Abstract 1 Nishant Mittal Ablaw Sof Stractedition Is As Old As the History of Civilization, an Era in Which the Concept of Patriotism Evolved

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 ISSN No. 2581-7949 ROLE OF SUPREME COURT ON SEDITION LAW: AN ROLE OF SUPREME COURT ON SEDITION LAW : ANALYSIS AN ANALYSIS -By Nishant Mittal1

Abstract 1 Nishant Mittal ABLaw Sof STRACTedition is as old as the history of civilization, an era in which the concept of patriotism evolved. The word "sedition" comes straight out of the Latin word -- "sed" means apart and La“wition of meSeditionans going is" asi.e. oldgoin asg a ptheart. hisSedittoionry rofefe civilizrs to thea tion,utterin ang or e wrari intin gwhich any wo therds or con - doing any act intended to bring the state into hatred or contempt or to excite disaffection against cept of patriotism evolved. The word "sedition" comes straight out of the the established government. Whereas, Patriotism is the ideology of attachment to a homeland Lawhitinc hw coomesrd -- n a"sed"turally meansand one c apaan’t bret foandrced “ toition come means under the going" umbrell ai. eof. pgoingatriotis mapa. Thus,rt. Se- ditiongovernm reefersnt is tmano theufac turingutter pingatrio ortis mw bryiting the w ayn oyf wseco. r12ds4A or of doing IPC,1860. an Lya wa coft sineditendedtion has a chilling effect on right to free speech and expression under Constitution of India. In Kedar Nath’s case apex court narrowed down the scope of sedition law in India but still government theha sestablished used the weapon g ofv seerdinmetion mantn. yW tihemes.rea Thus,s, P theat rviotismagueness is in the this laideologyw facilitates of it atottach be - meusnedt atrbitro a ahomelandrily. These incid whichents hav comese led to n quaetustironally at tandhe he oneart of cathins c’to nbetrov foerrscyed reg taordi cnomeg the Section124-A lies a black-and-white issue: Can an Indian citizen justify and support a call under the umbrella of patriotism. Thus, government is manufacturing patri- for a part of the country to secede? Can a citizen point of the shortcomings of the government otismmachine byry ?the Do ews haey hofav e sea cri.g ht124A to fr eofely IPC,1860.express him sLelfa wwithou of seditiont being cha rhasged witha chilling the offence of “Sedition? The Answer to all these questions still remains unanswered. But the harsh reality is that, this law is still prevailing in India. Therefore, this paper aims to examine the role Kedar Nath’s case apex court narrowed down the scope of sedition law in of Supreme Court on Sedition law. India but still government has used the weapon of sedition many times.

Thus, the vagueness in this law facilitates it to be used arbitrarily. These inci- Keywords: Sedition, Fundamental, Constitution dents have led to question at the heart of this controversy regarding the Sec-

tion124-A lies a black-and-white issue: Can an Indian citizen justify and sup-

port a call for a part of the country to secede? Can a citizen point of the

shortcomings of the government machinery? Does he have a right to freely

Answer to all these questions still remains unanswered. But the harsh reality

is 1th Niashta,n tthis Mitta l a(LwL. Mis.) ,still Advo pcartee, vDelailinghi High inCo uIrndia.t Therefore, this paper aims to exam- 1 | P a g e ine the role of Supreme Court on Sedition law.

Keywords : Sedition, Fundamental, Constitution

1 Nishant Mittal (LL.M.), Advocate, Delhi High Court

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INTRODUCTION: -

“As the matter of fact the essence of democracy is Criticism of Government”

-K.M. Munshi2

The word Sedition does not occur in the Sec. 124-A3 or in the Defense of India Rule. It is only found as a marginal note of Sec. 124-A, and is not an operative part of the section but merely provides the name, by which the crime is defined in the section will be known. Sedition in India, a 150-year old law finds its origin in the colonial rule. It was one of the controversial laws which have been inherited from colonial regime. The rationale for sedition is based on the principle that dissemination of seditious material undermines the loyalty of citizens, that disloyal citizens jeopardize the government at Law, and that a weakened Government at Law threatens the very fabric of the state as well as public order and safety.

The English law does not make mere spoken or written words treason where they do not relate to any act or design then actually on foot against the life of the king or the levying of war against and in contemplation of the speaker. But the situation is different in India, as laws on sedition and levying of war and abetment thereof are very strict. The law of sedition developed in the era of monarchy and today it violates the very purpose of the democratic government.

