The Kerala High Court held that the right to have access to the Internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution.
Right to access Internet
The court ordered to re-admit a student who had been expelled from the college hostel for using her mobile phone beyond the restricted hours.
The court observed that when the Human Rights Council of the UN has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education.
A rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.
The bench contended that the use of mobile phones amounted to a violation of fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
Restrictions on Art. 19(1)(a)
The court cited the observations of the Supreme Court in the S.Rengarajan and others v. P. Jagjivan Ram (1989) case.
It said that the fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) .
And the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.
19(2) provides for reasonable restrictions on Art. 19(1)(a) in the interests of the sovereignty and integrity of India, 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
Justice Deepak Gupta, a sitting judge of the Supreme Court, noted how the provision in the IPC provides for punishment for seditious speech is misused often than not. He wondered whether the time is ripe to have a relook at the law.
Freedom of speech
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression.
It is subject only to Article 19(2) which saves any law that imposes “reasonable restrictions” on the limited grounds of interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation etc.
Section 124A of the IPC defines sedition. It makes every speech that “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government” a criminal offence.
Such an offence is punishable with a maximum sentence of life imprisonment.
It is classified as “cognisable” — the investigation process can be triggered just by filing an FIR. A judicial authority need not have to take cognisance.
It is also “non-bailable” — the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.
An explanation to the provision clarifies that mere “disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
A five-judge constitution bench decision of SC in Kedarnath v. State of Bihar (1962) read down Section 124A to mean that only those expressions that either intend to or have the tendency of causing violence are punishable under Section 124A.
The Court reiterated the Kedarnath law in 2016 in Common Cause v. Union of India and directed all authorities to follow the Kedarnath dictum.
Scope of Fundamental Rights expanded
The jurisprudence of fundamental rights was expanded through several decisions in R C Cooper v. Union of India (1969), Indira Gandhi v. Raj Narain (1975), Maneka Gandhi v. Union of India (1978), I.R. Coelho v. State of Tamil Nadu (2007) and, in Puttaswamy v. Union of India (2017).
Each of these decisions establishes that fundamental rights in the Constitution are not to be read as isolated silos but are to be read as if the content of each fundamental right animates the other.
They tell us that the entire chapter on fundamental rights has also to be read “synoptically”.
Kedarnath judgement – limitations and expanding jurisprudence
In Kedarnath case, the court merely tested the intent of the provision under the exceptions to the freedom of speech under Article 19(2) of the Constitution. It did not take into consideration the effect of the right to equality (Article 14) or due process (Article 21).
Reading of Articles 14, 19 and 21 has evolved jurisprudence of testing legislation curtailing fundamental rights on substantive and procedural reasonableness, necessity and proportionality.
The requirement of “necessity” comes from India ratifying the International Covenant on Civil and Political Rights in 1976.
Article 19 of the ICCPR requires speech-limiting state action to be backed by law and to be necessary on the grounds of respect for the rights and reputations of others, national security etc.
Court also did not examine the provision for “chilling effect” on speech it causes. State action causing psychological barriers in the free exercise of the right to free speech.
Only in 2018 (Navtej Johar v. Union of India), the court found that pre-constitutional legislation have no legal presumption of constitutionality.
The new thought focuses on understanding “necessity” of state action limiting fundamental freedoms.
The burden is on the state to establish that such a limiting measure is “necessary in a democratic society”
“Proportionality” should inform the understanding of “reasonableness” of restrictions in Article 19.
The amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967 empowers the Central government to name any individual a terrorist if it believes him or her to be so.
Background of UAPA
UAPA was passed by the Indira Gandhi government to deal with the secessionist Dravidian movement.
During the 1962 war, the Communist Party blamed Jawaharlal Nehru and did not wholeheartedly support the Indian troops. In 1966, Hindu Sadhus protesting against cow slaughter marched in front of Parliament.
Against this backdrop, an unlawful activity was defined as any action taken
to bring about the cession of a part of the territory of India
To incite any individual or group of individuals to bring about such cession
To disrupt the sovereignty and territorial integrity of India
to cause disaffection against India
Arguments against the bill
As per Section 35(2), the Central Government shall exercise its power in respect of an organisation or an individual only if it believes that such an organisation or individual is involved in terrorism.
There is no FIR. There is no charge sheet. There are no charges framed.
There is no trial in a court. There is no conviction.
There is no basis on which you will name an individual.
There is a close parallel between sedition and unlawful activity. The act almost equates the two.
There is no need to label an individual as a terrorist when the organization he is affiliated to is already banned.
Ban on organizations vs individuals
UAPA has now been extended to cases of terrorism too. After TADA and POTA were repealed due to repeated misuse, UAPA was amended in 2004 to bring into its fold cases of terrorism. Organizations such as the Liberation Tigers of Tamil Eelam, the Hizbul Mujahideen, and the Khalistan Commando Force have been scheduled as banned organizations.
Most of these bans are not challenged, and judicial tribunals have upheld the imposition of such bans from time to time.
Banning an organization renders its members vulnerable to prosecution. Consequences include loss of property linked to terrorism. The organization itself may challenge the notification in a judicial tribunal.
But, all these defenses will vanish if an individual is notified as a terrorist.
No link to any organization needs to be proved. People consorting in any manner with a notified individual can also be roped in under the Act.
Almost any utterance on social media these days can be construed as one “which causes or is intended to cause disaffection against India”.
