CHAPTER 4

THE LAW OF SEDITION

“Section 124A, under which I am happily charged is perhaps the prince

among the political sections of the Indian Penal Court designed to suppress the
liberty of the citizen.”

Mahatma Gandhi

INTRODUCTION
This chapter analyses the sedition law in India to exhibit its misuse down the
years. The law of sedition in British India was different from the original in England.
In England, sedition was narrowly defined to mean inciting violence or insurrection
against the government. It was a misdemeanour or lesser offence that attracted a
sentence of imprisonment of a few years. It was also a bailable offence with
negligible conviction chances as the accused was tried before juries composed of
ordinary citizens.

In comparison to England, sedition law in British india was widely defined to

include merely invoking hatred, disloyalty, or bad feelings against the government. It
was punishable with transportation to an overseas prison for life. It was also a non-
bailable offence. Prosecutions for sedition were relentlessly launched against the
leaders of India’s struggle for independence. The jury consisted of a majority of white
Europeans who had no sympathy for Indians.

Things changed a bit after India’s independence. The law of sedition in

independent India does not punish the mere incitement of bad feeling against in the
government. The direct incitement formulation has been accepted the Supreme Court
in the Kedar Nath case. Jury trails have altogether been done away with therefore
eliminating any question of sedition cases being tried by racist European juries. The
maximum punishment for sedition in independent india however is now
imprisonment for life which is unacceptable considering the fact that even in the 19th
century England, seditious libels which fell short of treason were misdemeanours
punishable with two years in prison. Sedition remains a non-bailable offence, though
misdemeanours in England are historically bailable. Further the fact that sedition
remains an offence in india is somewhat surprising given the fact that in 2009 the UK
Parliament abolished the offence of sedition and seditious libel.

Interestingly throughout British rule in India sedition was a non-cognizable

offence. However sedition was made cognizable in 1974 by the Indira Gandhi
government about a year before the emergency was declared. It is still a cognizable
offence even years after many governments have come in and out of power.

4.1 Sedition Law in India

India is now an independent State. The bedrock of its sovereignty rests on
democracy. The colonial government had introduced the law of sedition with
malafide intention of curbing nationalist movement. This law is therefore

98
inappropriate by the very nature of the object with which it was first introduced. The
interpretation of the law during the colonial rule by the Federal Court was not taken
into consideration by the framers of our constitution. An unsuccessful attempt to
excite bad feelings fall within the purview of Section 124A. It is unlikely that such
unsuccessful attempts would overthrow the government. Such power at the hands of
the government can lead to possible application of the section to restrict freedom of
speech and expression in a manner not permitted by the constitution. 303

Sedition law finds it roots in the imperial powers of British government, which
has now transformed into the normal powers of an independent India. 304 Back in the
British colonial era, Wahabi activities were on the rise. The period between 1863 and
1870 posed a challenge to the colonial government 305 The Wahabis movement was
characterised by a secret society operating during the First War of Indian
Independence in 1857. Sedition law finds its roots in British sources such as the
Common law of seditious libel, Treason Felony Act and the English law relating to
seditious word.306 The punishment for sedition extends up to life imprisonment, and
the charge is both non-bailable and cognizable. All of these indicate the seriousness of
the crime. Nearly all sedition trials of the late 19th and early 20th centuries were those
of Indian nationalist leaders.307

Under the British rule, the Federal Court and the Privy Council decided a
number of landmark cases on sedition. Completely contrasting views were taken by
these two judicial institutions on the meaning and scope of sedition as an offence. In
Niharendu Dutt Majumdar v. King Emperor, 308 the Federal Court held that public
disorder or the reasonable likelihood of public disorder is the basis on which the
offence of sedition rests. The court opined that sedition implies anarchy or chaos in
one way or the other. The decision of the Federal Court was inclined on the notion
that there has to be an incitement to violence or actual violence to constitute sedition.
The Privy Council however held an opposing view by rejecting the importance of

303
Eric Weston, CJ in Para 13 of the judgment in Tara Singh Gopi Chand v The State
1951, Cri.L.J. 449
304
A. K. Mukherjee, ‘The Federal Couet and the Law of Sedition in India’, The
Indian Journal of Political Science, Vol. 5, No. 1, July - September, 1943, pp. 94-
104

