THE law of sedition has always been one of the most contentious topics of constitutional law jurisprudence in India, with views ranging from calls for the complete abolition of the provision from our statute books to those advocating for retaining the sedition clause in its entirety with a more vigorous implementation. While many others have called for retaining the provision but keeping its implementation within defined legal limits, to strike a balance between national security and fundamental rights.
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The Public debate over this issue was reignited last week when a three-judge division bench of the Supreme Court said in an order on May 31, 2021, in the case of M/s Aamoda Broadcasting Company Pvt. Ltd. & Anr. v. The State of Andhra Pradesh & Ors. (W.P. (Cr.) No. 217/2021) that “there is a need to define the limits of sedition”.
Later in the week, a two-judge division bench of the apex court, in the case of Vinod Dua v. Union of India & Ors., quashed an FIR (first information report) against the petitioner, journalist Vinod Dua, for the offence of sedition. In its judgment, the court made an observation that every journalist shall be protected from the charge of sedition taking into account the interpretation of the offence as propounded in the court’s landmark judgment in the case of Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955).
Since the Supreme Court itself has recognized that there is a need to re-examine these laws, it is important to trace the jurisprudence by Indian courts that have contributed to the present-day conception of the law of sedition.
Genesis of Section 124A of the Indian Penal Code, and pre-independence jurisprudence
Many legal experts argue that the sedition clause is a vestige of British colonial rule, originally introduced to suppress critical voices emanating from the Indian freedom movement. 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 publishers argued that the offence of sedition only penalised writing of seditious content and not the publication thereof, and also challenged the existence of the sedition law itself. They contended that penalising people for exercising their rights went against the original intention of the law.
The Calcutta High Court held that the publishers could not be absolved of legal liability simply because they had not written the seditious content, as the circulation of the magazine by them was intended to be read by the target audience. The High Court had also emphasised upon the distinction between the terms ‘disapprobation’ (that is, legitimate criticism) and ‘disaffection’ (which refers to ‘any feeling contrary to affection’. The court concluded that since only disaffection is penalised, the offence of sedition does not take people’s rights away.
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.
This way, the High Court virtually disallowed all legitimate criticism. It added that there need not be any material consequence at all to qualify the offence of sedition. The court held that in sedition matters, it is the intention of the offender which is of primacy, and could be presumed based on content, audience and circumstances of their seditious speech.
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.
A division bench of the Bombay High Court rejected Tilak’s contentions, holding that the civil services derived their authority from the State itself, and no such ground for such distinction existed. The High Court, however, clarified that only such criticism of the civil service that can be attributed to the state should be considered seditious.
The court, in this case, took a relatively liberal stance, rejecting the interpretation of ‘disaffection’ given by the single judge bench of the same court in Queen-Empress v. Tilak & Bal, which came out with the broad definition of disaffection as anything contrary to affection. This judgment had a positive impact on free speech, as the actual impact of the alleged seditious speech on the public was taken into account, while reading the intention of the accused.
Sedition jurisprudence in independent India
The case of Tara Singh Gopi Chand v. The State (1951 CriLJ 449) was the first instance of a court in independent India adjudicating on the constitutional validity of section 124A of the IPC. Since India was now an independent republic, constitutional provisions assumed supremacy over British precedents. The then-Punjab High Court, in this case, recognised that section 124A was indisputably a restriction on the freedom of speech and expression, and invalidated the provision on the basis that it was in contravention of the fundamental right of freedom of speech and expression under Article 19 of the Indian constitution.
Soon after, independent India’s first Parliament passed the Constitution (First Amendment) Act, 1951 which, among other things, sought to resolve the anomaly in the constitutionality of the sedition law as a result of the Tara Singh Gopi Chand judgment. It did so by introducing new grounds on which the right to freedom of speech and expression could be reasonably restricted.
In the original Constitution, the only grounds for limiting free speech enumerated in Article 19(2) were the security of the State, defamation, contempt of courts, and decency and morality. The Amendment Act introduced the new grounds of public order, relations with foreign states, and incitement to an offence, for restricting the freedom of speech and expression.
Now, invocation of the offence of sedition was not confined merely to acts undermining the security of the State or tending to overthrow the State; it merely had to be ‘in the interest of the security of the State’. Such wide-meaning terms gave greater discretion to the State invoke the offence of sedition.