Defending the amendments
The act aims to fight terror.
It strengthens the government’s powers to deal with disaffection and anarchy.
The predominant duty of the government is to keep the country united against existential threats.
Benjamin Franklin said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Indians deserve better respect for their liberties than this ill-thought-out law.
Journalists are facing heightened threats around the globe, according to the 2019 World Press Freedom Index compiled by Reporters Without Borders (RSF), covering 180 countries and territories.
Threats to journalist
It notes that the number of countries regarded as safe for journalists is on the decline; this should be a wake-up call. Hatred of journalists has degenerated into violence in many places, and India is no exception.
In 2018, at least six Indian journalists were killed in the line of their work, the report said. India’s rank fell by two places to 140 from 138 — in 2016 it was 133 and in 2017 it was 136.
In 2014 India’s ranking was 140, but this year’s setback is qualitatively different.
Reasons for the decline in ranking
The report notes that organised campaigns by supporters of Hindutva “to purge all manifestations of ‘anti-national’ thought from the national debate” is putting journalists in danger.
Women journalists are particularly at the receiving end, and covering sensitive but important topics of public interest such as separatism in Jammu and Kashmir and Maoist insurgency has become more difficult.
Authorities use anachronistic sedition laws against journalists, who also face the wrath of militants and criminal gangs.
Hostility towards the media is a defining feature of hyper-nationalist politics in many countries.
In India, the Centre and several State governments have not merely shown extreme intolerance towards objective and critical reporting but also taken unprecedented measures to restrict journalism.
The Finance Minister’s recent order barring credentialed reporters from the Ministry’s premises is a case in point but this is not an isolated measure.
There is a systematic attempt to limit the scope of journalism in India through physical restrictions, denial of information and hostile rhetoric against journalists by senior government functionaries.
The government is unlikely to take the RSF report seriously.
While expression of concern by foreign countries or global bodies regarding human rights, religious violence or media freedom is routinely dismissed as external interference in India’s sovereignty, the government knows all too well that in a globalised world these perceptions matter.
What else would explain the Prime Minister’s single-minded pursuit to improve India’s position in the World Bank’s annual Ease of Doing Business ranking?
If India is concerned about its reputation in terms of business and investment, it should be equally or even more concerned about its standing as a democratic, pluralist country with a free and dynamic press.
That is not so much for the inflow of investment or luring global corporations, which may care little about a destination-country’s democratic credentials — but for India’s well-being.
Earlier this month, the Bombay High Court pulled up the Central Board of Film Certification (CBFC) for refusing to give a ‘U’ certificate to a Children’s film. The CBFC had given it a U/A certificate.
CBFC organizational set-up
The CBFC is headed by the Chairperson.
The board comprises up to 25 members and 60 advisory panel members from across India, appointed by the I&B Ministry.
While the board members are usually film and TV professionals, members of the advisory panel are often from outside the industry.
The chairperson and board members serve for three years, and advisory panel members for two years.
The CEO is chiefly in charge of the administrative functioning but the regional officers are part of Examining Committees that certify films.
Once a filmmaker applies for certification, an Examining Committee is appointed by the Regional Officer.
In case of short films, it consists of a member of the advisory panel and an examining officer, one of whom has to be a woman.
Else, it has four members from the advisory panel and an examining officer of who two persons are to be women.
How do they certify films?
Certification— unrestricted public exhibition (U), parental guidance for children below age 12 (U/A), adult (A), or viewing by specialised groups (S) — is decided by the Regional Officer based on reports by Examining Committee members.
In case of a divided opinion, the case rests with the chairperson.
Certification is often decided on individual inclinations in the Examining Committee, whose members come from various walks of life.
What if the applicant is not satisfied?
In most such cases, the CBFC shares a list of “suggested changes”.
If the applicant is unhappy with the certification or the list of changes, he or she can apply to the Revising Committee, which is made of the Chairperson and up to nine committee members from both the board and the advisory panel.
The committee cannot have a member from the advisory panel who may have already viewed the film.
A similar process is followed at this stage, with the final word resting with the Chairperson.
The last point of appeal is the Appellate Tribunal, an independent body, members of which are appointed by the ministry for three-year terms.
Any further dispute can be taken to a court.
Criticism of CBFC
CBFC is a certification board and not the censorship board anymore with wider intervention by judiciary.
Their job is to certify films based on this and the guidelines are fairly wide.
It is in consonance with Article 19 of the Constitution and Section 5(b) of the Cinematograph Act.
What is Section 5(b)?
It states that a film shall not be certified if any part of it is against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or involves defamation or contempt of court or is likely to incite commission of any offence.
The Union Ministry of Finance has justified recent restrictions on the entry of journalists, even those holding a Press Information Bureau (PIB) card, in the Finance Ministry.
This has been done for streamlining the interactions between the media and the government.
Many journalists holding a PIB cards are feeling aggrieved over the decision.
What is PIB Card?
A PIB accreditation is only given to journalists who live in Delhi or its periphery, and works with a media organisation that has been functioning continuously for at least a year and if 50 per cent of its content is news or commentary of general public interest.
The content should also include news and information emanating from the headquarters of the Government of India.
According to the Central News Media Accreditation Guidelines, 1999, PIB accreditation “shall not confer any official or special status on news media representatives, but shall only recognize their identity as a professional working journalist”.
The guidelines define accreditation as recognition of news media representatives by the Government of India for purpose of access to sources of information in the Government and also to news materials, written or pictorial, released by the PIB and/or other agencies of the govt.