305
A. Ganachari, ‘Combating Terror of Law in Colonial India: The Law of Sedition
and the Nationalist Response’ in M Vandalos, G K Lotts, H M Teixera, A Karzai and
J Haig (eds.) Engaging Terror: A Critical and Interdisciplinary Approach, (Boca
Raton, Florida: Brown Walker Press, 2009), p. 95 available at
http://books.google.co.in/books?id=rq6c2PCK7g0C&pg=PA99&lpg=PA99&dq=justi
ce+strachey&source=bl&ots=xosiBOgH2u&sig=f6Z9vHSLixN94DYw5xVYkE0O1s
&hl=en&ei=aKbKTKunA4yfcYjZMkO&sa=X&oi=book_result&ct=result&resnum=
2&ved=0CBsQ6AEwAQ#v=onepage&q=justice%20strachey&f=false Last visited,
23.11.19
306
W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British
India (Calcutta: Thakker, Spink and Co, 1911) p. 4
307
Siddharth Narrain ‘Disaffection’ and the Law: The Chilling Effect of Sedition
Laws in India’, Economic & Political Weekly, Vol. 46 No. 8, February, 2011, pp 33-
37 at p. 33
308
Supra note 180
99
incitement to violence in deciding a case of sedition. 309 Queen Empress V. Bal
Gangadhar Tilak 310 was a benchmark case in explaining sedition law. The court
explained sedition as an offence, which excites or attempts to excite ill feelings
towards the government.311 Whether an actual disturbance of peace and public order
takes place is immaterial. In 1897, the British government slapped sedition charge on
him on the ground that his speeches instigated the murder of two British officers.
Although Tilak was convicted, he was later released in 1898 due to public outcry. 312
The British government amended the law in 1898 to include “hatred” and “contempt”
within the ambit of sedition. These amendments were justified on the ground of
diverse customs and conflicting creed. After the partition of Bengal, the political
situation worsened for the British government. This paved the way for the enactment
of the Newspapers (Incitement to Offences) Act, 1908 to curb the freedom of press
from publishing any material against the government. Another strange law enacted
was the Seditious Meetings legislation that criminalised the assembling of more than
20 people for a common purpose. These steps taken by the British government raised
a lot of criticism from Tilak. He was prosecuted once again for sedition. This time he
was held guilty and was sentenced to six years of rigorous imprisonment.

In King Emperor V. Sadashiv Narayan Bhalerao 313 the Privy Council

confirmed the view taken by the court in the Queen Empress V. Bal Gangadhar
Tilak314 case and rejected the Federal Court's decision in Niharendu Dutt Majumdar
v. King Emperor. 315 The Privy Council held that sedition consists of exciting or
attempting to excite ill feelings towards the government even if such feelings do not
lead to actual rebellion or disturbance of public order.

After India got independence, the case of Kedar Nath v. State of Bihar316 was
the first case in which the Apex Court explained the ambit of sedition law. The issue
before the court was whether Section 124A violates the provision of Article 19(1)(a).
The court accepted the view held by the Federal Court that the gist of the offence of
sedition is the incitement to violence or the likelihood to create public disorder. The
Supreme Court held that an individual could be guilty of the charge of sedition when
there is an element of incitement to aggression and hostility in his communication. If
the decision of the Privy Council were to be accepted in entirety, then Section 124A
would have had to be struck down for violating 19(1) (a). Upholding the principle laid
down by the Federal Court in Niharendu Dutt Majumdar v. King Emperor317 the court
upheld the punishment of the appellant Kedarnath.

309
The Hindu, Render Sedition Unconstitutional, (October 14, 2016) available at
http://www.thehindu.com/opinion/lead/sedition-legislation-meant-to-suppress-the-
voice-of-indian-people/article7758013.ece Last visited, 23.11.19
310
Supra note 242
311
Supra note 2, p. 99
312
A.G. Noorani, Indian Political Trials: 1775-1947 (New Delhi: Oxford University
Press, 2009) p. 122
313
Supra note 250
314
Supra note 242
315
Supra note 180
316
Supra note 176
317
Supra note 180
100
 Another landmark case of sedition was levelled against Mahatma Gandhi in
1922. Mahatma Gandhi with Shankerlal Banker, were tried for publishing three
articles that expressed disaffection towards the government. The court held Mahatma
Gandhi guilty of sedition, and sentenced him to six years imprisonment.

4.1.1 Arguments for abolishing Sedition Law in India

The offence against the state are contained in chapter VI of the Indian Penal
Code, 1860 comprising of 12 sections commencing from 121, 121A, 122-124 and
124A – 130. 318 Sedition Law as defined under Section 124-A of the Indian Penal
Code of 1860. The section as it is today, reads as follows:

“124A. Sedition - 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.”

A person can be charged with ‘sedition’ if his act or communication brings or

is aimed at bringing hatred, contempt or disaffection towards the government. It is
therefore not the lack of affection towards the government that constitutes the offence
of sedition but expression of dissatisfaction that causes or may cause disturbance of
peace and public order. 319 ‘Sedition’ therefore remains an offence only if the
communication is accompanied by violence or incitement to violence. Therefore, a
mere act of hooliganism does not qualify as Sedition under Section 124A of then
Indian Penal Code 1860.320 An expression of disagreement over public policies is the
very essence of democracy and should therefore be encouraged rather than being
curbed by the instrument of sedition. Citizens are free to elect their government and
criticise their working when found faulty. The beauty of democracy lies in the
participation of citizens in the running of the country. Article 19(1)(a) of the Indian
Constitution empowers citizens to put forth constructive criticism of their elected
representatives. The framers of the Indian Constitution deliberately left out ‘sedition’
from the reasonable restriction clause under Article 19(2) knowing it could be
misused by the government in order to perpetuate its control.

