Henry Ward Beecher (1813-87), the American preacher and social reformer, said: “It takes a hundred years to make a law; and then after it has done its work, it takes another hundred years to get rid of it.” The Jawaharlal Nehru University episode evocatively makes out a formidable case for junking Section 124A (sedition) of the Indian Penal Code (IPC) once and for all.
The textual or literal tone of the provision is per se undemocratic, for it penalises dissent with an obfuscating vocabulary. The provision criminalises words bringing, or attempting to bring, “hatred or contempt” or “disaffection” towards the government. By prescribing a disproportionate optimum punishment of life imprisonment even for the words spoken, it designs a nefarious power structure that is inherently illiberal and dangerously oppressive.
Section 124A finds its legal legitimacy in the Constitution Bench decision in Kedar Nath Singh vs State of Bihar (AIR 1962 SC 955). The judgment, which is apparently ambivalent and intrinsically wrong, needs to be reviewed by a larger bench insofar as it validates the provision. The reasoning in the judgment does not stand the test of constitutional experience of the country or the subsequent developments in the concept of freedom across the world. The binary of individual liberty and state security is no longer a contested concept, for a synthesis of these “opposing ideas” has been vividly demonstrated by many modern democracies. Parliament is unlikely to repeal the provision, for those in power often have needed it and even benefited from it. An introspective gesture from the apex court alone seems to be the way ahead for those who believe in the cause of liberty of thought and imagination.
It is high time Section 124A was held void, for it is legally unnecessary, constitutionally invalid and democratically untenable. There are at least four prominent reasons for invalidating Section 124A by recalling the ratio in Kedar Nath , which is an epitome of an obsolete precedent insofar as it retains Section 124A.
Kedar Nath is ambivalent
The validation of Section 124A in Kedar Nath is neither categorical nor assertive. In paragraph 25 of the judgment, the court said: “ …. (I)f it is held …. that the gist of the offence of sedition is incitement to violence, in other words bringing the law into line with the law of sedition in England was the intention of the legislators when they introduced Section 124A into the IPC in 1870, … (then) the law will be within the permissible limits laid down in clause (2) of Article 19 of the Constitution. If on the other hand, we give a literal meaning to the Section… it will be true to say that the Section is not only within but also very much beyond the limits laid down in clause 2 (of Article 19).” In paragraph 26, the court has resorted to a dialectical logic and validated the provisions: “It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the court would lien in favour of the former construction.” Thus, Kedar Nath laid down the law: If activities do not create disorder or have the pernicious tendency to create public disorder, there is no offence. If otherwise, it is a punishable offence. Therefore, according to Kedar Nath , the provision is reasonable in terms of Article 19(2) of the Constitution. Thus, the question of constitutionality is decided by the bench in contextual and contingent terms. Even while accepting the possibility of interpreting the provision as unconstitutional, Kedar Nath has validated it by construing the law, which is otherwise vague, at least to the extent to which it needed a construction.
This hermeneutical error in Kedar Nath contains inherent dangers. The penal provisions, unlike the other statutes, are primarily interpreted and invoked by the executive. As such, there is an enormous element of subjectivity in invoking Section 124A. Although theoretically, the Kedar Nath judgment advocates an objective test, the question whether the words spoken by the accused has a tendency to create disorder is again a matter of subjective decision by the executive, which runs the police—the jury on the street.
Kedar Nath himself was an activist of the Forward Communist Party. The charge against him specifically refers to his speech. In a folkloric rhetoric, he, inter alia, said: “The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a government of the poor and the downtrodden people of India.”
The Kedar Nath judgment also considered the speeches by a Bolshevik Party leader from Uttar Pradesh and one Ishaq Ilmi, the chairman of the reception committee of the All India Muslim Convention in Aligarh. Thus, literally it was the speech that invited sedition charges in many of the appeals considered by the Supreme Court in Kedar Nath . Having found that mere words, unless accompanied by an intention to scuttle “law and order”, cannot lead to sedition, the court should have gone further into the realm of legal realism. The country had to pay a heavy price in terms of liberty for retaining Section 124A in the IPC. The inhospitable history of the provision shows that it was used to stifle democratic dissent. Many journalists, writers and activists have been booked for dissent. The voices of thousands of Koodankulam anti-nuclear plant activists, who led peaceful agitations, were muffled with sedition charges. It is time to rethink the “unbearable reluctance” in Kedar Nath to do away with the provision.
If Section 124A punishes only the pernicious activities against the state, it is no longer necessary in the IPC. There are other provisions in the IPC that take care of such offences more effectively. In Kedar Nath, the Supreme Court has not examined the sufficiency of other provisions even after noting the inherent dangers of the sedition part. Apart from Section 124A, the court, in Kedar Nath , dealt with Section 505 of the IPC relating to “statements conducing to public mischief”. The court, however, did not analyse the more visible forms of offences to topple the regime. Sections 121, 121A and 122 deal with the offence of “waging war against Government of India” or in any way facilitating such a war. Going by judicial interpretation, the word “war” has a wide and varied meaning. Section 121 says that insurrection against the government is punishable with death or life imprisonment. Section 126 makes “depredation on territories of power at peace with the Government of India” a punishable offence. Chapter VII of the IPC, by way of Sections 131 to 140, deals with offences relating to the Army, the Navy and the Air Force. More importantly, any violence or call for overturning the law and order situation or to disrupt public tranquillity is otherwise punishable under the provisions of the Code, outside the scope of Section 124A. Thus, the law and order requirement of Section 124A is met by other parts of the IPC, which is its very basic object. As such, the retention of Section 124A is rendered unnecessary by the Code itself. Since it is capable of being put to unconstitutional use (not misuse) as noted by the apex court, its retention defies constitutional logic and empirical thinking. The lack of a comprehensive analysis of the provisions in the IPC has rendered the Kedar Nath ratio dangerously incomplete.