The amendment was put to test within two years in the case of Debi Soren & Ors. v. The State (1954 CriLJ 758), in which the accused, an Adivasi leader, was booked for an inflammatory speech against the government. In its judgment, a division bench of the Patna High Court made a clear distinction between disapprobation and disaffection and held that only disaffection leads to public disorder. The High Court also confirmed the constitutionality of section 124A of the IPC, ruling that it does not violate Article 19.
The landmark Kedar Nath Singh judgment
Next, we arrive at Kedar Nath Singh, which is considered the most authoritative judgement of the Supreme Court on the interpretation of the sedition law. In this matter, a five-judge Constitutional bench of the Supreme Court upheld the constitutional validity of section 124A and went on to clarify the correct position of the sedition law in India. In this case, Kedar Nath Singh, who was a member of the Forward Communist Party of Bihar, was charged with sedition for making insulting speeches against the ruling Indian National Congress government.
The apex court clarified that section 124A could not be used to stifle free speech, and could only be invoked if it could be proven that the seditious speech in question led to the incitement to violence or would result in public disorder. Since Kedar Nath criticised the Congress party and not the Indian State, and the speech in question did not lead to any incitement to violence, therefore it did not amount to sedition.
The court also noted that the presence of a pernicious tendency to incite violence is a precondition to invoke the sedition clause. The court upheld the erstwhile Federal Court’s interpretation of section 124A in Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38, in which its judgment batted strongly in favour of legitimate criticism of the government and against arbitrary restriction on the freedom of speech. The Federal Court had proffered that to constitute the offence of sedition, there needs to be a public disorder or at least a reasonable likelihood of public disorder.
Post-Kedar Nath Singh developments
In another important decision, in the case of Balwant Singh & Anr. v. State Of Punjab, 1995 (1) SCR 411, the accused had been prosecuted for the offence of sedition as he had engaged in sloganeering in favour of an independent Sikh majority state in the wake of Indira Gandhi’s assassination. A two-judge division bench of the Supreme Court ruled in favour of the accused, on the rationale that since the speech in question did not lead to any disturbance of public order, and was not likely to incite any violence in the minds of the target audience, Balwant Singh’s actions, therefore, did not amount to sedition.
Taking into consideration the phrase ‘pernicious tendency’ discussed in Kedar Nath Singh, the court stressed that such tendency was to be ascertained by looking at the consequences of the impugned speech.
Courts, in recent times, have relied on the above interpretation in cases of sedition, with a few modifications. One such modification was observed about a decade back in the cases of Arup Bhuyan v. the State of Assam, (2011) 3 SCC 377 and Sri Indra Das v. State of Assam, (2011) 3 SCC 380, both of which were decided by the same two-judge division bench of the Supreme Court within seven days of each other. In both judgments, the court, adjudicating on charges of sedition and preventive detention, placed reliance on the ‘imminent lawless action’ test laid down by the U.S. Supreme Court judgement in the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). As per this test, all speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent lawless action.
The Law Commission of India, in its Consultation Paper on “Sedition”, published on August 30, 2018, observed that while retaining the offence of sedition was essential to protect national integrity, it should not be used as a tool to curb free speech.
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 State has been misusing this provision to file baseless or frivolous cases. Such abuse is bound to affect the free speech of citizens by forcing them to self-censor.
Hence, there is an imminent need to relook the invocation of sedition under section 124A, and ensure that the offence is used within defined legal limits, so as to strike a balance between national security and the fundamental rights of citizens.
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The United Nations has shaped so much of global co-operation and regulation that we wouldn’t recognise our world today without the UN’s pervasive role in it. So many small details of our lives – such as postage and copyright laws – are subject to international co-operation nurtured by the UN.
In its 75th year, however, the UN is in a difficult moment as the world faces climate crisis, a global pandemic, great power competition, trade wars, economic depression and a wider breakdown in international co-operation.
Still, the UN has faced tough times before – over many decades during the Cold War, the Security Council was crippled by deep tensions between the US and the Soviet Union. The UN is not as sidelined or divided today as it was then. However, as the relationship between China and the US sours, the achievements of global co-operation are being eroded.
The way in which people speak about the UN often implies a level of coherence and bureaucratic independence that the UN rarely possesses. A failure of the UN is normally better understood as a failure of international co-operation.
We see this recently in the UN’s inability to deal with crises from the ethnic cleansing of the Rohingya Muslims in Myanmar, to civil conflict in Syria, and the failure of the Security Council to adopt a COVID-19 resolution calling for ceasefires in conflict zones and a co-operative international response to the pandemic.
