Sedition and UAPA: Right to Freedom of Speech and Expression

By | June 18, 2022
Sedition and UAPA Right to Freedom of Speech and

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The Article ‘Sedition and UAPA: Right to Freedom of Speech and Expression‘ is a thorough study of the hurdles suffered by the people to enjoy the fundamental right to freedom of speech and expression and the sole cause can be the misuse of existing laws and especially herein referred Sedition law.

The Author briefly discussed the problem with the help of a case. The Article covers the two major aspects that include historical background and the current situation with the help of case law along with the National Crime Bureau’s Report. The author opines that the Unlawful Activities Prevention Act can be misused by the Government and again compared the situation with that of the Sedition law. The Author concluded that fundamental rights are the basic rights and cannot be compromised for anything.

Introduction: Sedition and UAPA

We speak, we talk, we raise our voice and even backbite in a hush. Why do we do it? no, the appropriate question would be, How do we do it? We are allowed to do so as we have our own rights. We have the Right to Freedom of Speech and Expression which is a fundamental right guaranteed to us by the Constitution of India under Article 19(1)(a) and that is why we are free to speak our minds.

We complain and also raise opinions over a dysfunctional manhole in the Ukraine-Russia situation. But, what if you speak your mind and you are charged with an offence against the state? Would you still speak up or keep mum? Sedition is one such law in which any word against the state, government/centre is considered an offence if the essentials of sedition law are met. But are the essentials of the law matched with the wrongful act every time, or does the person expressing thoughts just become the prey to this non-bailable offence?

Right to Freedom of Speech and Expression

When we think of freedom of speech and expression, all we can think of is that it is the basic and minimum right which at least a citizen living in a democratic country deserves and must possess. When we say that democracy is run by the people, this right is to allow all citizens to participate in all kinds of processes of the country including political, social, economic, and sociological. The kinds of freedom of speech and expression are verbal, written, and broadcast. If we think deeply we would be able to deduce that ultimately all the rights that we have, somewhere or the other revolves around this particular right.

Freedom of expressing oneself is not just right that is subject to a nation, it is also a right that is provided globally by the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms etc.

So, we see that it is an inalienable right which is of great importance because if we say that democracy is of the people, for the people, and by the people, then the democracy can surely not function with the people having tapes on their mouth.

Where is the problem?

What makes us discuss that freedom of speech and expression is in danger is the misuse of the existing laws namely, the Sedition law. The whole point of discussion started when a two-judge bench of the Supreme Court in June, was hearing a case wherein it quashed the charge of sedition against journalist Vinod Dua, and elucidated on the 1962 Constitution Bench ruling in Kedar Nath Singh v. the State of Bihar  1962 AIR 955 and said:

only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence are rendered penal”.[1]

What is Sedition?

The legal definition of sedition according to Webster’s dictionary is

“the crime of creating a revolt, disturbance, or violence against lawful civil authority with the intent to cause its overthrow or destruction.

As per the Indian Penal Code, Sedition comes under Section 124A of the Indian Penal Code which states that:

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 shall be punished with im­prisonment for life, to which fine may be added…”[2]

Historical Background

Turning back and touching the history a little bit, this law dates back to the colonial times wherein Sir Thomas Macaulay introduced this law in the year 1837, but when the IPC was enacted in the year 1860, there was no trace of this law but later on, this provision was incorporated by an amendment in the year 1870 after looking at the English Treason and Felony Act 1848 to deal with rebels and dissenters.

But the question is whether the sedition law which is a law of the colonial era when India was a slave relevant today in a democratic country where everyone has freedom of speech and expression?