Sedition, as we know today, was imported from the English legal system and enacted as an offence in 1870, to suppress any criticism of British policies, in pre-independent India. It became an instrument to terrorism the natives and implicate nationalist newspapers which disapproved of British colonialism. Bal Gangadhar Tilak, Annie Besant, Jogendra Chandra Bose and Mahatma Gandhi were amongst the first prominent figures to be charged with sedition. In fact, Mahatma Gandhi called it his moral duty to disobey this draconian provision, for it was enacted by an evil State. Consequently, the Constituent Assembly decided against the inclusion of sedition as one of the restrictions to the fundamental right of free speech guaranteed under article 19 of the Constitution. Pandit Jawaharlal Nehru also voiced his discontent against sec. 124A by stating that "the sooner we get rid of it, the better". However, this colonial legacy continues unchecked, for protecting the sentiments of successive

2 Freedom Fighter as well as Lawyer, Constiuent assembly of India Part I Vol. VII, 1-2 December 1948, available at http.//parliamentofindia.nic.in/Is/debates/vol7p16b.html (Visited on 30/08/2018) 3 Indian Penal Code,1860

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Governments. It is increasingly being used to harass and intimidate journalists, human rights activists, artists and political activists, and illustrators, according to the whims of the members of the State and Central Government and other public institutions.

1. CONSTITUTIONAL PROSPECTIVE

The freedom of expression guaranteed under article 19 (1) (a) of Constitution of India, include right to express their views and opinion freely. It also covers the right to criticize government, the requisite of a healthy democracy. In Terminiello v. Chicago, Justice William O. Douglas had explained the rationale behind the freedom of speech as: “a function of free speech under our system of government is to invite dispute; It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions.” However, “the liberty of the individual to do as he pleased even in innocent matters is not absolute” but, limited to only grounds listed in article 19(2) of Constitution of India. International law provides a general ‘three-part’ test for assessing restriction on the freedom of expression., Any restriction of the freedom of expression must be cumulatively as such; it must be provided for by law, have legitimate aims and must be ‘necessary in a democratic society like India’ A sedition law, even if manage to pass the two previous tests unable with third one. It is because it cannot be in any circumstances ‘necessary in democratic society’. While describing Section 124A Mahatma Gandhi in 1922 said “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” He further said that “Affection cannot be manufactured or regulated by law”. Therefore, this provision of sedition is against the notion of democracy because the right of freedom should be promoted to the maximum extent possible given its critical role in democracy and public participation in political life.

2. EVOLUTION OF SEDITION BY SUPREME COURT:

It is not surprising, under these circumstances, that the validity of sec. 124A vis-à-vis the freedom of speech was challenged in a number of cases soon after the Constitution came into force. The first in the series was Tara Singh Gopi Chand v. The State of Punjab, in which Mr. Chief Justice Westen, in order to examine the validity of sec 124-A adopted the interpretation given to it by Mr. Justice Strachey in the Tilak case. According to Mr.Justice Strachey, the offence consisted in exciting or attempting to excite in other certain bad feelings towards the

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LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 government irrespective of the consequences that may or may not follow. Mr. Chief Justice Weston wrote:- India is now a sovereign democratic State. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change, which has come about. It is true that the framers of the Constitution have not adopted the limitations, which the Federal Court desired to lay down. It may be they did not consider it proper to go so far. The limitation placed by Clause (2) of Article 19 upon interference with the freedom of Speech, however, is real and substantial. The unsuccessful attempt to excite bad feelings is an offence within the ambit of Section 124A. In some instances at least the unsuccessful attempt will not undermine or tend to overthrow the State. It is enough if one instance appears of the possible application of the section to curtailment of the freedom of speech and expression in a manner not permitted by the constitution. The section then must be held to have become void.

Besides this authoritative pronouncement of the Punjab High Court, there was an oblique reference to the validity of sec. 124A in the Supreme Court decision in Romesh Thapper v. The State of Madras4. Although the validity of sec. 124A was not in issue in the case5, Mr. Justice Patanjali Sastri, speaking for the majority of the Court6, observed: Deletion of the word “sedition” from the draft Art. 13(2), shows that criticism of government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security it tend to overthrow the state7. These observations of the Supreme Court, being in the nature of obiter dicta, did not authoritatively settle the question of the validity of sec 124A. Moreover, as a result of the decisions of the Supreme Court in Romesh Thapper and Brij Bhushan v. state of Delhi8, art.

