17. Polity Notes 13

As a UPSC academic assistant, I will provide a detailed breakdown of the topic based on your summary, adhering to the specified format and maintaining a rigorous academic standard.

Elaborate Notes

Introduction and a brief overview of Article 19

Article 19 of the Constitution of India is the cornerstone of civil liberties and fundamental freedoms, guaranteeing certain rights that are essential for the functioning of a democratic state. It originally granted seven freedoms, but after the 44th Constitutional Amendment Act, 1978, the ‘right to acquire, hold and dispose of property’ was removed, leaving six fundamental freedoms for citizens. These are:

(a) Freedom of speech and expression
(b) Freedom to assemble peaceably and without arms
(c) Freedom to form associations or unions or co-operative societies
(d) Freedom to move freely throughout the territory of India
(e) Freedom to reside and settle in any part of the territory of India
(f) Freedom to practice any profession, or to carry on any occupation, trade or business

These rights are not absolute and are subject to ‘reasonable restrictions’ enumerated in clauses (2) to (6) of Article 19, which can be imposed by the State in the interest of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Sedition Laws

Background and Historical Context: The law of sedition, codified under Section 124A of the Indian Penal Code (IPC), 1860, is a relic of British colonial rule. It was introduced in 1870, a decade after the IPC’s enactment, primarily to suppress the voices of Indian freedom fighters. The British administration employed a “Carrot and Stick” policy, where constitutional reforms were the ‘carrot’ and repressive laws like sedition were the ‘stick’.
- Definition: Section 124A defines sedition as any act that “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India.” The expression ‘disaffection’ includes disloyalty and all feelings of enmity.
- Early Cases: The law was first used in the case of Queen-Empress v. Jogendra Chunder Bose (1891), where Bose was charged for criticising the Age of Consent Act, 1891. The most famous colonial-era trial was that of Bal Gangadhar Tilak in Queen-Empress v. Bal Gangadhar Tilak (1897), where the court interpreted “disaffection” broadly to mean absence of affection. Mahatma Gandhi, when tried for sedition in 1922, famously called Section 124A the “prince among the political sections of the IPC designed to suppress the liberty of the citizen.”
- Constituent Assembly Debates: During the framing of the Constitution, there was a robust debate on including sedition as a restriction on free speech. Members like K.M. Munshi argued vehemently against it, highlighting its potential for misuse. Ultimately, the word ‘sedition’ was dropped from the draft Constitution, but Section 124A remained in the IPC.
Post-Independence Judicial Scrutiny:
- The Supreme Court in Kedar Nath Singh v. State of Bihar (1962) upheld the constitutional validity of Section 124A. However, it significantly narrowed its scope, ruling that sedition charges could only be brought if an act involved an “intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.” Mere criticism of the government, no matter how harsh, would not constitute sedition.
- Despite this judgment, the law has often been applied in contravention of the Kedar Nath Singh guidelines.
Government vs. State/Country: A critical distinction must be made between the ‘State’ (a permanent entity) and the ‘Government’ (a temporary executive body).
- Justice D.Y. Chandrachud has articulated that “dissent is the safety valve of democracy.” Criticism of governmental policies is a fundamental right of every citizen and the essence of democratic accountability.
- In recent years, a conflation between the government and the nation has been observed, where criticism of the government is often branded as anti-national and met with sedition charges. This trend stifles political dissent and curtails free expression.
- Sedition is a cognizable, non-bailable, and non-compoundable offense, making it a potent tool for harassment, as the legal process itself becomes a punishment. Most advanced democracies, including the United Kingdom (which introduced the law in India), have repealed their sedition laws.
Supreme Court’s Recent Intervention: In S.G. Vombatkere vs. Union of India (2022), the Supreme Court of India issued an interim order directing all state governments and the central government to keep all pending trials, appeals, and proceedings with respect to the charge framed under Section 124A of IPC in abeyance. The Court urged the governments to refrain from registering any new FIRs under this provision until it is re-examined by the government.