Current situation

According to the National Crime Records Bureau’s ReportCrime in India 2020” there have been 70, 93, and 73 cases of sedition in 2018, 2019, and 2020 respectively. Though the cases registered under sedition law are in good number, the conviction rate is rather very poor. To put it in figures, there was one conviction out of 70 registered cases in 2018, one conviction out of 93 registered cases in 2019 and two convictions in the registered cases in 2020 and the rest were just false acquisitions.[3]

22 cases were filed against journalists who covered the agenda of the Hathras gang-rape incident, and many cases were also filed against recognized citizens who were raising voices against the Citizenship Amendment Act. Sedition cases have also been filed against Kashmiri students who were celebrating Pakistan’s win over India in a cricket match on social media. [4]

When the controversy against the sedition law started catching fire, a bunch of petitions were filed challenging the Constitutionality of the provision on sedition under the Indian Penal Code 1860. Finally in S.G. Vombatkere v. Union of India[5], the Union of India, in its affidavit, declared to reexamine and reconsider the section of sedition under the IPC.

It was further submitted by the Union of India that the Supreme Court may go through the constitutional validity of the provision of sedition after the centre is done reconsidering the law. Lastly, the Court deemed it inappropriate to use the provisions on sedition till the reconsideration by the Union of India is complete. And presently, the law is temporarily suspended or we can say it’s on standby.

The famous UAPA

Unlawful Activities Prevention Act is one such act which also contains provisions that are likely to be misused by the government in power and are equally harmful to freedom of speech and expression as is the sedition law.

Section 13(1) of the UAPA states that

“Whoever: (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity….” shall be punishable with imprisonment for a term which may extend to seven years.

“Unlawful activity” is defined under Section 2(1)(o)(iii) of the UAPA

unlawful activity, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written or by signs or by visible representation or otherwise).

The definition is in close sync with the definition of sedition contained in Section 124A IPC.[6]

Point of Discussion

So, the point of discussion remains that if Section 124A of the IPC is held by the court to be unconstitutional because speech and expression that merely create disaffection are protected (and not prohibited) under Article 19(1), Section 2(1)(o)(iii) of the UAPA will also need to be amended to delete elements imported from Section 124A. If the sedition law is criminalized which is not an integral part of any violent, illegal, criminal act, then removal of this law on one hand and keeping the other i.e. UAPA, would be irrational.

The relation between the deletion of sedition law and the need to check on UAPA arose when a committee called Constitutional Conduct Group which constitutes of former bureaucrats suggested the Supreme Court check on all such laws including UAPA that comes as a hindrance in the way of freedom of speech and expression.

Conclusion

When the Constitutional Conduct Group came forward, it is said in its statement

“Deleting section 124A of the IPC will mean that the power to prosecute those who promote unfavourable opinions against the government will rest solely with the Union government. This provides a major incentive for the Union government to delete section 124A under the pretext of protecting human rights while in reality strengthening its ability to suppress liberty in an ever more draconian manner.” [7]

It is a good feed for the brain to ponder upon whether this matter is only as big as the tip of the iceberg of the entire iceberg which is yet to be unveiled. The sedition law when repealed will also turn the faces of the jury towards the UAPA and other laws which acts as hurdles in the path of the right of freedom of speech and expression and the right surely cannot be sacrificed for anything as it is the fundamental right and comes under the basic structure.

Moreover, the matter also remains questionable, Can the age-old law that existed in the British-Colonial Era which has been repealed from the constitution of Britain but still exists in a democracy fair or not? Well, we can say that changes are necessary and a necessity for life. Lastly, Mahatma Gandhi was also the one to quote that:

“I have found that it is our duty to render voluntary obedience to law; but whilst doing that duty I have also seen that when the law fosters untruth, it becomes a duty to disobey it.”


References

[1] Ananthakrishnan G , SC puts sedition trials on hold until Govt re-examines it, Available Here

[2] Indian Penal Code, 1860, Available Here

[3] Crime in India, 2020 Report by NCRB, Available Here

[4] Explained: What’s The Current Sedition Law In India, Available Here

[5] Writ Petition (C) No.682 of 2021

[6] Unlawful Activities (Prevention) Act, 1967, Available Here

[7] The Substance of offence of sedition snuck into UAPA with more draconian consequences: Ex-bureaucrats, Available Here


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Author: Aayushi Tiwari

A Law Student and a lifetime humanitarian from the historically rich state, Bihar. Avid reader, writes to bring a difference and a public speaker to enlighten others.

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