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What is Seditious in Expression?

History cannot be changed though the discourses which compile the histories in words are changed  strategically to achieve certain objectives. Indian nationalism found its expression against the British colony under its legacy. The transformation of colony into democratic and republic nation happened subject to caveat that its historical legacy remained unimpeded and intact. We may find mismatch in the aspirations of Indian republic with the means adopted by us to achieve that. The aspirations of Indian republic were expressed in the preamble of Indian Constitution. And the means to achieve them is the law we inherited from the British. The burdensome inheritance of British Juridical culture has made the governance lethargic and inefficient, adjudication complex and too technical to be fathomed by mind of ordinary prudence, and development "one dimensional" to refer a book title of Herbert Marcuse; be it urbanization, ghettoization, and "marketization of social goods and resources" in post-colonial India. 


Law of sedition is one of such complex inheritances from the British we chose to continue with, even though the aspirations of Indian republic are completely opposite to the aims and objectives of the British colony ruled in India.


Democracy requires discursive and non-discursive expressions for the betterment of the people and nation. And expression is toothless if it is expressed in fear or coercion. Art. 19 (1) (a), in that sense, of the Indian Constitution guarantees one of the most significant and fundamental rights for the Indian citizens, which is the quintessence for a functioning democracy. Its curtailment must be justified at the touchstone of reasonableness and proportionality, based upon certain specific subjects mentioned in Art. 19 (2) of the Constitution. The jurisprudence of "chilling effects" on the freedom of expression, recognized in Shreya Shinghal v. Union of India by the Apex Court, may be taken into consideration to examine the constitutionality of the law of sedition thriving and often misused by the regimes of the day since independence. 


Kedarnath judgment is often referred to understand the ambit of seditious expression. However, the decision of the apex court may be understood in context of its approach to read down the provison enshrined in Section 124-A, IPC, so as to save it from the ambit of Art. 19 (1) (a) of the Indian Constitution. The apex court ignored the plethora of judgments delivered in the colonial time which interpreted the section with wider possible amplitude, including one decided by the Privy Council in Niharendu Dutt Majumdar and Ors. v. Emperor without restricting it to the objective of incitement of public disorder or violence. The aims and objectives of this law were never meant to apply it to restrict the public disorder or violence rather to suppress and muzzle the voices of Indian leaders who were engaged in freedom struggle against the British. It is Federal Court's judgment (1947) of Justice Maurice Gwyer in King-Emperor v. Sadashiv Narayan Bhalerao which took a different path and restricted its scope around the expressions related to public disorder or violence. Kedarnath was an opportunity for the Apex Court to test the constitutionality of the section keeping in mind Art. 19 (1) (a). Had the Court followed the earlier judgments delivered in colonial era, the law wouldn't have passed the test of constitutionality, but the Court followed the Federal Court's judgment in S. N. Bhalerao to read down the provision; by that way the Court restricted its application though saved its existence in the Indian Penal Code, 1861. Following the transformation of Indian Constitution in the 21st Century of India, it is an apt opportunity for the Apex Court, since a petition has been filled by a concerned citizen, to see if this colonial-era law can pass the muster, especially in context of "chilling effect" jurisprudence evolved much recently in India.

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