A sort of security pass
The PIB card given to all accredited journalists mentions on its back that it is “valid for entry into buildings under MHA (Ministry of Home Affairs) security zone”.
Since a PIB card comes after security clearance from the Home Ministry, accredited journalists are allowed to enter the premises of most Union government ministries without prior appointment.
They are not required to register or record their presence at the reception, or with any other official in any ministry.
This firewalls the journalists from attempts at finding out when and on how many occasions they have visited the premises of an office, and which officers they have met.
Who is eligible for PIB accreditation?
To be eligible for PIB accreditation, a journalist needs to have a minimum of five years’ professional experience as a full-time working journalist or a cameraperson in a news organisation, or a minimum of 15 years as a freelancer.
Journalists working full-time for a news organisation seeking accreditation must be earning a minimum salary of Rs 4,500 per month.
A newspaper or periodical needs to have a minimum daily circulation of 10,000, or 75,000 if it is part of a chain, and news agencies must have a gross annual revenue of a minimum Rs 20 lakh for their journalists to be eligible for accreditation.
Similar rules apply for foreign news organisations and foreign journalists.
Applications for accreditation are vetted by a Central Press Accreditation Committee headed by the DG, PIB.
After a journalist applies for a PIB accreditation, there is a mandatory security check conducted by the Union Ministry of Home Affairs, which also includes on-site verification of the journalist’s residence by the police.
As such, PIB accreditation has several advantages. First, in certain events involving senior public functionaries such as the President, the Prime Minister, and other ministers, only a PIB accredited journalist is allowed entry.
Second, journalists accredited with the PIB are eligible, along with members of their family, for subsidised health services under the Central Government Health Scheme, meant for employees of the Union government.
Third, and most importantly, a PIB accreditation helps a journalist carry out her professional responsibilities. It does so by helping a journalist protect her sources.
The Supreme Court vacation bench has granted bail to Priyanka Sharma of the Bharatiya Janata Yuva Morcha (BJYM) in West Bengal. This was scrupulously correct, because bail is a right except in special circumstances, where the accused is deemed to be likely to misuse her freedom to interfere with the course of justice. The Supreme Court has always expanded the contours of free speech. Its insistence on an apology on a political meme is distressing.
Initially, the bail granted was conditional upon Sharma tendering an immediate apology for sharing a bizarre meme online, showing West Bengal chief minister Mamata Banerjee.
The final order was softened to restore Sharma’s liberty without a pre-condition, but it required her to apologise after being set free.
Problem with such conditions
This rider was deeply problematic on multiple counts.
1.Situation based Order –
First, the court appears to have asked for an apology because the post was made by a political worker during elections, though situational matters generally do not concern the process of justice.
What is deemed to be just today should be deemed so for all time.
2. Second, Sharma’s counsel has argued that she had only re-posted a pre-existing meme.
3. Harming Liberal space
The judicial remand of Sharma for 14 days was a travesty of justice, especially by a government that, ironically, claims to be pushing for a more liberal space.
The judicial action, without doubt, was out of proportion with the act of forwarding a meme, and the demand for an apology by the highest court, as a condition following her release, heaps insult upon injury.
While the court is correct in observing a principle of natural justice, which requires a balance in the rights of individuals, Sharma’s alleged transgression cannot have been probed sufficiently in a single hearing.
To require her to apologise when her transgression has not been sufficiently established militates against natural justice.
Setting A Dangerous Precedent
Though the order states that “it shall not operate as a precedent”, if the need for an apology is eventually upheld, the effects would be catastrophic, for all satire is political in nature and intent.
Cartoonists would have to publicly repent every morning, shortly after newspapers land on the doorsteps of readers.
Stand-up comics could apologise in the evenings, after the show.
Theatre and cinema producers and directors dealing in political issues (and what is drama if it is not political?) would have to send pre-emptive apologies to the powers that be before their shows opened.
And satire would be declared dead on arrival.
The meme shared by Sharma was merely bizarre, even if it involved a political personality. If producers of real political satire could be prosecuted until they apologised, it would be the death of free speech.
The Press Council of India (PCI) on asked the media to give objective reports about the election and cautioned it against the phenomenon of paid news.
Guidelines by PCI
[I] A note for Media
The PCI said newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate or party during the elections.
It will be the duty of the press to give objective reports about the election and the candidates.
While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.
It also cautioned the press to eschew reports which tend to promote feelings or enmity or hatred between people on the grounds of region, religion, race, caste, community or language.
The press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or candidature.
[II] Against unverified news
The PCI also cautioned against publishing unverified allegations against any candidate or party.
The council said whenever the newspapers publish pre-poll surveys, they should take care to preface them conspicuously.
They should indicate the institutions which have carried on such surveys, the individuals and organisations which have commissioned them, the size and nature of sample selected and the method of selection of the sample for the findings.
[III] Against paid news
The PCI asked the media to guard against paid news which it defined as “any news or analysis appearing in any media (print & electronic) for a price in cash or kind as consideration”.
[IV] Lighter note for Authorities
It also urged authorities that rules and orders regulating entry of the media persons to places of election should be notified and the cut-off date for applying for passes should be given due and advance publicity.
The authorities cannot prohibit the use of vehicles by the media persons for movement during elections although its use for the voters by candidates and their agents is prohibited.
This is because the journalist have to move from booth to booth and collect information from all the centres whether on the polling day or at the time of counting.
