Law Of Sedition Needs To Cover Social Media And Handles Under Its Purview

Author - Vinay Singh Chandel

“Exceptions do not make the rule nor render the rule irrelevant.”

— R C Lahoti, J 

in

Javed Vs State of Haryana (2003) 8 SCC 369

Recently, a law student of JamiaMiliaIslamia mentioned in her social media that the term “war criminal” be used instead of glorifying the soldiers who risked and received martyrdom for the 1.3 billion population of Indians, so that their fellow citizens are free from harm’s way. There have been many spates terrorist activities and attacks on security forces which have been pushed back by our defence forces like recently, Handwara, Uri, Pampore and countless others. The enemies across borders are taken care of, but what about individuals who attack from within, like the young law student at JamiaMiliaIslamia who spewed poison through her social media account. We have witnessed many such incidents where few ‘limelight seekers’ have made many statements by way of protests and shouting slogans like the JNU incident, and when massive congregation were set for the last rites of hardcore convicted terrorists like YakubMemon and Burhan Wani after their elimination by the judiciary and the defense forces respectively.

India has few arrows in her quiver to counter these kinds of anti-national elements and activities one of the few is Sedition. The provision of political sedition i.e. Section 124-A of the Indian Penal Code manages to find its place in the initial draft of the Indian Penal Code as proposed by Law Commission in 1837 9 in form of Section 113of the draft1.The section was however, omitted from the IPC due to some unaccountable reasons when it was enacted for the first time in 18602. The section relating to sedition was not noticed till 1869 when a bill was drafted under the auspices of Sir Stephen and was passed as Section 124-A of the Code as part of the Act XXVII of 18703.A popular trial prior to the amendment of this section by the act of 1898 was that of Bal Gangadhar Tilak in the case of queen empress v balgangadhar

4. The trial of queen empress v balgangadhar related to a speech Tilak had published in the magazine Kesari where supposedly a call for Swarajya was made5.After the recommendation in 1898 by the Secretary of State for India, the section was amended6. With several amendments the provision as it is today in the IPC was given its final silhouette by Act 26 of 19557. The crux of the provision on which the judiciary focused in the case of queen empress v balgangadhar its attention can be divided into five parts:

1. Words, Signs, Visible Representation or Otherwise

2. Brings or Attempts to Bring into Hatred or Contempt

3. Excite Disaffection

4. Government Established by law

5. Expressing Disapprobation

First step to show that the activity in question is a seditious activity is to prove that the medium of commission of such lawbreaking was through ‘Words, Signs, and Visible Representation or Otherwise’. Visible representation means a form of communication which is visible to the naked eye8. Even where words are not at all spoken or the communication is through gestures only it will fall under visible representation. In such a case meaning is conveyed by gestures and motions and dramatic actions of the performers9. it was laid down in the case of queen empress v balgangadhar.

The addition of word ‘otherwise’ is very broad in scope and covers everything other than the mediums already covered under words, signs and visible representation like circulating or distributing seditious material also comes within the purview of this provision. The letter of the law in black and white which is the ‘bringing or attempting to bring into Hatred or Contempt’ is not the actual causing of hatred or contempt, but even an attempt to do so is sufficient for conviction under this section. Whether a person actually succeeds or fails is not material for proving the offence against someone10. However, as far as the judicial interpretation in India goes, “the law steps in, when this inner feeling of hatred or contempt excites (actual) disaffection against the state.”11Contestation with regard to the meaning of word ‘disaffection’ started way back in Jogendra Bose’s case12 and is generally deemed to have been settled by Kedarnath Singh’s13 case. Before Kedarnath Singh’s case the position of the interpretation of word ‘disaffection’ was a bit puzzling. 

In the celebrated case of Queen Empress v. Amba Prasad14 interpreted the said word as a positive feeling of aversion, which is akin to ill-will, a definite insubordination of authority or seeking to alienate the people and deteriorated the bond of allegiance, a feeling which tends to bring the government into hatred and is content by imputing base and corrupt motive to it.15 However, interpreting the term in favor of the accused in Niharendu Dutt’s16 case that the acts complained of must provoke actual public disorder in order to constitute ‘disaffection’. The Allahabad High Court’s interpretation was held as valid by the Privy Council in King Emperor v. Sadashiv Narayan Balerao.17 In Kedarnath Singh’s case a constitutional bench of the Supreme Court of India found NiharenduDutt’s interpretation to be more constitutional in nature thereby rejecting all other pre-constitutional interpretations.18 The ‘government established by law’ is distinguished from the persons involved in running the government.19 Thus, commenting on a particular ruling party or bureaucrats20 may not amount to sedition.21

‘Expressing Disapprobation’ as consisted in explanations 2 and 3 to the section just simply means disapproval and just expressing disapproval against the measures of the government by an act which does not fulfill the first four conditions as aforementioned will not establish sedition.22

There are many accounts which were unearthed while the NRC protests was going on, one of them included two ladies of famed JamiliaMiliaIslamia, were seen in a video saving a fellow student from Delhi Polices’ Lathi charge had many such seditious elements mentioned in their Facebook profile. Some Organisations ostensibly pursue human rights-related issues and are also adept at using the legal processes of the Indian State to undermine and emasculate enforcement action by the security forces and also attempt to malign the state institutions through propaganda and disinformation to further the cause of their ‘revolution’. These ‘mass organisations’ are generally manned by ideologues, who include academicians and activists, fully committed to the party line. Inflammatory statements and induced sloganeering by the powerful in Delhi, which may or may not be seditious but can certainly be categorised as ‘hate speech’, are left untouched. With no checks, the fire of social tensions is rapidly spreading across the nation and threatens to char the soul of our nation. It can only be extinguished by punishing the same people that lit it.