4 A.I.R. 1950 S.C. 124. 5 The Supreme Court, by a majority decision, declared that the Madras Maintenance of Public Order Act, 1949, was violation of article 19(1)(a). 6 Mr. Justice Fazl Ali, in his dissenting judgment, however, expressed the view that “matters which undermine the security of the state” have the same meaning as “law of sedition”. According to this view, the restrictions imposed by sec. 124A of the penal code would come within the permissible limits of article 19(2) 7 Mathew Hale & George Wilson Thomas, The History OF The Pleas of the Crown, Vol.1 59 (1st edn. 1800) at 128. 8 A.I.R. 1950 S.C. 129.

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19(2) was amended in 19519 whereby “public order” was included as one of the additional grounds on which reasonable restrictions could be imposed on the freedom of speech and expression. Thus the validity of sec. 124A again became a debatable issue since the government could, as it latter did, claim that the restrictions placed by the section on the freedom of speech were in the interest of public order.

It is to be seen now, whether S. 124-A of the Indian Penal Code is in conflict with the amended clause (2) of Article 19 or not. There appears to be three different views on the question as reflected by the decisions of the courts. These can be summarized as under:

(i) Section 124-A IPC is ultra vires the Constitution inasmuch as it infringes the fundamental right of freedom of speech in Art. 19(1) (a) and is not saved by the expression "in the interest of public order". It was held in the case of Ram Nandan’s case10 where the constitutional validity of section 124A of the IPC was challenged in an Allahabad High Court case that involved a challenge to a conviction and punishment of three years imprisonment of one Ram Nandan, for an inflammatory speech given in 1954.

(ii) Section 124-A is not void because the expression "in the interests of public order" has a wider connotation and should not be confined to only one aspect of public order viz. to violence It has a much wider content, and embraces such action as undermines the authority of Government by bringing it into hatred or contempt or by creating disaffection towards it From this point of view S. 124-A IPC is saved under clause (2) of Art. 19.11

(iii) Section 124-A IPC is partly void and partly valid. In Indramam Singh v. State of Manipur12 it has been held that S. 124-A which seeks to impose restrictions on exciting mere disaffection or attempting to cause disaffection is ultra vires, but the restriction imposed on the

9 The Constitution (First Amendment) Act, 1951. 10 Ram Nandan v. State, AIR 1959 All. 101 11 Debi Soren v. State, AIR 1954 Pat. 254. The Supreme Court has also endorsed the view of Patna High Court in so far as the expression "in the interest of public order", is concerned. The SC is also of the opinion that the expression has a wider connotation, see Ramji Lai Modi v. State, AIR 1957 S.C. 620 and also State ofU.P. v. Ram Manohar Lohia, 1960 SCJ 567. Another view is that the words "in the interests of public order" is equivalent to "for reasons connected with public order". Walliullah, J, observed in Basudev v. Rex, AIR 1949 All. 523. (F.B.), that the expression 'for reasons' connected with "must mean a real and genuine connection between the maintenance of public order on the one hand and the subject of legislation on the other". See also Ram Nandan v. State, AIR 1959 All. 101. 12 AIR 1955 Manipur 9.

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LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 right of free-speech which makes it punishable to excite hatred or contempt towards the Government established by law in India, is covered by clause (2) of Art. 19 of the Constitution of India and can be held intra vires.

Whether restrictions under Art. 19(2) may be imposed in the interest of public or not has been clarified by the Supreme Court; it held that restrictions imposed must have a reasonable and rational relation with the public order, otherwise it would be invalid.13 The desirability of having such a law as S. 124-A has been questioned in the present context of events.14 Thus it may be observed that the courts appear to be differing in their view points with regard to its constitutional validity. The desirability of having a law of sedition in our statute book may be examined and its proper meaning and scope determined so that a law of sedition, if it is necessary must fit in not only within the four corners of the constitutional provisions but must also be in consonance with the democratic spirit and traditions which pervade our Constitution. The conflicts of views were come to an end after the landmark case of Kedarnath v. State of Bihar15. Finally, it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right.

2.1 KedarNath Case:

After recording a substantial volume of oral evidence, the learned Trial Magistrate convicted the accused person both under S.124A and 505-(b) of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year. The convicted persons preferred an appeal to the High Court of Judicature at Patna, the Court upheld the convictions and the sentence and dismissed the appeal. Finally, it was held that, Section 124A of the Indian Penal Code which makes sedition an offence is constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the limit of permissible legislative interference with the fundamental right.

