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First introduced in 1870, the primary objective of the sedition law was to deal with “increasing Wahabi activities” in India during those times as they posed a challenge to the British colonial government

Section 124A of the Indian Penal Code, 1860 (IPC), as we have today, was absent from the original draft of Macaulay’s IPC in 1860, and was only introduced in the year 1870, piloted by James Stephen.

This version went through further modification through the IPC (Amendment Act), 1898, since when it has largely retained its form.

The first notable case for the offence of sedition was reported in 1891, in the case of Queen-Empress v. Jogendra Chunder Bose & Ors.(1892) ILR 19 Cal 35, in which the editors of a Bengali magazine were charged for their criticism of the British Government’s policies, specifically regarding the Age of Consent Act, 1891.

The next landmark case on this matter was that of Queen-Empress v. Bal Gangadhar Tilak & Keshav Mahadev Bal, (1897) ILR 22 Bom 112.

In this case, Bal Gangadhar Tilak was tried for sedition for alleged incitement through speech that led to the killing of two British Officials. In this case, a single judge bench of  the Bombay High Court agreed with the definition of ‘disaffection’ as propounded in Jogendra Chunder Bose and opined that any ‘bad feelings’ towards the government is criminal, irrespective of the level of bad feeling.

About two decades later, Tilak was again tried for sedition in the case of Emperor v. Bal Gangadhar Tilak, (1917) 19 Bom LR 211, for an article he wrote in which he advocated the attainment of swarajya (‘self-rule’) for Indians.

In the article, Tilak explicitly admitted his loyalty to the British Crown but went on to criticise the civil services, arguing in court that the civil services and the British government were two distinct entities.

Bal Gangadhar Tilak, Annie Besant, the Ali Brothers, Maulana Azad, Gandhi and very many others suffered imprisonment under this law. 

According to data from the National Crime Records Bureau, there has been a significant increase in the number of cases filed under section 124A of the IPC, with such cases rising by 160%, between 2016 and 2019, while the conviction rate for such offences dropped from 33.3% to 3.3.% for the same period.

This clearly indicates that the it has been misused to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.

Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.

The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.

The section carries with it the prospect of life in prison.

What is more, right from its inception, the offence has been treated as non-bailable.

This means that a person arrested without trial has no inherent right to bail. He or she must apply to a judge to seek release.

K.M. Munshi’s amendment had removed “sedition” from the Constitution, arguing that its scope was too broad to be compatible with free speech in a democracy, but the Supreme Court’s judgment in the Kedar Nath Singh case in 1962 brought it back by the back door.

 It is to the credit of K.M. Munshi that he single-handedly secured its deletion from the Constitution.

In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.

The provision, which criminalises sedition, has been used by successive regimes, including by governments post-Independence, to suppress democratic dissent.

Previously, during oral hearings, the Bench, presided by the Chief Justice of India, Justice N.V. Ramana, had indicated that it was of the view that the law was an anachronism, a colonial-era relic.

Now, through an order, the Court has directed governments, both at the level of the Union and the States, to keep “all pending trials, appeals and proceedings” arising out of a charge framed under Section 124A “in abeyance”.

It is true that a law cannot be invalidated merely because it has been subject to misuse.

Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.

Moreover, since 1973, sedition has also been treated as a cognisable offence; that is, the police can arrest persons suspected of having committed the offence without a warrant.

The government’s affidavit indicated a willingness to re-examine Section 124A. 

The affidavit allowed the judges to  issue an interim order where the provision will be kept in abeyance until the Government, and Parliament, take a final call on the matter. 

“The essence of democracy,” as Munshi put it in the Constituent Assembly “is criticism of government.” The sedition law disregards this core spirit. It criminalises censure and opposition and it enervates, to the point of exhaustion, the basic structure of a democratic republic.

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