Sedition Law and the Debate: RSTV – The Big Picture

Anchor – Frank Rausan Pereira

Guests – J. Sai Deepak, Advocate, Supreme Court, Subhash C. Raina, Former Dean, Law Faculty, Delhi University, Soli Sorabjee, Former Attorney General of India, Prof. Rajvir Sharma, Political Analyst.

Larger Background:

  • A legal opinion sought by the Centre on a Law Commission report on the British era sedition law has stated that “Section 124A – sedition as interpreted by the Supreme Court is necessary”.
  • In short, it is unlikely that the IPC section on sedition is diluted or scrapped. In September 2016, the Supreme Court had reiterated that a larger bench had already provided necessary safeguards that should be followed by all authorities, and “every magistrate is bound by what it said in the Kedar Nath case”.
  • It was referring to the order in Kedar Nath Singh vs State of Bihar, 1962, in which a Constitution Bench had ruled in favour of the Constitutional validity of Section 124A, but had added a vital caveat: that a person could be prosecuted for sedition only if his acts caused “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
  • In August 2018, the Law Commission submitted a “consultation paper” to the Centre on the need for changes in the law, pointing out that even the United Kingdom abolished sedition laws ten years ago saying the country did not want to be quoted as an example of one using such draconian laws.
  • A report in the Indian Express said – while a final decision on whether to dilute the law or not is yet to be made public, but various stakeholders including state governments and law enforcement agencies, have expressed the need to retain the law without changes.
  • This edition of the Big Picture will aim to analyse the sedition law and its utility.

Analysis by the Experts:

What are your thoughts on the British-era sedition law- should it stay or has it outlived its utility?
Soli Sorabjee, Former Attorney General of India, weighed in here with his arguments.

  • Well, the law as interpreted by the Supreme Court is no longer a British colonial law. In other words, words or actions criticising the government, however pungent that criticism is not sedition. The essential ingredient of sedition is that there must be an incitement to violence. You can’t suppress speech on the grounds of sedition. This is clear from the Kedar Nath Singh vs State of Bihar, 1962, case and subsequent cases as well.
  • Thus, we do require the law to meet certain situations, but the mere misuse of the law is no grounds to repeal it. The remedy is to check the misuse of the law.

Let’s understand what is sedition and who can be tried for it?

Subhash C. Raina, Former Dean, Law Faculty, Delhi University, weighed in here with his arguments.

Well any group of people or any person who tries to create disaffection towards the government, causing incitement to violence is seditious. However, calling for removing the law from the statute book needs to be debated further. Even the Indian Penal Code (IPC) is a legacy of the British. It does not mean that we should erase the complete IPC. We have amended the IPC at times on different areas, for example, we have amended the rape laws, we amended Section 377 of the IPC. Thus, there doesn’t seem to be an immediate need to amend Section 124-A of the Indian Penal Code. This is because we have a strong and independent judiciary. Thus, there is a procedure of trial and the trial is under a due process of law. This due process of law is not violated.  The report of the Law Commission as well in August 2018, also said that there need to be certain restrictions placed on the sedition law and those restrictions may perhaps make sure that the law is not violated.

What about free speech and also what does Section 124-A of the Indian Penal Code (IPC) state?

  1. Sai Deepak, Advocate, Supreme Court weighed in with his arguments here.

The limits of free speech are to be judged on the anvil of what amounts to the reasonable restrictions in the backdrop of Article 19 (2). This is also specifically the question that the Supreme Court has considered even in the Kedar Nath Singh vs State of Bihar, 1962, case as well. And the Court has arrived at the conclusion that the test of reasonableness is satisfied if we limit the scope of application of the provision to the situation where any statement that we make amounts to incitement of violence.

However, when we discuss free speech, I think it is important to broaden the scope of the discussion a bit more because the integrity of the Indian State can be challenged. And if the integrity and the existence of the Indian State can be challenged, and if the integrity and the existence of the Indian State can be questioned, then why do we have any provision protecting religious sentiments as well? This is because if free speech is the issue, then India, keeping with the advancement of other jurisdictions, should not have any blasphemy related laws as well. But then, we have Section 295-A of the Indian Penal Code. We also had the recent development from Punjab with respect to blasphemy.

Thus the question that one is asking oneself is, free speech becomes a convenient talking point when the discussion is about sedition laws. But free speech takes a back seat the moment there is a question of religious sentiments.

