PROJECT TITLE – SEDITION AND FREEDOM OF SPEECH & EXPRESSION IN

MODERN INDIA

COURSE NAME- LEGAL WRITING

COURSE CODE- LWLW100

PROGRAMME- B.A. LL. B(H), Semester- 9, Section- A

SUBMITTED BY-

Kirit Singhania
Enrolment No.- A90811119031

SUBMITTED TO- Prof. Ishani Das

SUBMISSION DATE- 29th October 2023

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ACKNOWLEDGEMENT

Thanks to the Almighty who gave us the strength to accomplish this project with sheer hard
work and honesty. This project has been made possible only due to the generous cooperation
of numerous people and to list them all is not feasible. Even to repay them in words is beyond
the domain of our lexicon. This project wouldn’t have been possible without the help of our
Prof Ishani Das, Faculty Member, Amity University Kolkata, who had always been there
at my side whenever we needed some help regarding any segment of this project. She has
been a mentor in the truest sense of the term. We thank the many staff of AMITY
UNIVERSITY KOLKATA, who have ensured that, despite a global pandemic, we have
been able to continue classes and work. We express gratitude to them with all our heart and
sincerity.

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INDEX

S.NO. TOPIC PAGE NO.

1. Abstract 4

2. Introduction 5-7

3. Free Speech and theories on free speech 8-9

4. Harm Principle and Free Speech 10

5. Offence Principle and Free Speech 11

6. The need for Sedition Law 12

7. Judicial Interpretation of Sedition Law 13-14

8. Conclusion 15

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ABSTRACT

The paper mainly discusses about the concept of Sedition Laws and it applicability of this
law in the current Indian legal scenario. The law of sedition have been introduced in India as
measure to curd the unwanted usage of the freedom of speech. The punishment for the
offence of sedition is harsh with minimum seven years of imprisonment which may extend to
life imprisonment. It is considered as a cognizable, non- bailable and non-compoundable
offence under the Indian Jurisprudence. With the passage of time there has been a widespread
misuse of this particular provision and currently it has been employed as a tool of harassment
to curb free speech. As a result, there have been strong calls to remove the Sedition clauses,
which are considered as an antiquated legislation designed to protect colonial interests. The
Supreme Court in a recent writ petition have stated that the sedition statute was from the
colonial era and have questioned the centre government whether it was still essential after 75
years of independence. The Court stated that the statute has been abused to the point where it
is "like handing a carpenter a saw to cut a piece of wood and he uses it to cut the entire
forest." This paper mainly focuses on the analysis of the sedition regulation in our country
and also tries to find out that the current sedition law outdated and weather these laws need
an amendment. As the law on sedition in India has been employed as a tool of harassment to
curb free speech. This has resulted in widespread demands to repeal the provisions regarding
sedition as it is seen as an archaic law that was meant to serve the colonial interests.

Keywords: Sedition, Free Speech, Section 124A, Judicial Precedents, Criminalization.

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INTRODUCTION

Sedition can be understood as “an insurrectionary movement tending towards treason, but
wanting an overt act, attempts made by meetings or speeches, or by publications, to disturb
the tranquillity of the state”. Sedition law in India is covered under section 124-A of the IPC
which give a marginal note on the regulations related to sedition in India. It covers the crimes
that come under the law it does not give a precise definition of the term sedition itself. The
Pre-independent period this regulation of sedition was created to use against the Indian
nationalist leaders who fought for the freedom of our country.1

Mahatma Gandhi called section 124A IPC as “the prince among the political sections of the
IPC designed to suppress the liberty of the citizen”. The fundamental challenge that this
sedition rule faces is a conflict between the rights given by the Constitution and the
requirement for those rights to be applied within a legal regulation designed by a foreign
authority with an objective that is no longer applicable in the current situation.2 As a result,
there is frequently a contradiction between rights and preConstitutional laws remaining in
effect, and courts are frequently called upon to assess the legitimacy of such laws under
psychologically different and completely different socioeconomic desires and conditions.

The law of sedition has been criticized in the era of modern democracies all over the world.
Section 124A of the Indian Penal Code (IPC) contains the offense of sedition. R.K. Misra in
his paper ‘Freedom of Speech and Sedition in India’ questions the very need for this law to
exist in independent India. Sedition was criminalized by the British after the 1857 revolt in
India to curb protest, riots, and the spread of awareness. The mere fact that this law still exists
in liberal India is not only horrific but begs the question ‘why?’. India is a democratic liberal
country and the adoption and implementation of a law used against its own citizens during
colonialism is an indicator of how regressive and counterproductive it truly is. Not only this,
but it has also been argued that it infringes upon our Fundamental Right to Freedom of
speech and expression under Article 19(1)(a). Before delving into sedition, it is important to
understand the relevance and prominence of this Right through various judgments. Its
importance is given in Ramlila Maidan Incident Case. The court held that freedom of speech
is the bulwark of a democratic government, and that this freedom is essential for the proper
functioning of the democratic process.