13 V.K. Javali v. State of Mysore, AIR 1966 SC 1387. See also R. Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113; Peoples Union for Civil Liberties v. Union of India, AIR 2003 SC 2363. 14 See Report of Press Commission. The Press Commission has recommended that S. 124-A should be repealed. See also the observations of Beg, J., In Ram Mandan V. State A.I.R. 1959 All. 101. 15 A.I.R. 1962 SC 955

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However, the convict approaches Supreme Court through Special leave petition16. The Apex court while upholding the constitutionality of the judgment distinguished between “the Government established by law” and “persons for the time being engaged in carrying on the administration”. The Court distinguished clearly between disloyalty to the Government and commenting upon the measures of the government without inciting public disorder by acts of violence: “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence the continued existence of the Government established by law is an essential condition of the stability of the State. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings, which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.17

The Court further went on to say:

“This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. But the freedom has to be guarded again becoming a license for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder. The Court, has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen’s fundamental right guaranteed under Art. 19(1)(a) of the Constitution and the power of the legislature to

16 Ibid 17 Ibid

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impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order18.”

Thus, the Supreme Court upheld the constitutionality of the sedition law, but at the same time curtailed its meaning and limited its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. It is important to note that the Supreme Court read down the offence of sedition in effect removing speech which could be exciting disaffection against the government but which did not have the tendency to create a disturbance or disorder from within the ambit of the provision. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

3. Maintenance of Public Order as a Limit on Free Speech

The reason the drafters of the Constitution omitted the term ‘sedition’ from the enacted Constitution was the divergence in interpretation of the term.19 To avoid any complications that may arise out of this ambiguity in interpretation, they used the term ‘security of the state’ that was to include grave crimes like sedition20. Concurring with this reasoning, the Court in KedarNath stated that the section related to sedition was a reasonable restriction both on grounds of ‘public order’ and ‘security of the state’. Further, the addition of the phrase ‘in the interest of public order’ in Article 19(2) through the first constitutional amendment with retrospective application was seen as an attempt to validate the interpretation given by Fazl Ali, J. in Brij Bhushan v. State of Delhi21 (‘Brij Bhushan’) whereby ‘public order’ was allied to ‘security of the state’.22 The insertion of the words ‘in the interest of’ before public order in Article 19(2) was seen as providing wide amplitude of powers to the State for the curtailment of free speech23. Consequently, the amendment was seen as a validation of the law of sedition. Since then, however, a clear distinction has been drawn by courts between the terms ‘public order’ and ‘security of the state’24. The difference, essentially, is one of degree. While the terms

18Ibid 19 Narrain 20 While it was widely accepted by various scholars and authorities that sedition was essentially an offence against public tranquility and was represented by any form of public disorder, the Judicial Committee had stated that the intention or tendency to incite disorder was not an essential element of the crime of sedition as defined in the IPC. 21 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525. 22 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 23 Id 33, (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to support this contention) 24 V.N. Shukla, Constitution of India 135 (M.P. Singh, 2008).

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LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 have not been precisely defined, public order is synonymous with public safety and tranquility and has only local significance. Security of the state, on the other hand, would involve a national upheaval such as revolution, civil strife or war.25 Thus, an argument that a law justified ‘in the interest of public order’ would also consequently be justified in the interests of the ‘security of the state’ would not stand.

Further, it would also be difficult to argue that the law could be saved on the grounds of being ‘in the interests of public order’. For the purpose of permissible restriction, the breach of public peace may be categorized as: offences against ‘law and order’, ‘public order’ and ‘security of the state’. According to the judgment of the Supreme Court in Ram Manohar v. State of Bihar26 (‘Ram Manohar Lohia’) these may be viewed as three concentric circles, with ‘law and order’ forming the outermost circle, ‘public order’ the next circle and ‘security of the state’ the innermost circle. These form a hierarchy of disturbances of peace, with security of the state possessing the highest standard of proof. Thus, if a restriction is to be justified on the grounds of ‘security of the state’, it would have to be subjected to a higher standard than that applied in cases of ‘public order’. And if we talk about public order, the restriction to be held as reasonable restriction should be one “which has a proximate connection or nexus with public order but not one far-fetched, hypothetical or problematic or too remote in the chain of its relation with the public order”27.

As has already been stated, sedition is an offence against the State and punishes an act intended to subvert the government established by law. It is difficult to imagine how the mere disturbance of public order could attract a charge for an offence against the state, given that the term ‘in the interests of public order’ is used in an extremely localized context.28 These could include punishing loud and raucous noise caused by noise-amplifying instruments in public places or preventing utterances likely to cause a riot. Thus, in light of the clear distinction that has been drawn between ‘public order’ and ‘security of the state’ in Ram Manohar Lohia, the courts have in subsequent decisions on sedition imposed a disturbance of public order requirement for the offence to be proved29.