Arguments Against Sedition Laws

Inconsistent with Modern Democracy: The very essence of democracy is discussion, debate, and dissent. Citizens must be free to criticize their government without fear of reprisal. Section 124A acts as a chilling effect on free speech, potentially turning the state into an authoritarian regime.
Vagueness and Misuse: The terms used in Section 124A like ‘disaffection’ are inherently vague and open to broad interpretation, allowing law enforcement agencies to misuse it against journalists, activists, and political opponents. The National Crime Records Bureau (NCRB) data shows a significant increase in sedition cases filed in recent years, but a very low conviction rate, indicating widespread misuse.
Redundancy: There are other provisions in the IPC and other statutes, such as the Unlawful Activities (Prevention) Act, 1967, that are adequate to deal with threats to national security and public order, making Section 124A redundant.
Global Trend: The global consensus is moving away from such laws. The UK abolished its sedition law in 2009. This colonial-era law is an anachronism in a 21st-century democracy.

Defamation

Concept and Legal Framework: Defamation in India is both a civil wrong (a tort) and a criminal offense.
- Section 499 of the IPC defines criminal defamation. It criminalizes any expression (spoken, written, signs, or visible representations) made with the intent to harm the reputation of any person, or with knowledge that it will cause such harm. The provision is worded broadly and even allows for the prosecution of defamation against a deceased person if it hurts the feelings of their family.
- The explanation of ‘harm’ is equally vague, defined as lowering the “moral or intellectual character” of a person or their “credit”.
Colonial Origins and Comparison with English Law:
- The law, enacted in 1860, was primarily to protect the interests of colonial officials.
- There is a significant difference between Indian and English defamation law. In English common law, a distinction is made between libel (written defamation) and slander (spoken defamation), with libel being treated more seriously. Criminal defamation in the UK is now restricted to cases that are severely injurious and is rarely prosecuted. In India, both libel and slander are criminalized without distinction, and there is no requirement to prove a “breach of peace” for a charge to be filed.
Constitutional Challenge and Supreme Court’s Stance:
- The constitutional validity of criminal defamation was challenged in Subramanian Swamy v. Union of India (2016). The petitioners argued that Sections 499 and 500 of the IPC were an excessive and arbitrary restriction on free speech under Article 19(1)(a) and were void for their vagueness.
- The Supreme Court upheld the law, reasoning that the ‘Right to Reputation’ is an intrinsic part of the ‘Right to Life and Personal Liberty’ under Article 21. The court held that the freedom of speech cannot be used to tarnish the reputation of another individual, thus balancing Article 19(1)(a) with Article 21.
- Critics argue the judgment failed to appreciate the chilling effect of criminal defamation on free speech, especially its use as a tool for Strategic Lawsuits Against Public Participation (SLAPPs) by powerful individuals and corporations to silence critics. As the Supreme Court itself has noted in other contexts, “the process is the punishment.”
Recent Case and Associated Discrepancies: The disqualification of a sitting Member of Parliament following a conviction in a criminal defamation case highlighted several legal and procedural issues.
- Locus Standi: The case was not filed by the individuals who were allegedly defamed in the speech.
- Disqualification Procedure: As per Section 8(3) of the Representation of the People Act, 1951, a person convicted of any offence and sentenced to imprisonment for two years or more “shall be disqualified”. The summary disqualification by the Lok Sabha Secretariat was questioned, as Article 103 vests the final decision on disqualification with the President, acting on the Election Commission’s opinion. However, the Supreme Court’s ruling in Lily Thomas v. Union of India (2013) provides for automatic disqualification upon conviction.
- Effect of Stay on Conviction: The issue arises about the procedure for restoration of membership if a higher court stays the conviction. The process for this is not clearly defined, leading to legal ambiguity.

