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Sedition Law and Freedom of
Speech in Indiva
Right Of Freedom Of Speech And Expression
As Enshrined Under Article 19(1)(a) Of The
Constitution Of Indiva Is Not Infringed By
Section 124 A Of The I.P.C.
The counsel on behalf of the respondents submits that in a democracy like Indiva, every citizen must have the right to freedom of speech and expression, which is ensured by Article 19(1)(a) of the Constitution of Indiva. However, this right is subject to certain restrictions that can be imposed under Article 19(2) on the grounds of sovereignty and integrity of Indiva, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.
The counsel argues that Section 124A of the Indivian Penal Code, 1860 constitutes a reasonable restriction to the freedom of speech and expression under Article 19(1)(a) of the Constitution of Indiva. The application of Section 124A by the authorities is made with due care and caution, and it does not infringe on the right to freedom of speech and expression of any individual.
Right To Freedom Of Speech And Expression Is Not
Unfettered But Subject To Certain Restrictions Which May
Be Imposed Under Article 19(2) Of The Constitution Of
Indiva.
The counsel submits that every right, including the right to freedom of speech and expression, comes with certain liabilities. Citizens must use this right in a positive way, and their enjoyment of this right should not lead to the infringement of someone else's right. The counsel argues that any wrong use of this right may lead to the imposition of restrictions under Article 19(2) in the interests of the sovereignty and integrity of Indiva, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence. Therefore, the counsel concludes that the right to freedom of speech and expression is not unfettered.
Someone who advocates the use of violence to overthrow
the government is not entitled to protection under Art.
19(1)(a).
The counsel submits that someone who advocates the use of violence to overthrow the Government established by law is not entitled to protection under Article 19(1)(a) because such an opinion may lead to public disorder, thus attacking the sovereignty, integrity, and security of the State. The counsel argues that while strong or harsh criticism is not covered under the umbrella of Section 124A of the IPC, if such criticism undermines the security of the State or leads to the disruption of public order, then the person is liable for punishment under Section 124A.
The counsel explains that Section 124A of the IPC states that whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in Indiva, shall be punished. The counsel argues that for the determination of criminality under this section, the court in each case has to determine whether the words in question have a pernicious tendency and whether the person uttering those words had the intention of creating public disorder or disturbance of law and order.
In the present case, the counsel argues that the anti-Indiva slogans raised during the campaign organized by Lamnesty International and the rally organized by the Democratic Students Union against the conviction of Faizal Khan, a terrorist, clearly show disruption of public order and influence of outsiders, making the organizers liable to be punished for keeping the security, sovereignty, and integrity of the State at stake.
Section 124A of IPC does not infringe the fundamental
right to life and dignity enshrined under Article 21 of the
Constitution of Indiva.
The counsel submits that like every other right or liability, Section 124A is also subject to the doctrine of proportionality. Under this section, the person convicted for the offence of sedition is liable to be punished with imprisonment for life, to which a fine may be added, or with imprisonment which may extend to three years, to which a fine may be added, or with a fine. The counsel argues that the punishment described under this section is completely proportionate, even if it extends to imprisonment for life, as it comes under the category of 'offences against the state,' and imprisonment for life is given only in the rarest of rare cases, usually when the offence is summed up along with the offence of waging war against the State.
The counsel further argues that the Constitution of Indiva has made it clear that if any statutory provision runs counter to the fundamental right to life and personal liberty, it must be held unconstitutional. The counsel explains that the right to life and personal liberty are compendium terms, which include a variety of rights and attributes, including the right to hold a particular opinion, to sustain and to nurture that opinion. The counsel
2. Freedom of Speech and Expression is not Absolute
Debate in the Constituent Assembly The Constituent Assembly debated the inclusion of the right to freedom of speech and expression, with some members arguing for the need to impose reasonable restrictions.
The final version of Article 19(1)(a) included the right to freedom of speech and expression, subject to the restrictions mentioned in Article 19(2).
Judicial Interpretation
In A.K. Gopalan v. State of Madras , the Supreme Court observed that in civil society, individual desires must be controlled, regulated, and reconciled with the exercise of similar desires by others. The right to freedom of speech and expression is not absolute and is subject to the reasonable restrictions provided under Article 19(2) of the Constitution.
Various Aspects of Freedom of Speech &
Expression are Subjected to Reasonable
Restrictions
Over the years, the judiciary has expanded the scope of freedom of speech and expression to include the following aspects:
Freedom of Press
Freedom of Commercial Speech
Right to Information
Right to Criticize
Right to Expression Beyond National Boundaries
Right Not To Speak Or To Remain Silent
However, this right is not absolute and is subject to reasonable restrictions under Article 19(2) of the Indian Constitution, on the following grounds:
Security of the State Friendly relations with foreign states Public order Decency and morality Contempt of court Defamation Incitement to an offence
Sovereignty and integrity of the State
The Supreme Court has explained the differences between the concepts of law & order, public order, and security of the State. It has held that a law punishing utterances that deliberately tend to hurt the religious feelings of any class is valid as it is a reasonable restriction aimed at maintaining public order.