The UN administration is not primarily to blame for these failures; rather, the problem is the great powers – in the case of COVID-19, China and the US – refusing to co-operate.
Where states fail to agree, the UN is powerless to act.
Marking the 75th anniversary of the official formation of the UN, when 50 founding nations signed the UN Charter on June 26, 1945, we look at some of its key triumphs and resounding failures.
Five successes
1. Peacekeeping
The United Nations was created with the goal of being a collective security organisation. The UN Charter establishes that the use of force is only lawful either in self-defence or if authorised by the UN Security Council. The Security Council’s five permanent members, being China, US, UK, Russia and France, can veto any such resolution.
The UN’s consistent role in seeking to manage conflict is one of its greatest successes.
A key component of this role is peacekeeping. The UN under its second secretary-general, the Swedish statesman Dag Hammarskjöld – who was posthumously awarded the Nobel Peace prize after he died in a suspicious plane crash – created the concept of peacekeeping. Hammarskjöld was responding to the 1956 Suez Crisis, in which the US opposed the invasion of Egypt by its allies Israel, France and the UK.
UN peacekeeping missions involve the use of impartial and armed UN forces, drawn from member states, to stabilise fragile situations. “The essence of peacekeeping is the use of soldiers as a catalyst for peace rather than as the instruments of war,” said then UN Secretary-General Javier Pérez de Cuéllar, when the forces won the 1988 Nobel Peace Prize following missions in conflict zones in the Middle East, Africa, Asia, Central America and Europe.
However, peacekeeping also counts among the UN’s major failures.
2. Law of the Sea
Negotiated between 1973 and 1982, the UN Convention on the Law of the Sea (UNCLOS) set up the current international law of the seas. It defines states’ rights and creates concepts such as exclusive economic zones, as well as procedures for the settling of disputes, new arrangements for governing deep sea bed mining, and importantly, new provisions for the protection of marine resources and ocean conservation.
Mostly, countries have abided by the convention. There are various disputes that China has over the East and South China Seas which present a conflict between power and law, in that although UNCLOS creates mechanisms for resolving disputes, a powerful state isn’t necessarily going to submit to those mechanisms.
Secondly, on the conservation front, although UNCLOS is a huge step forward, it has failed to adequately protect oceans that are outside any state’s control. Ocean ecosystems have been dramatically transformed through overfishing. This is an ecological catastrophe that UNCLOS has slowed, but failed to address comprehensively.
3. Decolonisation
The idea of racial equality and of a people’s right to self-determination was discussed in the wake of World War I and rejected. After World War II, however, those principles were endorsed within the UN system, and the Trusteeship Council, which monitored the process of decolonisation, was one of the initial bodies of the UN.
Although many national independence movements only won liberation through bloody conflicts, the UN has overseen a process of decolonisation that has transformed international politics. In 1945, around one third of the world’s population lived under colonial rule. Today, there are less than 2 million people living in colonies.
When it comes to the world’s First Nations, however, the UN generally has done little to address their concerns, aside from the non-binding UN Declaration on the Rights of Indigenous Peoples of 2007.
4. Human rights
The Human Rights Declaration of 1948 for the first time set out fundamental human rights to be universally protected, recognising that the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
Since 1948, 10 human rights treaties have been adopted – including conventions on the rights of children and migrant workers, and against torture and discrimination based on gender and race – each monitored by its own committee of independent experts.
The language of human rights has created a new framework for thinking about the relationship between the individual, the state and the international system. Although some people would prefer that political movements focus on ‘liberation’ rather than ‘rights’, the idea of human rights has made the individual person a focus of national and international attention.
5. Free trade
Depending on your politics, you might view the World Trade Organisation as a huge success, or a huge failure.
The WTO creates a near-binding system of international trade law with a clear and efficient dispute resolution process.
The majority Australian consensus is that the WTO is a success because it has been good for Australian famers especially, through its winding back of subsidies and tariffs.
However, the WTO enabled an era of globalisation which is now politically controversial.
Recently, the US has sought to disrupt the system. In addition to the trade war with China, the Trump Administration has also refused to appoint tribunal members to the WTO’s Appellate Body, so it has crippled the dispute resolution process. Of course, the Trump Administration is not the first to take issue with China’s trade strategies, which include subsidises for ‘State Owned Enterprises’ and demands that foreign firms transfer intellectual property in exchange for market access.
The existence of the UN has created a forum where nations can discuss new problems, and climate change is one of them. The Intergovernmental Panel on Climate Change (IPCC) was set up in 1988 to assess climate science and provide policymakers with assessments and options. In 1992, the UN Framework Convention on Climate Change created a permanent forum for negotiations.
