The S-Word

The TLDR

The Supreme Court suspended all cases filed under the infamous sedition law across the country. What is this law and is this really a big deal? The answer: yes.

Researched by: Sara Varghese & Prafula Grace Busi

Ok, what is this law? And what is sedition?

Sedition is any action or speech that incites people to rebel against the state. The law—Section 124A of Indian Penal Code (IPC)—defines it so:

“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.”

The law includes the following clarifications: The expression “disaffection” covers disloyalty and all feelings of enmity toward the state. Comments that challenge government policies or actions—with the aim to “lawfully” alter them—without “exciting hatred, contempt or disaffection” are not an offence.

The punishment: The offence is “cognisable”—which means the police can arrest you without obtaining a warrant. It is also non-bailable—which means you will stay in jail until found innocent. If found guilty, you can serve a maximum term of life imprisonment—with or without a fine.

Isn’t this law standard in most countries?

Nope. In fact, this is a colonial-era law that even the UK has scrapped—as have former British colonies like Singapore. Here’s a quick trip down history lane to explain why we still have it in our books—with Pandit Nehru playing a starring role.

Meet Thomas Macaulay: British historian-politician Thomas Babington Macaulay drafted the Indian Penal Code in 1837—and defined the offence of sedition. But it did not become law until 1870. It was mainly used to crush anyone who challenged colonial rule. The first person to be convicted of sedition in 1897: Bal Gangadhar Tilak who was tried three times for the offence. All of them involved his writings. The most famous arrestee: Mahatma Gandhi—who was prosecuted for his newspaper articles in Young India. During his trial, Gandhi declared:

“I have studied some of the cases tried under it [Section 124A] and I know that some of the most loved of Indian patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section… I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me, for what in law is a deliberate crime and what appears to me to be the highest duty of a citizen.”

The end of ‘sedition’: The constituent assembly considered including sedition in the Constitution—as an exception to the right to free speech—but decided against it. But the infamous Section 124A remained in the Indian Penal Code as law—until it was challenged in a case in the Punjab High Court. The court held the sedition law violated the fundamental right to free speech guaranteed by the Constitution—a decision that galvanised then Prime Minister Nehru into action.

Return of ‘sedition’: In 1951, Nehru introduced the first amendment to the Constitution—to place restrictions on free speech (oh, the irony!). Article 19(2) established threats to “friendly relations with foreign states” and “public order” as constitutional grounds for imposing “reasonable restrictions” on free speech. This opened the door to keeping Section 124A as part of the IPC.

Why this matters: It is widely assumed that Nehru adamantly opposed the sedition law, and many quote his remarks in Parliament while introducing the first amendment:

“Now so far as I am concerned that particular Section (124A IPC) is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.”

But in the same speech, Nehru also declared that “we might deal with that matter in other ways, in more limited ways”—but he never did. And his daughter, Indira, made the offence cognisable in 1973—legalising arrests without a warrant.

The Kedarnath case: In 1962, the Supreme Court stepped in to impose restrictions on the use of Section 124A. While it upheld the sedition law, the ruled strictly limited its application:

“[C]omments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” is not sedition.
“[C]ommenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means” is not sedition.
To sum up: “A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”

Point to note: The Kedarnath judgement established a key precedent—often cited by courts to throw out sedition cases. The most recent being charges filed against journalist Vinod Dua—who was accused of inciting people during the pandemic (explained here).

Has the law been misused? How bad is it?

All governments—irrespective of the party involved—have used the law to crush dissent. Here are some examples and stats.

During protests against the Kudankulam nuclear power plant in Tamil Nadu in 2012, 9,000 people were charged with “waging war against the government.” Most of these were filed by the Jayalalithaa-led AIADMK government.
The Congress-led UPA arrested Aseem Trivedi for his cartoons lampooning the government in 2011. This was soon after the Mamata Banerjee government in Bengal arrested a professor for emailing caricatures making fun of her.
The UPA was also responsible for the arrest of civil rights activist Binayak Sen—for links with Maoist extremists in Chhattisgarh. He was later sentenced to life imprisonment.
But the number of cases has ticked up considerably under BJP rule. A 2021 Article 14 analysis found 519 sedition cases were filed under the current government over six years—compared to 279 filed during the second tenure of the UPA government. Most of those cases are related to Kudankulam—and were filed by the AIADMK government.
Recent targets have been anti-CAA movement leaders such as Umar Khalid, climate change activists like Disha Ravi, journalist Siddique Kappan in connection with the Hathras rape case, and intellectuals/activists arrested in the Elgar Parishad case.
Uttar Pradesh is one of the worst offenders—with 115 sedition cases filed between 2010 and 2020. Crimes range from celebrating the Pulwama attack to cheering the Indian cricket team’s loss in the Champions trophy.

