The Draft Constitution of India 1948 contained a right to freedom of speech and expression. However, this right was not absolute, limitations were placed on this right. One of them was sedition: existing or future laws relating to sedition would be valid even if they restrict the right to free speech and expression.
On 1 December 1948, K.M. Munshi moved an amendment in the Constituent Assembly that proposed to drop ‘sedition’ as a restriction on the right to freedom of speech and expression. Munshi invoked Section 124-A of the Indian Penal Code that criminalized sedition. This law had loomed large over Indians for more than half a century. British authorities had arbitrarily deployed the law to punish Indians for even innocuous expressions of discontent and criticism aimed at the colonial government.
Most Assembly members appear to have supported Munshi’s amendment. For many, sedition triggered deep personal and political resentment. They shared their experiences of being charged under the law and sent to prison. Sedition law was widely used to arrest leaders of India’s freedom movement. Gandhi himself was charged with sedition. At his sedition trial, Gandhi referred to Section 124-A as the ‘prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen’.
Considering that India was going to be a democratic country, Munshi argued:
a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted.
Munshi went further: ‘criticism of the government’ was the ‘essence of democracy’. He appeared to agree with a 1942 Indian Federal Court judgement which held that sedition was ‘not made an offence in order to minister to the wounded vanity of Governments…’. This is strikingly similar to what the Delhi High Court recently said ‘...sedition can’t be invoked to minister to govt’s wounded vanity..'. The Court was hearing a bail plea by Disha Ravi, a 22-year-old climate change activist who was the latest Indian citizen charged with sedition.
Most Constituent Assembly members agreed with Munshi and supported his amendment. At the end of the debate, the Assembly dropped sedition as a restriction on free speech and expression.
In his speech, Munshi had said that if sedition was not dropped from the Indian Constitution, then ‘…an erroneous impression would be created that we want to perpetuate 124-A of the I. P.C. or its meaning which was considered good law in earlier days.’
Ironically, the Constitution of India 1950 made no mention of sedition, but Section 124-A of the Indian Penal Code remained on India’s statutory books. There appears to be no incentive for successive governments and legislatures to repeal Section 124-A. State authorities have been rather trigger-happy to use the law to suppress dissent and criticism. The latest National Crimes Records Bureau report reveals an upward trend in the number of sedition related cases in the country.
Sedition laws have existed in several countries in some form or the other. However, in the last few decades, there has been a global recognition of the incompatibility of sedition law with individual liberty and constitutional democracy. Countries have either repealed existing sedition laws or significantly narrowed their scope: New Zealand got rid of its sedition law in 2007, the United Kingdom in 2009 and Australia in 2010.
Should India continue to be late to the party?
Historical Constitutions: Draft Constitution of India 1950
Debate Summary: Article 19