“Mere possession of Naxal literature does not make a person a Naxalite, guilty of sedition, as one who possesses Mahatma Gandhi's autobiography cannot call himself a Gandhian” - - By Supreme Court
While granting bail to civil rights activist Binayak Sen

With the recent unrest in society, Peoples Union of Civil Liberties (PUCL) has launched a nationwide signature campaign against the Sedition Act, whose provision is attack on the democracy.

Fitzerald, J., in the case of Reg v. Alexander Martin Sullivanobserved that Sedition is a crime against society and comprehensive term, and it embraces all those practices, whether by word deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. In India, section 124A of Indian Penal Code, 1860 deals with the ‘sedition’ which was enacted by Britishers to crush the voice of dissenting freedom fighters. It is very surprising and shocking that this provision is still very active in the atmosphere of fundamental freedom like freedom of speech and expression.

The freedom of expression guaranteed under article 19 (1) (a) of Constitution of India, include right to express their views and opinion freely. It also covers the right to criticise government, the requisite of a healthy democracy. In Terminiello v. Chicago, Justice William O. Douglas had explained the rationale behind the freedom of speech as:

“a function of free speech under our system of government is to invite dispute; It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”.

However, “the liberty of the individual to do as he pleased even in innocent matters is not absolute” but, limited to only grounds listed in article 19(2) of Constitution of India. International law provides a general ‘three-part’ test for assessing restriction on the freedom of expression., Any restriction of the freedom of expression must be cumulatively as such; it must be provided for by law, have legitimate aims and must be ‘necessary in a democratic society’

A sedition law, even if manage to pass the two previous tests unable with third one. It is because it cannot be in any circumstances ‘necessary in democratic society’. While describing Section 124A Mahatma Gandhi in 1922 said “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” He further said that “Affection cannot be manufactured or regulated by law”. Therefore, this provision of sedition is against the notion of democracy because the right of freedom should be promoted to the maximum extent possible given its critical role in democracy and public participation in political life.
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[1] Mahapatra, Dhananjay & Sharma, Supriya, (Apr 15, 2011), ‘SC grants bail to Binayak Sen, says no case for sedition charge’ ‘The Times of India’, Nov 11, 2011, from http://articles.timesofindia.indiatimes.com/2011-04-15/india/29420805_1_sc-grants-sessions-court-binayak-sen
# (1868) 11 CCLC 44
# Divan, Madhavi Goradia; “Facets of Media Law”, Eastern Book Company, 2006 Edition reprinted, with Supplement, 2010, pp.7
# 337 U.S. 1 (1949) see at http://supreme.justia.com/us/337/1/case.html
# Adkins v Children Hospital, 1923 261 US 525
# Article 29 (2) of Universal Declaration of Human Right
# Mendel, Toby, “Restricting Freedom of Expression: Standards and Principles”, Centre for Law and Democracy, http://www.law-democracy.org/wp-content/uploads/2010/07/10.03.Paper-on-Restrictions-on-FOE.pdf

The  author can be reached at: kajeevkumar@legalserviceindia.com