Sri Janani S
The heated debate revolving around the scrapping of Section 124A of the Indian Penal Code, 1860, has pointedly put forth numerous questions as to its validity and enforceability. On May 11, 2022, the Apex Court suspended all the pending trials and criminal proceedings while the Union Government “re-examined ” the law. The sedition law has a chequered history of applicability. This trend reminds us of another provision on this subject matter, which was struck down unconstitutional- Section 66A of the Information Technology Act, 2000.
This article seeks to examine the ingredients and the legislative intent behind passing Section 124A in the first part. Through this, it also aims to explore the proximate nexus test, which the courts have failed to consider, thereby leading to its increased misuse. In the second part, the article analyses the components and intention behind Section 66A, thereby establishing its vagueness. In the third part, the article draws parallels between Section 124A, IPC, and Section 66A of the Information Technology Act, a law that waived good-bye to the legal world at the early age of six. The article finally concludes that these two provisions are strongly similar and that the Court has to consider certain legal and administrative reforms to prevent their continued abuse.
Section 124A & its legislative intent
The infamous Section 124A is a non-bailable provision making any speech or expression that brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government. It was held in Sagolsem Indramani Singh v. State of Manipur[1] that sedition is a comprehensive term including all the practices by word or deed that usurp discontent among people regarding the Government and disturb the tranquility of the state[2].
The law regarding the validity of Section 124A has always been in a state of uncertainty.[3] Hence, it becomes pertinent to understand the legislative intention behind inserting this section into the Indian Penal Code (hereinafter “the IPC”). In Macaulay’s Draft Penal Code of 1837-1839, Section 113 read as follows:
“Whoever by words either spoken or intended to be read, or by signs or by visible representations, attempts to excite feelings of disaffection to the Government established by law in the territories of the East India Company among any class of people who live under that Government, shall be punished with banishment for life or for any term, from the territories of the East India Company, to which fine may be added, or with simple imprisonment for a term which may extend to three years, to which fine may be added or with fine.
Explanation: Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government against unlawful attempts to subvert or resist that authority is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation is not an offence within this clause.”
Surprisingly, this section was not made a part of the IPC in 1860 and was shelved for over 20 years. When asked by Sir James Stephen, Sir Barnes Peacock replied, “I have looked into my notes, and I think the omission of a section in lieu of Section 113 of the original Penal Code must have been through mistake… I feel, however, that it was an oversight on the part of the Committee not to substitute for Section 113”.[4]
Thereafter, this section, after minute changes, was incorporated in 1870 through an amending act.[5] Mr. Stephen, who resorted to including this provision, cited that this offence would be penalized under a severe common law of England in the absence of such a provision.[6] This section intended to punish an act exciting feeling of disaffection towards the Government, as distinguished from disapprobation.
Jawaharlal Nehru, while introducing the first Constitution of India (Amendment) Bill, 1951, stated that this section was very objectionable and obnoxious.[7] In Niharendu Dutt Majumdar v. King[8] [hereinafter “Niharendu Dutt”], a distinction was made between the word “sedition” as used in the IPC and as was understood in 1942. The Chief Justice remarked that sedition is not an offence to “minister the wounded vanity of Governments” but because it loses its respect and the law ceases to be obeyed. Therefore, public disorder or reasonable anticipation or likelihood of public disorder is the gist of the offence.
Subsequently, in King-Emperor v. Sadashiva Narayan Bhalerao[9], the Privy Council overruled Niharendu Dutt. It held that the term “excite disaffection” does not include “excite disorder.” Therefore, incitement of violence was not a necessary ingredient of the offence of seditious intention.[10] Shri KM Munshi raised the decision of Niharendu Dutt in the Constituent Assembly Debates.[11] As a result of strong opposition, the word “sedition” did not find its place in the Constitution, as the same would create an erroneous impression.
Kedar Nath Singh: A Missed Opportunity?
After reading conflicting judicial opinions surrounding sedition, the Court decided in Kedar Nath v. State of Bihar [hereinafter “Kedar Nath”] that this law should not be strictly interpreted. It Instead, it supported Niharendu Dutt, and was of the opinion that this section did more harm than good. It further held that when the words, written or spoken, have the pernicious tendency of creating public disorder or disturbance of law and order, this provision comes into play. It limited sedition to activities involving “incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.
Despite the Apex Court’s narrowed interpretation of the law, it upheld the provision as it stands without considering the text of the law or the constituent assembly debates. It failed to precisely define the extent of the proximity of incitement to action and incitement to ideas, i.e., the proximate nexus test, as was laid down a couple of years before Kedar Nath, in The Superintendent, Central Prison Fategarh v. Ram Manohar Lohiya[12].
This test can be looked at from two angles. Firstly, every idea communicated has the possibility of incitement to action. If the speech does not lead to imminent and direct violence, there is said to be no nexus. Unless the violence has a proximate and direct nexus with the speech, the proximate nexus test is satisfied. This may depend on factors like the content and context of the speech, the person addressing it, to whom it is addressed, etc. However, these two stages of inciting speech and actual violence are not even discussed.