25 Ibid 26 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709 27 In laying down this principle, Subba Rao, J., relied upon the judgment of the Federal Court in Rex v. Basudeo, A.I.R 1950 F.C. 67. 28 Supra Note 26 29 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785

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4. RECENT CASES: -

Some of the prominent cases reinforcing the same idea have been discussed herein under:

In Aug 2006, Manoj Shinde an editor of a Gujarati eveninger, Surat, Gujarat was who is facing sedition charges for using "abusive words" against CM Narendra Modi in an editorial on Monday, while alleging administrative failure in tackling the flood situation in Surat30. He also held them responsible for the epidemic outbreak after the floodwaters had receded in the city. As a result he was charged with sedition and further arrested. In May 2007, kahturam Sunani a journalist of OTV, Sinapali, Orissa, for filing a report that Pahariya tribals were consuming ‘soft’ dolomite stones in Nuapada district due to acute hunger31. In May, 2007, In the well-published case of Dr. BinayakSen, the General Secretary of the Peoples Union for Civil Liberties, was arrested under Section 124A of the IPC, under Section 121A of the IPC and under state law, The Chhattisgarh Special Public Security Act 2005. In June, 2008, Kirori Singh Bainsla leader of gujjar Community from Bayana, Rajasthan faced sedition charge against him came as a shock for the community, especially as this happened at a time when the terms of the talks had not been fully laid out; only a consensus on the venue had been reached32. In Dec,2008 Lenin Kuman editor of Nishan from Orissa, was picked up by police on December 8, 2008, after a special booklet on the Kandhamal riots entitled ‘Dharmanare Khandamalre Raktonadhi' (The rivers of blood in Kandhamal) was published in the magazine33. In September, 2009, Laxman Choudhury a journalist of sambadh. Gajapati district is one of the backward tribal dominated and naxal-affected areas, Mr Choudhury has

30 Available at : http://archive.indianexpress.com/news/editor-charged-with-sedition-for-abusing-modi/11721/1 (visited on 24/08/2018) 31 Available athttps://www.reddit.com/r/india/comments/1xgbin/a_brief_of_sedition_law_section_124a_and_its/ (visited on 24/08/2018) 32 Available at http://www.frontline.in/static/html/fl2513/stories/20080704251302600.htm (visited on 24/08/2018) 33 Available at http://www.thehoot.org/free-speech/media-freedom/but-what-about-the-little-guys-4906 (visited on 24/08/2018)

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been highlighting many issues like poverty, deprivation of the people, misappropriation of government funds, all of which might made him a headache for the administration or the police34. In 2009 a V Gopalaswamy (Vaiko) sedition charge were being framed and was being slapped for his statements against India’s sovereignty in speech on Sri Lanka’s war with LTTE at a book launch function. In Jan 2010, Piyush Sethia an environmentalist and organic farmer, as a representative of the Campaign for Justice and Peace, a nationwide campaign started by people concerned about human rights violations in Chhattisgarh, he reportedly had in his possession pamphlets condemning the state sponsored Salwa Judum violence in Dantewada district of Chhattisgarh state35. In June, 2010, Niranjan Mahapatra, Avinash kulkarni, Bharat Pawar who are renowned trade union leaders as well as social activists once faced the charges of sedition due to their allegation of linking Gujarat police with CPI i.e Maoist.36 In 2010 Arundhati Roy and others were charged under sections 124A (sedition), 153A (promoting enmity between classes), when she spoke at "Azadi-the Only Way"? conference in Jammu and Kashmir. The filing of the FIR came following a directive from a local court on a petition filed by Sushil Pandit who alleged that Geelani and Roy made anti-India speeches at a conference on a senior police official said. In December, 2010, Noor Muhammed Bhat, a lecturer in English literature at the Gandhi Memorial College, Srinagar, (affiliated to Kashmir University) was arrested for setting an "anti-establishment" English-B paper for first year BA, BSc and BCom students. A question in the paper was whether stone-pelters were the real heroes. In 2011, a nationwide anti-corruption movement India against Corruption gathered pace in the leadership of a veteran Gandhian Anna Hazare demanding Jan Lokpal Bill. Aseem Trivedi joined the crusade and started a cartoon based campaign, Cartoons against Corruption to support the movement with his art. In September 2012, Koondankulam protests Another application of the sedition laws has been mass arrests of protesters in Idinthakarai and Koodankulam in Tamil Nadu.

