FREEDOM OF PRESS WITH SPECIAL REFERENCE TO SEDITION LAW

By: Sanchita Bera


Meaning of certain vital terms


1. Freedom of Press: means the right of newspapers, magazines, etc., to report the news without being controlled by the Government[1].

2. Sedition: means incitement of resistance to or insurrection against lawful authority[2].


Evolution of Sedition Law in India in Chronological Order


1. 1887: The draft Penal Code of Macaulay comprised 113 sections, along with the sedition law under Section 124A. The punishment for sedition was suggested to have life imprisonment. To this volume of punishment, the then Chairman of the Second Pre-Independence Law Commission stated that in England, the punishment for the sedition was only 3 years, so in India, it should be no more than 5 years. But the same was not included in the 1860 enactment.

2. 1870: Mr James Stephen commented that not including the sedition in the Penal Code was a mistake made by the Commission. Hence the sedition was included as an offence through the Special Act XVII of 1870.

3. 1898: The sedition law saw amendment through Act V of 1898, wherein the punishment was transportation for life or shorter-term from 1870's imprisonment for life.

4. 1907: The Prevention of Seditious Meetings Act was ratified by the West Minister of Parliament to avert public meetings which would lead to seditious offence or are against British rule.

5. 1911: The 1907 Act was repealed, and The Prevention of Seditious Meetings Act, 1911 took its place, wherein Section 5 authorized the statutory authorities to forbid public meetings that would invoke sedition or disturbance to the public tranquillity.

6. 1955: Another amendment was made which saw the shift from transportation for life to ‘imprisonment for life and fine or imprisonment for three years and fine[3].


Status of the Press in the Constitution of India


In a democratic country, every citizen must have the freedom to express their opinions, beliefs, feelings, thoughts, criticisms, and expressions to the public at large. The press is said to be the fourth pillar of a democratic country. Hence they must have the freedom to give correct, clear, and conspicuous information to the public without fearing the Government or its agencies. They are the medium between the common man and the government. They have to communicate the opinions of dissatisfaction of the public to the Government and communicate the Government’s perspective to the public. But to perform this duty, they must have a requisite fundamental right, the denial of which would lead to the incorrect portrayal of public opinions and safeguarding every policy of the Government.

Unfortunately, ‘Freedom of Press’ has no particular spot in the ‘Fundamental Rights Chapter (Part III) in the Constitution. Therefore, the media/press has to procure their freedom from Article 19(1)(a), which provides ‘All citizens shall have the right to freedom of speech and expression’. Also, the Preamble secures its citizens of India “Liberty of thought, expression, and belief”.

Article 19(1)(a) derives its source from the First Amendment of the US Constitution, which read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or the press; or the right of the people peaceably to assemble and to petition the government for a redress of grievances[4]. The First Amendment gives freedom to the press, while the Indian Constitution doesn't. Also, the freedom of speech and expression has been restrained under Article 19(2), which is not the case in the Ist Amendment.

There were extensive debates in the Constituent Assembly. Dr B.R Ambedkar, Chairman of the Constituent Assembly Drafting Committee, argued that "The press is merely another way of stating an individual or a citizen. The Press has no special rights which are not to be given or which are not to be exercised by the citizen in his capacity. The editor of a press or the manager is all citizens merely exercising their right of expression. In my judgment, therefore, no special mention is necessary of the freedom of the press at all[5].

Accordingly, the press has similar freedom of speech and expression as guaranteed to the citizens of India, nothing more and nothing less. This freedom can be split into the freedom to write, publish, circulate or broadcast.


Supreme Court Judgments striking down laws that curtail ‘Freedom of Press’


  1. Romesh Thappar v. the State of Madras: The Supreme Court bashed Section 9 (I-A) of the Madras Maintenance of Public Order Act, 1949, issued by the Government of Madras which foisted the entry and circulation of Cross Roads Journal. The foisting led to the violation of freedom of speech and expression. The Madras Government argued that the journal was dangerous for the very foundation of the State and could overthrow the government. Further, the Government supported the Section as a reasonable restriction under Article 19(2), which the Court denied.