The foundational reason adopted by the Supreme Court for validating the provision was the retention of the sedition law in England at that time. The court said: “This species of offence against the state was not an invention of the British government in India but has been known in England for centuries. Every state, whatever its form of government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the state…” (Paragraph 15). After extracting the British equivalent of sedition law, the court said that “the law has not changed during the course of the centuries…”.
Now that law is changed. It was abolished in Britain as it was found untenable in the light of the Human Rights Act, 1998. The emphasis on free speech by the European Convention on Human Rights (ECHR) accelerated the process of expulsion of sedition laws from many democracies. New Zealand followed suit after noting that in the United States, Canada and Australia, the law is practically in disuse. Nigeria also abolished its sedition law. The judgment of the Federal Court of Appeal in Nigeria struck down the part of Criminal Code of Eastern Nigeria, saying:
“(T)he law of sedition which has derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the 1979 Constitution more so when this cannot lead to a public disorder as envisaged under Section 41(a) of the 1979 Constitution…” [ State vs Arthur Nwankwo , (1985) 6 NCLR 228].
Therefore, it is clear that the Kedar Nath ratio, inasmuch as it justifies itself on the basis of the erstwhile British legislation, is no longer a good law in the legal or political sense. But since the law has not been scrapped, the Supreme Court had to exonerate the accused in Bilal Ahmed Kaloo (1997) 7 SCC 431 and Balwant Singh (1995) 3 SCC 214 where the charges were inter alia under Section 124A. It happened likewise in many unreported cases as well. As explained by Salvador J. Antonetti-Stutts, an attorney in Puerto Rico, often obsolete precedents are not revaluated “because of habit”, as the “habitual adherence to precedent” could lead to “incorrect results”. The citizen’s long journey to the Supreme Court to free himself of the charges is a sad commentary on the Indian sedition law.
Trapping the innocentKedar Nath identifies two possible interpretations of Section 124A, thereby indicating that the provision is vague. Vagueness of a penal statute (as distinct from its potential for misuse) is sufficient enough to invalidate the provision. The Supreme Court recently accepted this principle in Shreya Singhal vs Union of India (2015) [5 SCC 1], while dealing with the validity of Section 66A of the Information Technology Act, which the court struck down. The “open-ended” and “vague” terminology in the penal provisions could be even deceptive, for it might “trap the innocent”. As held in United States vs Reese [92 U.S. 214], “the Constitution does not permit a legislature to set a net large enough to catch all possible offenders and leave it to the court to step in and say who could rightfully be detained and who should be set at liberty”. The court in Shreya Singhal also refers to Grayned vsRockford [408 U.S. 104 (1972)] to say that “vague laws may trap the innocent by not providing fair warning”. It noted the warning by Justice Brandeis that “public discussion is a political duty”.
“Vagueness” in itself is a ground to invalidate a statute. However, its linkage with the potential for misuse of the provision is an added reason to do away with it.
The modernity and modernism in Shreya Singhal reflect an updated constitutionalism. Kedar Nath also needs thorough modernisation surgery, which precisely means annulling Section 124A.
Debates overlooked The fundamental error in Kedar Nath, however, seems to be that it followed the minority view of Fazal Ali (J) in Brij Bhushan (1950), which attributed a strange reasoning for not incorporating sedition as an exception to freedom of speech, as part of Article 19(2). Fazal Ali (J) said: “The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word ‘sedition’ should be used in Article 19(2) and if it was to be used, in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and on the other hand there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.” Fazal Ali (J) seems to have not correctly appreciated the spirit of the objections raised by K.M. Munshi, T.T. Krishnamachari and Seth Govind Das in the Constituent Assembly. Sedition was initially incorporated under Article 13 of the draft Constitution, which is the equivalent of the present Article 19.
Munshi lamented: “Our notorious Section 124A of (the) Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124A. But the public opinion has changed considerably since and now that we have a democratic government” ( Constituent Assembly Debates , 1948; Book No.2; Vol. No. VII; page 731; Lok Sabha Secretariat; 6th Reprint, 2014).
Krishnamachari felt even the word “sedition” needed to be “resented”. He spoke unflinchingly against the draft Constitution, which contained the word sedition under Article 13, as an exception to freedom of speech and expression. He said: “Students of constitutional law would recollect that there was a provision in the American Statute Book towards the end of the 18th century providing for a particular law to deal with sedition which was intended only for a period of years and became more or less defunct in 1802” (Ibid, page 773).
Fazal Ali’s apprehension that sedition per se would undermine the “security of the state” does not appear to be reasonable when examined in the light of the opinion expressed in the Constituent Assembly, which were well received and accepted by the makers of the Constitution. In Kedar Nath , unfortunately, the bench relied on the dissent on the basis of assumptions and presumptions by Fazal Ali (J) rather than by invoking any interpretative technique. The reference to the amendment to Clause (2) of Article 19, occurring in paragraph 22 of the judgment, does not erase this basic infirmity. Had there been an assimilation of the spirit of liberty in the Constituent Assembly debates, the analysis in Kedar Nath might have turned more organic, vibrant and libertarian, which in turn would have led to a different conclusion about the validity of the provision. Viewed in this light, after 145 years of its horrendous existence, Section 124A calls for its own annihilation by the world’s most powerful Supreme Court.
Kaleeswaram Raj is a lawyer practising in the Supreme Court of India and in the Kerala High Court. He has authored the book Spirit of Law (2012) .