Arrest of Kanhaiya Kumar : A Short Summary of the law of Sedition in India
News reports are indicating that an FIR has been registered with respect to a public meeting organized on the JNU campus on the evening of 9th February. These reports claim that the meeting was about the hanging of Afzal Guru, and it is alleged that during its course, some people raised incendiary slogans. According to reports, the FIR has been registered under Section 124A of the Indian Penal Code (sedition), and the Police have already arrested one person.
It is important to note that under the Indian law of sedition, the events at the public meeting, even if completely true, do not even come close to establishing an offence. In Kedar Nath Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this phrase. In Indra Das v State of Assam and Arup Bhuyan v State of Assam, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalized. In Shreya Singhal v Union of India, the famous 66A judgment, the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.
Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence. For instance, in Balwant Singh v State of Punjab, the Supreme Court overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.
Thus, words and speech can be criminalized and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.