Weaponization of Colonial-Era Sedition Law: The Future of India’s Free Speech

In May 2022, the Indian Supreme Court heard the case SG Vombatkere v Union of India, which prompted a temporary halt and review of the enforcement of the sedition law located in Section 124A of the Indian Penal Code (IPC). Instituted by the British in 1870, India’s sedition law is a remnant of colonial rule criminalizing publication or speech that incites hatred or contempt toward the nation’s government. The Supreme Court will soon hear debate over its constitutionality as measured by Article 19 (1)(a) of the Indian Constitution which states “all citizens have the right to freedom of speech and expression.” Section 124a of the IPC squashes dissent and expression within the world’s largest democracy; with its use now manipulated by India’s rising authoritarianism, its amendment is necessary and rooted in precedent.

SG Vombatkere v Union of India serves as a step in protecting frontline protestors, creatives, and minority voices from India’s democratic backsliding. The case centers around two journalists, Kishore Wangkhemcha and Kanhaiya Lal Shukla, charged with sedition for posts and cartoons made on social media negatively portraying leading BJP party members. Their petition challenges the constitutionality of Section 124A in the context of modern social media and presents a unique opportunity for the courts to safeguard and regulate the preferred tool of contemporary activism. The ideal ruling would be abolishing the law and referring relevant cases to Articles 1 and 2 of the Indian Constitution. However, within Modi’s increasingly autocratic regime, the courts may be influenced to compromise by creating concrete guidelines for cases regarding social media and online dissent. The petitioners’ writ also refers to the Unlawful Activities (Prevention) Act, 1967; Jammu and Kashmir Public Safety Act, 1978; The National Security Act, 1978. All of which have provisions dealing with terrorism, public disturbance, and violence. The redundancy and desperate need for modernization within 124A power its manipulation and will be addressed by SG Vombatkere v Union of India.

The definition and application of terms like “sedition” or “seditious intent” are historically left ambiguous by government officials and prosecutors with the intent to control their citizens. As a result, this law has a century-long history of being weaponized against freedom fighters and reform movements. For example, Mahatma Gandhi, while facing charges and sentencing under 124a in his 1922 trial and pro se defense, referred to the law as “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.” In contemporary society, this legacy extends to journalists, comedians, and protesters who are too often charged under 124a for criticizing Prime Minister Narendra Modi, the Bharatiya Janata Party (BJP), or growing Hindu-nationalist policies. Misuse and maintenance of sedition law is steadily secluding itself to nations with rising authoritarian tendencies. The existence of a sedition law in a nation’s practice is a modern measure of limiting democracy, freedom, and liberty. Kenya, Ghana, New Zealand, and even the United Kingdom have similar colonial legacies, yet each has repealed their sedition laws and expanded freedom for dissent. Is SG Vombatkere v Union of India a sign India is next?

The most significant narrowing and contextualizing of 124a for today’s lawyers occurred in 1962 with Kedar Nath v Union of India. Kedar Nath was a member of the Forward Communists Party of Bihar charged with sedition for accusing Congress of corruption and attempts to redistribute land at a speech in Barauni in 1953. A five-judge bench of the Supreme Court, headed by Chief Justice B.P. Sinha, upheld provisions in the Penal Code criminalizing sedition. The law remained punishable with imprisonment up to a life sentence. However, the court specified that sedition can only be charged if the expression in question involves “intention or tendency to create disorder, or disturbance of law and order; or incitement to violence.” Sinha offered the opinion that the law should solely be applied in cases that “ameliorate the condition of the people.” This shift in emphasis to the incitement of violence warranting a sedition charge has popularized the law’s use against grassroots organizers, social media influencers, and journalists. What acts constitute  “violence” or “disorder” is subjective to the opinions of officials in power. The Supreme Court further justified their decision by quoting Article 19 (2) of the Indian Constitution in their opinion, which states “reasonable restriction” can be placed by the government on freedom of speech and expression. This introduces the sedition law as a radicalized variant of the constitution, as textually, a clause determining the government’s final say in a citizen’s speech already exists. Sedition as a term and concept remains undefined and unmentioned in the Constitution itself, thus law enforcement, officials, and prosecutors have no universal basis or code for charging citizens. Courts have the luxury of their precedents, but those practicing this law are left with a decentralized definition and context. For example in 2011, Indra Das v State of Assam applied the Kedar Nath v. Union of India 1962 precedent, as the accused appellant was an imprisoned member of the United Liberation Front of Asom, a banned group within the nation. The court determined that membership in dissenting organizations was not in itself a seditious offense because violence or the creation of disorder was not present. This case presents the discrepancy of courts and officials having different contexts for what warrants incitement of violence. By leaving the legal language of the law vague and self-conflicting with the Constitution, modern political agendas manipulate and weaponize 124a. 

Since 2014, when the BJP obtained a majority and Prime Minister Modi was sworn in, there has been an uptick in sedition charges. Between 2016 and 2019, the number of cases filed under 124a increased by 160% according to the National Crime Records Bureau (NCRB) while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016. This phenomenon of mass charging and few convictions disproportionately affects young adults, as most arrests in 2019 were 18-30 years old. This is especially concerning because their access to legal representation remains limited. This demand for representation is a trap for longer holds in prison, as no access to legal representation results in longer detainment and consequently less public dissent from the accused. Yet, once a lawyer and defense are financed, their cases are often swiftly closed in the next court hearing for insufficient evidence. The fatal flaw resides in the subjective nature of an official’s opinion and vague legal language, not in the court’s interpretation of the law and precedence. For example, Delhi police charged 22-year-old climate activist Disha Ravi with sedition in February 2021 for creating and sharing an online protest toolkit that outlined how to support the mass protests by farmers in the country. Police interpreted her act as inciting violence; yet, when her case was heard by the Supreme Court, the court released her on bail and referenced no evidence to back charges of sedition, upholding Kedar Nath v. Union of India and Indra Das v. State of Assam precedents. Contrary to many Western nations, it is the government, rather than the court and its precedents, that is the target of public disapproval. Disha Ravi’s arrest only intensified dissent, protests, social media engagement, and rage against the Indian government. Thus, this pattern of charges with minimal conviction is counterintuitive; sedition charges funnel media attention to the contested issue and promote government resentment. SG Vombatkere v Union of India could be the courts’ channel for ending this legal blackhole. 

After accounting for redundancy, vague language, and subjective charging, 124a is an inherently outdated law in desperate need of review. Nearly a century ago, Gandhi recognized the role 124a played in dismantling freedom of speech and expression. Today, the BJP-run government is failing to represent a country built on the backs of protestors and freedom fighters as it consistently exploits the very same law used to oppress their nation’s founders. SG Vombatkere v Union of India is a modern chance to allow the Indian Constitution and anti-terrorism laws to exist without a weaponized colonial loophole. 

Edited by Lika Gegenava