In simplest terms, Sedition is the defamation of state.321 It is considered as an

act against the wellbeing of state and is often misused to bring all kinds of anti
government movements within its purview.322 In recent times, any act of protest or
campaign against the state, has received harsh treatment from the government and has

318
K.D. Gaur, Criminal law- Cases and Material, 8th Edition (LexisNexis, 2015) p.
817
319
Fali S. Nariman, A test of freedom, Indian Express, Feb 17 , 2016, available at
http://indianexpress.com/article/opinion/columns/jnu-row-a-test-of-freedom/ Last
visited 23.11.19
320
R.A. Nelson, Indian Penal Code, 11th Edition, (Lexis Nexis, 2016) p. 900-934
321
43 Cr. LJ. 504
322
A. G. Noorani, ‘Article 19's Indictment’, Economic and Political Weekly, Vol. 25,
No. 48/49, Dec. 1-8, 1990, p. 2636
101
often led to false sedition charges to curb the freedom of speech and expression.
There can be no true democracy without these freedoms and the application of
sedition law is a denial of it. Section 124A of the Indian Penal Code, 1860 defines
sedition as:

“(i) 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, the government established by law; or (ii) whoever by the above
means excites or attempts to excite disaffection towards the government
established by law, has committed the offence of sedition.”323

The first explanation appended to the section reads that disaffection includes
disloyalty and all feelings of enmity. Explanations 2 and 3 state that disapproval of
the methods or administrative acts of the government to bring a change by lawful
means is not an offence as long as there is no attempt to excite hatred or contempt or
disaffection. It therefore punishes any act or speech which has the possibility of
incidentally exciting hatred, contempt or disaffection towards the government even if
such act or speech was done to bring about a positive change. The speaker or the
author therefore becomes liable to be charged with sedition and be punished.

It is pertinent to mention that sedition is not a ground for reasonable restriction

under clause (2) of Article 19. The Supreme Court held in Kedar Nath v. State of
Bihar,324 that sedition is not an offence against public order per se, it is provocation to
create chaos or tendency or likelihood of unrest or the reasonable apprehension of it.

In the Indramani Singh case325 the court held that sedition includes within its
ambit all practices- by word, action or print, which can cause disturbance to the peace
and public order of the state. Such wide ambit of the term is often misused by the
state to prevent citizens from voicing dissatisfaction about public policies. The
government curbs any protest campaign by citing it to be an act of revolt and rebellion
to overthrow the government and disrupt the law of the land. Provisions dealing with
sedition law are contained in Section 124A, 153A and 295 of the Indian Penal Code,
1860. While the section 124A deals with the political offence of sedition, Section
153A provides for sedition by class hatred. Section 295A entails sedition by
promoting religious hatred.

In the present scenario, the list of people charged with sedition, makes one go
back to the pre independence era under the British rule, when sedition law was
liberally misused by the British government to suppress political dissent and lawful
protests. 326 The Indian government has slapped sedition charges on some famous
names such as Arundhati Roy, Dr Binayak Sen, Sudhir Dhawala, Syed Geelani,
Aseem Trivedi and Kovan.

323
Section 124A of the Indian Penal Code, 1860
324
Supra note 176
325
1965 (1) Cr. LJ 184
326
The Telegraph, Callto review misused sedition law, May 24, 2016, available at
http://www.telegraphindia.com/1160525/jsp/nation/story_87495.jsp#.WAEaZeB97IU
Last visited, 25.11.2019
102
 In the case of Dr. Sen, the presence of literature sympathetic to Maoists was
presented as evidence to charge him of seditious activities. The Apex Court granted
him bail with a sarcastic remark that a person having Gandhi’s book would now be
guilty of being a Gandhian. 327 Innumerable cases of sedition law misuse have been
reported repeatedly in the Kashmir valley. A Kashmiri schoolteacher was charged
with seditious activity for allegedly setting questions related to unrest in the Kashmir
valley. A student who raised protest against army atrocity in Kashmir and a Kashmiri
student who supported Pakistan during an India - Pakistan cricket match faced the
same charges by the Indian government. Sudhir Dhawale, a social activist and editor
of Vidrohi, was charged with sedition for receiving a computer from a member of the
banned CPI(Maiost). Bharat Desai, editor of a leading English daily, faced charges for
questioning the capability of police officers and their nexus with criminals. The
misuse of sedition law in recent times on famous personalities like Arundhati Roy
raises the same fundamental question, which existed before the court in Bal
Gangadhar Tilak case. Arundhati Roy, together with Syed Geelani and Varavara Rao
faced allegations of sedition for opinions expressed at a seminar on Kashmir and its
struggle for freedom. Roy’s contention was that no one could be forced to feel proud
of being an Indian. It is a natural feeling, which cannot be forced upon an individual.
A democracy, which attempts to silence its writers for expressing their opinion, is
pitiful. The Mumbai Press Club condemned the levelling of sedition charge against
cartoonist Aseem Trivedi. The Club insisted on dropping the draconian provision of
sedition from the Indian Penal Code 1860.328

In 2008, the editor of ‘Nishan’, Lenin Kumar was arrested under sedition
charges after a booklet on the Kandhamal riots was published in the magazine. In
2010, environmentalist Piyush Sethia was charged with sedition for distributing
pamphlets condemning state-sponsored violence in Chhattisgarh. In 2010, the editor
of the PUCL-Karnataka Kannada news, E Rati Rao was slapped with sedition charges
on the ground that his magazine published an article that falsely accused the state
government of being communal and carrying out fake encounters. A Kashmiri youth
by the name of Bilal Ahmed Kaloo was booked under section 124A, 153A and 505(2)
of the Indian Penal Code 1860. The case came up for appeal before the Supreme
Court in 1997. After going through the facts of the case and the evidence on record,
the Apex Court reprimanded the trial court for adopting a casual approach in dealing
with such serious offences. The Supreme Court could not find any evidence to uphold
the charges framed against the appellant. Further, the court cautioned the state from
targeting opposition by mechanical filing of sedition charges. The misuse of this law
threatens to destroy against the constitutional right to protest, disagree or disapprove
the policies of the government.