Surely the Indian State cannot be less sacred than religious sentiments because at the end of the day it is that State that guarantees the right to speak whatever one wishes. Thus, if one wants to have a discussion on free speech, it has to be comprehensive and across the board. Thus, Section 153-A of the Indian Penal Code, 295-A of the Indian Penal Code, and also by way of expression, by way of books, what amounts to obscenity (obscene publications), all these questions need to be answered. Thus, if we are for free speech absolutism, there has to be some sort of uniformity across the country. We cannot use free speech as a convenient tool  to evade certain discussions.

Why has this issue come to the forefront yet again?   

Prof. Rajvir Sharma, Political Analyst weighed in with his arguments here.

  • This issue of whether Section-124 A of the Indian Penal Code should be retained or should not be retained has been a matter of debate and discussion for quite some time. The matter has gone on various occasions to the judiciary as well. In 1959, the matter went to the judiciary, then again in 1962, the matter was referred to the judiciary through a petition. Further, even the law commission has examined the issue in 2016. The conclusion that has been drawn so far is that there is a need to retain Section 124-A of the IPC. The reason is that the context and the cause of the IPC Section 124-A has not disappeared. Further, the fissiparous tendencies are still alive. The divisive forces are still active.
  • Even the Supreme Court has said very clearly that so far as dissent is concerned, and so far as criticism of the government is concerned, one is free to make strong criticisms of the government; but that dissent should not turn into some kind of a persuasion to break the country. If one attempts to break the country either through words, actions, or persuasion, then naturally, law should take its own course as far as sedition is concerned.
  1. Sai Deepak, Advocate, Supreme Court weighed in with his arguments here.
  • If you look at the grounds on which Section 66-A of the Indian Penal Code were struck down, the Court took the position that offence being caused to someone’s sentiments cannot be a limitation on free speech, and cannot be a limitation that can be used as a justification for Section 66-A. Thus, the threshold for the invocation of 295-A for offending religious sentiments, is lower than the threshold required for sedition.
  • For sedition, one needs to actually go to the extent of incitement of violence.  However, when it comes to religious sentiments, merely because someone’s sentiments are hurt, whether it is one’s intention to spread hatred or not, or whether one is speaking the truth, it doesn’t matter as long as someone’s sentiments are hurt. That particular argument is problematic because if let’s say a certain historical aspect on a certain historical figure is being discussed, and his/her life and times are being  discussed with respect to the religion that he/she may have started, and when the analysis happens, if the analysis reveals certain uncomfortable truths, would that amount to spreading hatred? What is the line that we should draw between speaking the truth and spreading hatred? This is a question which needs to be answered.

How do we check the misuse of Section 124-A of the Indian Penal Code?

Soli Sorabjee, Former Attorney General of India, weighed in with his arguments here.  

If there is a proven case of misuse of Section 124-A of the IPC, then the people who have been wrongfully charged of sedition should be acquitted.

The Kedar Nath Singh vs State of Bihar, 1962 case has been brought up on several occasions. What is the history of the case and what was the final verdict as far as this case is concerned?

  1. Sai Deepak, Advocate, Supreme Court weighed in with his arguments here.
  • As far as the history of this particular provision itself is concerned, this was obviously brought at a certain point of time when the British Indian Government wanted to clamp down on people who were asking for independence.
  • Now, notwithstanding the fact that this may have been a British import, it has received a stamp of approval from the Indian Supreme Court in 1962, and therefore the provision of sedition has gone through an indianisation, so to speak, and has been tested on the anvil of the Constitution of India. Thus, the fact that it has been a British import is a fact that cannot be used to create prejudice with that particular provision, because the question that one would have to ask oneself is whether the provision is relevant at this particular point of time or not?
  • Thus, let’s ask ourselves a few questions. Pakistan Zindabad may not be seditious because that is a statement in support of a certain country, but not against India. Therefore, when would that statement become seditious in nature? It would become so if India declares that Pakistan in an enemy country. That is when the statement, “Pakistan Zindabad” becomes seditious. At a time when there are multiple flashpoints in India, and when there are a lot of “breaking India” forces that are alive and kicking, and are receiving active support from within and outside, the law is important. The fact that this particular law has been done away with in other jurisdictions, is no reason to slavishly follow that particular procedure without asking oneself: What is the relevance as far as our circumstances are concerned?
  • An important question to ask oneself is, “Is India as a country or a culture, less open to criticism, or less open to any kind of challenge to established notions?” Well, the answer is no. The Indian culture and traditions invite criticism and encourages it. Thus, the problem is that we can criticize the government and we can perhaps even criticize the Indian State if we believe that it has meted out injustice to certain communities. But is one making the argument to reform the existing condition or is one asking for the dissolution of the State altogether? This is where the line needs to be drawn.
  • Similarly, the religious angle is important to consider because, there is a tendency to bring in free speech as an argument extensively the moment sedition is discussed. However, when it comes to religious sentiments, one is extremely cagy.
  • Further, one may genuinely disagree with a certain proposition, without necessarily being hateful of a certain person or a certain entity. One can reject a particular idea and say that this particular idea could cause public disharmony and therefore, it should not exist.
  • Thus a critical analysis of all communities should be allowed and should be encouraged. Otherwise, there can never be an academic discussion with respect to faith systems at all. The right of the academia to think and the right of the public to receive that particular piece of information would be lost. It is important to note that this right of the receiver has been recognized in the Shreya Singhal judgement. If a book is published that criticizes a particular faith, then not only is there the right of the author, and the right of the publisher, but there is the right of the reader to study and consume that piece of work as well. Thus, these are some of the aspects that need to be considered when one is discussing free speech.
  • Whether or not Section 295-A of the India Penal Code is a reasonable restriction on free speech, is something that the Supreme Court has already decided. However, this particular issue warrants a greater review than with respect to sedition. This is because laws against sedition must continue. However, laws which prevents discussion of religion must be reconsidered.


