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The Famous American Judge, Justice Oliver Wendell Holmes had declared in 1929 that “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought we hate.” Our Constitution too accommodates a hateful thought under article 19 (1) (a) subject to the restrictions mentioned therein. Sedition forms one such restriction. However the lack of understanding of the concept of sedition has several misgivings and has the tendency to color an expression of political dissent as sedition. This coloring is attributable to the definition of sedition under section 124A which makes any expression of disaffection towards existing government seditious . Therefore it becomes pertinent to dispel the doubts about the situation under which the law may become applicable and procedural changes it requires in a developing democratic society to eliminate the fear of prosecution for smooth exercise of the free speech right.
The offence of sedition in India
The first judicial interpretation of section 124A was rendered in the case of Queen Empress v Jogendra Chunder Bose (1892) wherein the Court defined the offence in the following terms “If a person uses either spoken or written words calculated to create in the minds of persons to whom they are addressed a disposition not to obey the lawful authority of the government, or to subvert or resist that authority if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers mind, he will be guilty of the offence of attempt to excite disaffection within the section.” The Constituent assembly deliberately removed the word “sedition” from the constitution in the light of the prevailing section 124A and its interpretation relatable to the restriction “in the interest of security of state ” present in article 19 (2).
Thereafter in the year 1950, the Supreme Court while considering the constitutionality of the laws prohibiting circulation of certain magazines in the interest of maintenance of public order in two cases, Romesh Thapar v State of Madras and Brij Bhushan v Delhi, ruled that “unless a law restricting free speech is directed solely against the undermining of the security of state or overthrow of it, a law cannot be a restriction on free speech.” However Justice Fazal Ali, dissenting in both cases observed that even speeches or words calculated to breach public tranquility and leading to public disorder be termed as seditious and should be curtailed. The dissenting view was later reflected in the first amendment to Constitution as the words “reasonable” and “public order” were added in the article 19(2).
Eleven year after the first amendment, the question pertaining to constitutional validity of section 124A came up before the Supreme Court in the case of Kedarnath v State of Bihar (1962). The Court declared the law to be valid but cautioned that the section shall not be misused to muzzle free speech which is the life of the liberty. The Court while balancing free speech and section 124A stated that only such activities which are intended, or have a tendency to create disorder or disturbance of public peace by resort to violence can be termed as seditious. The distinction was further elucidated in the recent case of Shreya Singhal v Union of India which distinguished advocacy and incitement holding that only later could be punished.
The procedural compliance in making an arrest on mere filing of complaint under section 124A is inevitable and carries the effect of causing “chilling effect” on the right of free expression. We must remember that procedural law is not to be tyrant but a servant, not an obstruction but an aid to justice. If the procedure has the potential of being misused and abused, then it is the responsibility of the legislature and the judiciary to mould it to bring it in consonance with the constitutionally guaranteed rights. The Supreme Court in 2014 in the case of Arnesh Kumar v State of Bihar has issued the guidelines to be followed before making an arrest under section 498A of IPC due to the misuse of the section. Similar guidelines may also be provided in the light of judicial interpretation of section 124A making it obligatory to establish a prima facie case and obtaining of Courts permission before arresting a person under section 124A.
The application of section 124A is subject to article 19 (2) i.e a speech may be prosecuted for sedition when it either affects the security of state or carries the effect of stirring people blood to violently overthrow the existing government. The procedural stringency must be reduced to protect bonafide speeches. In absence of incitement, no speech can be curtailed. To know the law is not merely to understand the words, but as well their force and effect. Let arms yield to the gown and Court decide the nature of speeches. It is our duty to protect our fellow citizens right to speak though we may not agree with them. Most problems will be solved if we start believing that people are not wrong but different.
Views of the author are personal.