  2. I.R Coelho v. the State of T.N: The Supreme Court, in this case, declared that 'Freedom of Press’ is a part of the basic structure of the Constitution. Although the press has not been given any freedom separately, their right cannot be violated since it is one of the Constitution's basic features.[6]


Freedom of Press vis-a-vis Sedition Law


The press’s freedom has been time and again curtailed by the Government or its agencies with the help of sedition law under Section 124A of the IPC. The Section provides: “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India, shall be punished with im­prisonment for life, to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine[7]. As seen in the section, anything that could incite dissatisfaction against the Government will have to face sedition charges, the reality is known amongst all on how the sedition charges have increasingly been used not only against the journalists whose only duty is to provide correct or genuine information about the policies of the Government, criticize the same, and question the Government on their policies on behalf of the public, but the common public has also been facing the sedition charges.

According to The Hindu Newspaper, in January 2021, as many 5 journalists were arrested under Section 124A of IPC:

1. January 17: ‘The Frontier Manipur’ website’s three journalists were arrested.

2. January 20: Paranjoy Guha, one of the senior journalists, was accoutred by the Gujarat Court to a non-bailable arrest warrant.

3. January 25: U.P’s Kanpur Dehat district’s three journalists were arrested because they aired a school function’s drill.

4. January 28: Six journalists faced FIR because of their posts on their respective social media accounts on January 26 on the suspicion that those posts would incite violence.

5. January 30: Siddharth Varadarajan, a senior journalist, faces an FIR by the Rampur Police of U.P.

6. January 31: Delhi police arrested Mandeep Punia and Dharmender Singh at the Singhu border[8].

From the above data, it is evident that the sedition law has constantly been misused by the Authorities to subsidize the voices of the press. In the last 30 years, the month of January 2021 saw maximum sedition charges being levied against the journalists. They are the voices of the public, which express the public’s opinions, dissatisfactions, and wants to the Government. Still, with the sedition law in place, the press cannot enjoy their freedom, reiterated by Article 19(1)(a) guaranteeing not only citizens but the press as well the freedom of speech and expression.

Another interesting fact noticed was that the Government favours specific journalists (who speak in their favour) while charging the rest with sedition law. According to The Wire, many party leaders jumped into the limelight when Republic TV editor Arnab Goswami was arrested, blaming the Maharashtra Government for misusing their power and violating Article 19(1)(a), while the others were left unnoticed:

1. Siddique Kappan, a reporter of Malayalam news portal azhimukham.com, was charged with sedition and Unlawful Activities (Prevention) Act by the UP Police on his way to cover Hathras gang-rape.

2. Kishore Chandra Wangkhem, a Manipuri journalist, was arrested for replying to a viral post of a BJP politician’s wife.[9]

In all the above cases, the respective courts had either dismissed the cases against the journalist or have granted bail against the sedition charges. The report distinctively portrays the fact that the journalists are not able to enjoy their ‘Freedom of Press’ guaranteed under Article 19(1)(a), even though it is a fundamental right, has been awarded the highest position in the Constitution, and also the State is under the duty to protect and guard the same. Here, the State, instead of guarding and providing the highest degree of protection to the fundamental right to ‘Free Speech and Expression’, is docking the same and imposing restrictions with the help of an age-old draconian sedition law which was a gift of the British to the Indian Political System.


Conclusion


In a research conducted by independent journalist Geeta Seshu, titled ‘Behind Bars: Arrest and Detention of Journalists in India 2010-2020', which analyses how the journalists have been torchered through the summons, detentions, arrests, questioning, and show-cause notices between 2010-2020. According to her study, between 2010-2020, 154 journalists were arrested, detained, or interrogated, while in 2020 alone, India reported 40% of such cases. Another shocking truth was revealed by her, out of 154 cases, 73 were reported by the BJP-ruled stated, that is, 73 journalists faced sedition charges in the past decade, BJP and NDA said 30 cases ruled states. Uttar Pradesh alone led 29 cases in these 10 years, making it the highest registered case against the journalists. Between 2010-2014 19 cases were recorded against the Journalists, which doubled since 2017[10].