327
Prabhat Singh, A quick history of sedition law and why it can’t apply to JNU’s
Kanhaiya Kumar, available at http://www.newslaundry.com/2016/02/16/a-quick-
history-of-sedition-law-and-why-it-cant-be-apply-to-jnus-kanhaiya-kumar/#
Last visited 25.11.2019
328
Afternoon Voice, Drop sedition law from penal code, demands Mumbai Press
Club, September 12, 2012, available at
http://articles.economictimes.indiatimes.com/20120911/news/33763195_1_sedition-
charge-sedition-law-mahesh-bhatt Last visited 25.11.2019
103
 The recent case of the JNU students' union president Kanhaiya Kumar has
thrown the spotlight on the government’s misuse of the colonial-era sedition law by
criminalising peaceful expression. On February 10, 2016, some students of the
Jawaharlal Nehru University organised an event alleged to be in the memory of
terrorist Afzal Guru. Posters were put up in the University calling for involvement
and discussions in regards to death sentence of Maqbool Bhat and Afzal Guru. The
posters also depicted the plight of Kashmiri migrants. This led to outrage by factions
of opposite party branding the organisers as 'anti-Indian’. Sedition cases were booked
against many students. Kanhaiya Kumar was arrested on allegations of raising anti-
national slogans. 329 The furore created by the arrests resulted in protests and class
agitation in the University campus. More drama unfolded when a mob attacked
Kanhaiya Kumar when he was brought to appear before the Patiala House Court. The
supporters of Kanhaiya Kumar claimed that the government was trying to suppress
their freedom of speech and expression by carrying out arrests and slapping sedition
charges on the students. Although they agreed on raising slogans for Kashmiri right to
self-determination, they denied any act or expression, which falls within the ambit of
sedition. Further, their only contention about Afzal Guru was that he did not receive a
fair trial. The relevant question here is whether the students of JNU and Kanhaiya
Kumar in particular exercised their freedom of expression in the right spirit. Further,
was the state right in arresting students on charges of glorifying a dead terrorist and
does the agitation for independence within independent India constitute a fair
demand. A mere expression of differing opinion cannot get one qualified as 'anti-
nationalist'. Umar Khalid, a JNU student activist, was branded as a Jaish E
Mohammed supporter and a terrorist after he expressed his views on national
television. 330 Although Kanhaiya Kumar is out on bail, a long battle awaits him and
all others who fight for protection and extension of the right of citizens to freedom of
speech and expression. A careful perusal of the Delhi High Court’s order makes one
analyse the role of the judiciary in protecting the rights of citizens from being
encroached by the state. Even though bail was granted to Kanhaiya Kumar, the
observations made by the court in praise of the military as protector of individual
freedoms, raises question in regards to the role of court in discharging its own
responsibility in upholding them. The phrases and words used by the court such as "a
kind of infection" which "needs to be controlled before it becomes an epidemic",
"gangrene", "antibiotics", "surgical intervention" and "amputation" are worth
introspection. 331 The court also imposed a condition upon Kanhaiya Kumar to refrain
from participating in any action that might be interpreted as anti-national. The bail
condition also requires a faculty member to assure Kanhaiya Kumar’s appearance
before the court and that he utilizes his energy in a constructive manner. These

329
Sterlin Sebastian, Free speech has its own limitations, Gulf news, March 10, 2016
available at http://gulfnews.com/your-say/your-view/focus-freedom-of-expression-
1.1688026 Last visited 25.11.2019
330
Kunwar Khuldune Shahid, Accepting anti-nationalism, The Nation, February 18,
2016, available at http://nation.com.pk/columns/18-Feb-2016/accepting-anti-
nationalism Last visited, 26.11.2019
331
Indian Express, With due respect; Objection, your honour: Even as Delhi HC
grants bail to JNUSU president, its order could shrink the space for free speech, 4th
March, 2016 Available at http://indianexpress.com/article/opinion/editorials/kanhaiya-
kumar-jnu-sedition-afzal-guru-smriti-irani-with-due-respect-3/
Last visited, 26.11.2019
104
conditions and opinions expressed by the court reduce the space for free speech, given
the fact that courts are looked upon as the protector and guardians of free speech and
expression.

Any state that claims to be a democracy stands contradicts itself if it does not
allow dissenting opinions to survive. 332 Everyone must be allowed to hold opinions
and ideas that are opposed to popularly held viewpoints. The right to offend is
implicit in the right to free speech. The only care that should be taken is that the
speech should not incite violence.333 It is important to support divergence, as it is an
inalienable part of democracy. 334 What one believes to be anti-nationalism today may
become a revolution tomorrow. State intolerance is on the rise. Another recent victim
of sedition law is Hardik Patel who was charged with sedition by the Gujarat
government for sending allegedly sending distasteful messages against the Prime
Minister, the State Chief Minister and the President of BJP. It highlights the
increasing level of intolerance of the government towards the exercise of freedom of
speech and expression. Sedition law has become a tool in the hands of the government
to derive legal sanction through the Indian Penal Code, 1860 for silencing critics.

