The colonial law of sedition has been a topic of debate for the last few decades. In a historic order, a three-Judge Bench of the Supreme Court comprising N.V. Ramana, C. J., Surya Kant and Hima Kohli, JJ. heldthat Section 124-A3 of the Penal Code, 1860 (IPC) should be effectively kept in abeyance till the Union Government reconsiders the provision.4 Furthermore, the State Governments and the Centre wereasked to refrain from registering any FIRs under the provision while it was under reconsideration, and the existing detainees could approach the appropriate court for bail.5 This historic order resulted from the Union Government's assertion that Section 124-A requires “reconsideration and re-examination”.6
The Court also noted that it “is cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise.”7 Therefore, the Court attempted to balance the interests of the State with the interests of the individuals through the order, which, as emphasised by Roscoe Pound in his theory of social engineering, is the primary task of a lawyer/lawmaker.
Law as means of maximising wants with minimum friction: Roscoe Pound's theory of social engineering
Roscoe Pound referred to law as “experience developed by reason and reason tested by experience”8 and called for it to ensure that the “making, interpretation and application of laws take account of social facts”.9 He was adamant that law is not a mere body of rules but also a body of thought, skills, and art.10 In order to justify his thought, he analogised the task of a lawyer to an engineer, whose aim shall be the “elimination of friction and precluding of waste, so far as possible, in the satisfaction of infinite human desires out of a relatively finite store of the material goods of existence.”11 He termed this the “theory of social engineering”.12 It involves balancing competing interests, defined as “prevalent claims, demands, desires, or expectations that human beings collectively seek to satisfy and that society must recognise and protect through the law.”13
Pound further breaks up these social interests as a part of his Theory of Interests into three categories, namely, individual interests, public interests, and social interests. Individual interests are “claims or demands or desires involved immediately in the individual life and asserted in title of that life.”14 Their standpoint is individual life, and they fall within the jurisdiction of private law.15 On the other hand, public interests are “claims or demands or desires involved in life in a politically organised society and are asserted in title of that organisation. They are commonly treated as the claims of a politically organised society thought of as a legal entity.”16 Lastly, social interests are the “claims or demands or desires involved in the social life in civilised society and asserted in title of that life. It is not uncommon to treat them as claims of the social group as such.”17 The interests mentioned above are divided into further sub-categories.
The most crucial aspect of Pound's Theory of Interests is balancing and weighing two conflicting interests, which is to be done in each case.Each type of interest is convertible into the other type for the purposes of balancing them.Therefore, the person entrusted with the task of balancing the interests must state them in common terms. Pound has recommended their statement as social interests.18 Consequently, the conflicting interests must be stated in a way that they fall under one or the other different categories under social interests. Now that the conflicting interests are on the same plane, the person must search for a solution and balance them so that there is minimum friction between them and there is maximum satisfaction of human wishes. This, according to Pound, is the task of the social engineer. Laws such as Section 124-A IPC tend to bring the interests involved into a conflict due to its inherent flaws. Therefore, before we attempt the balancing exercise, it is pertinent to examine the defects in the law.
The law of sedition: Errors in Kedar Nath and rising misuse
Kedar Nath case19 has marked itself as a locus classicus that has upheld the constitutional validity of Section 124-A IPC. The Supreme Court, in this case, departed from the colonial interpretation of the Privy Council in Sadashiv case,20 adopted the construction placed by the Federal Court,21 and held that it is not merely enough to create feelings of disloyalty in the minds of people to whom a particular speech or writing is addressed. Instead, only those feelings of disloyalty having the intention or tendency to disrupt public order are penalised by Section 124-A IPC.22 Therefore, the Court has attached a test of tangible evidence of actual harm to the definition of sedition and has focussed upon public disorder as the ultimate test. In doing this, the Court relied upon the broad interpretation of public order in Ramji Lal Modi v. State of U.P.23(Ramji Lal) and Virendra v. State of Punjab24(Virendra).
However, in 1960, the Constitution Bench of the Supreme Court in Supt., Central Prison v. Ram Manohar Lohia25 (Lohia) interpreted Ramji Lal26 judgment and introduced a stricter and refined test of proximity to prevent complete arbitrariness and to give effect to Article 19(2)'s27 requirement of reasonableness while curtailing free speech “in the interests of public order”. The Court held that “there must be proximate and reasonable nexus between the speech and public order” to restrict the freedom of speech and expression.28 While Kedar Nath judgment29 (1962) cited Ramji Lal case30(1957) and Virendra case31(1957) and employed the tendency test, it entirely ignored the speech protective interpretation of “public order” and “proximity test” of the Constitution Bench in Ram Lohia case32(1960). Thus, by ignoring a direct precedent on Article 19(2), the Supreme Court erred in upholding a statute that had caused—and would continue to cause—tremendous damage to the democratic fabric of the country.33 Furthermore, the terms like “intention” and “tendency” in Kedar Nath judgment34 and “disaffection,” “hatred,” “contempt,” “disloyalty,” and “enmity” in Section 124-A IPC are fundamentally subjective, with no discernible objective basis for evaluation; they are open to a wide range of interpretation by both officials and individuals who are subject to the law.
In addition to this, in 1962, sedition was a non-cognizable offence, and thus, a layer of checks and balances was present. It is only pursuant thereto, in 1973, that the offence of sedition was made cognizable with the coming into effect of the Criminal Procedure Code (CrPC), 197335 and the repeal of the 1898 Code. Since 1973, the severity of the offence has been drastically increased36 with outrageous charge-sheets but abysmally meagre conviction rates.37 Thus, the read down interpretation of Section 124-A in Kedar Nath38 suffers from vagueness and subjectivity that provide sanction to abuse of sedition law by the authorities.