The data is indeed shocking looking at the number of journalists facing sedition charges is upsetting. The becoming voices of the common man are leading them behind bars. But, now the era of sedition law being excessively used against the Journalists have come to a halt because the Supreme Court on June 05, 2021, while overturning the sedition case against doyen journalist Vinod Dua, stated that ‘every journalist is entitled to protection under the provisions of the landmark Kedar Nath judgment’. Further, the Court stated that although the Kedar Nath judgment had declared Section 124A as constitutional, it also pointed out that ‘dissent is not sedition’[11]. The Supreme Court, on May 31, 2021, stated that ‘criticizing the govt. Not sedition’ and barred the Andhra Police from taking despotic action against two Telugu news channels, TV 5 and ABN Andhrajyothy hearing the plea of sedition charges. The Court also averred that ‘It is high time we define what sedition is. Justice DY Chandrachud, who headed the bench, voiced out that ‘Provisions 124A and 153 of IPC requires interpretation, particularly on the rights of the press and free speech[12].

The British-era sedition law has been enacted to put off the journalistic criticism or press down the vocals of the journalists against the government and protect the government's institutional vanity from any dissatisfaction of the public. Section 124A has been used to protect the security of the state as a fig leaf. Article 19(1)(a) has already been restrained with Article 19(2). There is already a provision to protect the fundamental right to free speech and expression from being misused. We do not need another terrifying provision to stand as a reason to curtail the 'freedom of the press. Also, the Supreme Court has opined that it is high time to look into the age-old sedition law.


‘WHERE THERE IS NO DISSENT, THERE IS NO DEMOCRACY

[1] Meaning of Freedom of Press, MERRIAM-WEBSTER, (June 10, 2021, 11:53 AM), https://www.merriam-webster.com/dictionary/freedom%20of%20the%20press [2] Meaning of Sedition, MERRIAM-WEBSTER, (June 10, 2021, 11:55 AM), https://www.merriam-webster.com/dictionary/sedition [3] Consultation Paper on Sedition, LAW COMMISSION OF INDIA (2018), (June 10, 2021, 12:33 PM), https://static.pib.gov.in/WriteReadData/userfiles/Consultation%20Paper%20on%20Sedition.pdf [4] MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 3 (2nd ed., 2015) [5] DR. J.N PANDEY, CONSTITUTIONAL LAW OF INDIA, 195 (51st ed., 2014) [6] MADHAVI GORADIA DIVAN, FACETS OF MEDIA LAW, 4-9 (2nd ed., 2015) [7] The Indian Penal Code, 1860, Acts of Parliament, 1860 (India) [8] Vignesh Radhakrishnan and Sumant Sen, Data/ Five Journalists arrested in January 2021, the highest in any year since 1992, TH, February 13, 2021, at A1. https://www.thehindu.com/data/data-five-journalists-arrested-in-january-2021-the-highest-in-any-year-since-1992/article33830579.ece [9] The Wire Staff, Emergency? Here are 9 cases Where BJP Leaders Didn’t Jump to Arrested Journalists’ Defence, The Wire, November 04, 2020, at A1. https://thewire.in/media/journalist-arrest-arnab-goswami-bjp-defence [10] Geetika Mantri, 67 Journalists arrested, detained, questioned in India in 2020 for their Work, The News Minute, January 06, 2021, at A1, https://www.thenewsminute.com/article/67-journalists-arrested-detained-questioned-india-2020-their-work-140963 [11] Bhandara Sinha, ‘Criticism of govt, not sedition': What Kedar Nath ruling that SC quoted in Vinod Dua case says, The Print, June 05, 2021, at A1.https://theprint.in/theprint-essential/criticism-of-govt-not-sedition-what-kedar-nath-ruling-that-sc-quoted-in-vinod-dua-case-says/671381/ [12] Aneesha Mathur, ‘Criticising govt, not sedition’: SC bars Andra police from taking action against 2 news channels, India Today, May 31, 2021, at A1. https://www.indiatoday.in/india/story/supreme-court-on-sedition-freedom-of-press-andhra-news-channels-1809037-2021-05-31


Author- Sanchita Bera

LLM- II

The Maharaja Sayajirao University of Baroda, Faculty of Law, Vadodara

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