4.1.2. Arguments for protecting Sedition Law in India

Before analyzing the views in favour of protecting sedition law, it is essential

to understand the factors that may contribute to make a person carry out seditious
activity. Firstly the socio-economic status of an individual or group of is an important
contributing factor for sedition. People belonging to the lower socio-economic groups
are more vulnerable to be lured by Maoists and other banned organizations. These
people belonging to lower economic group have a tendency of earning money for
survival and can easily fall prey to seditious activities unknowingly. India confronts
challenges from Naxalites, Maoists, terrorists and secessionists working in organized
groups getting financial and logistic support from foreign countries. Secondly, the
degradation of moral values and cultural influence is a vital factor for seditious
activities. It is important to inculcate values of our rich Indian tradition and culture, so
that a sense of pride and belonging exists in every citizen. The act of westernization
has played a very detrimental role in affecting our cultural growth, which in turn has
weakened our ties with our nationalist roots. Thirdly, religious fundamentalism is a
major reason why a person commits an act of sedition. Many religious and political
leader cause hatred by provoking communities or group of people to indulge in
activities that are seditious in nature. This hatred spreads beyond a community and
causes disorder and chaos in the society. Lastly the psychological bent to revolt
against the nation creates a state of public disorder and thereby an act of sedition.
Recently, many people with higher economic status like scientist, journalists, authors
have been alleged to be involved in anti-national activities. Their education

332
A. G. Noorani, ‘Maps and Freedom of Speech’, Economic and Political Weekly,
Vol. 24, No. 35/36, Sep. 2-9, 1989, p. 1987
333
Leiser Madanes, ‘How to Undo Things with Words: Spinoza's Criterion for
Limiting Freedom of Expression’, History of Philosophy Quarterly, Vol. 9, No. 4,
Oct., 1992, pp. 401-408 at p. 406
334
Pedro Paulo Funari, ‘Dictatorship, democracy and freedom of expression’,
International Journal of Historical Archaeology, Vol. 7, No. 3, September 2003, pp.
233-237 at p. 236
105
background or living condition are clear proofs that the birth of this offence of
sedition is not a product of socio economic circumstances alone but also largely
depends on the criminal intent and desire of creating mischief and disorder.

The most common argument for not abolishing the sedition law is that this law
is essential to punish an act of defaming our country or delegitimizing the lawfully
elected government. Further section 124A effectively combat anti-national,
secessionist and terrorist activities. It protects the elected government from attempts
to be overthrown with violence and illegal means. Maoist insurgency and rebel groups
affect many places throughout India. These groups attempt to the overthrow the
government by illegal force. Sovereign countries, including the US, Canada, Australia
and other democracies, have sedition law provisions in their penal code to protect its
territorial and political sovereignty.

Although there can be different takes on sedition law, there is a common

agreement on the point that any act that has divisive tendencies or reflects secessionist
nature needs to be tackled. Terrorism and subversion needs to be countered by law.
Voices against scrapping of section 124A contend that the freedom of speech in a
country is not a license to spread disaffections. Anti-India slogans cannot be permitted
or legalized. Although sedition law was abolished in the U.K. in 2009, it holds no
relevance in the Indian context, as the socio and political conditions of both the
countries are very different. Further even though the Indian Penal Code and Unlawful
Activities Prevention Act have provisions that punishes “disrupting the public order”
or “overthrowing the government with violence and illegal means” a specialized law
is essential when the question of national integrity and sovereignty of India is at stake.

4.2 The Emergence of Hate Speech

Hate speech can be defined as a written or oral communication aimed at
demeaning, threatening or provoking aggression or hostility against an individual or a
community based on their race, colour, gender, age, customs, religious beliefs,
disability, language, ethical or political inclination, living standard, livelihood and
physical appearance. 335 A free democracy allows free propagation of ideas. 336
Although such ideas at times may be adverse, as long as it does not incite immediate
violence or hatred, it cannot be considered as hate speech. Free speech does not
include unregulated hate speech which can potentially promote dissent and disgust
among different religious groups, races, castes or regional group. 337 Hate speech has
the potential to incite the audience to opt for violence on its utterance.

It is very difficult to have a clear explanation of what falls within the ambit of
hate speech and what falls outside it. A particular statement or a situation can be

335
Kimberly A. Gross and Donald R. Kinder, A ‘Collision of Principles? Free
Expression, Racial Equality and the Prohibition of Racist Speech’, British Journal of
Political Science, Vol. 28, No. 3, Jul., 1998, pp. 445-471, p. 447
336
James W. Nickel, ‘Freedom of Expression in a Pluralistic Society’, Law and
Philosophy, Vol. 7, No. 3,1988 - 1989, pp. 281-293 at p. 282
337
Richard Moon, ‘The Supreme Court of Canada on the Structure of Freedom of
Expression Adjudication’, The University of Toronto Law Journal, Vol. 45, No. 4,
Autumn, 1995, pp. 419-470 at p 432
106
acceptable for some while the same can be unacceptable to others. A person draws his
own conclusion based on customary beliefs, cultural and religious background. 338 A
certain view expressed from a standpoint can be construed in two different ways. A
person can have negative views on homosexuality and can consider it immoral based
on his religious belief. Some might consider this homophobic view as hate speech.
Any repulsion or hatred in such cases can be judged as unnecessary interference with
the right to express sexual preference. A feminist would show displeasure in jokes
about women or lesbian and may consider it as hate speech. The question that arises is
whether free speech can be regulated by a hate speech code to tackle the growing
concern of harm caused by apprehension of verbal insult. The conservatives are of the
opinion that discriminating statements based on religion such as blasphemy, or
sometimes ethically wrong and unpatriotic statements, which oppose deep-rooted
religious and cultural values as well as the interest of the nation, should be
condemned and restricted. 339 The liberals also believe that verbal prejudice due to
personal inclinations, such as homosexuality or language of communication should
receive proper attention as it can protect vulnerable groups. Advocates in favour of
prescribing a set of codes for regulating hate speech contend that voluntary
communities should take an active part in proper monitoring of these codes to prevent
abuse by those in power by censoring the valid speech whenever it is against them.