Secondly, the restriction imposed must have a proximate relationship towards achieving public order. If it bears only a remote or hypothetical connection with the interests of public order, the restriction cannot be reasonable under Article 19(1)(a). This defeats the proximate nexus or close connection test.
This position remains uncertain in Kedar Nath. The decision is a compromise between the Government and the general public for not having to declare the provision unconstitutional while, at the same time, narrowing down its applicability with utter disregard to the proximate nexus test.
Discrepancy between Arrests and Convictions under Section 124A
A reference to the aspects of this offence makes it clear that the ingredients are quite broad and unreasonable. In the 2018 Law Commission Report[13], it was recommended that sedition be invoked only where the intention behind any act was to disrupt public order or to overthrow the Government with violence and illegal means. However, the section is prone to misuse due to its wide terminology.
According to the National Crime Records Bureau (NCRB), the lowest conviction rate was 3.3% in 2019, being abysmally low.[14] There was just one conviction out of 93 registered cases in 2019. Arrests under this law have risen, but the conviction rate has been very less. In a recent case of Vinod Dua[15], the Court held that mere critical analysis of the State policy would not attract sedition. In fact, in Bilal Ahmad Kaloo v. State of Andhra Pradesh[16], the Supreme Court remarked that how these convictions have been recorded exhibit a very casual approach of the trial court in not verifying the evidence and the charges, which do not even fulfil the essential ingredients.
In light of this, the Supreme Court stayed all the proceedings in sedition cases and directed the Centre and states not to register any FIRs until the Government re-examines the colonial law.[17]
Section 66A, IT Act
After our discussion on Section 124A, it is essential to look at a similar provision on this subject, i.e., Section 66A of the Information Technology Act [hereinafter “the IT Act”]. Despite being struck down in a case[18], this law has been subject to application in numerous instances in recent times. This section was brought in as a relief to deal with online offences, and little did it do to be effective.
The reasoning of this judgement was in tune with some previous judgements[19] that underlined the nexus between an inciting speech and actual violence. The callow and vague interpretation of the section by some of them led to the Supreme Court quashing Section 66A.[20] In order to understand the similarity between these two distinct provisions- Section 124A, IPC, and Section 66A, it is pertinent to break down the latter into its ingredients and discern its intention.
First, to attract Section 66A, the information must be “grossly offensive” or “menacing character”. These two terms have not been defined under the Act. The same, however, can be traced to Section 10(2) of the UK (Post) Office Amendment Act, 1935.[21] This provision also criminalizes sending any message by telephone that is grossly offensive, indecent, obscene or of a menacing character. The terms “grossly offensive” and “menacing character” are similarly employed in Section 127(1)(a) Communications Act, 2003[22] in Section 20(b) of the Indian Post Office Act, 1953.[23]
In Connolly v. DPP[24], while deciding the meaning of the terms ‘indecent’ or ‘grossly offensive’ as used in the Malicious Communications Act, 1988, the Queen’s Bench Division held that these words bear a normal English meaning and are not used in a special sense. It is used to protect those suffering from distress or anxiety from receiving such offensive material.
In Director of Public Prosecutions v. Collins[25], the Court was faced with the issue of interpreting “grossly offensive” under the Communications Act, 2003. The defendant, in this case, had telephoned a Member of Parliament and left messages, targeting an ethnic community to which neither the MP nor the members of his staff belonged . The defendant was tried for sending grossly offensive messages under Section 127 of the Communications Act, 2003.
The Court held that the term “grossly offensive” has to be interpreted and applied by the justices according to the facts and circumstances of the case, and not every grossly offensive message could be punished. Only those messages, in their particular circumstances and context, regarded by society as grossly offensive, could be punished. It, accordingly, held that although these messages were not less than grossly offensive in a decent society, the message did not threaten or offend anyone. The Courts must apply standards of an open and just multi-racial society, considering all the relevant facts and circumstances. It further stated that a menacing message conveys a threat or causes fear that something unpleasant is going to happen.
The Court, however, fails to lay down what constitutes the term “grossly offensive”- it merely states that when the society at large views it as grossly offensive in that context, it would be punishable, which makes it more ambiguous. In the Indian context, these words remain unclear and vague due to the highly subjective individual standards laid down under the provision.
Secondly, clause (b)[26] has three major elements:
a) Communication is known to be false.
b) It is for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
c) It must be communicated persistently.
These terms, however, are again not defined, thereby making them very deceptive. Words like ill will, insult, annoyance, and inconvenience are put on the same pedestal as that of criminal intimidation, injury, danger, and enmity, commonly used in criminal law. It is not necessary for the former set of words to always be criminal. This, again, reminds us of the proximate nexus test that this provision fails to satisfy. While these words may “seem” harmful, they might not incite or not incite violence of that degree, which is required under this section.
In fact, criminal intimidation is already covered under Sections 503 and 506 of the IPC, posing the problem of dual penalties, as many of these offences are already covered under various sections of the IPC. This section fails to distinguish between messages that fall into either of these groups, thus, making it more vulnerable to misuse.
In India, most of the judgements involving Section 66A application did not enter into the discussion on the ingredients of this offence, nor the intention behind it. The application has been very superficial, with an utter lack of concern for its misuse.