1
Misra, R., 1966. FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA. Journal of the Indian
Law Institute, 8(1), pp.117-131
2
Romesh Thapar v. Union of India AIR 1950 SC 124

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They also observed that freedom of speech and expression is regarded as the first condition of
liberty. It plays a crucial role in the formation of public opinion on social, political, and
economic matters. In Sahara India Real Estate Corporation v. SEBI, the court observed that
such right is not limited to thoughts and ideas which are accepted and acceptable but also to
those which offend or may shock any section of the population.3

The Court in Union of India v. Motion Picture Association, explaining a free exchange of
ideas, dissemination of information without restraints, dissemination of knowledge, airing of
differing viewpoints, debating, and forming one's own views and expressing them, are the
basic indicia of a free society6. Such Right in the Constitution involves various aspects of
human liberty to speak and communicate ideas whether they may be popular or not7. In
Subramanian Swamy v. Union of India8 , the court observed that any voice of dissent or
disagreement, or criticism does not go against the constitution’s objective.

This Right is enshrined in our constitution. It further accentuates the resolve made in our
preamble to secure all its citizens' liberty of thought and expression. In S. Rangarajan V.
Jagjivan Ram9, open criticism of the government and its processes does not require any
restrictions and that intolerance is as dangerous to democracy as to the person himself. In
Romesh Thapar v. Union of India10, this Right lays at the very foundation of democracy, in
the absence of which free political discussions and political education would not be possible
thereby hindering the proper and ideal functioning of a government.

This serves itself as evidence as to how high this right has been treated and considered by the
courts in India. Now coming back to sedition, it was used as a tool to silence the few
educated free-thinking liberals of the time and by continuing to criminalize it all it aims at
doing the same thing, the only difference being that every single individual has opinions,
access to information, and a need to make their country better. In the recent case of Vinod
Dua v. Union of India charges of sedition were imposed upon a journalist for criticizing the
government in a video posted online.4 Similarly, in the past people have been booked under
Sedition for liking a Facebook page, delivering a speech highlighting the atrocities committed
by armed forces at a conference, drawing cartoons that incite violence allegedly, cheering for
the Pakistani team during a cricket match against India, raising a question whether the stone-
pelters in J&K were real heroes in an exam, and criticizing a yoga expert.
3
Times News Network, Facebook “like” case: No evidence of sedition, govt tells HC, January 30, 2013,
available at accessed on 15th April 2022.
4
NDTV, Outrage over Sedition Charges against Students who cheered Pakistan, March 6, 2014, accessed on
15th April 2022.

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This surely isn’t the ‘freedom’ the drafters of the constitution envisaged for the citizens to
enjoy. During the years 2014-2019, a total of 326 cases of sedition were filed in India with a
conviction rate of less than 5 percent18. The validity of S124 has been questioned for time
immemorial.5 One of the landmark cases that questioned the constitutionality of S124A back
in 1962 was Kedar Nath Singh vs State of Bihar19. The Supreme Court judged the
constitutionality of S124A following its immense misuse and addressed the ambiguity
surrounding it since the wording of the provision left a lot of room for interpretation and
could bring into its ambit any actions.

The court laid down certain principles specifying when the section can apply. One important
ingredient identified and reiterated was “so long as a person does not incite people to
violence against the Government established by law or with the intention of creating public
disorder, they should not be held guilty of sedition”. This was a landmark judgment because
it not only made the law univocal but narrowed its scope. Unfortunately, this interpretation is
not understood by many. Political leaders have built the implementation of S124 cleverly
over the years to not spare any disaffection from the public.

By doing so it has given the government unsurmountable power which violates not only the
freedom of speech and expression but also the right to life and personal liberty. Even if the
court acquits the people charged with sedition, it does not make up for the social stigma one
suffers by being labelled as an “accused” in a criminal matter and personal hardships that one
doesn’t deserve (mostly) to endure. Sedition is a law that prevented and punished hate speech
and disaffection against the government however our current government is exploiting
section 124 to the fullest. Currently, under the Modi era, the word ‘state’ has become
synonymous with Religion. They claim to hold their religion so highly and expect the same
from the entire nation highlighting the most fundamental expressions of anti-
constitutionalism, yet their belief is so fragile that a joke almost made by a comedian, or an
opinion written by a journalist threatens their religion and belief to their very core.