Article 19(1)(a) of the Indian Constitution does not include the right to
propagate hate speech. 340 Reasonable restrictions can be imposed on any statement
intended to disrupt peace and public order. The Indian law prohibits hate speech
generally under three heads of restrictions. Section 153A of The Indian Penal Code,
1860 prohibits hate communication or speech that promotes class hatred. Section
295A criminalizes insults to religion and religious beliefs. Section 505 prohibits any
communication that incites any class or community against another. Any
communication through visual medium that degrades any religion, community or
promotes communal dissent or violence and anti national sentiments is prohibited in
India.341 Furthermore, any criticism or slander against an individual or a community
or wrong portrayal of certain ethnic, linguistic and regional groups is classed as hate
speech. Advertising code under The Cable Television Network Rules, 1994 forbids
such hate speech communication as part of advertisements over the cable television
broadcast. A certification of exhibition can be denied under the Cinematograph Act
1952 on the grounds of incitement to an offence, sovereignty and integrity of India or
public order. Similarly, Information Technology act, 2000 empowers the government
to intercept and prevent information against the sovereignty and integrity of India.

338
Ravi Shankar Kapoor, There is no such thing as Hate Speech (Bloomsbury
Publishing, 2017) p. 145
339
Leslie Kendrick, ‘How Much Does Speech Matter?’ Harvard Law Review, Vol.
129, Jan,. 2016, pp. 1- 40 at p. 28
340
Michel Rosenfeld, Hate speech on constitutional jurisprudence; A Comparative
Analysis in Van Kempen (ed.) (Ashgate Publishing company, 2014) p. 307-351
341
Siddharth Narrain, ‘Hate Speech, Hurt Sentiment, and the (Im)Possibility of Free
Speech’, Economic and Political Weekly, Vol. 51, No. 17, Apr., 2016, pp. 199-126 at
p. 120
107
 In the United States, the first amendment to the constitution prohibits
unnecessary regulation of free speech. 342 However, the right to free speech is not
absolute.343 The government is empowered to regulate the content of the speech in
question. Hate speech can be curbed if it conveys a message of intolerance. Words or
phrases that exhibit hatred or contempt towards an individual or community based on
physical appearance, racial, cultural or religious factors or due to sexual preference
would qualify as hate speech.344 Strict prohibition was imposed on some words and
slang expressions based on socio economic class in United States. Similar stand was
taken by United Kingdom against any act of incitement to racial hatred by
criminalising hate speech under The Public Order Act 1986 with imprisonment
extending to seven years.

4.2.1 Regulating Hate Speech – A Necessary Evil?

The liberalists contend that the prohibiting hate speech or implementing hate
speech code would be a form of censorship. It would interfere with the freedom of
speech and expression and free flow of ideas and communication. An attempt to
regulate hate speech would also hinder the freedom of press. It would mean regulating
the thoughts of individuals. Hate speech restrictions would encompass not only the
relevant speech actions but also the feelings, opinions and judgments of society. This
would result in total injustice as every thought or speech does not materialise in
action. Even in cases where such thought does materialise in action, the thinker or the
speaker is not liable for the conduct of others who have interpreted the
communication in their own way.

Criminalising hate speech would enhance the powers of the government

manifold times. 345 If hate speech is declared illegal, it would effectively empower
government prosecutors to suppress expressions of certain opinions based on political
patronage while disregarding other speeches on equal footing when they have support
of vocal or aggressive groups. Prohibiting hate speech brings with it the risk of
censoring expression of certain facts, even when it carries no potential of inciting
violence, hatred or disturbance of public order. 346 Such authority to regulate can
encourage those in power to suppress the real freedom of citizens under the cloak of
hate speech.

Advocates of free speech argue that the freedom of speech and expression is
the most basic freedom that every human should be entitled to.347 Liberty to express

342
Ashutosh Bhagwat, ‘Associational Speech’, The Yale Law Journal, Vol. 120, No.
5, Mar., 2011, pp. 978-1030 at p. 980
343
Frederick A. Ballard, ‘Freedom of Speech’, American Bar Association Journal,
Vol. 48, No. 6, June 1962, pp. 521-526 at p. 525
344
Joshua Cohen, ‘Freedom of Expression’, Philosophy & Public Affairs, Vol. 22,
No. 3, Summer, 1993, pp. 207-263 at p. 208
345
Jonathan Gilmore, ‘Expression as realization: Speaker’s Interests in freedom of
speech’, Law and Philosophy, Vol. 30, No. 5, September 2011, pp. 517-539 at p. 519
346
Tim Soutphommasane, ‘Liberalism, Harm, and the Limits of Free Speech’,
Australian Quarterly, Vol. 78, No. 5, Sep. - Oct., 2006, pp. 33-37 at p. 37
347
A. G. 'Noorani, ‘Films and Free Speech’, Economic and Political Weekly, Vol. 43,
No. 18, May 3 - 9, 2008, pp. 11-12 at p. 11
108
denotes the freedom to speak about things freely without contemplating if it is
prejudicial to the interest of others.348 Disapproving the content of a communication
could be an arbitrary response. Each statement is open to numerous interpretations. It
is impossible to predict the real intention of the speaker. 349 Even in cases where a
speech has an element of violence, it would not necessarily lead to racial hatred. 350 It
is an accepted notion that an annoying statement creates repulsive feeling amongst
people. However, this should not discourage people from sharing dissenting opinion
that risks the displeasure of few people. Prohibiting hate speech also carries an
implied risk of generating sympathy for those found guilty of making such statement.
It raises a suspicion that the government is prejudicial against a speech to suppress
some factual truth in the statement.

