Whether laws of Sedition have any place in a Democracy or should it be Repealed ??

 

seditionKanhaiyya Kumar, young student leader from JNU Delhi, hailing from a poor family in Bihar is the latest victim of the charge of sedition. News reports suggest that the police has no record to show that he shouted any anti-national slogans. Yet he was arrested and put behind the bars. During the past two years or more intellectuals, artists and social activists have been mindlessly charged with sedition for saying things the establishment is not in favor of. Kanhaiyya’s arrest has now triggered a public debate on this much-misused law.

Sedition is an offence defined in Section 124 A of the Indian Penal Code, 1860. As per this Section, anyone who brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government by words spoken or written or by signs or by visible representation or otherwise is guilty of the offence of sedition. The definition is so exhaustive that it does not leave out of its purview any possible mode of self-expression, simply by using the words “or otherwise”. The punishment for the offence of sedition is life imprisonment but lesser punishment can also be awarded.

Out of the three explanations added to the Section, two seek to clarify that expressing disapprobation of the measures of the Government or administrative action is not an offence. But any attempt to excite contempt, hatred or disaffection will definitely make such permissible disapprobation also liable to be punished. It is the ordinary police constable who will in the first person decide whether a brilliant speech made in a seminar by eminent author or a great cartoon made by a cartoonist will cause disaffection, contempt etc. towards the government. In an age of unenlightened patriotism and lumpenisation of politics the danger to the life and liberty of Indian citizens who speak out against the government of the day is too real, as is evident from some of the recent happenings.

It is therefore necessary to seriously debate sedition, and its impact on the fundamental rights of citizens. Pandit Jawahar Lal Nehru called sedition an obnoxious piece of legislation. But his government and all the subsequent governments retained it and misused it. Such hypocrisy of Indian politicians kept alive this colonial law which should have been repealed by the first Indian Parliament.

Sedition was brought into the Indian penal code in 1870, almost 10 years after the code was enacted. Its object was apparently to silence the Indian voice. Section 124A was adopted by the council of Governor General of India, which met in Shimla on August 2, 1870. The remarks made by J. Fitz James Stephen while presenting the bill before the council about the scope and extent of sedition are instructive. “Language temperate in itself and justifiable as far as the express meaning of its terms went might, if addressed to an excited mob be the clearest proof of an intent to produce forcible resistance to authority. While genuine criticism had nothing to fear from the proposed section, persons seditiously disposed must not suppose that they could evade its provisions by confining themselves to what under other circumstances and in other persons might be genuine criticism”. It is an outrageous statement of the law on sedition which in simple language means that sedition could be slapped on persons of seditious disposition. Honorable Fitz James Stephen was adding a new dimension to Anglo-Saxon jurisprudence by suggesting that a man’s disposition will also make him liable under sedition.

After sedition was introduced in the code the first major case that was tried under it was Lokmanya Tilak’s case[1] in which the clearest exposition of the law was made by Strachy J. While stating the law before the jury he said “the offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small. Whether any disturbance or outbreak was caused by these articles is absolutely immaterial”. This statement of law was later approved by the privy council.

Another landmark case in which the scope and nature of sedition as defined in the Indian code was explained was Sadashiv Narain Bhalerao’s case[2]. The privy council held “but even if he (accused) neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the Section”.

 

 

DISAFFECTION TOWARDS THE GOVERNMENT

Thus the law of sedition which has emerged from the decisions of the privy council during the pre-independence era is for that a simple statement or a speech which can excite “disaffection” towards the Government the maker of the speech or statement is liable to be prosecuted under Sec 124A. No incitement to violence or insurrection is necessary. The implication of this statement of law is that after the Constitution came into force, Section 124 A of the IPC would become violative of the fundamental right to freedom of speech and expression. Thus sedition, a draconian law of the colonial era would have been out of the penal code for good.

However this did not happen because in 1962 the Supreme Court upheld the constitutional validity of Sec 124A in the Kedarnath case.[3] During the colonial period sedition was considered a black law and was used extensively against the leaders of the freedom movement. Mahatma Gandhi, Bal Gangadhar Tilak and many other leaders were put behind bars for many years under this law. But the constitution bench of Supreme Court painted it white and presented it before the free Indians as a necessary law in the interest of the survival of republic.

The constitutional validity of sedition was upheld by the Supreme Court on the basis of an interpretation of Sec 124A in line with the decisions of the federal court in Niharendu’s case[4] and certain English cases. In this case Sir Maurice Gwyer, CJ stated the law on sedition in the following words “public disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency”. In line with this statement of law by the federal court, the Supreme Court of India held that as public disorder and violence are the essential ingredients of sedition it is a law made in the interest of public order under Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of speech.