FREE SPEECH AND THEORIES ON THE FREE SPEECH

The Article 19 of the Indian Constitution guarantees the citizens of India freedom of speech
and expression. This freedom can be in any form of written texts, word of mouth or any other

5
Kedar Nath Singh v. State of Bihar (1962).

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form of communication. This is the most often cited argument against sedition which finds its
basis from the principle of free speech. The constitutionality of sedition law under the
section124A has been challenged in court on the ground that the said provision is violative of
the fundamental right to freedom of expression and is therefore ultra vires the Constitution.

This matter of violation of the fundamental right of free speech has detailed discussed and
emphatically been settled by the Supreme Court in 1962 in the Kedar Nath case where it held
that section 124A was not unconstitutional. The concept of free speech is deeply connected
with India's legal based set up. It is also contended that India democratic based system, the
option to air one's perspectives and conclusions about the Government isn't simply alluring
yet is important for its appropriate working. The Indian judiciary and the constitutional setup
have given paramount importance to the idea of freedom of speech which has been provided
in the Article 19(1)(a) various important judgments have also understood this importance.

The sedition law on the other hand has a very big negative effect in the right of free speech as
the law in its basic sense itself is created to curb the freedom of expression against the
government. The right to free speech and expression can be understood as a benchmark of
democracy, but it is always under threat because to the sedition statute. In a democracy,
citizens must actively participate in debates and provide constructive critique of government
policy. The executive branch, on the other hand, has been given permission by the sedition
laws to utilise the ambiguously written provision to control public opinion and
indiscriminately wield power. Sedition legislation has evolved into a weapon for creating a
sense of cooperation with government policies in citizens. There are various principle and
theories that has its own importance in the idea of free speech and some of their famous
theories or principle includes (a) Harm Principle and Free Speech (b) Offence principle and
free speech. These theories could be briefly dealt in this section of the paper.

Since its establishment in 1950, the Supreme Court of India has only dealt with 39 cases that
refer to sedition and has pronounced only 7 judgments wherein it has extensively discussed
the offence. By taking all these judgments into consideration it can be easily understood that
the court have either have only took the entire idea of sedition in a narrow way. Various
judgments have tried to question the act of government in misuse of this section but still
haven’t questioned it in its full potential.

This section is intended to criminalize mere words regardless of any consequent action.
Disturbance to public order is implicitly not intended to be included as a necessary ingredient

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of the section. The words in this section have been used in such a broad way so that it can be
easily include any person who tries to act against the will of the sovereign under the list of the
seditious act. The main question that needs to be taken into consider while talking about the
sedition provision is that weather the act or words against the government also falls under the
ambit of the Crime of Sedition under the Offence against the state.

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HARM PRINCIPLE AND FREE SPEECH

The famous legal jurist John Stuart Mill have explained understood harm principle “as an
expression of the idea that the right to self-determination is not unlimited. An action which
results in doing harm to another is not only wrong, but wrong enough that the state can
intervene to prevent that harm from occurring”.6 The basic idea of the harm principle is that it
the allows government to limit liberties as it is very much necessary to prevent harm to a
society. Based on this principle it gives the governments to create regulations for the benefit
of the state thus the entire regulations on the offence of state can fall under this protection.

This befit can also arise around with a question that does the freedom of speech at present can
be an exception to the harm principle. This part will discuss on that question of exception.
Constitutional law has developed a firm rule prohibiting the regulation of speech based on its
content, no matter what the alleged harm might be. “This rule, to which will be refer here as
the “cardinal rule” of free speech, means that if a restriction turns on what is said or
expressed, or on characteristics of an expression, then it is presumptively invalid”. The entire
mills arguments on freedom of speech is based on certain arguments which are:

(a)The truth and a clear and lively impression thereof is valuable; we ought to allow/enable
people to arrive at true beliefs about the world.7

(b) Freedom of speech which allows people to arrive at a clear and lively understanding of
truths about the world or, what is the same thing, the silencing or censorship of expression
prevents people from arriving at a clear and lively understanding of true beliefs about the
world.

The entire way of co relation of harm principle and freedom of speech by mills is based on
the above said arguments. He has also stated that free speech is a necessary condition for
intellectual and social progress. We can never be sure, he contends, that a silenced opinion
does not contain some element of the truth. Thus, it can be easily inferred that harm principle
is an important part, but it doesn’t mean as a dictatorial power for curbing the freedom of the
society.