The conservatives believe that communication, which has the potential of

provoking violence and disturbing the normal order of things, cannot just be
expression of ideas or dissent.351 Hate speech is a calculated action to inculcate fear,
terrorization and discomfort in the mind of an individual or a targeted community and
can result in murder and genocide of those it is targeted against. It is something pre-
planned propaganda that repeats itself at regular intervals to create a long lasting
impression on the mind of the innocent. Some believe that implementation of hate
speech codes can create a favourable learning environment free from harassment and
fear.

The liberalists contend that implementation of hate speech codes would

obstruct free and unrestricted discussion on diverse topics. Furthermore, general
communication of opinion can be misinterpreted and distorted as upsetting and
hurtful. 352 Those in favour of free speech uphold the importance of healthy
disagreement in finding the truth.353 They believe that the discomfort caused by hate
speech is not direct personal intimidation or harassment on a personal level. A proper
understanding of an issue can only be achieved if dissenting opinions are allowed to
be made even if it isconsidered in bad taste by a few.354 Hate speech legislation would
indirectly regulate and control the content of all speech made by individuals. It is

348
Amy Adler, ‘What's Left?: Hate Speech, Pornography, and the Problem for
Artistic Expression’, California Law Review , Vol. 84, No. 6, Dec., 1996, pp. 1499-
1572 at p. 1504
349
Erica Goldberg, ‘Free speech consequentialism’, Columbia Law Review, Vol. 116,
No. 3, April 2016, pp. 687-756 at p. 726
350
Yves de Montigny, ‘The Difficult Relationship between Freedom of Expression
and Its Reasonable Limits’, Law and Contemporary Problems, Vol. 55, No. 1,
Winter, 1992, pp. 35-52 at p. 45
351
Douglas N. Husak, ‘What is so special about free speech?’ Law and Philosophy,
Vol. 4 No. 1, Apr. 1985 pp. 1-15 at p. 2
352
Joshua Waldman, ‘Symbolic Speech and Social Meaning’, Columbia Law Review
=, Vol. 97, No. 6, Oct., 1997, pp. 1844-1894 at p. 1856
353
Christopher Wolfe, ‘The Limits of Free Speech’, The Review of Politics, Vol. 48,
No. 1, Winter, 1986, pp. 139-141 at p. 139
354
A. G. Noorani, ‘Free Speech and 'Provocation’, Economic and Political Weekly,
Vol. 34, No. 41, Oct. 9-15, 1999, p. 2898 at p. 2898
109
therefore better to express freely and collateral bear any inconvenience than being tied
down by hate speech code and regulation.355

The researcher feels that although hate speech regulation is important, there is
grave difficulty in elucidating what would fall within the ambit of ‘hate speech’.
Before any attempt is made to implement hate speech code, a legal definition should
be devised to provide clear explanation of what act or expression would constitute
‘hate speech’. Any ambiguity or failure to identify the ambit of hate speech would
necessarily result in illogical and unfair decisions.

The rights guaranteed under the Constitution of India are the cornerstones of
individual autonomy. They put a limit on the exercise of power by the State from
undue interference in the exercise of these rights. Freedom of expression has received
international recognition by virtue of Article 19 of the Universal Declaration on
Human Rights. It is one of the most valued rights as it helps a person achieve self-
fulfillment. The Constituent Assembly debates reflect the importance placed by the
framers of our Indian Constitution on ‘freedom of speech and expression’ as an
integral part of the new democracy. Many eminent members placed different views on
whether the proviso to the fundamental right to freedom of speech and expression
should cover speech that is ‘likely to promote class hatred’.

The members primarily argued that the freedom of speech and expression
would carry the proviso:

“(a) the right of every citizen to freedom of speech and

expression:
 Provision may be made by law to make the publication or
utterance of seditious, obscene, blasphemous, slanderous, libellous or
defamatory matter actionable or punishable ...

Provision may be made by law to impose such reasonable restrictions

as may be necessary in the public interest including the protection of minority
groups and tribes.”

This provision however failed to gain acceptance amongst the members on the
ground that it infringes the ‘absolute’ nature of the rights. In the words of B.R.
Ambedkar,

“….it is wrong to say that fundamental rights in America are absolute.

