Seventy-four years after Independence, the time has come for us to seriously ask whether the law of sedition in India needs to be reconsidered. According to the National Crime Records Bureau, in 2019, only 3.3% of sedition cases culminated in a conviction. This conviction rate is negligible in contrast to other offences under the Indian Penal Code (IPC) like murder (41.9%) and cheating (22.8%). The number of sedition cases registered is microscopic – in 2019, there were only 229 such cases pending investigation as against 2.84 lakh cases of forgery, cheating and fraud. However, the fear that the police might arrest you on trumped up charges of sedition if you criticise the government serves as a serious fetter on the fundamental right to free speech and expression. In 2019, some 96 people were arrested for sedition, many of whom might have been opponents of the government and, statistically speaking, most of whom will eventually be acquitted.
Sedition in England
The law of sedition was introduced into the IPC by a colonial government intent on discriminating against Indians. Since 1832 in England, sedition had virtually become a dead letter and prosecutions were extremely rare. Sedition in England was a minor offence – a ‘misdemeanor’ as opposed to a ‘felony’. It attracted a sentence of around two years in prison. It was a ‘bailable offence’, meaning that a person arrested for sedition had the right to be immediately released on bail. A person charged with sedition had the right to be tried by a jury of his or her own peers, which made it very difficult to secure a conviction. The definition of sedition in England, since 1832, was quite clear – only those who incited violence against the government or asked their listeners to take up arms against the government could be said to have committed sedition. Merely criticising the government, even harshly or unfairly, was no offence at all.
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In 1870, an amendment to the IPC brought sedition into the statute books in India. Sedition in India was very different from its counterpart in England. Here, it was a colonial device meant to quell even peaceful resistance. It was made punishable with transportation to an overseas prison for life – a far cry from the two-year punishment for the misdemeanor in England. Indian patriots who were accused of sedition were not entitled to be tried by a jury of their peers. Bal Gangadhar Tilak’s trial, for instance, took place with a racially stacked jury of six white and three non-white jurors, who predictably voted to convict him by a majority of 6-3.
Sedition in India was made a non-bailable offence, meaning that those who were arrested for sedition could only be released on bail at the discretion of a criminal court – they had no right to be immediately released on bail. Further, the definition of sedition in India was quite different from what it was in England. Here, merely ‘exciting disaffection’ against the government was sufficient to constitute sedition. As Justice Arthur Strachey of the Bombay High Court explained to the jury in Tilak’s case, ‘disaffection’ means the ‘absence of affection’ – in other words, even if Tilak made his listeners fall out of love with the government, this was enough to prosecute and convict him.
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The framers of India’s Constitution were therefore understandably suspicious of sedition. Consequently, though the fundamental right to free speech and expression had many exceptions under the new Constitution of independent India, sedition was not one of them. In Master Tara Singh’s case (1950), the Punjab High Court held that Section 124A of the IPC (containing the law of sedition) was unconstitutional.
However, independent India’s leaders soon found that they had been too idealistic while drafting the Constitution. Shortly after it came into force, State governments were unable to ban periodicals which had the tendency of inciting communal riots. In a case decided by the Patna High Court, Justice Sarjoo Prasad chillingly observed that the fundamental right to free speech and expression in the new Constitution gave to all Indian citizens the right to incite murder and other cognisable offences with impunity. All this led to the enactment of the first amendment to the Constitution in June 1951 which, among other things, introduced a new exception to the right to free speech and expression – ‘public order’. Sedition, an offence which was designed to preserve the ‘public order’, was now no longer unconstitutional.
To be sure, after India became independent, some improvements were made to the sedition regime. Jury trials were abolished, so there was no question of sedition cases being tried before racially loaded juries. In a case decided in 1962 ( Kedar Nath Singh v. State of Bihar ), the Supreme Court adopted the definition of sedition which had been in vogue in England. Now, only a person who incites others to take up arms against the government or to violently overthrow the government can be said to have committed sedition.
Repressive features remain
However, many of the colonially repressive features of the law of sedition remain on the statute books in India. Sedition is still punishable with life imprisonment and a non-bailable offence. Perhaps most startlingly, when the new Code of Criminal Procedure was enacted in independent India in 1974, it made sedition a cognisable offence. A cognisable offence is one in which a police officer can investigate the case and arrest the accused without obtaining a warrant from a magistrate. In other words, while the police in colonial India needed a warrant from a magistrate before they could arrest Tilak, the police in independent India can freely arrest the political opponents of the government on trumped up charges of sedition, without any hope of eventually securing a conviction.
Sedition in England was formally abolished in 2009, though it had become obsolete much before that time. However, even if India’s parliamentarians want to keep sedition on the statute books, they must seriously consider some pressing amendments. By making sedition a bailable and non-cognisable offence, and reducing the punishment to a maximum of two years’ imprisonment, they must bring the law in line with what it was in England since 1832.
Abhinav Chandrachud is an advocate at the Bombay High Court and the author of Republic of Rhetoric: Free Speech and the Constitution of India