34 Available at http://www.thehoot.org/free-speech/media-freedom/orissa-journalist-languishes-in-jail-4215 (visited on 24/08/2018) 35 Available at http://www.livemint.com/Leisure/tZc3CAq1yJcXmRlnrKEh8O/Salems-green-warrior.html (visited on 24/08/2018) 36 Available at https://kractivist.wordpress.com/2012/06/26/a-stick-called-124a-the-state-finds-a-handy-tool-in- a-colonial-law-to-quell-dissent/ (visited on 24/08/2018)

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Amidst protests over the safety of the Koondankulam power plant, the police have arrested up to 6000 people in the months from September to December 2011 alone37. In March 2014, 60 Kashmiri students were charged with sedition in Uttar Pradesh for cheering for the Pakistani team in a cricket match against India38. Resultantly, the university management ordered an inquiry and temporarily suspended all the students residing in the hostel as a “precautionary measure”.39 In October 2015, In this case, a single Judge Bench of the Allahabad High Court threw out a charge of 'sedition' against the Petitioner who is also the Finance Minister under the Central Government ‘Arun Jaitley’.40 In 2015 The Gujarat government booked a Patel leader under sedition for sending messages containing “offensive language against the Prime Minister, the State Chief Minister and Amit Shah, the President of BJP” as well as quoting the statement that If you have so much courage…then go and kill a couple of policemen. Patels never commit suicide41,” In February 2016, JNU, Jawaharlal Nehru university student union president Kanhaiya Kumar was arrested on charges of sedition under section 124-A of Indian Penal Code for speaking against the hanging of the Afzal guru and was termed anti Indian.42

5. CONCLUSION & SUGGESTIONS:

Despite of the constitutional provisions as well as strict construction laid down by Supreme Court in early as 1960s, the law of sedition is characterized by its incorrect application and is used as a tool for harassment. The law enforcement agencies have always used it against artists, editors, journalists, intellectuals, social workers as well as politicians. In fact the apex court itself did not apply these strict principles to the speech of KedarNath and his conviction. This hypocrisy of the courts has led to the continued existence of the sedition law in India. The

37 Pallavi Polanki, “More Sedition Cases Against Anti-Nuke Protestors than Maoist Militants,” First Post, 21/04/2012, www.firstpost.com/politics. (visited on 24/08/2018) 38 Sanjeev Miglani, “Kashmir students in Meerut in trouble after cheering Pakistani cricketers”, Reuters India, March 6, 2014 http://in.reuters.com/article/india-pakistan-cricket-kashmir-idINDEEA250DN20140306 (last visited on 24/08/2018) 39 “India drops sedition charge for Kashmiri students in cricket row”, BBC News, March 6, 2014 http://www.bbc.com/news/world-asia-india-26463140 (last visited on 31.08,2018) 40 Arun Jaitley v. state of U.P. , Nov. 2015 41 Available at http://indianexpress.com/article/india/india-news-india/hardik-patel-booked-for-sedition-over- comments-on-gujarat-police/ (visited on 01/09/2018) 42Available at http://indianexpress.com/article/india/kanhaiya-kumar-sedition-a-year-on-delhi-police-lack- evidence-to-charge-ex-jnusu-president-kanhaiya-kumar-report-4549115/ (visited on 10/09/2018)

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ISSN No. 2581-7949

LEGALPEDIA JOURNAL VOLUME 1 ISSUE 1 analysis of the said judgment of Supreme Court itself demonstrates certain deficiencies in how the law is currently understood. There is a shift in how we understand ‘security of the state’ as a ground for limiting the freedom of speech and expression. Even the maintenance of ‘public order’ cannot be used as a ground to justify these laws as it is intended to address local law and order issued rather than actions affecting the very basis of the state itself. Though, there is a need for such law to deter the activities that promote violence and public disorder, slapping sedition charges on mere spoken or written words is just not constitutional. It is the defect of law makers that this law is being misused time to time. If we talk about the stand of Supreme Court, it has cleared it in early years of independence by limiting its scope and applicability. Not only this, Supreme Court has also distinguished between advocacy as well as incitement, which reflected as a milestone in the journey of sedition law. Although court hasn’t clearly stated this law unconstitutional but decreased its scope and effect by their judgments. But the core problem lies with the lower judiciary as they entertain the matters in which sedition is wrongly used. There are many convictions which are challenged in the higher courts and the sentence has been changed. These courts have failed to understand the concept which is given by the apex court.

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