Drawing Parallels between Section 124A, IPC & Section 66A, IT Act
After analyzing these two provisions, one can gauge that they are more or less similar, in terms of their terminology and intention. The intent behind both these provisions is to prevent any offensive information from being circulated. The terms employed are ambiguous and obscure, thereby leading to differing interpretations.
The prime differences between these provisions are- firstly, Section 124A applies only to offences against the Government. It is an offence directed against the state itself, thereby disrupting the public order. In contrast, Section 66A is applicable for offences, both by and against private individuals, as well as against the Government. It is not specifically directed against the state but also was enacted in public interest.
Secondly, sedition has broad coverage and is attracted for both online and offline offences. It includes both physical and online speech and expression that aims to challenge and threaten the very foundation of the state. However, Section 66A is attracted for offensive messages sent only by means of a computer resource or communication device. It aims to deal with the alleged messages transmitted over different social media sites, and emerging technology (cyberspace). This restriction applies only to online speech.
Conclusion
In conclusion, in light of demands for repealing Section 124A, this article brings into the picture its haphazard application and arbitrary wording. The failure to adhere to the proximate nexus test, both between speech and violence, as well as restriction and public order, is leading to a dangerous trend of increased arrests and lower conviction rates.
An analysis of this provision also jogs our memory on Section 66A, another restriction on free speech. A common thread between these offences is that they ignore proximity and reasonableness. While Section 66A was denied a place in the statute book on the grounds that it was not reasonable and subject to misuse, it resurfaced in numerous cases. This could be attributed to the institutional failure and communication gaps between the state organs. The Government did not actively issue advisories and notifications to the authorities. This could be the reason for enormous arrests under sedition, despite a solid case not being made.
Long after striking it down, the Supreme Court recently issued a slew of guidelines[27] for implementing the Shreya Singhal case in the lower courts and the executive branch. These should have been the steps taken immediately after passing the judgment. Thus, the Apex Court, while deciding the Public Interest Litigation[28], must take note of this strong resemblance between the two provisions, the consequences of communication and supervision failure, and the experience of Section 66A, so that it does not echo in the future.
[The author is a 2nd year BA LLB student in NLU, Jodhpur.]
[1] Sagolsem Indramani Singh v. State of Manipur, (1955) CriLJ 184. [2] BM Gandhi, Indian Penal Code, (2d ed. 2010). [3] RK Misra, Freedom of Speech and The Law of Sedition in India, 8 Journal of the Indian Law Institute 117, 117 (1996). [4] Aravind Ganachari, Nationalism And Social Reform In Colonial Situation 55 (2005) (e-book). [5] The Indian Penal Code (Amendment) Act, 1870. [6] Queen Emperor v. Jogendur Chandra Bose, (1829) ILR 19 Cal 35. [7] India Const., amended by The Constitution (First Amendment) Act, 1951. [8] Niharendu Dutt Majumdar v. King, AIR 1939 Cal 703. [9] Emperor v. Sadashiva Narayan Bhalerao, AIR 1947 PC 82. [10] Wallace Johnson v. The King, 7 (1940) AC 231. [11] 7 Constituent Assembly Debates 731 (1948). [12] The Superintendent, Central Prison Fategarh v. Ram Manohar Lohiya, 1960 AIR 633. [13] Law Commission of India, Consultation Paper, Sedition 30 (2018), https://lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf. [14] National Crime Records Bureau, Ministry of Home Affairs, Crime In 2020, 68th ed. Vol. 1 (2021), https://ncrb.gov.in/sites/default/files/CII%202020%20Volume%201.pdf. [15] Vinod Dua v. Union of India, 2020 SCC OnLine 1209. [16] Bilal Ahmad Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431. [17] SG Vombatkere v. Union of India, CWP 682 of 2021. [18] Shreya Singhal v. Union of India, (2013) 12 SCC 73. [19] Balwant Singh v. State of Punjab, AIR 1985 SC 1785 and S Rangarajan v. P Jagjivan Ram, 1989 SCC (2) 574. [20] Aarti Tolia, The Sad Demise of Sec 66A: The Invalid Validity, 2 CMET 105, 105 (2015). [21] UK (Post) Office Amendment Act, 25 & 26 Geo. 5 c.15 1935, §10 (Eng.). [22] Communications Act, 2003, §127 (Eng.). [23] Indian Post Office Act, No.06 of 1898, §20 (Ind.). [24] Connolly v. DPP [2007] 1 WLR 276 (QB). [25] Director of Public Prosecutions v. Collins [2005] 1 WLR 308 (HL). [26] The Information Technology Act, 2000, §66A (b), The Gazette of India, pt. II sec. 1 (June 9, 2000). [27] No more prosecutions under Section 66A, says Supreme Court, The Hindu (Oct.12, 2022), https://www.thehindu.com/news/national/no-more-prosecutions-under-section-66a-says-supreme-court/article66002464.ece#:~:text=The%20Supreme%20Court%20on%20Wednesday,a%20judgment%20seven%20years%20ago. [28] SG Vombatkere v. Union of India, CWP 682 of 2021.