Press Council of India
The Press Council of India is a statutory, quasi-judicial body which acts as a watchdog of the press.
It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.
The PCI was first constituted on 4th July, 1966 as an autonomous, statutory, quasi-judicial body, with Shri Justice J R Mudholkar, then a Judge of the Supreme Court, as Chairman.
A fresh legislation providing for the establishment of the Council was enacted in 1978 through Press Council Act of 1978 and the institution came to be reviewed in the year 1979.
The present Council is a body corporate having perpetual succession. It consists of a Chairman and 28 other members.
Its members include working journalists, management of newspapers and those who manage news channels.
It also includes 3 persons having special knowledge or practical experience in respect of education and science, law and literature and culture. One member each is nominated by the UGC, the Bar Council of India and the Sahitya Academy
The remaining five are to MPs : three from Lok Sabha, and two from Rajya Sabha.
The Act provides for selection of the Chairman by a Committee consisting of the Chairman of the Rajya Sabha, the Speaker of Lok Sabha and a person elected by the members of the Council from among themselves.
By Convention the Chairman is been a retire judge of Supreme Court
The term of the Chairman and the members of the Council is three years. A retiring member is eligible for renomination for not more than one term
Power to Censure news paper / agency / editors / journalist if they offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct
Summoning and enforcing the attendance of persons and examining them on oath
The Supreme Court’s decision to consider the relevance of the documents published in the media on the Rafale deal is a firm and necessary rebuff to the Central government’s attempts to prevent judicial examination of these papers and to de-legitimise all investigative journalism on the subject.
Impact of Verdict
The court’s unanimous verdict, rendered in two concurring orders by a three-judge Bench, means that review petitions filed against earlier orders declining an investigation into the purchase of Rafale jets will now be taken up on merits and that the petitioners are free to rely on these documents, regardless of their provenance.
Published Documents- A dissenting note by members of the India Negotiating Team, and notes that disclose unease in the Defence Ministry over parallel negotiations at the PMO’s instance undermining the official parleys are among them.
It would have been a travesty had the government succeeded in blocking judicial scrutiny of these documents, as they disclose significant details about the decision-making process.
Use of OSA – The government’s desperate attempts to prevent the court from relying on these papers included a claim of privilege under the Evidence Act, a threat of invoking the Official Secrets Act (OSA) and an accusation that the published documents were “stolen” on.
Later, it toned down the allegation by saying the original documents had not been stolen, and what were published were unauthorised photocopies.
None of these claims impressed the court, which relied on the principle that how a piece of evidence is obtained is immaterial, as long as it is relevant to adjudicating an issue.
Importance for freedom of speech
The decision on the admissibility of the documents has significance beyond the Rafale issue: it revivifies the rights of a free press and underscores the principle that it is public interest, and not the content of a document alone, that will decide whether disclosure is needed or not in a given case.
Referring to the publication of the Rafale documents in The Hindu, Chief Justice Ranjan Gogoi observed that “the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. Citing the U.S.
Supreme Court decision on the Pentagon Papers, he noted that neither the OSA nor any other law vests any power in the executive to stop publication of documents marked ‘secret’ or the placing of such documents before a court of law which may be called upon to adjudicate a legal issue.
It is premature to conclude, based on this development, that the court’s earlier decision to not order a criminal investigation into the purchase of 36 Rafale jets will be revisited.
However, it will certainly help provide clarity on several aspects of the murky deal. Had the government agreed to a parliamentary probe early on, it would not be suffering the sort of setback it has now faced in the Supreme Court.
In its judgment dated April 8, the Manipur High Court ordered the release of journalist Kishorechandra Wangkhem, who was charged with sedition under the National Security Act for criticising the Chief Minister.
History of sedition judgments
Though the petition was allowed only on the technical ground that certain material mentioned in the detention order was not supplied to the petitioner, it could have also succeeded on the ground that in a democracy people have a right to criticise the government.
Article 19(1)(a) of the Constitution was upheld by the Supreme Court in Romesh Thapar v. The State of Madras (1950).
In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court held that mere criticism of the government is not sedition unless it is an incitement to violence or breach of public order.
The U.S. Supreme Court, in Brandenburg v. Ohio (1969), laid down the ‘imminent lawless action’ test, which says that free speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent (not remote) lawless action.
This judgment was followed by the Indian Supreme Court in Arup Bhuyan v. State of Assam (2011) and in Sri Indra Das v. State of Assam (2011), and hence it is the law of the land in India too.
The present situation in India
Unfortunately, what has been often witnessed in India is that political functionaries get incensed and cannot tolerate criticism.
Then they slap sedition charges or preventive detention laws against their critics, as the Maharashtra government did in the case of the cartoonist Aseem Trivedi, or the West Bengal government did in the case of Professor Ambikesh Mahapatra of Jadavpur University, or the Tamil Nadu government in the case of the folk singer Kovan
To speak for the poor or marginalised sections of society has become particularly dangerous, as was seen in the cases of those accused of inciting violence in Bhima Koregaon.
By enacting the Fundamental Rights of the people in Part III of the Constitution, and by making the courts the guardians of the rights of the people, a solemn duty has been cast on the judiciary to uphold democratic principles.
The Manipur High Court therefore deserves to be commended in this connection.
It is hoped that other courts in India, too, will follow its example.