If we keep the judicial pronouncements aside, there has been no amendment in the provision for over a century. As the world is constantly evolving by way of internet and seemingly unending platforms of social media which are followed by massive amount of people, so shall the law by consistently amending statutes or provision or introducing new bills which will arm the judiciary to the teeth to counter such activities in the future. While the NCRB reports decline in number of cases pertaining to sedition, there are many people inciting hatred and vomiting toxins in the name of right to free speech and expression. These accounts are spreading the same feeling in the minds of younger generation who will at early stage be contracted by this virus and will become a habit. If no deterrence is shown by the way of penal provisions, this habit will affect others from point of no return.

A provision needs to be enacted under Section 124-A in order to penalize these ‘limelight seekers’ and a special agency needs to be raised, to trace and keep track of such individuals, and brought before the court.  This will help keep a check on creation of such profiles and strong community guidelines to be enacted by the social media platforms in order to be functional in India. Moreover, a special provision shall be added for the students i.e. if any student imparting knowledge at a college, university or institution engages in any activities which is seditious in nature or shows disaffection or disloyalty towards the democratically elected government shall be given warning initially and hefty fines to be imposed if such student continues, followed by rustication if the activity persists.

1- The Draft Indian Penal Code, 1837, § 113 (read as follows:
“Whoever, by words, either spoken or intended to be read, or by signs, or by visible representations, attempts to incite feelings of disaffection to the Government, established by law in the territories of the East India Company, among any class of people who live under that Government, shall be punished with banishment for life or for any term from the territories of the East India Company, to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added, or with fine.
Explanation: Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government against unlawful attempts to subvert or resist is not disaffection. Therefore the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation is not an offence within this clause.”)

2- INDIAN LAW INSTITUTE, THE LAW OF SEDITION IN INDIA 13 (1964)

3- The Indian Penal Code, 1870, § 124-A (read as follows:
“Whoever, by words, either spoken or intended to be read, or by signs, or by visible representations, or otherwise, excites or attempts to excite feelings of disaffection against the Government, established by law in the British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.
Explanation: Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempt to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation is not an offence within the section.”)

4- Queen Empress v. Bal Gangadhar Tilak, (1898) I.L.R.XXII Bom. 112

5- Siddharth Narrain, “Disaffection” and the Law: The Chilling Effect of Sedition Laws in India,XLVI (8) EPW 34 (2011) (The speech for publishing which Tilak was tried consisted of a poemwhere Shivaji is calling for Swarajya and allegedly provoked assassination of British politiciansthe way Shivaji killed Afzal Khan.)

6- See INDIAN LAW INSTITUTE, supra note 10, 6 (The main object behind the amendment was to provide magistrates with the power to try some minor cases of sedition.)

7- The Indian Penal Code, 1860 (as amended by the acts of 1898,1948, 1950, 1951 and 1955), §124-A (read as follows:
“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 bylaw in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”)

8- DR. K.I. VIBHUTE, PSA PILLAI’S CRIMINAL LAW 337 (2012)

9- (1909) Cr LJ 456 (Mad).

10- (1906) Cr LJ (Bom).

11- DR. K.I. VIBHUTE, PSA PILLAI’S CRIMINAL LAW 341 (2013)

12- Queen Empress v. Jogendra Chunder Bose, (1891) ILR Cal 35 (The then Hon’ble Chief Justice ofthe Calcutta High Court Sir Comer Petheram explained that disaffection means a feeling contrary to affection and thus is generally characterized by dislike or hatred, however, disapprobation simply means disapproval. If a person by the means provided under the provision intentionally creates a disposition in the minds of his hearers or readers not to obey the lawful authority of the Government or to resist or subvert the authority, then he is guilty of the offence of sedition even if no actual disturbance was caused as a direct result of his words or other methods.)

13- Kedarnath Singh v. State of Bihar, AIR 1962 SC 955

14- (1897) ILR 20 All 55

15- Ibid

16- Niharendu Dutt Majumdar v. King Emperor, AIR 1942 FC 22 (After this case for next 20 years there was an atmosphere of uncertainty till Kedarnath case regarding the true meaning of the term and whether actual incitement of public disorder was necessary or not in order to constitute disaffection. Putting an end to the debate in Kedarnath case where the accused challenged the constitutional validity of Section 124 -A as being ultra vires Article 19 (1) (a) which guarantees to every Indian citizen the right to freedom of speech and expression.)

17- LR 74 IA 89

18- See generally DR. K.I. VIBHUTE, supra note 16, 340

19- See Kedarnath, supra note 22

20- The Chirol case of 1915, Replies to the questions asked in cross-examination to Bal GangadharTilak

21- See Kedarnath, supra note 22

22- See generally DR. K.I. VIBHUTE, supra note 16, 34