However this statement of law made by the federal court was clearly overruled by the Privy Council, the highest appellate court and held that the law declared in Tilak’s case was the correct law. But the Supreme Court of India opted for the view taken by the federal court and not by the Privy Council because it wanted to uphold the validity of sedition as a reasonable restriction on the fundamental rights. By its own admission the statement of law made by the Privy Council in Tilak and Bhalerao and other English cases was sound but adopted the federal court view because it wanted the law of sedition to be in the penal statute. The following observations of the Supreme Court in Kedarnath Singh’s case indicate why it wanted sedition to remain on the statute book: “In other words any written or spoken words etc. which have implicit in them the idea of subverting Government by violent means which are compendiously included in the term revolution have been made penal by the section in question”. Obviously the court wanted to stop revolution in India by upholding the validity of sedition!

The Court also weakened the base of its own judgment by observing that the federal court took a view different from the Privy Councils because the latter’s various judgments were not shown to the federal court. In other words the federal court would have gone with the Privy Council on the interpretation of sedition had its views been available to it. So there was nothing inherently infallible about the view taken by the federal court which our Supreme Court adopted as the most acceptable legal decision. Further, Article 19(2) permits reasonable restrictions on the freedom of speech. if the law imposing reasonable restriction is made in the interest of public order , it is constitutionally valid. This is the ground on which Kedarnath Singh judgment upheld the constitutional validity of sedition. There is an obvious fallacy in this argument.

The Court itself says that the words “in the interest of public order” are of the widest amplitude. “Reasonable restriction” and “words of widest amplitude” are mutually contradictory. Restrictive provisions can’t be so open ended and wide. They need to be narrow and restricted. The highest law court of the time had declared that public disorder or violence is not an essential ingredient of sedition under the Indian code. This being so it should be assumed that sedition is not a law enacted in the interest of public order and hence outside the protective cover of Article 19(2).

 

SUPPRESSING THE INDIAN VOICE

The Colonial Government in India inserted Sec 124A in the code for the purpose of suppressing the Indian voice. So the law of sedition was made stringent which was different from the English law. The English law did not define sedition but the Indian code defined it. The privy council therefore said that if the law defines the offence in clear terms the courts should go by that definition and as per the text of Sec 124A a simple speech or statement which can cause disaffection towards the government and nothing more shall bring it within the mischief of sedition. This is how the law of sedition was always enforced in India. So with the coming into force of the Constitution, Section 124A would have become an unreasonable restriction on the freedom of speech and thus would have become violative of the fundamental right. By retaining it in the code, free India’s governments repudiated the concept of human rights evolved through long years of freedom struggle.

 

Every strong criticism of the government, a minister or a chief minister or the prime minister causes some amount of disaffection towards them. When people read about the corrupt deeds of a government what exactly is the feeling that is generated in them? Is it contempt or hatred or a feeling of love and sympathy for such a government? In a democracy the people change such governments through vote. No democratic government can afford to charge people with sedition and put them behind bars for saying things which they have the freedom to say. So the offence of sedition has no place in a democracy. That is why the British repealed it in their own country even though they had brought in the toughest variety of sedition when they ruled India. But democratic India even with all its bitter experience of the operation of this law by the colonial government retained it and used it liberally against its people taking refuge under a Supreme Court decision validating it.

There is an urgent need to review this judgment of the Supreme Court and declare sedition unconstitutional or alternatively, parliament should repeal it at the earliest. If someone raises slogans against India or endangers the security of India he should be dealt with under appropriate laws. The law of sedition is too colonial, too dangerous and too destructive of the basic freedoms of the people. It should be scrapped.

[1] Queen Empress v. Bal Gangadhar Tilak (1897) ILR 22BOM
[2] King Emperor v. Sadashiv Narain Bhalerao (1947) LR 74 IA 89
[3] Kedarnath Singh v. State of Bihar AIR 1962 SC 955.
[4] Niharendu Dutt Majumdar v. King Emperor (1942) FCR 38

Privy Council

Privy CouncilMiss. Priya S. Dhanokar

Synopsis:

1. Introduction

2. Origin of Privy Council

3. Constitution of Privy Council

4. Appeals to the Privy Council

5. Abolition of the jurisdiction of Privy Council

6. Role of Privy Council

7. Drawbacks of Privy Council

8. Conclusion

 

Introduction:

If we overview the history of Indian Legal System, it clearly reveals that the Indian Legal System is more or less based on the English Legal System. In fact, the systematic development of Indian judicial institutions, judicial principles, laws etc. has occurred during British regime itself. Besides this, the British regime in India has also developed a hierarchical judicial system in India. Accordingly, the highest judicial authority was conferred on a body of jurists, popularly called as ‘Privy Council’. It has played a significant role in shaping the present legal system in India. The same is discussed as under.

