The Law of Sedition- An analysis and its existence at the global level

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The commencement of the American revolution in 1775 and the subsequent French Revolution of 1789 saw the advent of the concepts of liberty, equality, fraternity and individual rights not just in those countries but around the world. Over the next 200 years, these concepts sparked a series of events that led to several important events such as end of colonialism throughout the world, abolition of slavery, recognition of the LGBTQIA+ community and most importantly the fostering of independent thought and the concept of individual freedom. But, to say that these concepts don’t come in conflict with anything would be highly idealistic and unrealistic. More often than not, the rights of the individuals come in conflict with the interests of the State. Examples of State interests clashing with individual choices can be seen all around us like the slew of abortion banning legislations being passed in various States of the United States of America or hijab banning laws being on the political agenda of election candidates in European Countries. One such major law in India that often finds itself in conflict with the rights of the individual is Section 124A of the Indian Penal Code that deals with the offence of Sedition. On the 11th of May, 2022 the Supreme Court of India ordered the staying of the usage and implementation of Section 124A and furthermore, ordered that all pending litigations on the issue should be stayed and no further prosecution should take place under this section. This stay order is to continue to stay in force until the Government has completed its analysis of the law and submits its views on whether the law should be retained or not. This piece shall cover the existence of such laws throughout other major countries of the world, and their current legal status.

India finds itself in a unique position due to its political stand. India is a socialist as well as liberal country. It means that, India although respectful of individual rights shall also give due importance to the rights, objectives and interests of the State. Hence, while Article 19(1) and other articles of Part III of the Constitution of India talk about several freedoms of the Citizens, laws like Sec 124 A of the Indian Penal Code curtails these freedoms for the protection and interest of the State. Before, we delve into any global analysis of the law of sedition. Let us first understand the language and intention of Section 124A of the Indian Penal Code.

While there is no doubt that the Indian Penal Code, 1860 is an expertly made piece of legislation there’s also no denying that the law was made during the colonial era, hence the Indian Penal Code also served the purpose of safeguarding the Crown’s administration in India through the administration of the criminal justice system. Hence, Section 124A although still in use today, was in fact first inserted in 1870 by the British. It particularly played an important role in the efforts of the British to put behind bars important freedom fighters like Mahatma Gandhi and Tilak during the twilight of the British Empire in India. The text of Section 124A reads as follows-

“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.”

As is apparent from the bare reading of the text of Section 124A the offence of Sedition’s primary objective is to protect the State and its legally established government from any conspiracy to attempt or attempt to incite any kind of violence, enmity or hatred towards it by any individual or group of people. The scope of the section is very wide and it depends upon the facts and circumstances of each case as to what actions will be construed to fall within this section. The struggle between Article 19(1)(a) and Section 124A lies in the fact that one can’t be sure as to what action under Article 19(1)(a) will fall under the ambit of Section 124A as even an attempt with no results can be prosecuted under this section. For example, it is clear that if an article with an intention of sparking rebellion or dissatisfaction towards the Government of India or any State Government is published then regardless of the reception of the article the writer shall be liable to be prosecuted under this Section. But, what if a simply well researched article critiquing government policies unexpectedly causes riots? Will the writer’s mental intention be taken into consideration or will the focus be on the fact that it did cause riots against the government of India? Situations like these are just some of the conundrums that can come in cases under this law. Which is why there are multiple judicial interpretations by multiple courts on what is seditious and what is not. Hence, the Supreme Court has now decided to deliberate on the fate of this Section but what about such laws in other countries? Let’s look into it.

United Kingdom- The United Kingdom was the country of origin when it comes to the offence of Sedition. The offence of Sedition was first introduced by the United Kingdom vide the passage of the Sedition Act of 1661 which was passed with the intent of it being “an act for the Safety and Preservation of His Majesties Person and Government against Treasonable and Seditious practices and attempts.” However, over the centuries as the British common public and British common law has come to recognise the freedom of speech and expression the United Kingdom has slowly overtime outlawed all kinds of seditious acts and treason to be criminal offences. Now as of today only few kinds of treasonous activity remains which are-

  • If a man tries to harm or kill the Queen (Monarch), hurt her or hinder her personal space with an intention to threaten her or restrict her from carrying out her duties as sovereign
  • kill or hurt her spouse, kill or hurt her eldest son or his/her eldest heir, or
  • Her majesty’s chancellor, justices, ministers and treasurers. But no other seditious activity is now punished under the British Common Law.

