Freedom of speech in mergence with Sedition charges under Indian Penal Code
This article was written by Sakshi Jain a student of Amity Law School, Noida.
Introduction
Every person has right to speak their heart out. This is the only means of communication through with one person can communicate their views ,thoughts, ideas, sentiments, etc to another person/s. it is the fundamental right which is not absolute. Freedom of speech and expression is a natural right or birthright which a person acquires from his birth. There are certain restrictions to it and cannot go beyond these restrictions. Freedom of speech means expressing one’s views and ideas to another person through any means or more. Article 19(1)(a) is the mother of all the liberties as if a person is not allowed to speak his thoughts out, then no other liberty can be guaranteed. The freedom of speech is regarded as the first condition of liberty. It gives person the liberty to express his opinion without any hindrance and also without any fear of punishment [1]It is the essence of an independent society.
Freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution of India, 1950. Freedom of speech and expression is the most basic fundamental rights amongst all the rights granted to the citizens if India. In the case of Romesh Thaper v. State of Madras[2], J Patanjali Shastri opined that “freedom of speech and that of the press lay the foundation of a democratic society, without free political discussions, no public education is possible, which is so important for the proper functioning of the government.
Freedom of speech and expression allows every citizen to freely express their views and ideas about what they think by any mean i.e. either through word of mouth, signs, writing, gestures or any other way. Propagation of ideas and communicating is the basic ingredient of this article. This right is not absolute and has certain restrictions to it. Article 19(1)(a) also guarantees freedom of the press. Press has the freedom to publish their views and idea to the whole of the state under the certain limitations. Freedom of speech is just not limited within the Indian Territory only but it reaches far beyond it. Freedom of speech and expression is a very broad term and inculcates a smaller part within itself.
Freedom of press
Freedom of the press is the heart of freedom of speech and expression. Freedom of the press is communicating the ideas through electronic means to the general public. Press is the most important part of freedom of speech and expression because due to pressing only, people connect with the political scenario. India Express Newspaper v. Union of India[3], it has been held that press plays a very important role in the democratic country. Many times, freedom of the press have been suppressed by the legislature. In Sakal Paper v. Union of India[4], the price and pages of the newspaper were fixed for its publication which was held invalid. It violates the freedom of the press and is not within the purview of reasonable restriction under Article 19(2).
Right to know
Right to Information Act, 2005 guarantees that every person has right to seek information and to be informed. Living in this democratic country, the citizens should have right to know and seek information about the happening of the country. An RTI application can be filed by a normally prudent person to seek an information form an organization. in Secretary General, Supreme Court of India v. Subhas Chandra Agrawal[5], it was held Right to be informed and Article 21 cannot be separated off and right to be informed of the right to life. In Prabhu Datt v. Union of India[6], the Hon’ble Supreme Court held that right to know news and the related information about the functioning of the government is included under freedom of the press. Therefore, every person has right to know the information related to the functioning of the government and to be aware of it.
Freedom of silence
Right to freedom of speech and expression also includes free of silence or not to speak. Nobody can compel anyone to speak against their wish. Sometimes, due to certain reasons, an individual is not willing to speak up and therefore, it could not be compelled to do so. In Bijoe Emmanual v. State of Kerala[7], popularly known as National Anthem Case, 3 students belonging to Jehova community was expelled from the school for not singing the national anthem which is our fundamental duty during school hours. It was contended on behalf of the students that as they belong to the different community which does not allow them to do so, but they respectfully stood up during the national anthem. The court examined the case and upheld that no one can be compelled to speak against their wish and their silence was held valid. The expulsion was held invalid.
Right to advertisement
Freedom of speech and expression states communication of the views and idea in the form of words, visuals, gestures, etc. hence, the advertisements are the visual mode of communicating. This is not an absolute right and contains limited restrictions to it. The only condition is that the advertisement should be for the interest and benefit of general public. It should not mislead them. Many advertisements make misleading statements to the innocent public and grab their attention. A false statement may be like ,” get a fair look in other 1 week”, ” lose 5 kg’s in 10 days”, etc. All these statements mislead the innocent customers. In Humdard Dawakhana v. Union of India [8], Hon’ble Supreme Court struck down the advertisement of magic drugs which mislead the buyers in the market.
