Democratic Backsliding and the Chilling Effect of Sedition Laws in India

On June 14, 2019, Mangelal Agarwal from the Rajnandgaon district of Chhattisgarh, India, was arrested by state police forces and charged under Section 124-A of Indian Penal Code (IPC), infamously known as India’s sedition law. His crime: a Facebook post alleging a conspicuous nexus between the State Electricity Board and a local inverter manufacturer resulting in frequent power cuts and increased inverter sales.

After widespread criticism leading to direct intervention by Chhattisgarh’s Chief Minister, Bhupesh Baghel, the sedition charges on Mangelal were withdrawn. Nonetheless, the events on June 14 shed light on an archaic colonial era law that is often applied arbitrarily by law enforcement
agencies to suppress the voices of political dissenters, human rights defenders, and citizens generally.

A social media post landing the original poster in jail and labeling him as an “enemy of the state who conspired to overthrow the government,” is typical of dictatorial regimes. However, one does not expect such events in a democracy, and certainly not one that projects itself as the postcolonial
poster child.

This law is a clear affront to the constitutional guarantee of the rights to freedom of speech and expression (Article 19)— the very rights constitutional framers deemed vital for sustaining a democracy. To understand why the sedition law still exists, it is essential to understand the history and anatomy of IPC-124A.

Anatomy of IPC-124A
Indian Penal Code (IPC) Section 124-A forms part of Chapter VI of the Code, which deals with offenses against the state and details the punishment for sedition. This sedition law section was initially drafted by Thomas Babington Macaulay in 1837 and was eventually added to the IPC 150 years ago in 1870. IPC-124A decrees:

“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 India, 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.”

Initially, the section only used the term “disaffection,” which was interpreted by colonial judges to refer to acts or speeches that encouraged civil disobedience. The words “hatred” and “contempt” were later added to IPC-124A in 1898. This allowed governments to persecute journalists and politicians for committing “thought crimes.”

The British Raj primarily used IPC-124A to suppress the Indian independence movement; notably, in 1922, Mahatma Gandhi was found guilty and imprisoned under IPC-124A. During trial, Gandhi defended his fellow countrymen’s right to a nonviolent, non-cooperation movement against an unjust government and criticized IPC-124A for abridging the right to free speech. He argued:

“Section 124-A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr. Banker and I are charged is one under which mere promotion of disaffection is a crime.”

The post-independence Constituent Assembly, while drafting the Indian Constitution, realized that IPC-124A was inconsistent with Article 19, which guarantees rights to freedom of speech and expression. Moreover, Article 19(2), which specified limits to free speech, didn’t include “sedition.”

However, lack of political will and legislative inaction meant that IPC-124A wasn’t repealed; instead, the task of annulling it was left to the courts. In 1950, the Punjab-Haryana High Court ruled Section 124-A to be unconstitutional in Tara Singh Gopi Chand v. The State. In 1958, the Allahabad High Court held that Section 124A of the Indian Penal Code is ultra vires the Constitution in Ram Nandan v. State.

However, in 1962, the Supreme Court of India upheld the validity of IPC-124A in Kedar Nath Singh v. State of Bihar. The Supreme Court stated that speeches against the government or political parties were not illegal, but they shouldn’t “incite people to violence” or create “public disorder.” Notwithstanding the specific applicability of IPC-124A, successive governments have used it to suppress political dissent and even to punish political jokes. Some recent examples include:

In the 2012-2013 protest against Kudankulam Nuclear Power Plant in Tamil Nadu, approximately 8,856 people were indicted with sedition charges. In September 2012, Aseem Trivedi was charged with sedition over political cartoons that highlighted corruption amongst India’s political elites. In August 2016, Amnesty International India was booked for sedition by Bengaluru police, citing “pro-Pakistan” slogans at their event. In 2019, more than 11,200 Adivasis, tribal/indigenous people, in Jharkhand were charged with sedition for protesting amendments to land tenancy laws. And the list goes on.