Hate Speech

Definition: Hate speech is not explicitly defined in Indian law. The Law Commission of India in its 267th Report defined it as “incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.” It is speech, writing, or conduct intended to cause fear, alarm, or incite violence against a targeted group.
Section 66A of the IT Act: This provision was highly controversial. It punished sending “offensive” or “menacing” messages via communication services. The terms were undefined, leading to its rampant misuse for curbing dissent.
- In the landmark case of Shreya Singhal v. Union of India (2015), the Supreme Court struck down Section 66A as unconstitutional. The Court found it to be violative of Article 19(1)(a) due to its vagueness and overbreadth. The judgment emphasized that free speech includes the right to advocate unpopular causes and that a distinction must be made between advocacy and incitement.
Hate Speech vs. Defamation:
- Target: Defamation targets an individual’s reputation. Hate speech targets a community or a group based on identity.
- Impact: Defamation harms an individual’s standing. Hate speech aims to incite violence, create enmity between groups, and disturb public order.

Article 20: Protection in Respect of Conviction for Offences

This article provides crucial protection to individuals (both citizens and foreigners) against arbitrary and excessive punishment. It contains three provisions:
- No ex-post facto law [Art. 20(1)]: A person cannot be (i) convicted for an act that was not an offence under the law at the time of its commission, or (ii) subjected to a penalty greater than what was prescribed by the law in force at that time. This protection applies only to criminal laws, not civil or tax laws.

Prelims Pointers

Sedition: Section 124A of the Indian Penal Code (IPC), 1860.
Defamation (Criminal): Section 499 (definition) and Section 500 (punishment) of the IPC.
Struck Down Provision: Section 66A of the Information Technology Act, 2000 was struck down by the SC.
Key Supreme Court Cases:
- Kedar Nath Singh v. State of Bihar (1962): Upheld the constitutionality of Sedition but narrowed its scope to acts involving incitement to violence.
- Shreya Singhal v. Union of India (2015): Struck down Section 66A of the IT Act.
- Subramanian Swamy v. Union of India (2016): Upheld the constitutionality of criminal defamation.
- S.G. Vombatkere vs. Union of India (2022): SC put Section 124A (Sedition) in abeyance.
Constitutional Articles:
- Article 19: Guarantees six fundamental freedoms to citizens.
- Article 20: Protection in respect of conviction for offences.
- Article 21: Protection of life and personal liberty (includes right to reputation).
- Article 103: President’s decision on disqualification of MPs is final (based on ECI’s opinion).
Constitutional Amendment:
- 97th Amendment Act, 2011: Added the words “or co-operative societies” to Article 19(1)(c).
Statutory Provisions:
- Section 144, CrPC: Empowers a magistrate to restrain an assembly to prevent imminent danger.
- Section 141, IPC: Defines an ‘unlawful assembly’.
- Section 8(3), Representation of the People Act, 1951: Provides for disqualification of a legislator upon conviction for an offence with a sentence of 2 years or more.
Dissent is the “safety valve of democracy” - Justice D.Y. Chandrachud.
Freedoms under Article 19 are available only to citizens, not foreigners (except for some judicial interpretations expanding Article 21).
Article 20 protections are available to both citizens and foreigners.