The Bengaluru civil court’s blanket order restraining 49 newspapers, television channels and other media outlets from publishing anything ‘defamatory’ about Tejasvi Surya, the BJP’s candidate for the Bengaluru South Lok Sabha constituency, is contrary to the law and the Constitution.
Violation of free speech
The temporary injunction violates the basic principle in free speech law that bars ‘prior restraint’ or pre-censorship of any publication, including the media.
As recently as in 2017, a Supreme Court Bench made it clear that pre-broadcast or pre-publication regulation of content was not in the court’s domain.
In R. Rajagopal (1994), the court noted that there is no law that authorises prior restraint.
Failing Injunction Test
The existence of a prima facie case is a precondition for an interim injunction, and a restraining order may be obtained only if some material deemed defamatory has been published, and when further publication ought to be prevented.
Arraying print and electronic media outlets that had not previously disseminated anything defamatory about an individual fails this test, rendering any injunctions obtained against them illegal.
Not substantial objections
The allegations that have aggrieved Mr. Surya seem to originate in an individual’s opinion on him on Twitter
It is possible that this piece of information was or is likely to be used against him by his electoral rivals.
However, this cannot be a reason for a public figure — and a candidate of a major political party, even a debutant, is definitely one — to claim a right to gag the entire media from writing about him.
Even if the argument is that the order only prevents ‘defamatory’ content and not responsible reporting or criticism, that doesn’t justify a judicial gag order, as it may be used to prevent the media from writing anything adverse to his campaign.
It may also prevent defendants in a future proceeding from using ‘publication of the truth in the public interest’ as a defence.
Requests for omnibus restraining orders against media outlets seem to find favour with some civil judges in Karnataka. The Karnataka High Court or the Supreme Court must examine this trend and strike down such blanket gag orders.
Mains Paper 3: Security | Challenges to internal security through communication networks
From the UPSC perspective, the following things are important:
Prelims level: Section 124A
Mains level: Rising seditious events and the questioned applicability of the IPC provisions
Sedition was not a part of the original IPC that was enacted in 1860 — it was introduced in 1870, when it was said it had been dropped from the original IPC draft by mistake.
Under Section 124A of the IPC, the offence of sedition is committed when any person by words or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law.
Three explanations added to the provision lay down that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.
Sedition is a cognizable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.
How was this provision of the IPC used by the government of the British Raj?
It came in handy to silent nationalist voices and demands for freedom — the long list of India’s national heroes who figured as accused in cases of sedition.
Lokmanya Tilak was sentenced to six years in jail after he was held guilty of sedition by the Privy Council for writing a piece in his newspaper, Kesari, under the heading “The misfortune of the country”.
However, ‘sedition’ was interpreted differently by the Federal Court that started functioning in 1937, and the Privy Council, which was the highest court of appeal based in London.
The Privy Council underscored the law laid down in Tilak’s case to hold that incitement to violence was not a necessary precondition for constituting the crime of sedition.
It held that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A.
How has the Supreme Court interpreted Section 124A since Independence?
In 1962, the Supreme Court dealt with an appeal by one Kedar Nath Singh from Bihar, who had been convicted and jailed under the charge for delivering a derogatory speech.
In his appeal to the top court, Singh questioned the constitutional validity of Section 124A, contending it stifled his right to free speech under Article 19 of the Constitution.
The court faced two directly conflicting interpretations of Section 124A — one by the Federal Court in Niharendu Dutt’s case; the other by the Privy Council in the Sadashiv Narayan Bhalerao case.
The judgments expressed contradictory views on whether the incitement to violence or a tendency to disturb public order was a necessary ingredient of the offence under Section 124A.
Supreme Court ruling in the case
The court examined whether the constitutionality of Section 124A could be protected as a reasonable restriction on the right to free speech, with particular reference to the security of the state and public order.
It upheld the constitutional validity of Section 124A in the IPC by holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted.
This is because the continued existence of the Government established by law is an essential condition of the stability of the State.
What then is sedition?
The Constitution Bench of the Supreme Court ruled in the Kedar Nath case that any act that had the “effect of subverting the Government” by violent means or create public disorder would come within the definition of sedition.
The feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’ is sedition, ruled the court.
What is not sedition?
The court ruled that disapproval of the measures of government with a view to their improvement or alteration by lawful means is not sedition.
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 attract the penal offence.
The court added that “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 is not sedition.
That is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence, is not sedition.
A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
Mains Paper 3: Security | Challenges to internal security through communication networks
From the UPSC perspective, the following things are important:
Prelims level: Section 124A
Mains level: Rising seditious events and the questioned applicability of the IPC provisions
In recent times, the resort to the section 124-A is seen as disturbingly frequent.
Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
JNU students and activists, Assamese scholar Hiren Gohain and Manipur journalist Kishorchandra Wangkhem are prominent among those booked in recent days.
Section 124-A of the IPC
The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
It is punishable with three years in prison or a life term.
“Disaffection”, it says, includes disloyalty and feelings of enmity.
However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.
Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
It was a colonial law directed against strong criticism of the British administration.
Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
Gandhi called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, is not an offence under this section.
Activists demands it to be scrapped
Liberals and rights activists have been demanding the scrapping of Section 124A from the statute books, arguing that it has no place in a democracy.
They argue that it is being invoked even in cases where there is no incitement to violence or tendency to create public disorder.
It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
The Law Commission released a consultation paper last year calling for a reconsideration of the section.
It has pointed out that Britain abolished it more than a decade ago.
