by Soujanya Boxy 20 June 2021
INTRODUCTION
Sedition is an act of disloyalty, which can incite disaffection or discontent to bring public disorder, lead to war and hatred among people against the government, or contempt the government established by law in India and inciting violence against the government. Section 124A of the Indian Penal Code (IPC) says that any hatred or contempt against the government and inciting violence against the same constitute sedition. Such acts are punishable, under IPC, to the extent of life imprisonment. There are two essential conditions -to bring contempt and hatred in the society against the ruling government, and the said act or any such an attempt can be in the form of signs or words, or visual representation or other forms of expression.
Many laws that originated in the colonial period either lost their significance in the present era or have become controversial as those associated with seditious offences. Since its inception in 1870, sedition law has been applied to stifle dissent or criticism against the government. Even though the undetermined invocation of the provision of sedition law has put it in the media’s spotlight, not many academic discussions have taken place about the nature of the sedition law and its probable repeal. Many attempts have been made to modify and interpret this law to withstand constitutional scrutiny. However, this law is still seen as an effective way to put restrictions on people’s free speech. Recently, the Supreme Court agreed to examine the validity of sedition law (section 124A of the Indian Penal Code).
The blog attempts to analyse sedition law and its consequences from the perspective of an Italian philosopher Beccaria. In his book “On Crimes and Punishments,” Beccaria primarily focused on the arbitrary nature of the legal system, emphasized why punishments ought to be proportionate to the crime, and explained a few conditions for the efficacy of punishment. All the issues surrounding sedition law are dealt with, emphasizing Beccaria’s theory on crime and punishment. The article discusses the repercussions of having such a stringent procedure and punishment for the offence of sedition and how it is important to punish reasonably.
ANALYSING SEDITION LAW THROUGH BECCARIA’S PERSPECTIVE
Freedom is attained through an individual’s autonomy. The most crucial liberty in a democratic society is the right to freedom of speech and expression, which is seen as a natural right and is guaranteed to any social being. It is necessary to have this right to ensure the well-being of civil and democratic society. Cesare Beccaria, an Italian philosopher, asserted that the limitations imposed on the right to punish, which is upheld only to the degree requisite for ensuring security and order, are exactly what permit individuals to enjoy the greatest sense of freedom that is guaranteed to each individual. However, while the purpose of sedition law is to ensure the state’s security and order, it actually goes against its purpose when applied. When such a law is applied in the name of the state’s security and order, the freedom of many innocents is taken away because of its arbitrary use. As evidenced by the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR), and other international treaties of which India is a signatory, such rights are considered fundamental in India also in the whole world. Along with the liberty to speak and express freely, which is guaranteed under Article 19 (1)(a) of the Indian constitution, a few restrictions (like contempt of court, security of the state, incitement, etc.) have been attached by the constitution through Article 19(2). Thus, sedition becomes another barrier to freedom of speech and expression. The law of sedition is found to have a “chilling effect” upon free speech, and in a modern democracy, where such a right is categorized as a natural right, it becomes obsolete.
Beccaria emphasized how punishment can make or break a society. He stated, “the juster the punishments, the more sacred and inviolable is the society and the greater the freedom which the sovereign preserves for his subjects.” The right to punish is restricted to what is requisite for defending public well-being. Any punishment that goes beyond what is needed to restrain men from committing an offence is tyrannous. Such a punishment is unfair to the offenders. Respective authority, having the right to punish, is seen to have used unreasonable power, and such an event leads to a disparity between the ruling class and the public. Beccaria claimed that irregular discrepancy is supposed to enhance crime rates as a result of injustice and poverty. As a result, this circumstance is likely to increase social tension and a decreased sense of security in society.
Given the fact of how stringent sedition law is, in a democracy like India, it must be used in the rarest of rare cases. However, the government has liberally applied for controlling public opinion and to silence the dissenting voices. Hence, such restrictions become arbitrary as they try to infringe the rights of those citizens whose motive was to give constructive criticism.