Talking about the Kedar Nath Singh vs State of Bihar, 1962 case, there is a caveat as far as that particular case is concerned, and is that caveat enough of a safeguard as far as sedition is concerned?

Subhash C. Raina, Former Dean, Law Faculty, Delhi University weighed in with his arguments here.

It is important to note that the law of sedition is against the State. It has got nothing to do between any two individuals as such, and nor with a group of individuals. Matters become seditious in nature only when they are against the state. When someone challenges the sovereignty and integrity of the State- for example: In Kashmir, from 1989-1994, one can see what sedition means. At the end of the day, in India, the judiciary is so robust and strong that the misuse of the sedition law would be keenly looked into and studied by the judiciary.

There are many who need some assurance as far as sedition is concerned. Do they need some sort of a clarification or do you believe that no clarity is required at this point in time.  

Prof. Rajvir Sharma, Political Analyst weighed in with his arguments here.

I believe that this clarity has been given by the Court from time to time. Further, very clear lines have been drawn by the judiciary as to what really constitutes sedition.  At the same time, when we look at the acts of sedition, the courts have clarified that it should not be an act inciting or aiming at inciting violence, or it should not aim at spreading hatred against the state, or it should not aim at spreading disaffection against the state. Thus, even posters which spread disaffection or hatred against the state are not allowed, i.e. even visible representation of hatred is not allowed. This is what the court has clarified on. As a matter of fact, even now we see many politicians using posters that are not really in a good taste and can be interpreted as something aiming to spread disaffection or hatred against the government or against the State. Today if we look at Article 19(1)(a) and Article 19(2), these should ideally be read together- that we have the freedom of speech and expression, which has been guaranteed under Article 19(1)(a), but at the same time, there are limitations, counted in Article 19(2). These limitations have to be of course reasonable, but at the same time, public peace, public order, morality, and so on, are provided a long list as to where the reasonable restrictions are to be levied. Thus, there is no conflict as to what constitutes freedom of speech and what constitutes the acts which are against the nation. As a matter of fact, disloyalty to the nation can also be considered as an act of sedition.

Concluding Remarks: The Way Forward

  • The best way forward would be to educate the law enforcing authorities. One thing is very clear- disapproval of Government policies is not sedition. However pungently they may be criticized. It is only when it creates a tendency to incite violence that an act would amount to sedition.
  • Even after section 66-A was struck down by the Supreme Court, there were several cases where it continued to be hoisted on people, and people were charged under that particular provision. Thus, frankly speaking there is no cure for stupidity in some instances, or for that matter even ignorance. The judiciary has done its job by striking down that particular provision. Now, if someone continues to implement it, then it is a question of awareness. However, it is also a question of the kind and quality of input that we are getting into our law enforcement agencies, and how we are equipping them. Essentially how we are making it a better place for better people to enter that particular profession.
  • Thus, the law of the land is laid down by the Supreme Court, but the law in operation is effectively in the hands of the SHO at the police station and the beat police constable. Thus, this particular mismatch and gap can be perhaps addressed through awareness.
  • India is a very open and liberal democratic society. However, there are divisive forces in the country which would need to be checked. Thus, it is necessary to retain the sedition law even though it is a necessary evil. Thus, it hasn’t yet outlived its utility.  

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