It raises the question whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
Mains Paper 2: Polity | Comparison of the Indian constitutional scheme with that of other countries
From UPSC perspective, the following things are important:
Prelims level: Democracy Index
Mains level: State of democracy in India & world
The Economist’s Democracy Index has a positive outlook on global democracy, with significant improvement in women’s participation, people willing to engage in lawful demonstrations and voters getting more proactive than ever despite being disillusioned with democracy.
About Democracy Index
The Democracy Index is an index compiled by the UK-based company the Economist Intelligence Unit (EIU) that intends to measure the state of democracy.
It ranks nations on five parameters – electoral process and pluralism, functioning of government, political participation, political culture and civil liberties.
The survey is carried out every year by asking a sample group of people a set of 60 questions.
The report defines a flawed democracy as nations that “have free and fair elections and, even if there are problems (such as infringements on media freedom), basic civil liberties are respected.
However, there are significant weaknesses in other aspects of democracy, including problems in governance, an underdeveloped political culture and low levels of political participation.
India is ranked at 41 – a notch above last year.
It is still classified as a ‘flawed democracy’ according to the index.
India achieved a score of 7.23 on the index to maintain its position – the same it did last year.
This is the lowest ever score attributed to India in the index ever since its publication.
India ranks below the US (ranked 25th in the index) and other so called ‘flawed democracies’ like Italy, France, Botswana and South Africa.
Scandinavia: The usual topper
On expected lines, Scandinavian nations ranked on top of the democracy pyramid.
Norway was the world’s most perfect democracy followed by Iceland and Sweden.
Mains Paper 2: Polity | Structure, organization & functioning of the Executive & the Judiciary
From the UPSC perspective, the following things are important:
Prelims level: IT Act
Mains level: Prevalence of unconstitutional laws even after their removal and its consequences
Section 66A of the IT Act still used
In 2015, the Supreme Court struck down Section 66A of the Information Technology (IT) Act, 2000, as unconstitutional
The decision in Shreya Singhal v. Union of India was heaped with praise by domestic and foreign media alike
But since then, media outlets have reported other instances where Section 66A has been invoked by the police
This points to an obvious, and serious, concern: what is the point of that landmark decision if the police still jail persons under unconstitutional laws?
Reasons behind continued used of unconstitutional laws
A primary reason for the poor enforcement of judicial declarations of unconstitutionality is signal failures between different branches of government
For any bureaucratic structure to survive, it needs working communication channels for sharing information
There is a systemic problem within the Indian legal system: there exists no official method for sharing information about such decisions, even those of constitutional import such as Shreya Singhal
The probability of decisions taken at the highest echelons of a system being faithfully applied at the lowest rungs greatly depends on how efficiently word gets to the ground
So, unless Parliament amends a statute to remove the provision declared unconstitutional, that provision continues to remain on the statute book
Sections 66A is still a part of both the official version of statutes published on India Code and commercially published copies
And while the commercially published versions at least put an asterisk to mention the court decision, no such information is provided in the official India Code version
Impact of applying unconstitutional laws
Due to this, certain persons will remain exposed to a denial of their right to life and personal liberty in the worst possible way imaginable
They will suffer the indignity of lawless arrest and detention, for no reason other their poverty and ignorance, and inability to demand their rights
Today, the work of the Supreme Court has firmly placed it within the public consciousness in India
It is common to read reports about the court asking States and other litigants for updates about compliance with its orders (an example being orders in mob lynching petitions)
While this monitoring function is one that the court can perform while a litigation is pending, it cannot do so after finally deciding a case, even after directions for compliance are issued
Instead, it needs help from the legislature and executive to ensure its final decisions are enforced
There is a pressing need to move from a system where communication about judicial decisions is at the mercy of initiatives by scrupulous officers, to a method not contingent on human error to the greatest possible extent
Enforcing unconstitutional laws is sheer wastage of public money
Mains Paper 2: Governance | Important aspects of governance
From UPSC perspective, the following things are important:
Prelims level: Section 124-A of the Indian Penal Code
Mains level: Demand for abolishing the sedition clause and how justified it is
Misuse of sedition clause
Rulers everywhere tend to treat trenchant criticism as attempts to excite disaffection and disloyalty
That is perhaps the only reason that Section 124-A of the Indian Penal Code, enacted under colonial rule, remains on the statute book
There have been repeated instances of its misuse
Regimes at the Centre and the States have invoked the section against activists, detractors, writers and even cartoonists
Law Commission recommendation
The Law Commission, for the third time in five decades, is now in the process of revisiting the section
Its consultation paper calls for a thorough reconsideration and presents the various issues related to it before the public for a national debate
In particular, it has raised the pertinent question: how far is it justified for India to retain an offence introduced by the British to suppress the freedom struggle when Britain itself abolished it 10 years ago?
Why opposition of sedition clause?