Mains Insights

Freedom of Speech vs. National Security: The Sedition Dilemma
- Core Conflict: There is an inherent tension between Article 19(1)(a) granting freedom of speech and Article 19(2) allowing reasonable restrictions for the “sovereignty and integrity of India” and “security of the State.”
- Colonial Legacy vs. Modern Necessity: While the law is undeniably a colonial relic designed for suppression, proponents argue for its necessity in a country facing secessionist movements and internal security threats. However, critics argue that specific anti-terror and public order laws are sufficient to handle these threats without the broad, chilling effect of sedition.
- Judicial Tightrope Walk: The judiciary, particularly in the Kedar Nath Singh case, has tried to balance these conflicting values by linking sedition to incitement to violence. The recent SC order putting the law in abeyance signals a judicial inclination towards re-evaluating this balance in favour of free speech.
- Way Forward: The debate points towards either a complete repeal of Section 124A, as recommended by the Law Commission of India in a consultation paper, or its drastic amendment to align strictly with the Kedar Nath Singh principles, ensuring it cannot be misused to stifle legitimate dissent.
Criminal Defamation: A Tool to Stifle Dissent?
- Civil vs. Criminal Remedy: The primary debate is whether defamation should be a purely civil wrong, where the remedy is damages, rather than a criminal offence leading to imprisonment. Criminalizing defamation exerts a “chilling effect” on the press and individuals, discouraging them from publishing critical information for fear of vindictive prosecution.
- Right to Reputation (Art 21) vs. Freedom of Expression (Art 19): The Supreme Court in Subramanian Swamy privileged the right to reputation under Article 21 over the potential harm to free speech. The analytical question is whether this balance is appropriate, or if the high pedestal of free expression in a democracy requires a higher threshold for its restriction.
- The Process as Punishment: The misuse of criminal defamation laws, particularly through SLAPPs, underscores the need for reform. Even if an accused is eventually acquitted, the protracted legal battle serves as a punishment, achieving the complainant’s objective of harassment and intimidation. Reforms could include making the offence bailable and compoundable, and imposing costs on frivolous complaints.
Hate Speech: The Challenge of Definition and Regulation
- Legislative Vacuum: The absence of a clear, legal definition of “hate speech” is a major challenge. Existing laws are spread across the IPC (Sections 153A, 295A, 505) and are often inadequate to deal with the nuances of hate speech, especially on online platforms.
- Free Speech vs. Public Order: The critical challenge is to draft a law that can effectively curb incitement to hatred and violence without infringing upon legitimate speech. As seen in the Shreya Singhal case, any law must be narrowly tailored and not be vague or overbroad.
- Role of Technology: Social media platforms act as amplifiers for hate speech. This necessitates a modern regulatory framework that addresses the liability of intermediaries while protecting user privacy and freedom of expression. The solution requires a multi-pronged approach involving legal reforms, technological solutions, and promoting digital literacy.

Previous Year Questions

Prelims

With reference to India, consider the following statements: (UPSC Prelims 2021)
1. When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right.
2. State Governments have their own Prisoners Release on Parole Rules. Which of the statements given above is/are correct? (a) 1 only (b) 2 only (c) Both 1 and 2 (d) Neither 1 nor 2 Answer: (b) Explanation: Parole is not a matter of right; it is a privilege granted for a specific reason. It is a discretionary power of the executive. However, state governments do have their own rules for parole. This question relates to the rights of convicts, a theme connected to the consequences of laws like sedition.
Right to Privacy is protected under which Article of the Constitution of India? (UPSC Prelims 2021) (a) Article 15 (b) Article 19 (c) Article 21 (d) Article 29 Answer: (c) Explanation: In the K.S. Puttaswamy v. Union of India (2017) case, a nine-judge bench of the Supreme Court declared the Right to Privacy as a fundamental right protected under Article 21 (Right to Life and Personal Liberty).
In India, which one of the following compiles information on industrial disputes, closures, retrenchments and lay-offs in factories employing workers? (UPSC Prelims 2021) (a) Central Statistics Office (b) Department for Promotion of Industry and Internal Trade (c) Labour Bureau (d) National Technical Manpower Information System Answer: (c) Explanation: The Labour Bureau, an attached office of the Ministry of Labour & Employment, compiles these statistics. This is relevant to Article 19(1)(c) which includes the right to form trade unions, central to industrial relations.
A legislation which confers on the executive or administrative authority an unguided and uncontrolled discretionary power in the matter of application of law violates which one of the following Articles of the Constitution of India? (UPSC Prelims 2021) (a) Article 14 (b) Article 28 (c) Article 32 (d) Article 44 Answer: (a) Explanation: Article 14 (Equality before Law) forbids arbitrary action by the state. Laws that grant excessive and unguided discretion are seen as violating the principle of equality and can be struck down. This principle was applied in the Shreya Singhal case to strike down Section 66A of the IT Act.
Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (UPSC Prelims 2019) (a) Article 19 (b) Article 21 (c) Article 25 (d) Article 29 Answer: (b) Explanation: The Supreme Court in the Hadiya case (2018) and the Shakti Vahini case (2018) has held that the right to marry a person of one’s choice is a fundamental right integral to Article 21 (Right to Life and Personal Liberty).

