The law of sedition is unconstitutional By Rahul Saxena @Lexcliq

 In Vinod Dua’s case (2021), the Supreme Court of India has reaffirmed the law of sedition laid
down in Kedar Nath Singh (1962) and directed governments to adhere to it. The Kedar Nath judgment upheld the constitutional validity of sedition as defined in Section 124A of the Indian Penal Code And the Court read down the provision by holding that only writings or speeches which incite people to violence against the Government will come within the mischief of sedition. So, as per this judgment, unless speeches or writings tend to cause violence or disorder, there is no
sedition.

Kedar Nath Singh guidelines

In the landmark 1962 Kedar Nath Singh case, the Supreme Court upheld the constitutional validity of
the sedition law, it attempted to restrict its scope for misuse. The court held that unless accompanied
by an incitement or call for violence, criticism of the government cannot be labelled sedition. Seven principles in the Kedar Nath Singh ruling specify situations in which the charge of sedition cannot be applied. The expression “ ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the
visible symbol of the State. The very existence of the State will be in jeopardy if the Government
established by law is subverted.”  “Any acts within the meaning of Section 124-A which have the effect of subverting the Government
by bringing that Government into contempt or hatred, or creating disaffection against it, would be
within the penal statute because 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.” “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 be penal.” “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.” “The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort to violence.” “It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such
activities in the interest of public order.” “We propose to limit its operation only to such activities as come within the ambit of the
observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.” However it has been highlighted that the issue is not that the Supreme court has defined the limits to
the sedition law, the issue is that the very existence of the law has provided excuse to the governments
of the day for curbing any sort of criticism or dissent even when it is not inciting violence. Further sedition, as defined in Section 124A of the IPC, clearly violates Article 19(1)(a) of the Constitution which confers the Fundamental Right of freedom of speech and expression, the most
valuable right of free citizens of a free country.
Issues with the Supreme Court’s interpretation in the Judgement-

Article 19(1) guarantees freedom of speech and expression subject to reasonable limitations under
Article 19(2) on 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 or incitement to an offence.

Amounts to Sedition

Sedition as defined in Indian Penal Code under section 124A.
“ Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be
added, or with fine.”

Categorises four sources of seditious acts –

Spoken words, written words, signs or visible representations.
Offences – Bringing or attempting to bring the government into contempt or hatred, or exciting or attempting to
excite disaffection towards the government.

There are three explanations attached to this section. The first explanation says that ‘disaffection’ includes disloyalty and all feelings of enmity. The second and third explanations say that one can comment on the measures of the government or
other actions of the government without bringing or attempting to bring it into contempt or hatred
or exciting or attempting to excite disaffection towards the government. The section does not get protection under Article 19(2) on the ground of reasonable restriction.  Sedition as a reasonable restriction, though included in the draft Article 19 was deleted when that
Article was finally adopted by the Constituent Assembly. It clearly shows that the Constitution makers did not consider sedition as a reasonable restriction. However, the Supreme Court was not swayed by the decision of the Constituent Assembly. Supreme court interpreted the words  ‘in the interest of public order’ used in Article 19(2) and held that the offence of sedition arises when seditious utterances can lead to disorder or violence. This act of reading down Section 124A brought it clearly under Article 19(2) and saved the law of
sedition. Otherwise, sedition would have had to be struck down as unconstitutional. Thus, it continues to remain on the statute book and citizens continue to go to jail not because their writings led to any disorder but because they made critical comments against the authorities.

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