Relation with Sedition
Section 124A of Indian Penal Code, 1860 underlines the offense of sedition. It lays down 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 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. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtaining their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section. Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offense under this section.] [9]
In Devi Saran v. State, the court held that Section 124A is protected by Article 19(2) with the reasonable restrictions for the interest of general public. In Kedar Nath v. State of Bihar[10], the Supreme Court allegedly said that mere a seditious speech is not enough to constitute a charge of sedition. It must disorder or disturb the pubic peace within its surroundings.
Sedition is basically showing hatred for the country or the government by the means of words, visuals, signs, gestures, etc. Sedition is a punishable offense which can be extended from 3 years to lifetime. Sedition is a cognizable, non-bailable and non-compoundable offense.
Cases
Balwant Singh v. State of Punjab [11]
The two Sikhs were arrested for raising the anti -national slogans. They were “Khalistan Zindabad”, “Raj Karega Khalsa” and “Hinduan Nun Punjab hon Kadh Ke Chhadange. All these slogans were raised by only two Sikhs and by the whole community. So Supreme court acquitted both of them and said “the casual raising of the slogan. Alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government as established by law in India, Section 124A IPC”
Aseem Trivedi’s [12] Case
Aseem Trivedi, a Kanpur-based cartoonist , was arrested in Mumbai for his offensive cartoon which depicts the mockery of the Constitution during the public meeting held and organized by the India Against Corruption . He was charged with sedition under section 124A of IPC, Section 66A of Information Technology Act and Section 2 of Prevention of Insults to Nation Honor Act. Bombay High Court lay off the charges against him and held that Section 124A of IPC aims at to those offenses which would be intended to create disorder or disturbance to the public peace.
Kanhaiya Kumar (2016)
Students Union President, Kanhaiya Kumar was arrested on sedition charges after shouting anti- national slogan against the country. The anti-national slogan was “Kashmir ki again take Bharat ki Azadi tak, janh rahegi jari”. All these slogans were being heard inside the campus of JNU on 9th February on the 3rd death anniversary of Afzal Guru. Kanhaiya was ordered for 3 days police custody and 8 students were barred from the university. Kanhaiya was released from Tihar jail after furnishing a bail bond of Rs. 10,000 and after that Delhi High Court granted him six months’ of interim bail. After his release, he addressed a huge gathering and said, “We want freedom in India, not freedom from India”.
Conclusion
The constitution of India has guaranteed Right to freedom of speech and expression within Article 19(1)(a) and the reasonable restrictions are mentioned in Article 19(2). If a person is barred from speaking, then it is a direct violation of his fundamental right. Therefore, freedom of speech and expression is a fundamental right and the state has no power to stop any person exercising their right. But article 19(1) (a) is limited to certain restrictions and is not absolute. Hence, a right is provided to the citizen of the country but under certain restrictions. Section 66A of Information Technology Act was struck down by the Supreme Court by its judgment in Shreya Singhal vs. The Union of India. It was held that Section 66A contravenes the article 19(1)(a) Of the constitution and held unconstitutionally. Section 124 A is a criminal offense and is a restriction on freedom of speech under Article 19(2) of the constitution. Sedition means expressing negative views towards the Indian government or the country. That is when a person expresses his views which create negative effect towards the country or country’s government, then he will be liable for a criminal offense defined under section 124 An of IPC and will not be protected from the fundamental right given to him by the constitution. Hence, the right to freedom of speech is the most fundamental right because without this right no one can express his own viewpoint upon a certain topic which he/she feels that it should be communicated to another person also.
[1] http://indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html
[2] 1950 AIR 124, 1950 SCR 594
[3] 1986 AIR 515, 1985 SCR (2) 287
[4] 1962 AIR 305, 1962 SCR (3) 842
[5] W.P.(C) No.1842/2012
[6] 1982 AIR, 6 1982 SCR (1)1184
[7] 1987 AIR 748, 1986 SCR (3) 518
[8] 1960 AIR 554, 1960 SCR (2) 671
[9] https://indiankanoon.org/doc/1641007/
[10] 1962 AIR 955, 1962 SCR Supl. (2) 769
[11] 1995 (1) SCR 411
[12] Criminal Public interest Litigation No.3 of 2015
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