 

In 2009, the United Kingdom abolished sedition to be a criminal offence and the abolishment was done to uphold the freedom of speech and expression of the British press and people.

United States of America- The United States of America although considered to be one of the pioneering nations based and established upon individual freedom, also has a history of having the offence of sedition. The United States first introduced the offence, through the Alien and Sedition Act, 1798 which was introduced by the then President John Adams. As of today in the US, the offence of sedition exists only in two forms-

  • The United States Code has the offence of Seditious Conspiracy, which punishes any attempt or conspiring to harm, overthrow, the government of the United States of America or any attempt or conspiracy to take over any property of the United States of America.
  • The US also makes it a seditious offence to spread any misinformation about the armed forces in any attempt to spark insubordination or unrest within the army or misinformation spread with the intention of hindering the work of the armed forces of the United States.

 

That being said, the offence of Seditious Conspiracy is not used leniently and the US Supreme Court has set out a test to determine as to when a certain act can be said to be called seditious under the US law. This was set out in the case of Bradenburg v. Ohio. The Supreme Court held that, the speech must incite violence or must be such that the eruption of violence should be directly imminent from the said speech only then such speech will not be protected by the first amendment (freedom of speech and expression in the US Constitution.) Most recently the US charged but didn’t prosecute certain people who were involved in the 2021 storming of the US Congress on 6th January, 2021. Hence, although Sedition does exist its usage is seriously limited as the effect of that action or speech shall be the crucial deciding factor.

European Union- The European Union has no uniform penal code for the union. While the European Convention of Human rights stringently upholds the right of freedom of speech and expression it also places a limitation the right when it comes to issues of national security. Hence, the individual member states of the Union like Sweden, Spain, Germany, etc have their own offences of sedition. But, the definition of such offences in the member states shall be respectful of the European Convention of Human Rights as they are open to judicial interpretation by the European Court of Human Rights. The Convention hence, automatically limits the offence of sedition and its usage in most EU member states. Most recently the offence of Sedition was used by the Kingdom of Spain to try the people responsible for the 2017-2018 constitutional crisis of Spain which was aimed for the separation of Catalonia.

Canada- Canada continues to have the offence of Sedition which is defined under Section 59 of the Criminal Code. It defines the terms of seditious words, seditious conspiracy and seditious libel when used with the intention to force a change of government without the authority of law. This can be punishable with up to 14 years of imprisonment. However, the law’s definition is severely limited to only instances where there is an attempt to forcefully cause a change of government. Hence, the offence has become a letter of law that shall only come into force in very limited situations. There have been no recent convictions of sedition in the Kingdom of Canada. Apart from this, the Canada too just like the UK has certain offences of treason for crimes against the Queen, armed forces and government of Canada given under sec 46 of the Criminal Code.

Other major countries like the Commonwealth realms of New Zealand and Australia (all commonwealth realms including New Zealand and Australia continue to have offences of treason due to sharing a common head of State) and the Republic of Singapore have now removed the offence of sedition.

Conclusion- The conclusion that one comes to after going through the law of sedition in various countries is that the Courts and legislature have tried to strike a balance between individual rights and the interest of protecting the State. While few have chosen to outlaw it completely, few have kept it as a means of last resort. But needless to say, that the freedom of speech and expression has been construed very carefully and while exercising due diligence when it comes to this matter and regardless of whether the countries have chosen to keep it or remove it, they have done their utmost best to protect and preserve it. But rest assured one can be sure that the Supreme Court of India will do its utmost to strike the perfect balance between our fundamental rights and the interests of the State. Time and the hon’ble Supreme Court shall be the judge of the future of Section 124A in the Republic of India.