Mains

The right of movement and residence throughout the territory of India are freely available to the Indian citizens, but these rights are not absolute. Comment. (UPSC Mains GS-II 2022, 150 words) Answer Framework:
- Introduction: Briefly introduce Article 19(1)(d) and 19(1)(e) of the Constitution, which guarantee these rights to citizens, emphasizing their role in promoting unity and fraternity.
- Body:
  - Explain the significance of these rights: They abolish internal barriers and foster a sense of single citizenship.
  - Discuss the ‘reasonable restrictions’ under Article 19(5).
  - Elaborate on the two grounds for restriction: (1) The interests of the general public (e.g., public health restrictions during COVID-19, restricting movement of prostitutes to protect public morals). (2) The protection of the interests of any Scheduled Tribe (to protect their unique culture, customs, and property from exploitation).
  - Cite relevant judicial interpretations if possible.
- Conclusion: Conclude by stating that the restrictions aim to balance individual liberty with larger public and community interests, ensuring that the exercise of these rights does not harm society or vulnerable groups.
Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (UPSC Mains GS-II 2017, 250 words) Answer Framework:
- Introduction: Start by mentioning the landmark judgment in K.S. Puttaswamy v. Union of India (2017), which declared the Right to Privacy a fundamental right under Article 21.
- Body:
  - Expansion of Article 21: Explain how this judgment significantly expanded the scope of Article 21, moving beyond mere physical existence to include personal autonomy, dignity, and the right to make personal choices.
  - Impact on other Fundamental Rights: Discuss how privacy intersects with other rights, particularly Article 19. For instance, informational privacy is crucial for freedom of speech and expression, as surveillance can have a chilling effect. The right to privacy also strengthens the freedom of association (private meetings) and movement (freedom from tracking).
  - Reasonable Restrictions: Explain that the right to privacy is not absolute and is subject to reasonable restrictions based on a three-part test laid down by the court: (i) existence of a law, (ii) a legitimate state aim, and (iii) proportionality.
  - Implications: Discuss the implications for data protection laws, Aadhaar, surveillance policies, and LGBTQ+ rights (as seen in the later Navtej Singh Johar case).
- Conclusion: Conclude that the judgment has redefined the relationship between the citizen and the state, placing the individual at the center and reinforcing the transformative and liberal ethos of the Constitution.
What do you understand by the concept of “freedom of speech and expression”? Does it cover hate speech as well? Why do the films in India stand on a different footing from other forms of expression? (UPSC Mains GS-II 2014, 200 words) Answer Framework:
- Introduction: Define ‘freedom of speech and expression’ as guaranteed by Article 19(1)(a), highlighting its importance as the bedrock of democracy. Mention that it includes freedom of the press, the right to information, etc.
- Body:
  - Scope of Free Speech and Hate Speech: Explain that this freedom is not absolute and is subject to reasonable restrictions under Article 19(2). Clarify that it does not cover hate speech. Define hate speech as speech that incites violence, discrimination, or hostility against a group. Explain that hate speech is restricted under laws like IPC Sections 153A and 295A, as it undermines public order and fraternity.
  - Films on a Different Footing: Explain why films are treated differently. The Supreme Court in K.A. Abbas v. Union of India (1970) held that censorship of films is valid because, unlike other media, a film has a unique potential to stir up emotions and influence a wider, often less discerning, audience. Therefore, films require pre-censorship through the Central Board of Film Certification (CBFC) to ensure they do not violate the restrictions under Article 19(2).
- Conclusion: Summarize by stating that while freedom of expression is a cherished right, it is balanced against the need to maintain public order and protect communities from hatred, leading to differential treatment for potent media like cinema.
