Freedom of expression vis-à-vis sedition

By GN Sahewalla

T he freedom of speech and expression is provided under Article 19(1)(a) means the right to express one’s opinion by words of mouth, writing, printing, picture or in any other manner. The communication of ideas can be made through any medium including news paper, magazine or video and this right is subject to reasoble restriction in the larger interest of the community and the restrictions are set out under Article 19(2) of the Constitution of India. The restrictions enumerated under Article 19(2) of the Constitutions are intended to strike a proper balance between the liberty guaranteed and the social interest specified therein. The liberty of freedom of speech and expression cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipating danger should not be too remote or far faced and it should be proximate and have direct nexus with the expression. Expression of thought should be intensically dangerous to the public interest. In the Landmarks Judgment by the Supreme Court in Maneka Gandhi –versus- Union of India, it was held that the freedom of speech and expression has no geographical limitation and it carries with the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. The preamble to the Constitution of India also provides liberty of thought, expression, belief, faith and worship. Freedom of press is also included in the freedom of speech and expression.

Supreme Court held that press plays a very significant role in a democratic machinery and the Court should uphold the freedom of press and invalidate all laws and actions that violates that freedom. Freedom of press has 3 essential elements mely, (1) Freedom of access to all sources of information (2) Freedom of publication and (3) Freedom of Circulation. Article 19(2) of the Constitution ebles the legislature to impose certain restrictions on freedom of Speech on the following heads mely, (1) Security of State, (2) Friendly relation with Foreign State (3) Public Order (4) Decency or morality (5) Contempt of Court, (6) Defamation (7) incitement of an offence and (8) Sovereignty and integrity of India. Public order and friendly relations with foreign states was added to the Constitution by the Constitution First Amendment Act 1951. The expression public order connotes the sense of public peace, safety and tranquility. Incitement to an offence was also added by the same amendment which prohibits a person from  making any statement that incite people to commit offence, Sovereignty and Integrity of India was added by Constitution (16th Amendment) Act 1963.

Voltaire said “I disapprove what you say but I shall defend till death your right to say it.” The idea of freedom of speech should be nurtured and inculcated as it helps to create an environment where mutual respect would be the basis of dialogue and deliberation. One can win the hearts by words not by force. Freedom of speech is the idea of democracy which needs to be protected and promoted.

The recent arrest of Kanhaiya Kumar, the Jawaharlal Nehru University students Union President, on the charge of sedition creates a controversy as to what is the scope of the charge of sedition in view of freedom of speech and expression under the Constitution. Charge of sedition was introduced in the Indian Pel Code by Section 124 (A) in 1870 as a draconian measure to counter anti-colonial sentiments and most leaders in the independent movement including Mahatma Gandhi and Bal Gangadhar Tilok were tried under this provision. Even in the Constitutiol Assembly debates, the word sedition in the IPC was discussed and one of the members argued that the word sedition was athema to Indians. Some days back Gujarat Government also booked a Patel leader under the Charge of Sedition for sending messages containing offensive language against the prime Minister, the State Chief Minister, and Amrit Shah, President of the BJP.  Section 124 (A) of the IPC defines sedition which says 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 and the disaffection includes disloyalty and all feelings of enmity. However disapprobation of the measures of government or comments disapprobating administrative or other action of govt. without exciting or attempting to excite hatred, contempt, disaffection do not constitute offence of sedition.

Constitution Bench of the Supreme Court considered and explained the aptitude of sedition in 1962 in the case of Kedar th –Vs- State of Bihar and adopted the view of the Federal Court, where a person can be charged with sedition only if there is incitement to violence in his speech or writing or intention to create disorder. As per the said interpretation it is clear that there should be incitement to violence or disorder which alone can form the basis of a charge of sedition. It appears that the definition of sedition in Indian Pel Code is too wide and this has been admitted by the Government in Parliament to the affect that the definition of sedition in Indian Pel Code in too wide and requires to be considered. In this way it is the admission of the Government that charge of sedition cannot be put against a person until and unless the essential ingredients of sedition, mely, creation of public disorder incitement to violence is there. After the decision of the Supreme Court, the police authority as well as administration is still going strictly by the definition contained in Section 124(A) IPC as in the statute book introduced  during British period and as such there is controversy as to whether section 124(A) should be there in the statute book or not. However, the Union Home Minister has assured the opposition members that an all party meeting on the issue would be convened after the law commission submitted its report on the matter. It is worth to mention that the law commission in its 42nd Report has rejected the idea of repealing the Section altogether.

The aforesaid Section may be amended in due course of time by rrowing the definition of sedition. Since the broad definition of sedition as contained in the statute book is going against the fundamental right of freedom of speech and expression, it is for the police as well as the administration to consider that they should not book a person under the charge of sedition until and unless the ingredients as enunciated by the Apex Court in 1962 to the affect that words uttered excite people to violence or tendency to create public disorder so as to put unnecessary restrictions on the freedom of speech or expression.