This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of landmark sedition cases in India.
This article has been published by Abanti Bose.
The most important thing to remember about sedition law is that this statute was enacted during a period when we were dominated by a foreign imperialist conquering force. The Britishers’ primary goal was to deny the inhabitants of this country their rights, especially the freedom to voice their opinions. Interestingly, whilst sedition was included in Lord Macaulay’s original draft of the Indian Penal Code, 1860 (IPC), it did not make it into the final version when it was passed in 1860. When Section 124A was amended in 1898, it changed the perception surrounding sedition. The first sentence defines the offence of sedition as inciting or attempting to incite emotions of dissatisfaction with the government. Sedition is still a rare crime when compared to other crimes (it accounts for less than 0.01 per cent of all IPC crimes). However, some areas of India are becoming sedition hotspots. With 37 sedition charges each, Assam and Jharkhand account for 32% of all sedition cases between 2014 and 2018. The authorities in Jharkhand have charged several categories of demonstrators with sedition. More than 3,000 people were charged with sedition in January last year, for opposing the Citizenship Amendment Act (CAA) in 2019 and more than 3,300 farmers were prosecuted with sedition in 2019 for protesting about land conflicts. The present article highlights the top 10 sedition cases majorly focusing on 2019-2021, that have attracted the attention of the nation as a whole.
The first lawsuit to address the legitimacy of Section 124A was Ram Nandan vs. State of Uttar Pradesh (1958). Section 124A of the IPC, according to the Allahabad High Court, was ultra vires in character and violated Article 19(1)(a) of the Constitution. The constitutional validity of Section 124-A was further challenged before a Supreme Court Constitution Bench in Kedar Nath Singh v. State of Bihar (1962), with the argument focused primarily on the fact that Section 124-A conflicted with Article 19(1)(a) of the Indian Constitution. The Supreme Court ruled that no crime of sedition is established under Section 124-A unless the remarks, said or written, have the potential to cause disruption or disturbance of public order through the use of violence, thereby overruling the decision of the Allahabad High Court. There is no offence unless the statements are likely to cause violence.
Following this decision, the Supreme Court ruled in 1995 in Balwant Singh And Anr vs State Of Punjab (1995) that merely raising slogans such as “Khalistan Zindabad,” “Raj Karega Khalsa,” and so on did not constitute sedition because there was no evidence or record that any violence occurred despite the slogans being raised in a public place. This legal stance has been reaffirmed several times, including in the cases of Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997) and Common Cause v. Union of India (2018). In all of these cases, the Supreme Court instructed the courts to use caution while using sedition accusations. The courts were instructed to adhere to the principles set down in the Kedar Nath case. It was reiterated that sedition charges cannot be brought just for criticising the government or its policies.
Senior Advocate Colin Gonalves had petitioned before the Supreme Court of India, arguing that the Apex Court’s judgment in Kedar Nath Singh v. State of Bihar (1962) should be reconsidered. In response, a three-judge bench of the Supreme Court, consisting of Justices UU Lalit, Indira Banerjee, and KM Joseph, issued a notice in a suit seeking to declare Section 124-A of the Indian Penal Code as unconstitutional and invalid. Three more petitions were marked to be considered alongside Kishorechandra Wangkhemkcha’s on July 16, 2021, by a three-judge bench comprising of CJI Ramana, Justice Bopanna, and Justice Roy. Retired Major General S.G. Vombatkere, Aamoda Broadcasting Company Pvt. Ltd., and Editors Guild of India, respectively, have filed challenges against Section 124A. The Editors Guild’s appeal also exposes how Section 124A is increasingly being used to intimidate journalists.
Two journalists, namely, Kishorechandra Wangkhemcha, hailing from Manipur, and Kanhaiya Lal Shukla of Chattisgarh, have been charged with sedition over their posts and cartoons on social media sites. They have filed a writ petition contesting the constitutionality of Section 124A of the Indian Penal Code, 1860 which criminalises and punishes sedition. For comments and posts on Facebook, Kishorechandra Wangkhemcha had three FIRs filed against him under Section 124A. The remarks and postings chastised the Manipur government for handling a situation at Manipur University, referred to the Chief Minister of Manipur as an “agent of the Prime Minister,” and criticised lawmakers and their family members for making anti-Schedule Tribe sentiments. Kanhaiya Lal Shukla posted cartoons on Facebook that depicted fake encounters by the police.
Wangkhemkcha’s claims, in this case, have been supported by three intervention applications. The intervenors are third parties who want to be heard by the Court in the interest of justice but do not want to become parties to the case. They are:
The Supreme Court will decide if Section 124A of the Indian Penal Code, 1860, which criminalises sedition, is unconstitutional, hence the matter is pending before the Apex Court.