Analysing sedition through Pound's theory of social engineering
The law of sedition aims to curb any speech that causes disaffection, hatred, and contempt in the minds of the people to whom it is addressed and has the tendency to cause public disorder. Therefore, it acts as a “reasonable restriction” on an individual's right to freedom of speech and expression, which forms a part of the individual interests, particularly personality.39 The second interest under conflict here is the public interest, which includes State’s interest as a juristic person i.e. protecting the integrity and honour of the State's personality and the interest of the State as a guardian of social interests.40 Lastly, the social interest of the State to maintain peace, public order, physical safety, and health of people is also in conflict.41
Proceeding with the balancing exercise, we must state all the interests in common terms i.e. put them on the same plane. The individual interest of personality can be subsumed under the social interest in the individual life, which refers to society's claim that each individual can live a human life in accordance with the standards of the society. The public interest of the State as a juristic person and as a guardian of social interests can form a part of the social interest in the security of social institutions, which refers to society's claim that its fundamental institutions be secure from patterns of behaviour that threaten their existence or impair their efficient functioning. Since the last interest is already stated in terms of social interests, we may now proceed to balance the aforementioned interests and reach a solution. Pursuant to this, two possible solutions emerge:
Further narrowing the scope of the offence to ensure that there is no encroachment on the fundamental rights of citizens.
Both solutionsare the prayer of the several pending petitions before the Supreme Court regarding Section 124-A. In this regard, it is pertinent to note that other laws significantly deal with the subject-matter of sedition, such as the Unlawful Activities (Prevention) Act, 196742 and the National Security Act, 198043. Therefore, even if the law is declared unconstitutional, the State shall not be rendered powerless, and a solution that successfully balances the three interests mentioned above with minimum friction and waste will be reached.
However, certain aspects cannot be ignored; the Supreme Court and the Central Government might not be very enthusiastic about declaring the provision unconstitutional and Kedar Nath judgment44 bad in law. The Court has repeatedly held and affirmed that a long-standing precedent shall not be disturbed without a substantial cause.45 Moreover, it is generally accepted that only a Bench of coequal strength may challenge the judgment of a Bench of the same strength,46 and if it finds itself unable to agree with the ratio of the earlier Bench, it may ask the Chief Justice to constitute a larger Bench.47 Therefore, for Section 124-A to be declared unconstitutional and Kedar Nath judgment48 be overruled, a Constitution Bench of the Supreme Court would first have to dissent from Kedar Nath49 ruling and refer the matter to a seven-Judge Bench. In light of this, while both solutions may be the ultimate goal, theyfail to provide an immediate solution. Fortunately, the Union Government agreed to avoid the procedure as mentioned earlier and re-evaluate the law itself.
Consequently, it is argued that the Supreme Court, through its recent interim order, had struck the right balance between the conflicting interests by keeping the provision in abeyance till the Union Government reconsiders it. In doing this, the Court played its role as a guardian of the citizens' fundamental rights by providing an immediate solution to the problems caused by the law. Now it is upon the Government to either declare the law unconstitutional or significantly narrow down the scope of the law in its reconsideration. If not, then the Supreme Court must do the same as it would ultimately ensure that all the involved interests are balanced, with minimum friction and waste and maximum fulfilment of wants.
† BALLB (Hons.), Rajiv Gandhi National University of Law, Punjab. Author can be reached at <firstname.lastname@example.org>.
†† BALLB (Hons.), Rajiv Gandhi National University of Law, Punjab.
8. Roscoe Pound, Justice According to Law, (1951), p. 60.
9. RWM Dias, Dias Jurisprudence (LexisNexis 2013), p. 430.
10. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), pp. 156-157.
11. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), p. 156.
12. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), p. 156.
13. Roscoe Pound, Jurisprudence III (West Publishing Co., 1959), p. 16.
14. Roscoe Pound, “A Survey of Social Interests”, (1943) 57 HLR 1.
15. Elise Nalbandian, “Sociological Jurisprudence: Roscoe Pound's Discussion on Legal Interests and Jural Postulates”, (2011) 5 MLR 9.
16. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), p. 157.
17. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), p. 157.
18. James A. Gardner, “The Sociological Jurisprudence of Roscoe Pound (Part I)”, (1961) 7 Vill L Rev 2, 25.
33. Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (1st Edn., OUP India 2016), p. 66.
37. Rahul Tripathi, “Arrests under Sedition Charges Rise but Conviction Falls to 3%”, Economic Times (17-2-2021) <https://economictimes.indiatimes.com/news/politics-and-nation/arrests-under-sedition-charges-rise-but-conviction-falls-to-3/articleshow/81028501.cms> accessed on 13-4-2022.
39. RWM Dias, Dias Jurisprudence (LexisNexis 2013), p. 431.
40. RWM Dias, Dias Jurisprudence (LexisNexis 2013), p. 431.
41. Roscoe Pound, Interpretations of Legal History (Cambridge University Press 1967), pp. 157-158.
45. See Shah Faesal v. Union of India, (2020) 4 SCC 1; Karnataka SRTC v. Lakshmidevamma, (2001) 5 SCC 433, CTO v. Ki-Hi-Tech Secure Print Ltd., (2000) 5 SCC 55; Union of India v. Azadi Bachao Andolan, (2004) 10 SCC 1, Kunhamma v. Akkali Purushothaman, (2007) 11 SCC 181; Kattite Valappil Pathumma v. Taluk Land Board, (1997) 4 SCC 114.
46. See Shashikala v. Gangalakshmamma, (2015) 9 SCC 150; Bharat Petroleum Corpn. Ltd. v. Mumbai Shramik Sangha, (2001) 4 SCC 448; Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673.