 

Origin and establishment of Privy Council:

As it is an accepted fact that, every political system develops for itself a certain sort of legislative, executive and the judicial machinery for its smooth working and administration. Establishment of Privy Council was with the same objective. The Privy Council was nothing but the judicial body, which heard appeals from various courts of the British colonies including India.

The origin of Privy Council can be traced back to the Norman Period of English. At the beginning of 11th century, the Normans introduced a Central Government in England for controlling their executive, legislative as well as judicial Departments. There was a Supreme Federal Council of Normans. It was known as ‘Curia’ and it acted as the agency of Normans to rule England. Through it the whole administration in England was controlled. However, gradually with the passage of time, Curia gets divided into ‘Curia Regis’ and ‘Magnum Concillium’. Out of them, Magnum Concillium was to deal with executive matters whereas Curia Regis performs judicial functions.

The Curia Regis was a small body consisting of high officials of the State, members of the Royal household and certain clerks chosen by the Crown itself. Their duty was to advice the King in matters of legislation and administration and to deliver a justice. In fact, the Curia Regis acted as a final Appellate Court for England and English Empire. Gradually, the Curia Regis came to be considered as the advisory body of the King performing most of the vital functions in the field of judicial administration. Finally, during the regime of Henry II, there was a tremendous increase in the Judicial Functions of Curia Regis and it lead to the formation of two different Common Law Courts in England. They are:

1. King-in-Parliament i.e. Court of House of Lords

2. King-in-Counsel i.e. Court of Privy Council.

The former became the highest Court of Appeal for the Courts in England while the later acted as the highest Court of Appeal for all British Possessions and Settlements beyond the seas. In this way, the Privy Council was established during the middle of 16th century. It thus acted as the advisory body of the King with regard to the affairs of the State. Headquarter of the Privy Council was at Landon and its powers were implemented through the means of royal proclamations, orders, instructions etc.

 

Composition of Privy Council:

As far as India is considered, the Privy Council acted as an appellate body since 1726 with the establishment of Mayor’s Court in India. Earlier, the Privy Council used to do its work by means of a system of committees and sub-committees. However, the committees did not have permanent existence and membership and mostly members were the persons with little judicial experience. Naturally it affected the administration of justice. In 1828, Lord Bourgham criticized such a constitution of Privy Council keeping in view the extent and importance of the appellate jurisdiction of Privy Council. Subsequently, in 1830 he became the Lord Chancellor and during his regime, the British Parliament enacted the Judicial Committee Act, 1833 in order to reform the constitution of Privy Council. In this way, officially the Privy Council was created on 14th Aug. 1833 by the Act of the Parliament. The Act empowered the Privy Council to hear appeals from the courts in British Colonies as per the provisions of the Act. Accordingly under this Act, the quorum of judicial committee of Privy Council was fixed to be four. It composed of Lord President, Lord Chancellor and other Chancellors holding judicial offices. This quorum was reduced to three in 1843. The recommendations to the Crown were given by the majority of quorum. Thereafter, by means of the Appelate Jurisduction Act, 1908 this membership of the judicial committee was extended. It also empowered His majesty to appoint certain members not exceeding two. These were nothing but the judges of High Court in British India. Thus some of the members of the Privy Council were the persons versed in Indian Laws.

 

Appeals from Courts in India to the Privy Council:

This can be discussed under following sub-headings.

a. Charters of 1726 and 1753:

In the Indian Legal History, the Charter of 1726 granted the right to appeal from the Courts in India to Privy Council. The said Charter established three Mayor’s Courts at Calcutta, Madras and Bombay. The provision was made as to first appeal from the decisions of Mayor’s Court to the Governor-in-Council in respective provinces and the second appeal from to the Privy Council in England. Where as the Charter of 1757, which re-established the Mayor’s Courts reaffirmed the said provisions of Appeal to Privy Council from Mayor’s Courts.

b. The Regulating Act, 1773:

This Act empowered the Crown to issue a Charter for establishment of Supreme Court at Calcutta. Thus the Charter of 1774 was issued by the Crown to establish a Supreme Court at Calcutta and it abolished the respective Mayor’s Court. Section 30 of this Charter granted a right to appeal from the judgments of Supreme Court to Privy Council in Civil matters if following two conditions were followed;

i) Where the amount involved exceed 1000 pagodas

ii) Where the appeal is filled within six month from the date of decision.