OFFENCE PRINCIPLE AND FREE SPEECH

6
JOHN STUART MILL, ON LIBERTY 80 (David Bromwich & George Kateb eds., Yale Univ. Press 2003)
(1859).
7
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

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The offence principle in the basic sense can be refers to a theory of crime which demands a
moral or legal ground for enshrining an actor's behaviour. It concerns of the moral standings
or feelings of society. This principle explains that it is generally a valid justification on the
side of a proposed criminal preclusion that it would presumably be a successful approach
serious offense to people other than a loose way. Additionally, the principal support that
offending someone is less serious than harming someone, the penalties imposed should be
higher for causing harm. The famous jurist Joel Feinberg on a comparison between harm
principle and offence principle have suggests, need an offense principle that can guide public
censure. The basic idea is that the harm principle sets the bar too high and that we can
legitimately prohibit some forms of expression because they are very offensive. Feinberg's
principle reads as follows: “it is always a good reason in support of a proposed criminal
prohibition that it would probably be an effective way of preventing serious offense...to
persons other than the actor, and that it is probably a necessary means to that end...The
principle asserts, in effect, that the prevention of offensive conduct is properly the state's
business”.8

Such a principle is hard to apply because many people take offense as the result of an overly
sensitive disposition, or worse, because of bigotry and unjustified prejudice. Despite the
difficulty of applying a standard of this kind, something like the offense principle operates
widely in liberal democracies where citizens are penalized for a variety of activities,
including speech, that would escape prosecution under the harm principle. Feinberg suggests
that many factors need to be considered when deciding whether speech can be limited by the
offense principle. These include the extent, duration and social value of the speech, the ease
with which it can be avoided, the motives of the speaker, the number of people offended, the
intensity of the offense, and the general interest of the community. Thus, taking the both the
theories and its implications into account it can be understood that the idea of free speech is
being questioned in various countries at various levels which is also being supported by
various theories also. Thus, it is very much evident that the idea of free speech is not a
complete right but would be based on how people connive on it. Thus, considering their
theories and concepts into mind it can be easy derived that the regulations such as sedition
laws are legislations that are never a completely wrong act, but the value and the
constitutionality of those legislation would be mainly based on the usage of such legislation
by the concerned authorities.

8
Feinberg, J., 1984, Harm to Others: The Moral Limits of the Criminal Law, Oxford: Oxford University Press.

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THE NEED FOR SEDITION LAW

The law of sedition cannot be completely considered as a barbarian or an arbitrary legislation

as stated on basis of the above said theories it is very much evident that it is important to
retain sedition as a crime against the State, As the State being the protector of our rights and
there can be no substantive rights in the absence of the State. Therefore, destabilizing the
State by any means is undesirable and liable to be punished. It is also a well understood
concept that certain words when spoken by certain persons in particular contexts, do have the
authority to incite violence and these may start from religious leaders, politicians, or even
militant groups. Thus, in an absence of a strong regulatory law it can lead to a situation where
any person can simply wage a war against the country internally just through mere words or
writing which can be problematic in the future.

This aper also contends that any such act that is trying to affect the harmony as well as the
democratic set up of the country fall beyond the protection of free speech not just because of
the nature of the words and their tendency to cause violence, but because in such situations,
the words themselves constitute the acts and therefore fall outside the purview of the free
speech doctrine.

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JUDICIAL INTERPRETATION OF SEDITION

On 11th May 2022, the Supreme Court passed an order allowing the central government to
reconsider the sedition law. The apex court directed that in the meantime, all pending sedition
trials should be kept in abeyance and stated that it hopes and expects the government not to
register any new sedition cases or carry out investigations or arrests. Given the rampant
misuse of the sedition provision to crack down on free speech, the order was celebrated as a
victory for civil liberties. This commentary, however, points out several concerns raised by
the sedition verdict that went unaddressed in its mainstream coverage, elucidating that hailing
the order as a victory may be premature.9

In 1962, in a landmark ruling, the Supreme Court restricted the scope of sedition to exclude
“criticism of public measures or comment on Government action” (Kedar Nath Singh v. State
of Bihar, 1962). The Court held that only “words, written or spoken, etc., which have the
pernicious tendency or intention of creating public disorder or disturbance of law and order”
would constitute sedition. In keeping with this interpretation, in another landmark case in
1995, the Court overturned convictions under sedition for persons who had shouted pro-
secessionist slogans such as ‘Khalistan Zindabad’ in a Chandigarh market a few hours after
Indira Gandhi’s assassination (Balwant Singh and Another v. State of Punjab, 1995). The
Court reiterated that such speech does not constitute sedition unless there is incitement to
violence.