The main takeaway: The law’s definition of ‘sedition’ is so vague that almost any action or speech can become grounds for arrest. And since it is a non-bailable offence, innocent people can spend years in jail waiting for trial—at which point most of these charges are thrown out. As Supreme Court advocate Sanjay Hegde notes, the outcome is often irrelevant:

“The point of the sedition law is essentially that of suppressing free speech and free thought, both of which are unpopular with the government. Where a critic can be silenced by the mere fact that there is a possible life sentence—that itself acts as a deterrent. These cases are often invoked against show-piece dissenters so that the rest fall in line. Governments are not really interested in convictions.”

Ok, so what’s happened now?

The petitions: As of May 5, the Supreme Court has been considering a number of petitions challenging the constitutionality of Article 124A. They all insist that the Kedarnath judgement is no longer good law. For example, it only considered freedom of speech—and paid no attention to whether it violated other fundamental rights—such as Article 14 (equal treatment before the law) or Article 21 (the right to life and personal liberty).

The government’s response: The government first defended the law and then, on Monday, agreed Section 124A was prone to misuse—and offered to “reexamine and reconsider” it. Its lawyer even boasted, “What the government headed by Nehru Ji could not do, we are doing it now.”

However, the government also urged the top court not to “invest time in examining the validity of the section once again” and to await “the exercise of reconsideration”—to be conducted “before an appropriate forum where such reconsideration is constitutionally permitted.” All of which led opposition leaders to dismiss the review as a ruse to buy time—and bury the debate.

The Supreme Court ruling: The Court, in essence, said to the government: Ok, do your review—and take the time you need. In the meantime:

“All pending trials, appeals and proceedings” related to sedition charges will “be kept in abeyance.”
“We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A”—while the review is underway.
If any fresh case is registered, then the person can approach the courts for relief.

So what does this mean? According to legal experts, the ruling makes bail the rule in all sedition cases: “The court has made its intent clear. It does not want a single person booked under Section 124 to be kept in prison while the reconsideration of the law is happening.” It also offers the possibility to bail to those who are currently in prison on sedition charges. But some—like anti-CAA activist Umar Khalid—have also been charged under anti-terror laws, and will likely remain behind bars.

As Indian Express sums it up: “Although the court did not explicitly stay the provision— no criminal law in force has ever been stayed by the court—it virtually stalls the operation of the provision.”

But, but, but: Not everyone is pleased with the ruling for the following reasons:

The Court has left the door open for misuse of the law by using timid language like “hope and expect.”
They also point out that the police have been blithely arresting people under section 66A of the Information Technology Act—which was declared to be unconstitutional by the Supreme Court in 2015.
And many think the government will just shift to arresting people under equally draconian anti-terror laws instead.
Also: the Court seems to have shifted the burden of determining the validity of the law to the government—which is unprecedented. In the end, the Supreme Court must decide whether or not the Kedarnath judgement—upholding Section 124A—is correct or not.

Quote to note: Reacting to the ruling, Law Minister Kiren Rijiju said:

“We respect each other. The court should respect the government, legislature. The government should also respect the court. We have clear demarcation of boundary and that Lakshman Rekha should not be crossed by anybody.”

Make of that what you will.

The bottomline: We don’t know if the government will adhere to the Court’s ruling. But the good news is that a terrible colonial-era law is finally getting the constitutional scrutiny it deserves in an independent India.

Reading list

The Hindu and Indian Express have good competing analyses of the judgement. Indian Express also offers extensive quotes from the judgement and arguments. Hindustan Times has the most details on the law’s history—while The Tribune looks at Nehru’s role. The Quint has a very good explainer on the petitions—and their arguments against the Kedarnath ruling. Article 14 crunched the data on sedition cases.