Activities that are intended or have the potential to cause disruption or disturbance of public peace by resorting to violence, according to the Supreme Court of India, are to be criminalised. Based on the facts of this case, the Court concluded that the words used by Vinod Dua may best be described as expressions of disapproval of measures taken by the government and its officials for the current crisis to be resolved swiftly and efficiently. They were not created to incite others or demonstrate a proclivity for causing trouble or disturbing public peace through the use of violence.
Mr Vinod Dua, in his YouTube programme The Vinod Dua Show, allegedly made unsubstantiated and odd charges on March 30, 2020, by saying the following facts at 5 minutes and 9 seconds of the video:
Mr Vinod Dua, according to the F.I.R., generated terror among the population by making such false allegations. The FIR also stated that the programme would merely stir up public dissatisfaction, resulting in panic and individuals disobeying the lockdown to come out and stockpile supplies, which is completely unneeded. The rumours were distributed to induce fear or anxiety in the general public or any portion of the general public, to induce anybody to commit an offence against the state or public calm.
The FIR filed against journalist Vinod Dua for his YouTube presentation about communal rioting in Delhi was dropped by a bench of Justices UU Lalit and Vineet Saran of the Supreme Court of India, on 3rd June 2021, who upheld citizens’ freedom to criticise the government in the present case of Vinod Dua v. Union of India (2021). The observations made by the Apex Court have been listed hereunder:
In an interview last year, Farooq Abdullah had remarked “whatever they are doing at LAC in Ladakh is all because of the abrogation of Article 370, which they never acknowledged,” I am hopeful that Article 370 would be reinstated in J&K with their help”. Abdullah had talked on “restoring Article 370” with “China’s support,” according to Rajat Sharma and Neh Srivastava’s petition. Abdullah previously stated in an interview with The Wire that the Kashmiri people do not feel or want to be Indian, and would rather be dominated by the Chinese. According to the petitioners, this saying amounted to a seditious act and therefore they had claimed punishment under Section 124-A of the India Penal Code, 1860 for Mr Abdullah. The petitioners further claimed that Abdullah was persuading people in Jammu and Kashmir “to join China” based on a comment made by BJP spokesperson Sambit Patra, who had said that “people in Jammu and Kashmir do not feel that they are Indians.”
The bench of Justices Sanjay Kishan Kaul and Hemant Gupta, of the Supreme Court of India while deciding on the present case of Rajat Sharma v. Union of India (2021) imposed a cost of Rs. 50,000 on petitioners for filing a “publicity interest litigation” seeking the initiation of proceedings against former J&K Chief Minister Farooq Abdullah for his “pro-China” comments regarding the abrogation of Article 370 of the Indian Constitution. The bench went ahead to observe that it is not possible to call, expressing a point of view that differs from a decision made by the Central Government, as seditious. There was nothing in the statement that the Apex Court considers insulting enough to justify a court’s proceedings to be initiated.
The arrest of climate activist Disha Ravi and the issuance of non-bailable warrants for two individuals in the Greta Thunberg toolkit case had sparked outrage across the country. The three activists were accused of working with a pro-Khalistani organisation to develop a toolkit to “defame India throughout the world on the matter of three agrarian legislation.” Many opponents have alleged that the toolkit, which was initially posted by Swedish teenage climate activist Greta Thunberg on February 4, 2021, is proof of the Khalistani conspiracy against India. The same day, Delhi Police filed an FIR against the toolkit’s designers, and Google was asked for the email addresses of people engaged in posting and modifying the document, which was hosted on google docs.
The applicant/accused allegedly started a WhatsApp group called “International Farmers Strike” and invited selected people to join. In addition, she erased the group conversation from her phone in an attempt to eliminate the vital evidence tying her to the toolkit. She also sought to keep her identity hidden so that no legal action could be taken against her, according to the prosecution evidence. She was also accused of using the backing of worldwide youth icon Ms Greta Thunberg to give separatist forces a global platform.
The issue before the Delhi High Court was whether the applicant/accused Disha was just engaged in peaceful dissent and protest against the agricultural acts, or whether she was truly engaged in seditious activity while demonstrating against the stated legislation?
In 2020, 25 unidentified boys assaulted children playing basketball in Block 4, Lawsohtun, with iron rods and sticks, prompting Patricia Mukhim to write on Facebook the following things:
Following this, the Headman and Secretary of Dorbar Shnong, Lawsohtun, Shillong, filed a complaint alleging that the Appellant’s Facebook comment incited communal hostility and might lead to a communal clash. The Appellant in return had filed a petition in the High Court of Meghalaya for quashing the FIR. The High Court, however, by its judgment dated 10.11.2020 dismissed the said petition.