Critically analyze the impact of criminal defamation law on the freedom of speech and expression in India and suggest reforms to prevent its misuse. (Model Question based on topic) Answer Framework:
- Introduction: Introduce criminal defamation under Sections 499 and 500 of the IPC and state the central issue: its conflict with the fundamental right to freedom of speech and expression under Article 19(1)(a).
- Body - Critical Analysis:
  - Positive Aspect (SC’s View): Acknowledge the Supreme Court’s reasoning in Subramanian Swamy (2016) that the law protects an individual’s right to reputation, which is part of the right to life under Article 21.
  - Negative Impacts (Chilling Effect): Detail the adverse impacts. Explain the “chilling effect” on journalists, activists, and researchers, who may self-censor to avoid litigation. Mention its use as a tool for SLAPPs (Strategic Lawsuits Against Public Participation) by powerful entities.
  - The Process as Punishment: Argue that the arduous, expensive, and time-consuming criminal process serves as a punishment, regardless of the final verdict, thus achieving the goal of silencing critics.
  - Colonial Relic: Highlight its colonial origins and point out that most mature democracies have decriminalized defamation.
- Reforms/Way Forward:
  - Decriminalization: Suggest the primary reform of decriminalizing defamation and making it a purely civil offence, with damages as the remedy.
  - Raising the Bar: If criminalization is retained, suggest raising the threshold for prosecution. For example, requiring proof of actual malice and significant harm to reputation.
  - Procedural Safeguards: Recommend procedural changes like making the offence bailable and compoundable, and imposing heavy costs for filing frivolous cases to deter misuse.
- Conclusion: Conclude by reiterating the need to reform the law to strike a more equitable balance between protecting individual reputation and upholding the vital democratic principle of free expression.
“Sedition law is a colonial-era relic that has a chilling effect on democracy.” In light of the Supreme Court’s recent order putting the law in abeyance, discuss the arguments for and against the repeal of Section 124A of the IPC. (Model Question based on topic) Answer Framework:
- Introduction: Briefly explain Section 124A (Sedition) of the IPC and its colonial origins. Mention the recent Supreme Court order in S.G. Vombatkere vs. Union of India (2022) that has temporarily halted its use, reigniting the debate over its relevance.
- Body:
  - Arguments for Repeal (Against Sedition Law):
    - Violation of Free Speech: It directly contradicts the freedom of speech and expression, essential for dissent and holding the government accountable.
    - Colonial Legacy: It was designed by a colonial power to suppress freedom fighters and has no place in a sovereign democracy.
    - Misuse and Low Conviction: Cite NCRB data to show a rise in cases but a negligible conviction rate, proving its primary use for harassment.
    - Redundancy: Argue that other laws like the UAPA and provisions in the IPC are sufficient to deal with incitement to violence and threats to national integrity.
  - Arguments Against Repeal (For Sedition Law):
    - National Security: Proponents argue it is necessary to combat anti-national, secessionist, and terrorist elements.
    - Maintaining Public Order: It helps in preventing incitement to violence and public disorder caused by inflammatory speeches against the state.
    - Deterrent Effect: The existence of the law acts as a deterrent against activities that could undermine the stability of the government established by law.
    - Judicial Safeguards: The Kedar Nath Singh (1962) judgment has already narrowed its scope to prevent misuse, linking it to violence or public disorder.
- Conclusion: Conclude that while national security is paramount, the continued existence of a vague and easily misused colonial law like sedition poses a grave threat to democratic freedoms. The government’s re-examination, prompted by the Supreme Court, is an opportunity to repeal the law and strengthen democracy.

GS Notes