The foremost objection to the provision on sedition is that its definition remains too wide
Under the present law, strong criticism against government policies and personalities, slogans voicing disapprobation of leaders and stinging depictions of an unresponsive or insensitive regime are all likely to be treated as ‘seditious’, and not merely those that overtly threaten public order or constitute actual incitement to violence
The core principle enunciated by the Supreme Court — that the incitement to violence or tendency to create public disorder are the essential ingredients of the offence — has been forgotten while using this clause multiple times
As long as sedition is seen as a reasonable restriction on free speech on the ground of preserving public order, it will be difficult to contain its mischief
There can only be two ways of undoing the harm it does to citizens’ fundamental rights:
It can be amended so that there is a much narrower definition of what constitutes sedition
The far better course is to do away with it altogether
Mains Paper 2: Governance | Important aspects of governance, transparency & accountability
From UPSC perspective, the following things are important:
Prelims level: Press Freedom Index, Reporters Without Borders (RSF)
Mains level: Threats posed by the fundamentalists to journalists and its effect on press freedom
Hate crime growing in India
With more and more “physical violence” against journalists reported in India, the country’s ranking in the Press Freedom Index has fallen two places to 138
This was said in the annual report of Reporters Without Borders (RSF)
The report warned that hate crime is another issue plaguing India
Norway continues to top the list of having the world’s freest press for two consecutive years
The lowest ranking in the list was North Korea followed by Eritrea, Turkmenistan, Syria and then China
Press Freedom Index
The Press Freedom Index is an annual ranking of countries compiled and published by Reporters Without Borders based upon the organization’s own assessment of the countries’ press freedom records in the previous year
It intends to reflect the degree of freedom that journalists, news organizations, and netizens have in each country, and the efforts made by authorities to respect this freedom
A smaller score on the report corresponds to greater freedom of the press as reported by the organization
The index only deals with press freedom and does not measure the quality of journalism nor does it look at human rights violations in general
The report is partly based on a questionnaire which asks questions about pluralism, media independence, environment and self-censorship, legislative framework, transparency, and infrastructure
Violence against journalists, netizens, and media assistants, including abuses attributable to the state, armed militias, clandestine organizations or pressure groups, are monitored by RSF staff during the year and are also part of the final score
Mains Paper2: Indian Constitution-significant provisions and basic structure.
The following things are important from UPSC perspective:
Prelims: Section 66A and 67 of the IT Act, Point Of View (NPO)
Mains level: In CSE Mains, 2014 UPSC had asked question regarding Section 66A, this news article which highlights the concern regarding increased use of Section 67 of the IT Act after SC struck down Section 66A of the same act in 2015 is important.
More than two years after Supreme Court struck down Section 66A of Information Technology (IT) Act, and the Centre now looking at an expert committee report on how to deal with its consequences, civil rights activists and lawyers caution that Section 67 of IT Act could be the new 66A.
Section 67 of IT Act
Section 67 of IT Act says ‘’whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or intends to deprave and corrupt persons…shall be punished.”
Acting as umbrella under which online acts of obscenity can be prosecuted, cases filed under Sector 67 is on the rise, according to figures collated since 2002.
From 2002 to 2015, Sec 66 was the highest used section in IT Act; Sec 67 was the second-highest used Section, notes Point of View, a non-profit organisation that works on gender-rights, against sexual violence, and on digital rights of women.
Concerns Regarding Section 67 of IT Act
After Supreme Court struck down Section 66A of IT Act (in 2015), police departments are indiscriminately using Section 67.
Since there is little legal clarity on what is obscene, there is subjectivity which allows for arrests and indiscriminate arrests.
According to Point of View, Section 67 is leaning suspiciously towards Section 66A.
Concerns have been raised also about the catch-all category of obscenity
Crimes of consent are being treated as crimes of obscenity.
For Example- When someone takes a nude photo of a woman without asking her, her consent is violated that is primary harm, not obscenity.
And also when someone takes a rape video, it’s violation of consent, not of obscenity.
Unfortunately, many of these cases are filed under the anti-obscenity provision of Section 67.
Comparison with Section 292 of IPC
In the offline world, Section 292 of IPC covers similar offences, but online activity defined as obscene has graver consequences with greater punishments attached.
Section 292 results in a jail term up to two years and a fine up to Rs 2,000 for first-time conviction.
Under Section 67, jail term can be up to three years and the fine up to Rs 5 lakh for the first time.
A subsequent conviction raises the maximum jail term to five years under both Sections but the fine goes only up to Rs 5,000 under IPC Section 292, and up to Rs 10 lakh in Section 67.
While exceptions for scientific, literary, artistic or religious purposes are allowed under IPC Section 292, they are not allowed under Section 67 of IT Act.
Views of Law Commission
According to the Law Commission it is best if the IPC is amended suitably and ambiguities removed, allowing for widespread arrests.
Section 66A of IT Act
Itdefined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine.
Mains Paper 2: Governance | Government policies & interventions for development in various sectors & issues arising out of their design & implementation.