The Supreme Court has also dealt with the aspect of advertising under freedom of speech and expression. In Hamdard Dawakhana (WAKF) Lal Kuan, Delhi v. Union of India, the court relied on the US Supreme Court judgment in Valentine v. Chrestensen to hold that 'purely commercial advertising' is not protected under Article 19(1)(a).
Regarding obscenity, the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra upheld the test of obscenity used in R. v. Hicklin and held that obsceneness of any kind is not covered under Article 19(1)(a).
The Supreme Court has also held that pre-censorship even in times of peace is warranted in certain circumstances under Article 19(2).
Whether Someone Who Advocates the Use of Violence to
Overthrow the Government is Entitled to Protection Under
Article 19(1)(a)
The counsel on behalf of the respondents submits that someone who advocates the use of violence to overthrow the government is not entitled to protection under Article 19(1)(a). The right to freedom of speech and expression is not absolute, and the person enjoying this right is protected only up to certain limits. An individual can be restricted from enjoying this right in the interests of security, sovereignty and integrity of the state, disruption of public order, incitement of an offence, and other grounds elaborated under Article 19(2).
Moreover, someone who advocates the use of violence to overthrow the Government established by law also becomes liable for sedition under Section 124A of the Indian Penal Code, as it shows their disaffection towards the Government.
Does a Harsh Criticism of the Government Amount to an
Act that Undermines the Security of the State or a
Disruption of Public Order to Make a Case Under Section
124A?
The counsel submits that mere harsh criticism of the government does not amount to an act that undermines the security of the State or disrupts public order. However, the intent behind such an act can make a person liable under Section 124A IPC if it leads to disaffection towards the Government established by law. If the individual deliberately criticizes the government in a way that it excites hatred or contempt against the government established by law, then they may be booked under Section 124A for sedition.
In Arup Bhuyan v. The State of Assam (2011), the Supreme Court of India held that the "Brandenburg test" should be the determinant of sedition. The Indian courts have also recognized the "spark in a powder keg" analogy, as seen in the case of S. Rangarajan v. P. Jagjivan Ram (1989), where the Court emphasized the need to balance free speech and restrictions for public interest. In the case of In re: Arundhati Roy (2002), the Supreme Court of India followed the view taken by the American Court in Pennekamp v. Florida (1946), highlighting the importance of the function of the judiciary rather than the protection of judges as individuals.
The Scope of Sedition and Free Speech
The line between preaching disaffection towards the government and legitimate political activity in a democratic setup is not always clear- cut, as seen in cases like Binayak Sen v. State of Chhattisgarh (2011) and Asit Kumar Sen Gupta v. State of Chhattisgarh (2011). The objects of sedition generally are to induce discontent and insurrection, and to bring the administration of justice into contempt, as observed in Nazir Khan v. State of Delhi (2003).
Proportionality in Sentencing
The principle of proportionality in criminal punishment is a fundamental aspect of most modern legal systems, as it accords with principles of fundamental justice and the purpose of sentencing. However, India does not have structured sentencing guidelines, as noted by the Supreme Court in cases like State of Punjab v. Prem Sagar & Ors. (2008) and Soman v. State of Kerala (2013). The Supreme Court has emphasized the need for legislative or judicially-laid down guidelines to assist trial courts in meting out just and proportionate punishment, as observed in State of M.P. v. Bablu Natt (2009) and Alister Anthony Pareira v. State of Maharashtra (2012).
Sentencing Principles in Criminal Cases
Lack of Straitjacket Formula
There is no fixed formula for sentencing an accused person upon proof of a crime. The courts have evolved certain principles to guide the sentencing process.
Objectives of Sentencing Policy
The twin objectives of the sentencing policy are: 1. Deterrence 2. Correction
Factors Considered in Sentencing
The appropriate sentence to meet the ends of justice depends on the facts and circumstances of each case. The courts must consider the following factors: - Gravity of the crime - Motive for the crime - Nature of the offence - All other attendant circumstances
Doctrine of Proportionality
The doctrine of proportionality is an ideal that the criminal justice system must strive to achieve. However, based on this doctrine, the punishment under Section 124A (sedition) cannot be declared excessive or violative of the fundamental right under Article 21 (right to life and personal liberty) of the Constitution.
Punishment for Sedition and its
Proportionality
The Power of Words and the Protection of Free Speech
The power of words can never be underestimated, as they are the primary means by which humans communicate and develop civilization, humanity, and the spread of ideas and knowledge. This importance of words has led many states around the world to protect them through various means, the most significant of which is the guarantee of the right to free speech.
However, words can be a double-edged sword. They can be used to challenge the authority of the very state that protects them, and they can be used to incite violence and disorder against the state and its citizens. In order to protect itself and its citizens, the state makes sedition a criminal offense.
Sedition as a Crime against Society
Sedition is a crime against society that is closely related to the crime of treason, and it often precedes treason by a short interval. It is prescribed by law, and the person charged with sedition is being deprived of their liberty according to the due procedure established by law, as emphasized in Article 21 of the Constitution.
The Precedence of Public Order over Free Speech
In the case of State of U.P. v. Lalai Singh Yadav, the Supreme Court upheld "ordered security" as a constitutional value, ensuring that where free speech and public order seem to clash, the latter is given precedence.