However, despite an international scientific body in the IPCC, and 165 signatory nations to the climate treaty, global greenhouse gas emissions have continued to increase.
Under the Paris Agreement, even if every country meets its greenhouse gas emission targets we are still on track for ‘dangerous warming’. Yet, no major country is even on track to meet its targets; while emissions will probably decline this year as a result of COVID-19, atmospheric concentrations of greenhouse gases will still increase.
This illustrates a core conundrum of the UN in that it opens the possibility of global cooperation, but is unable to constrain states from pursuing their narrowly conceived self-interests. Deep co-operation remains challenging.
Five failures of the UN
1. Peacekeeping
During the Bosnian War, Dutch peacekeeping forces stationed in the town of Srebrenica, declared a ‘safe area’ by the UN in 1993, failed in 1995 to stop the massacre of more than 8000 Muslim men and boys by Bosnian Serb forces. This is one of the most widely discussed examples of the failures of international peacekeeping operations.
On the massacre’s 10th anniversary, then UN Secretary General Kofi Annan wrote that the UN had “made serious errors of judgement, rooted in a philosophy of impartiality”, contributing to a mass murder that would “haunt our history forever”.
If you look at some of the other infamous failures of peacekeeping missions – in places such as Rwanda, Somalia and Angola – it is the limited powers given to peacekeeping operations that have resulted in those failures.
2. The invasion of Iraq
The invasion of Iraq by the US in 2003, which was unlawful and without Security Council authorisation, reflects the fact that the UN is has very limited capacity to constrain the actions of great powers.
The Security Council designers created the veto power so that any of the five permanent members could reject a Council resolution, so in that way it is programmed to fail when a great power really wants to do something that the international community generally condemns.
In the case of the Iraq invasion, the US didn’t veto a resolution, but rather sought authorisation that it did not get. The UN, if you go by the idea of collective security, should have responded by defending Iraq against this unlawful use of force.
The invasion proved a humanitarian disaster with the loss of more than 400,000 lives, and many believe that it led to the emergence of the terrorist Islamic State.
3. Refugee crises
The UN brokered the 1951 Refugee Convention to address the plight of people displaced in Europe due to World War II; years later, the 1967 Protocol removed time and geographical restrictions so that the Convention can now apply universally (although many countries in Asia have refused to sign it, owing in part to its Eurocentric origins).
Despite these treaties, and the work of the UN High Commission for Refugees, there is somewhere between 30 and 40 million refugees, many of them, such as many Palestinians, living for decades outside their homelands. This is in addition to more than 40 million people displaced within their own countries.
While for a long time refugee numbers were reducing, in recent years, particularly driven by the Syrian conflict, there have been increases in the number of people being displaced.
During the COVID-19 crisis, boatloads of Rohingya refugees were turned away by port after port. This tragedy has echoes of pre-World War II when ships of Jewish refugees fleeing Nazi Germany were refused entry by multiple countries.
And as a catastrophe of a different kind looms, there is no international framework in place for responding to people who will be displaced by rising seas and other effects of climate change.
4. Conflicts without end
Across the world, there is a shopping list of unresolved civil conflicts and disputed territories.
Palestine and Kashmir are two of the longest-running failures of the UN to resolve disputed lands. More recent, ongoing conflicts include the civil wars in Syria and Yemen.
The common denominator of unresolved conflicts is either division among the great powers, or a lack of international interest due to the geopolitical stakes not being sufficiently high. For instance, the inaction during the Rwandan civil war in the 1990s was not due to a division among great powers, but rather a lack of political will to engage.
In Syria, by contrast, Russia and the US have opposing interests and back opposing sides: Russia backs the government of the Syrian dictator Bashar al-Assad, whereas the US does not.
5. Acting like it’s 1945
The UN is increasingly out of step with the reality of geopolitics today.
The permanent members of the Security Council reflect the division of power internationally at the end of World War II. The continuing exclusion of Germany, Japan, and rising powers such as India and Indonesia, reflects the failure to reflect the changing balance of power.
Also, bodies such as the IMF and the World Bank, which are part of the UN system, continue to be dominated by the West. In response, China has created potential rival institutions such as the Asian Infrastructure Investment Bank.
Western domination of UN institutions undermines their credibility. However, a more fundamental problem is that institutions designed in 1945 are a poor fit with the systemic global challenges – of which climate change is foremost – that we face today.