However, as several studies of sedition have pointed out, “while the [Supreme Court] has
stayed firm in its opinion on sedition […] the lower courts seem to continuously disregard
this interpretation of the law” (Centre for the Study of Social Exclusion and Inclusive Policy
& Alternative Law Forum, 2011). Sedition is misused as “a tool to silence political dissent
and create a chill on freedom of expression”. For instance, in 2021, sedition was invoked
against two regional news channels in Andhra Pradesh for simply airing the statements of an
MP rebelling against the state ruling party. Unlike constitutional hearings in the Supreme
Court, which follow a set procedure and are transparent and open to the public, executive
deliberations over laws are conducted opaquely. The government could choose to declare an
ordinance, postpone deliberations till the next parliament session, or simply seek more time
to decide on the next hearing date. The power of judicial review, the ability to strike down

9
India: Supreme Court’s temporary suspension of sedition law a welcome step - Amnesty International.

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laws if they conflict with the Constitution, eventually rests with the judiciary. The procedure
is especially so to ensure a check on executive power. In consciously choosing not to exercise
this power, the judiciary has acted highly irregularly, leaving the fate of sedition up to the
same branch of government that has been accused of misusing it.

Even more worryingly, any executive reconsideration of the sedition provision alone will
hardly impact the status of free speech in India. Section 2(o) of the Unlawful Activities
Prevention Act [UAPA] (1967a) defines ‘unlawful activity’ to include “words, either spoken
or written, or by signs or by visible representation or otherwise, […] which causes or is
intended to cause disaffection against India.” This definition is strikingly like the one of
sedition. Section 13 of the UAPA penalises unlawful activity with imprisonment of up to
seven years, with a fine (Unlawful Activities Prevention Act, 1967b). Even if the executive
and legislature decide to repeal sedition, Section 13 UAPA can be used or misused in the
same manner as sedition. Having constitutional hearings on sedition would have resulted in a
judicial precedent, which would help counter the misuse of other free speech restrictions,
such as under the UAPA. The 11th of May order avoids this.

Prosecuting sedition requires the sanction of either the state or central government while
prosecuting offences under Section 13 UAPA requires the sanction of the central government
alone. Repealing sedition while keeping Sections 2(o) and 13 of the UAPA may thus confer
“an important political advantage to the national ruling party,” giving it a “monopoly” for
prosecuting such offences.

Therefore, the temporary directions in the 11th May order, expected to remain in force while
the executive reconsiders sedition, raises more questions than answers. It is unclear how
much the Court’s “hope” and “expectation” that the executive refrain from registering
sedition FIRs and pursuing existing cases will sway the government (S. G. Vombatkere v.
Union of India, 2022). The Court has not outlined any consequences if the government does
register a new sedition case, except for making bail slightly easier in such cases.

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CONCLUSION

The law of sedition has survived violent criticisms from various sectors of the public in both
India and the United States. Both the countries are largest democracies and yet their penal
law is characterised by the presence of the age-old law of sedition. The existence of the law
of sedition is especially due to its dark history. As it was in fact introduced in India for the
first time by the British colonial government to supress the freedom fighters of India and the
crush the Indian national movement. Also, in the United States the law was introduced in
1798 to deal with spies and alien enemies. The law was repealed and was again reintroduced
in 1918 during the World War I to deal with the alien enemies and protect the interest of the
United States. Thus in both the countries the law, as when it was introduced has a valid and
effective purpose and intention of the drafters. However, in the present scenario the law needs
to be repealed as it has the potential of being misused by the government in power.

The sedition law is popularly used as a weapon to ensure the compliance of its citizens. The
arrest of NDTV journalist Vinod Dua for criticizing the Government's response to tackling
COVID-19, the 22- year-old climate change activist Disha Ravi for her involvement with an
online toolkit and for tweeting in solidarity with the farmers’ protests raises several questions
regarding the sanctity of our constitutional right to freedom of speech and expression.35
These instances are clear indications that the sedition is very often misused and interpreted by
authorities in ways that suit their own personal political interests which ultimately defeats the
purpose of the law. A law that ultimately curbs freedom of speech and expression is clearly
violative of one's constitutional right and therefore has no place in a country like India.

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