From UPSC perspective, the following things are important:
Prelims level: Shreya Singhal case, Section 66A of IT act, Various sections of IPC dealing with free speech
Mains level: Various arguments in favor of freedom of speech and government’s action to suppress it
An expert committee submitted an interim report on ‘How to police cyberspace’ to the Union Home Ministry a couple of weeks ago
The report recommended amendments to the Indian Penal Code (IPC)
The recommended amendments to the Indian Penal Code (IPC) are noteworthy for two reasons
One, they bring within the ambit of IPC (through amendments to Sections 153 and 505) any visual, audio, video, verbal or written communication, transmitted or retransmitted through any telecommunication service, device or computer
They propose that any speech that is disparaging, offensive, indecent, abusive, hate, gravely threatening — and so interpreted — be criminalised
New avatar of Section 66A
Section 66A of the IT Act may have been struck down in the Shreya Singhal case
But this is its new, more astute avatar with a better-operating legal-ware
It seeks to add yet another speech-control legislation to the plethora of existing penal codes
These are Sections 295A, 124A, 153A, 505 that target acts ranging from malicious, to seditious, to disruptive of public order or morality, to violent, to plain mischievous
Governments’ dubious records on free speech
There have been many cases where on one or the other pretext of public order, morality, derogatory speech, slander, and defamation was used to outlaw advocacy, mirth, caricature and the worst of all crimes, dissent
It chooses to turn a deaf ear to posts, threats, and tweets that are deeply offensive, obscene, misogynistic and violently communal
It chooses to remain unmoved by any civic or national imperative when the target of vicious trolling are journalists, film-makers, authors, writers, painters, common people who are just doing their jobs as citizens
It even chooses to use an ordinance, as in Rajasthan, to outlaw the investigation into the conduct of judicial or political power
Freedom of speech
It is nobody’s case that the freedom of speech is an absolute freedom
But our constitutional commitment to free speech demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered
This “danger” cannot be remote, hypothetical, or stemming from a poor appetite for mirth and scorn
It should have, as the Supreme Court said in Shreya Singhal case, a proximate and direct nexus with the expression
Controlled speech adds to impunity of political power
The trade-off between free speech and public order/morality has never hurt political dispensations
The more controlled speech is, the greater has been the immunity and impunity of political power
Free speech is signal of healthy democracy
We need to remember that free speech preconditions the realisation of many of our claims and entitlements
Less of it translates into less democracy in general
Recent controversy at JNU and invoking of Sedition charges against JNU Student’s Union President has brought back the debate between Sedition and Dissent.
First, Read this interesting story on Sedition
Interestingly, the sedition law was not part of the original IPC. It was dropped by Britishers while enacting the Act, but then they realised its importance in censuring dissenting voices from Indian media, intellectuals, and freedom fighters. It was later introduced by the British in 1870, 10 years after the Indian Penal Code (IPC) was introduced.
One of the prominent convictions include freedom fighter Bal Gangadhar Tilak, who was convicted and sent to prison in Mandalay, Burma in 1908. <Recall the consequences of Surat Split and passivity in the Indian freedom struggle for a long period>
Interestingly, the country which gave India its sedition law, the United Kingdom, repealed the act in 2009.
What is the Sedition law?
Sedition is an offence incorporated in Indian Penal Code. An offence having the element of incitement to violence & disaffection against the govt. established by law.
Section 124 A of IPC says- “Anyone who excites or attempts to excite disaffection towards the govt. established by law, has committed the offence of Sedition.”
It includes a clarification of the word “disaffection”, that it includes disloyalty and all feelings of enmity.
Punishment: Imprisonment upto 3 years to life imprisonment, with fine or without it.
Sedition vs. Fundamental Rights
Section 124 A of IPC comes in conflict with Art 19(1)(a) relating to freedom of speech and expression
Do you know that some members of the Constituent Assembly made efforts to include sedition as an express ground for limiting speech in Article 19(2)
The sedition law died a judicial death in 1958 when the Allahabad High Court declared it ultra vires Article 19(1)(a), which was later revived by apex court in its 1962 judgment
What is Supreme Court ruling on Sedition?
In Kedar Nath Singh vs. State of Bihar 1962 case, the Constitution bench of Supreme court ruled that a person can be charged with Sedition only if there is actual violence or incitement to violence (spark to a powder keg) or subverting government by violent means, through words either written or spoken.
Later, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised.
The moral crisis is that in spite of the Supreme Court narrowing the scope of sedition, and in spite of the more recently evolved tests to determine when mere speech or expression can be prosecuted, governments have routinely invoked Section 124-A with a view to restricting even benign forms of dissent.
What is not Sedition?
Judiciary held that mere criticism of govt. policy or public servants will not amount to Sedition
Thus, words and speech can be criminalised and punished only in situations where it is being used to incite mobs or crowds to violent action
Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met
Can mere anti India slogan shouting be termed seditious?
In Balwant Singh case supreme court held that casual raising of the slogans such as “Khalistan zindabad” once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government.
Need for revisiting the law!!
Section 124-A of the IPC negates the right to dissent, which is an essential condition of any reasonable government. Thus, it is opposed to the idea of a legitimate, liberal democratic state.
Indiscriminate use by police officers
The definition of sedition is exceedingly broadly worded <Its vagueness certainly did wonders for the colonialists>
Difficulty involved in drawing a line between permissible speech and the one amounting to Sedition <There is lot of subjectivity involved, which often leads to its misuse>
Attempts shall be made to draw a line in the favour of free speech
Law commission recommendation
Law commission suggested amending Section 124A to widen the scope of actions that would be punishable under the clause but at the same time reducing maximum punishment from life imprisonment to maximum of seven years and/or a fine.
The Road Ahead
Despite the higher judiciary’s best attempts, it seems unlikely that India’s law enforcement agencies will give primacy to right to freedom of speech. However, there are laws such as Section 121 of IPC, which can cover the offences under Section 124A.
This episode should provide fertile ground for the ongoing drive to scrap old, useless and in this case, dangerous laws. However, we should keep in mind that the words which directly provoke violence or which directly threaten the maintenance of public order deserve censure is unquestionable, especially given India’s constitutional structure.
<What do you think guys – Should such speeches be allowed in university campuses, which are highly subsidized by tax payer’s money for anti-national activities?>
Let’s have some answers from you guys –
#Q. Sedition has been characterized as the most misused section of colonial era curbing the free speech. Critically discuss.