Ruling party’s position in defense of IPC-124A
In 2019, the Ministry of Home Affairs (MHA), confirmed the Indian Central Government’s Centre’s stance to retain the sedition law. In a written reply to the Rajya Sabha Minister of State Home Affairs, Nityanand Rai stated, “[t]here is no proposal to scrap the provision under the IPC dealing with the offense [sic] of sedition. There is a need to retain the provision to effectively combat anti-national, secessionist, and terrorist elements.”

During the 2019 Indian general election, the Indian National Congress (INC), the main opposition party, included a proposal to abolish Section 124-A in their manifesto. However, while the party was in power for 10 years (2004–2014), IPC-124A remained on the books and was also used against numerous citizens.

Proponents of the sedition law have argued that freedom of speech is not absolute, that the sedition law is essential to maintain state integrity and peace, and that only three percent of sedition cases have resulted in convictions.

However, this line of argument misses the point that while Article 19 guarantees “rights to freedom of speech and expression,” it is not an unbridled license to work against the state. Clause (2) of Article 19 outlines “reasonable restrictions” to ensure public order and security of state. Moreover, the Prevention of Damage to Public Property Act of 1984 already exists to prevent violent protests from damaging public property. Given these legal restrictions already in place, the sedition law is merely a tool to repress political dissent, control thought, and stifle public discourse about the government’s policies. Additionally, it is fiendishly difficult for a person accused of sedition to get bail. This makes the process itself a punishment irrespective of conviction, producing a chilling effect on the diverse voices in the Indian “democracy.”

Why is there a need to protect dissenting political speech?
Dissenting political speech is essential to hold elected officials accountable and seek redress of grievances. Government can never truly be “by the people and for the people” without protection for dissenting political speech. Hence, freedom to non-violently express disagreement with government policies, without fear of retribution from the government, is a prerequisite for any functioning democratic political system.

In the context of rising nationalist rhetoric, holding a dissenting political opinion is an act of courage and the only functions that the sedition law serves are to intimidate these citizens and stifle diverse opinions.

In a democratic system, protecting dissenting political speech is not an outrageous idea; in fact, advanced Western democracies champion the idea. For example, in the US political speech is given a “preferred position” in the constitutional hierarchy. In Brandenburg v. Ohio, the US Supreme Court introduced an “imminent lawless action” test for judging what may constitute “seditious speech.” The per curiam majority opinion held that: “Constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action
.”

Although unlike India, Australia doesn’t have an explicit article protecting freedom of speech in its Constitution, it still protects political speech. In 1992, the High Court of Australia held that political speech is protected from criminal prosecution in Australian Capital Television Pty Ltd v. Commonwealth.

In India, citizens have knocked at the door of the judiciary to protect dissenting political speech. However, the judiciary only considers material placed before them and may not go into the current or historical context. Hence, affirmative legislative action is required to protect dissenting
political speech.

Repeated use of IPC-124A by law enforcement agencies has garnered domestic media attention and created a public fear of legal repercussions. This has produced a cascading impact that has deterred people from exercising any dissenting opinion. It is inevitable that the self-censorship
induced by the chilling effect will gradually undermine the Indian democratic project.

The United Kingdom’s sedition laws, which laid the premise of IPC-124A in India, were scrapped in 2009—with lawmakers affirming that “freedom of speech is now seen as the touchstone of democracy.” In its 150 years of tortuous reign, IPC-124A was used as a tool to torment freedom fighters during the independence struggle and continues being used by police officers and political leaders to terrorize and bully dissenting citizens.

The Preamble for the Constitution of India underscores “liberty of thought and expression.” This is duly upheld by Article 19(1)(a), which guarantees its citizens a right to criticize the government without it tantamounting to sedition. However, while IPC-124A exists, the values and guarantees of thought, expression, and speech are impossible. Hence, it is now time to repeal IPC124A and allow India to fulfill its constitutional decree.