In the same way, the Act of 1797 replaced the Mayor’s Court at Madras and Bombay with the Recorders Court and provided for direct appeals from these Courts to the Privy Council. Thus the right to appeal from King’s Court to Privy Council was well recognized. Besides this, there were Company’s Court i.e. Sadar Diwani Adalat and Sadar Nizamat Adalat. They also recognized the right to appeal to the Privy Council from their decisions. Accordingly the Act of Settlements, 1781 provided for right to appeal from Sadar Diwani Adalat at Calcutta in Civil matters.

c. Appeals to Privy Council from High Courts:

Under the Indian High Courts Act, 1861 the high Courts were established at three Provinces. It was the amalgamation of King’s Courts and Company’s Courts. This Act provided for the right to appeal from High Courts to Privy Council from all of its judgments except in Criminal matters. In addition to this, there was a provision of Special leave to Appeal in certain cases to be so certified by the High Courts.

d. Appeals from Federal Court in India to Privy Council:

The Government of India Act, 1935 provided for the establishment of Federal Court in India. The Federal Court was given exclusive original jurisdiction to decide disputes between the Center and constituent Units. The provision was made for filing of appeals from High Courts to the Federal Court and from Federal Court to the Privy Council. The Federal Court also had jurisdiction to grant Special Leave to Appeal and for such appeals a certificate of the High Court was essential.

e. Abolition of jurisdiction of Privy Council:

In 1933, a white paper was issued by the British Government for establishment of the Supreme Court in India so as to here appeal from Indian high Courts. It was the first step in avoiding the jurisdiction of Privy Council. After Indian independence, the Federal Court Enlargement of Jurisdiction Act, 1948 was passed. This Act enlarged the appellate jurisdiction of Federal Court and also abolished the old system of filing direct appeals from the High Court to the Privy Council with or without Special Leave. Finally in 1949, the Abolition of Privy Council Jurisdiction Act was passed by the Indian Government. This Act accordingly abolished the jurisdiction of Privy Council to entertain new appeals and petitions as well as to dispose of any pending appeals and petitions. It also provided for transfer of all cases filed before Privy Council to the Federal Court in India. All powers of the Privy Council regarding appeals from the High Court were conferred to the Federal Court.

Thereafter with the commencement of the Constitution of India in 1950, the Supreme Court has been established and is serving as the Apex Court for all purposes in India. It hears appeals from all the High Courts and Subordinate Courts. With this the appellate jurisdiction of the Privy Council finally came to an end.

Role of Privy Council:

The Privy Council has contributed a lot in development of Indian Legal System. It served a cause of justice for more than two hundred years for Indian Courts before independence. As far as the judicial institution is concerned, the Privy Council was a unique and unparallel among all the Courts round the world. It set the task of ascertaining the law, formulating legal principles, molding and shaping the substantive laws in India. It also helped in introduction of the concept of ‘Rule of Law’, on which we have setup the whole philosophy of our ‘Democratic Constitution’. Besides the Privy Council also lead to the introduction of Common Law in India, which forms the basis almost all present Indian laws.

The contribution of Privy Council in personal laws like Hindu Law and Muslim Law is also noteworthy. It acted as a channel, through which English legal concepts came to be assimilated with the body and fabric of the Indian law. it always insisted on the maintenance of the highest standards of just and judicial procedure, especially in the field if criminal justice. In this way; the decisions of Privy Council have enriched the Indian jurisprudence in many respects. Its contribution to the statute law, personal laws, and commercial laws is of great importance. Thus during the period of 1726-1949 and specifically after 1833 and onwards, the Privy Council has played a magnificent role in making a unique contribution to Indian laws and the Indian Legal System. The fundamental principles of laws as laid down by the Privy Council are considered as path finder for the Indian Courts still today.

At present also, the Privy Council command a great respect among Indian lawyers, judges as well as Indian public as the highest judicial institution. Some of the principles laid down by the Privy Council are still followed by the Supreme Court of India. The view taken by the Privy Council is binding on the High Courts in India till the Supreme Court has decided otherwise. One of such instance can be given in the form of ‘principle of absolute liability’ as propounded by the Supreme Court in the historic olieum gas leak case. Thus as a whole, the contribution of Privy Council is considered as remarkable for the development of Indian Legal System and Indian Judicial Administration. It has played a great unifying role in shaping divergent laws in India.

Drawbacks of Privy Council:

In spite this contribution of Privy Council, it suffered from following drawbacks:

1. For long, it was staffed by Englishmen only, having no knowledge of Indian laws.

2. The location of the Privy Council was in England far away for common man in India making it disadvantageous.

3. The subjection to the jurisdiction to foreign judicial institution i.e. the Privy Council was considered as a symbol of slavery.

4. All this put the poor man in India in difficult situations for seeking justice.

Conclusion:

From the above discussion, it reveals that the Privy Council has rendered a meritorious contribution in the development of Indian legal system and judicial institutions. It introduced many fundamental legal principles in Indian legal system. It shaped the judicial institutions in India. As a whole its role is very significant in developing the legal system in India as it exists presently.