignty upon independence was achieved through its citizens crafting the Constitution’s Preamble. Unlike the British Parliament, the Indian Parliament holds limited authority. It has become increasingly evident that a citizen’s right to critique the government outweighs the government’s right to shield itself from charges of sedition. Sedition, a crime not aligned with international standards limiting freedom of expression, originated in monarchical times and now contradicts the fundamental principles of democratic governance.

Sedition law is defined under Section 124A of IPC as “any person 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”. The term ‘disaffection’ refers to sentiments of disloyalty and animosity toward the government but excludes comments or actions that do not incite such feelings among the general public against the government. Sedition is considered a non-bailable offense, carrying a punishment of imprisonment ranging from three years to a potential lifetime sentence, along with a prescribed fine.

The British administration wielded the sedition law against prominent figures like Mahatma Gandhi, Lokmanya Tilak, Bhagat Singh, Maulana Azad, Annie Besant, and Jawaharlal Nehru due to their speeches, writings, and activities during India’s fight for independence. Bal Gangadhar Tilak faced sedition charges twice. In 1897, his speech at Shivaji Park in Mumbai led to the deaths of two British officials, resulting in his sedition charge. Later, in 1908, he was arrested for seditious writings against the British published in the Marathi newspaper “Kesari.” In both instances, he was convicted by the Bombay High Court.

While serving in the Constituent Assembly, KM Munshi, a Congress leader and educator, strongly advocated for allowing some space for sedition within the Indian Constitution. The framers of our Constitution recognized that the sedition law could potentially impede the freedom of speech and expression guaranteed as a fundamental right. Munshi argued that in a democratic India post-independence, critiquing the government is fundamental to democracy. Despite not being explicitly included in the Constitution, the sedition law persisted as a criminal offense under Section 124A of the Indian Penal Code. This was aimed at preventing actions that could disrupt societal security and order. Maintaining Section 124A was deemed crucial to safeguard the lawfully elected democratic government. It was also seen as necessary in the face of rising separatist movements following Independence. There was a perceived need to instill a fear among the public that showing contempt towards the government could lead to severe punishment.

The current case under discussion is a culmination of various precedents that have shaped the landscape of sedition law in India. The pivotal Kedar Nath Singh v. State of Bihar (1962) case marked the first post-independence challenge to the constitutionality of the sedition provision. The Supreme Court, in its ruling, clarified that only expressions intending or having the tendency to incite violence are punishable under Section 124-A of the IPC.

While this judgment wasn’t notably influential, the Supreme Court later issued a series of directives in the Common Cause v. Union of India (2018) case, outlining how authorities should handle cases involving the sedition provision. Subsequently, the Allahabad High Court, in the Inayat Altaf Shekh v. State of U.P (2021) case, highlighted the misuse of the sedition law in trivial matters in India. For instance, it cited cases involving slogans during an India-Pakistan cricket match among students, stressing that such misuse could be detrimental to India’s unity.

In a groundbreaking move in the case of S.G. Vombatkere v. Union of India (2022), the Supreme Court of India issued an unprecedented order by staying the operation of the contentious Section 124-A of the Penal Code, 1860. This decision came in response to multiple petitions challenging the provision’s constitutionality. The Apex Court suspended all ongoing trials, appeals, and proceedings related to Section 124-A and imposed a restriction on the police from filing new First Information Reports (FIRs) under this section. Should such a filing occur, individuals affected by it were directed to seek relief by approaching the appropriate jurisdictional courts. The Supreme Court emphasized that its orders are to be considered the rule of law until further directives are issued concerning similar matters.

The Supreme Court’s much-awaited order on May 11, 2022, brought significant developments. In this interim order, a three-judge bench put matters related to Section 124A in abeyance. Paragraph 4 of the order highlighted an affidavit submitted by the Union Government. It acknowledged that while jurists, educators, and intellectuals may hold varying opinions about the sedition law, they unanimously agree on the necessity of a statutory provision to address offenses challenging the integrity and sovereignty of the established government. However, the misuse of such provisions remains a concern. The affidavit noted that even the Prime Minister advocates for safeguarding the civil liberties and human rights of citizens. There’s a belief in shedding colonial laws that are outdated and irrelevant in modern-day India. Around 1500 outdated laws have already been discarded. It was emphasized in the affidavit that Prime Minister Narendra Modi has expressed views supporting the protection of civil liberties and human rights. In light of the 75th Azadi ka Mahotsav (celebration of independence), there’s a sentiment against carrying the burden of laws introduced by the British. To maintain and protect India’s integrity and sovereignty, the Government of India has decided to re-examine and reconsider Section 124A of the IPC. Therefore, the Supreme Court is refraining from examining the constitutional validity of this section for now. Paragraph 5 indicates that the Union of India concurs with the Supreme Court’s observation that the severity of Section 124A is not aligned with the present circumstances in India. It recognizes this provision as a colonial law intended to suppress discontent among the Indian populace. Lastly, Paragraph 7 stipulates that until the re-examination of Section 124A is complete, the operation of this provision in the IPC shall remain in abeyance.

In the case of Aman Chopra vs the State of Rajasthan (2022), the Rajasthan High Court swiftly ordered the state police to halt their investigation into charges filed against Aman Chopra under Section 124A of the IPC. This directive was issued on the exact day the Supreme Court issued its interim order, temporarily suspending the aforementioned section.

The essence of a free society lies in individuals being able to express themselves without fear of reprisal. This encompasses the liberty to hold opinions without interference and to seek, receive, and share information and ideas through any medium, irrespective of governing authorities. Freedom of expression stands as a fundamental human right vital for nurturing and safeguarding human rights and democratic values. It empowers people to assert their rights to assembly, association, protest against injustices, actively engage in their community’s cultural life, and foster art.

However, the realm of freedom of expression isn’t absolute; it may have limitations prescribed by law. Yet, these restrictions must be lawful, necessary, and proportionate within a democratic society. Sedition laws, being non-bailable offenses, have undeniably hindered the exercise of free speech. Overcoming such laws proves challenging. Nevertheless, the recent Supreme Court order brings significant relief by ensuring the free exercise of speech and expression in good faith. This move serves to restrain governing authorities from arbitrarily wielding their power against their own citizens.

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