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Citizenship, Sedition & Freedom of Speech: A Critical Analysis

- Sayantan Bhowmik, University of North Bengal

As we are living in a democratic country like India. Being the responsible citizen of our country, we must hold some rules and norms that we must follow and also to respect our fundamental rights which are enshrined in our constitution. Taking the Newton third law that is for every action, there is an equal and opposite reaction. So, keeping this into mind when we say something pointing towards the public or government regarding any particular matter sometimes it creates a good impact and sometimes it creates a chaotic situation which cannot be taken under control. So as a result, sometimes it becomes the prior concern not to misuse our fundamental rights in a certain field which ultimately brings out dissatisfaction towards our nation and towards the citizens of India. 

In India, the right to freedom of speech and expression is enshrined under Article 19(1)(a) of the Constitution. Free speech allows to convey an individual’s its ideas and opinions. Its expression is a type of instrument in permitting individuals to their aspiration of achieving a sensation of self-fulfilment. A liberal democracy is characterised to bring up the society at a better position and of course in such a society, a conflict between the State and the individual’s opinion is bound to exist. Punishing of an individual for depreciating the authority of the judicial system or State contradicts the abstract theory of the promotion of a right to free speech and expression.

Sedition is an offence that criminalizes speech that is construed to be disloyal to or threatening to the state. The main legal provision in India is section 124A of the Indian Penal Code that criminalizes speech that brings or attempts to bring into hatred or contempt, or attempts to excite disaffection towards the government. 
The serious nature of section 124A is seen in the light of the punishment associated with it. Section 124A is a cognizable where arrests can be made without a warrant, non-bailable and non-compoundable offence. Punishment for the offence can extend up to life imprisonment. Because of the seriousness of the offence, courts are often reluctant to grant bail.

As we know the debate between the freedom of speech and expression and the sedition law is a very interesting as well as it holds a vital part in our Indian judicial system and also in our Indian democracy. As a matter of fact, both the concept holds a great number of importance. As our Indian constitution has already abolished the sedition law but in a way, it is still a crime under section 124A of IPC, 1860.

We can also sometimes see that the sedition law is being misused as because despite the clear set of guidelines for applying the charge of sedition, lower courts have routinely failed to apply these important parameters while considering sedition cases. There is a complete lack of perlocution of settled judicial opinion to lower levels of the judiciary should address as well as look up this systematic lapse. As there is a famous saying in the world of law that is Justice delayed is justice denied.

Kedarnath v. State of Bihar [1]

Kedarnath Singh, a member of the Forward Communist Party, was prosecuted for sedition related to a speech that he made criticising the government for its capitalist policies. Singh challenged the constitutionality of the sedition law. The Supreme Court bunched Singh’s case with other similar incidents where persons were prosecuted under the sedition law.

The law is constitutional and covered written or spoken words that had the implicit idea of subverting the government by violent means. However, this section would not cover words that were used as disapprobation of measures of the government that were meant to improve or alter the policies of the government through lawful means. Citizens can criticize the government as long as they are not inciting people to violence against the government with an intention to create public disorder. The court drew upon the Federal Court’s decision in Niharendru Dutt Majumdar where the court held that offence of sedition is the incitement to violence or the tendency or the effect of bringing a government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the state. While the Supreme Court upheld the validity of section 124A, it limited its application to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence.

Balwant Singh and anr v. State of Punjab [2]

The accused had raised the slogan “Khalistan Zindabad” outside a cinema hall just after the assassination of Prime Minister Indira Gandhi.

The slogans raised by the accused had no impact on the public. Two individuals casually raising slogans could not be said to be exciting disaffection towards the government. Section 124A would not apply to the facts and circumstances of this case.

Shreya Singhal v. Union of India [3]

The Court laid that regardless of the degree of derogation and insult, a certain degree of proximity needed to exist between the utterance and the potentiality of public disorder. This is progressive step in the direction of laws pertaining to sedition as it further limits the scope of sedition. The Court in the case positioned the requirement for a substantive and a procedural analysis of the restrictive law concerned to determine its reasonability.

Thus, whilst applying the fundamentals of this case to Section 124A IPC, a substantive analysis would showcase the provision to be excessively broad in the interpretation of disaffection, thereby fulfilling the overbreadth and vagueness test. The procedural analysis of the punishment would prove it be a draconian provision. Given the obscurity concerning the actual materialisation of disorder and violence, life imprisonment as a punishment for the mere potentiality of inciting violence through speech seems to be superabundant, thereby fulfilling the chilling effect. Thus, the restriction on free speech and its recognition as an offence under Section 124A IPC does not seem reasonable.

India is the largest democracy of the world and the right to free speech and expression is an essential ingredient of democracy. The expression or thought that is not in consonance with the policy of the government and in the end of the day it should not be considered as sedition. Given the legal opinion and the views of the government in favour of the law, it is unlikely that Section 124A will be scrapped soon.

Thus, articulation of Section 124A of the Penal Code appears to subdue and extinguish any forms of dissent present in society. Such a tendency contradicts the inherent ingredients which characterise a democracy. The existence of such provision in a State aiming to progress appears obsolete. The continuance of such a provision induces a chilling effect on the freedom of speech and expression, which is a supposed fundamental right provided under Article 19(1)(a) of the Constitution. There is a need for India to progress and alter its sedition laws in accordance with the transitions in society. Further, given sedition covers a broad ambit of actions, each act should be governed by its individual provisions, rather than one generic offence with such a stringent punishment.

Looking at the above arguments and the legal provisions it\'s important to introspect ourselves whether the sedition law must be scrapped? The answer is no, but as well as most importantly it should not be misused.


1. Kedarnath v. State of Bihar  AIR [1962 SC 955]
2. Balwant Singh and anr. v. State of Punjab [AIR 1985 SC 1785]
3. Shreya Singhal v. Union of India [ (2015) 5 SCC 1]