The Supreme Court of India’s division bench comprising Justices L. Nageswara Rao and S. Ravindra Bhat has quashed the criminal case filed against Shillong Times Editor Patricia Mukhim under Sections 153 A, 500, and 505(1)(c) of the Indian Penal Code, 1860, stating that citizens’ free speech cannot be stifled by involving them in criminal cases unless such speech has the potential to affect public order. The observations of the Court have been listed hereunder:
On the 18th of June, 2020, the J&K police filed an FIR against Zakir Hussain and his co-accused Nissar Ahman Khan in connection with a viral audio clip containing objectionable conversation demeaning the country’s armed forces, which occurred against the backdrop of clashes between the Indian Army and Chinese armed forces in the Galwan Valley of Ladakh. The chat was considered to be exceedingly offensive, including insulting comments about the Indian Army’s participation in the Chinese armed forces’ Galwan misadventure. The petitioner had argued before the J&K High Court that the police had no power to file an FIR since the law stated that the Court may only take notice of a complaint submitted by a District Magistrate under Section 196 of the Code of Criminal Procedure, 1973 (C.r.P.c), and no such complaint had been lodged in this case.
Because of the complexities of the situation, the Court established two moot questions that were to be decided in this case:
The following opinions were made by the Hon’ble High Court in light of the present case:
As a result, the petition was granted, and all criminal actions against the petitioner, including the contested FIR, were dismissed.
Ms Rajina Parbin Sultana, the petitioner, has been detained since May 16, 2021, under Sections 120B and 124A of the Indian Penal Code and Section 2 of the Prevention of Insult to National Honour Act, 1971. When a photo of her enjoying lunch at that dining table with several guests went popular on social media, the petitioner was accused of using the Indian National Flag as a table cover on the occasion of the Eid celebration. Several claims of wilfully dishonouring the Indian National Flag were made against the petitioner as a result of the occurrence. Five of the six accused people included in the FIR had already been freed on bail, according to the petitioner before the Gauhati High Court. The State, on the other hand, claimed that the accused-petitioner hosted a lunch on the 14th of May, 2021, in her home, during which the alleged offence occurred. It was argued that there was sufficient proof that the accused petitioner used a table cloth that looked like the Indian National Flag when welcoming visitors to her home for the Eid celebration.
An F.I.R. had been filed against the petitioner, alleging that her Facebook post from April 5, 2021, disrespected the nation’s martyrs. It was also said that the accused petitioner denigrated and disrespected the victims’ sacrifice by advising the ‘media’ not to engender public feelings in their favour and not to refer to them as ‘Swahids’ since they were paid for the services they provided to the country in her opinion. It was also said that the defamatory tweet sparked a public outcry on social media since the country was grieving the murder of 22 Jawans slain during an anti-naxal operation in Chattisgarh on March 3, 2021, which included two jawans from Assam.
The state believed that the accused not only disrespected the nation’s martyrs but also attempted to incite anti-social elements by claiming that the assassination of our soldier was not a crime. The accused attempted to incite hate against the government while doing its legal duties through the stated post. Furthermore, her comments stoked discontent with India’s leadership and had the potential to fuel terrorist and anti-national elements.
Mr A.M. Borah, the petitioner’s lawyer, maintained that the accused did nothing wrong when she posted the words on her Facebook account. She made no anti-national statements, nor did she make any statements that incited or sought to incite hostility, animosity, contempt, or disaffection toward the government. The petitioner claimed that the term “Swahid/martyr” is not defined in any law or by any government announcements and that the accused petitioner did not break the law by expressing her right to free expression in good faith.
In this case, the police had obtained information about a conference being held in a village where seditious lectures were being delivered. A couple of members of the 30-40-person gathering had guns with them. When the police arrived on the scene, the individuals began running, and the accused-appellants were apprehended. They were found to own several seditious flyers and leaflets. A complaint was made against them, and charges were drafted against them under Sections 121 A, 122, and 124 A of the Indian Penal Code, 1860, Sections 25(a) and 35 of the Arms Act, 1959, and Sections 4 and 5 of the Explosive Substances Act, 1908.
The enactment of Section 124A of the Indian Penal Code, 1860 seeks to suppress and eliminate all last forms of resistance in society. Such a propensity runs counter to the intrinsic characteristics of democracy. The presence of such a provision in a progressive state like India appears to be redundant. The severity of the penalty makes the provision harsh. The continuation of such a clause chills freedom of speech and expression, which is supposedly a fundamental right guaranteed by Article 19(1)(a) of the Indian Constitution. There is a need for India to evolve and change its sedition laws to keep up with the changing needs of society.
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