Abolish The Law

Context: Assessing the constitutionality of sedition law through the idea of inciting violence against government creates a false dichotomy, is misguided.

 Issue with the jurisprudence of sedition laws in India: Opposing the idea of sedition is equalled with allowance of violence:

• The court in Kedarnath Caseruled that unless an act of disaffection imports the tendency to result in dis-order through the incitement of violence against the government, the charge of sedition cannot be upheld.
• The court, however, didn’t clarify how the tendency of a speech was to be gauged.
• Moreover, understanding sedition as “incitement to violence against government” was an idea introduced by the court in Kedar Nath.Thus, incitement to violence was an imagined act, an afterthought that connected feelings of disaffection to consequences of public disorder.
• Consequently, the call for the abolition of the offence of seditioncan be perceived as protecting the right to incite violence against the government.
• It creates a false dichotomy between freedom of expression and the right to resistance and debilitates the actual grounds on which the law should be assessed.

 Incitement to violence as an act of sedition:

• Incitement to violence against the government cannot be protected as free speech; it can only be subjected to a judicial test to delineate otherforms of expression against the government which fall short of incitement to violence.
• The American free speech test laid down in Brandenburg v. Ohio (1969) calls for expressions to be penalised only where there is incitement to “imminent lawless action”.
  • The case has already been adopted as the threshold for upholding the right to free expression by the Indian Supreme Court in Indra Das (2011) and Shreya Singhal (2015).

 Conclusion: Attempts to read down the law or institute procedural mechanisms to forestall its arbitrary enforcement will not take away this power to persecute. Anything short of abolishing the offence of sedition will not help the restitution of the constitutional right to free speech.