The problem does not end here but gets amplified by the punishment set for this offence. The punishment is difficult and whimsical in comparison to other crimes under the IPC. It is a cognisable, non-compoundable, and non-bailable offense that can be tried before a court of session. If one is found guilty of committing seditious acts, one could face a prison sentence of up to seven years. As believed by Beccaria, if a simpler punishment can successfully serve the purpose, it is erroneous to impose the harsher. This is because the state’s ultimate aim is to ensure the preservation of rights, and if it is accomplished without the harsher punishment, then the state’s aim does not justify its imposition. In the case of sedition law, people do not get to use their right to freedom of expression freely, and hence it affects the purpose of the state. It is to be noted that what makes sedition law ineffective is its unclear meaning, resulting in its misuse.
Beccaria also believed that the certainty of punishment should be given more importance than the intensity of the punishment. He contended that the effective barrier for any crime is not the harshness of its punishment but its unerringness. Misuse of sedition law unnecessarily instils fear in innocent people. If one has been charged with the offence of sedition, getting bail becomes extremely difficult, particularly if the case is dragging on for years. This also happens in cases of minor offensive speech. It implies that once a person is booked for this, he is made to survive this long process of trial, which is the same as a punishment. A perfect example is a recent case where the three Kashmiri students in Hubli were accused of a sedition offence. Their bail request was denied by the local court, which stated that “(t)he safety and security of this Country gets priority overall.” In certain cases, the penalty becomes the mechanism itself. If it is important to ensure unerringness of punishment for wrongdoers, it is even more important to keep the innocents, who only dissented or criticised any policy or work of the government, away from getting punished. As per the National Crime Records Bureau (NCRB), the number of incidents registered under Section 124 A of the IPC rose by 160 percent between 2016 and 2019, while the conviction rate fell to 3.3 percent in 2019 from 33.3 percent in 2016. As part of a strong democracy, criticism and dissent are key prerequisites for a vigorous public discourse on policy issues. The stringent procedure of conviction guarantees that the same individual will think long and hard before exercising the right to freedom of expression that is constitutionally guaranteed. According to Beccaria, the outcome of punishment is no other than to stop criminals from causing more harm to society and to stop others from doing the same. Misuse of such a stringent law causes innocent people to shut their mouths forever. They start refraining from giving any valuable opinions regarding policies, and eventually, this deforms the structure of democracy.
Besides that, even though the court acquits the accused, life becomes tough for them due to their demonization and media trial. They are continually monitored and viewed suspiciously (with their loyalty called into question) by society and state institutions.
CONCLUSION
Sedition laws have an arbitrary effect on people. The government cannot arbitrarily use this as a way to curtail the rights of some public-spirited individuals. Beccaria believed that the state’s most significant tool for terrorizing the people into submission and preventing revolt against the society’s oppressive system was arbitrary and inhuman punishment. The stringent nature of the sedition provision under the IPC has arbitrary and unreasonable effects on people’s natural rights. It is important to take care of the rights of those individuals whose only aim was to bring a good change through criticism.
Beccaria contended that a criminal is debased if he has been given a greater punishment than what is necessary for holding society together. Punishment is meant to put law and order intact. Hence it is of utmost importance to ensure its validity and reasonability. This law has been a subject of debate.
Many cases are based on this law, but the conviction rate is meager, which says a lot about its misuse and the government’s mala fide intention. Misuse of this law results in an arbitrary and inhuman punishment, which exhibits inefficiency in law. It does not foster a strong sense of confidence in government.
The issue is not just its widespread (mis)use; but also the rule itself. The language and its meaning are too vague to be interpreted properly. While state security is important, one cannot deny the significance of innocent citizens’ rights.
To ensure the effectiveness of sedition law, the language has to be made more clear and understandable. Additionally, this law can be made a bit flexible and less stringent so that the trial of such an offence does not become a punishment. This will also maintain freedom of speech and expression.