On 19th September 2019, the Supreme Court issued a notice in the backdrop of the Jharkhand High Court’s refusal to quash the FIR registered under the sedition law against four Adivasi activists for allegedly inciting violence through Facebook by supporting the ‘Pathalgadi’ movement of the Munda tribal community. In August 2019, an FIR was registered under Section 121, 121A and 124-A of the Indian Penal Code, 1860 and Section 66A and 66F of the Information and Technology Act, 2000 against the activists for allegedly inciting the villagers of Khunti village to attack police officers in 2017. Subsequently, the activists approached the Jharkhand High Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the FIR but the plea was refused.

A few days prior to this, a Delhi-based court ordered interim protection from arrest to activist Shehla Rashid after a sedition case was registered against her for spreading fake news and creating communal hysteria in the aftermath of the abrogation of Article 370 and the subsequent curfew imposed in the Kashmir valley.

The test laid down in the Kedarnath Singh judgment

In 1962, the Supreme Court, while upholding the validity of Section 124-A in the Kedarnath Singh vs State of Bihar, opined that the law of sedition strikes a fine balance between fundamental rights guaranteed to the citizens and the need for public order. However, the Court carefully underlined three pertinent ingredients before this provision could be triggered. Firstly, there should be a clear disruption of public order. Secondly, there should be a violent attempt to overthrow a lawfully established government and finally, such an act must threaten the security of the state. Section 124-A should only be invoked if the abovementioned test has been complied with, the Court observed in its historic judgment.

More than three decades after the Kedarnath Singh verdict, the Supreme Court in the case of Balwant Singh vs State of Punjab (1995) acquitted all the accused after they were convicted under Section 124-A and 153-A of the Indian Penal Code for chanting pro-Khalistan slogans in the aftermath of the Indira Gandhi assassination. The Court held that lonesome chanting of slogans without attempting to incite violence cannot amount to sedition and investigating authorities must be extremely cautious before making arrests in such cases.

The Supreme Court of the United States (SCOTUS) in two of its landmark verdicts clearly stated instances where free speech can reasonably be restricted. In Schenck vs United States (1919), the SCOTUS laid down the “clear and present danger” test. As per this test, free speech can be restricted if it poses clear and present danger to the security of the state. However, this test was not consistently applied. A breakthrough was achieved in 1969 when the SCOTUS expanded this test in the case of Brandenburg vs Ohio by formulating the test of “imminent lawless action”. The Court held that free speech cannot be curtailed unless it advocates “imminent lawless action” and by this, the Court meant something which is likely to happen instantly or something which is forthcoming. Not only has this test been consistently followed in the US but it has found mention in Indian judgments as well.

Treading lightly

The Supreme Court has repeatedly ordered the investigating agencies to show extreme caution before making any arrest under provisions like Section 124-A. Moreover, the tribal activists were booked under Section 66A of the Information Technology Act, 2000 despite the provision being declared unconstitutional in the Shreya Singhal vs Union of India (2015) verdict. In June 2019, a London-based rapper was booked under the sedition law and other relevant provisions for her sharp remarks on social media against Uttar Pradesh CM Yogi Adityanath and RSS Chief Mohan Bhagwat. It is pertinent for investigating agencies to conduct careful and diligent investigation before making any arrest. In fact, Section 124-A should be added to Section 196(1) of the Code of Criminal Procedure, 1973 and therefore, obtaining prior sanction of the government necessary before arrest.

The Supreme Court has time and again upheld the validity of the sedition law stating that mere misuse of a provision does not render it unconstitutional and a mechanism to safeguard the security of the state must exist within the legal system. However, this provision must be invoked under exceptional circumstances while keeping in mind the test laid down in the Kedarnath Singh judgment. In 2016, an entire village in Tamil Nadu was charged with sedition for protesting against the installation of the Kudankulam nuclear power plant. Such arbitrary action undermines the validity of this critical provision.

Moreover, the conviction rate in sedition case is abysmally low. According to the National Crime Records Bureau Report (2016), a total of 179 people were arrested on sedition charges between 2014 to 2016. Further, by the end of 2016, chargesheet was filed only in 20% of those cases and nearly 90% of those cases are pending trial. This clearly shows that the enforcement of the sedition law is skewed.

consultation paper on sedition was released by the Law Commission in 2018 which recommended making alterations to the sedition law or even repeal it, if required. The Commission stated that the law, which was introduced during the British Raj to stifle free speech, has been abolished in the UK which makes its re-consideration even more pertinent.

Conclusion

Justice Deepak Gupta, while speaking at a workshop in Ahmedabad, stated that criticism of the government itself cannot amount to sedition. He went onto speak at length on the sedition law and noted that a person cannot be compelled to show affection towards the government. Moreover, a conducive environment of free speech must be promoted provided it does not threaten the security of the state.

The concept of freedom of speech and expression is paramount and eternal and legitimate avenues must be provided to the citizens to voice their concerns.

By Ritwik Sharma

This article was first published in the Blog namely The Criminal Law Blog