The difference between the position under the American Constitution and the
Draft Constitution is one of form and not of substance. That the fundamental
rights in America are not absolute rights is beyond dispute. In support of
every exception to the fundamental rights set out in the Draft Constitution one
can refer to at least one judgment of the United States Supreme Court. It
would be sufficient to quote one such judgment of the Supreme Court in
justification of the limitation on the right of free speech contained in Article 13
of the Draft Constitution. In Gitlow Vs. New York in which the issue was the
constitutionality of a New York "criminal anarchy" law which purported to

355 Ibid
110
 punish utterances calculated to bring about violent change, the Supreme
Court said:

“It is a fundamental principle, long established, that the freedom of

speech and of the press, which is secured by the Constitution, does not confer
an absolute right to speak or publish, without responsibility, whatever one
may choose, or an unrestricted and unbridled license that gives immunity for
every possible use of language and prevents the punishment of those who
abuse this freedom. It is therefore wrong to say that the fundamental rights in
America are absolute, while those in the Draft Constitution are not.”356

If the state is denied the power to restrict speech on the basis of its content, it
might lead to propagation of wrong ideas with long term consequences. This
especially holds true in the Indian context where vulnerable groups can be
marginalised through propagation of ideas detrimental to their inclusiveness in the
society. The risk of allowing detrimental ideas to flow at the cost of public interest is
capable of causing irreversible damage. Dissent and discussion are a part of a healthy
democracy as long as such discussion does not turn volatile. Critical opinions should
not be aimed at disrupting public order. The state has a very important role to play in
implementing proper exercise of the right within the purview of the constitutional
limits. 357

What is interesting to analyze is that rather than defining hate speech

specifically, it was in the backdrop of limits provided under clauses (2) of Article 19
that the restrictions were imposed on exercise of freedom of speech and expression.
The Constitution of India provides for restriction on the exercise of freedom of speech
and expression on the conditions enumerated in Article 19(2). 358 This therefore
implies that liberty cannot be absolute or unrestrained and necessary restrictions can
be imposed on the exercise of the right in the interests of the sovereignty and integrity
of India, the 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.359

The diversity of India with various castes, creeds, religions and languages
places a great challenge in protecting the rights of all sections of the society. Allowing
unfettered exercise of freedom of speech and expression puts at risk the marginalized
sections of society. 360 Beside the restrictions placed under Article 19(2) of The

356
See Point 7.48.236 of Constituent Assembly Debates (Nov. 4, 1948), available at
https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-
11-04 Last visited 08.01.2020
357
Samaraditya Pal, India’s Constitution- Origins and Evolution, Vol. 2 (LexisNexis
2016) p. 51
358
P.M. Bakshi, Commentary on the Constitution of India, (Universal Law Publishing
Company, 2016) p. 205
359
Supra note 118
360
Dr. L.M. Singhvi, Constitution of India, 3rd Edition, (Thomas Reuters, 2013) p.
795

111
Constitution of India, several other legal provisions in different legislations prohibit
select forms of speech as an exception to freedom of speech. These are:

The Representation of The People Act, 1951

Section 8 bars candidates from contesting election if he is convicted for acts

resulting to illegal use of freedom of speech and expression.

Section 123(3A) and section 125 prohibits “promotion of enmity on grounds of

religion, race, caste, community or language in connection with election as a corrupt
electoral practice and prohibits it.”

The Protection of Civil Rights Act, 1955

Section 7 penalises “incitement to, and encouragement of untouchability

through words, either spoken or written, or by signs or by visible representations or
otherwise.”

The Indian Penal Code, 1860

Section 124A penalises sedition.

Section 153A penalises “promotion of enmity between different groups on

grounds of religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.”

Section 153B penalizes “imputations, assertions prejudicial to national-

integration.”

Section 295A penalises “deliberate and malicious acts, intended to outrage

religious feelings of any class by insulting its religion or religious beliefs.”

Section 298 penalises “uttering, words, etc., with deliberate intent to wound
the religious feelings of any person.”

Section 505(1) and (2) penalises “publication or circulation of any statement,

rumour or report causing public mischief and enmity, hatred or ill-will between
classes.”

The Religious Institutions (Prevention of Misuse) Act, 1988

Section 3(g) prohibits “religious institution or its manager to allow the use of
any premises belonging to, or under the control of, the institution for promoting or
attempting to promote disharmony, feelings of enmity, hatred, ill-will between
different religious, racial, language or regional groups or castes or communities.”

The Cable Television Network Regulation Act, 1995

Sections 5 and 6 of the Act prohibits “transmission or re-transmission of a

programme through cable network in contravention to the prescribed programme

112
code or advertisement code.” These codes have been defined in rule 6 and 7
respectively of the Cable Television Network Rules, 1994.

The Cinematograph Act, 1952

Sections 4, 5B and 7 empower the Board of Film Certification “to prohibit

and regulate the screening of a film.”

The Code of Criminal Procedure, 1973

Section 95 empowers the State Government, “to forfeit publications that are
punishable under sections 124A, 153A, 153B, 292, 293 or 295A IPC.”

Section 107 empowers the Executive Magistrate “to prevent a person from
committing a breach of the peace or disturb the public tranquility or to do any
wrongful act that may probably cause breach of the peace or disturb the public
tranquility.”

Section 144 empowers the District Magistrate, a Sub-divisional Magistrate or

any other Executive Magistrate specially empowered by the State Government in this
behalf “to issue order in urgent cases of nuisance or apprehended danger.”

4.2.2 Judicial position of Hate Speech in India

Hate speech can be restricted on the grounds provided under Article 19(2).

In Pravasi Bhalai Sangathan v. Union of India 361 the petitioner prayed for
peremptory action against those giving hate speeches. Although the Court
acknowledged the negative and intolerant impact of hate speech on individuals, it
confined itself within the purview of existing laws and held that the proper
implementation of the present laws are capable of solving the problem of hate speech.
The court further opined that it is difficult to keep restriction on free speech within
manageable standard. The lack of confidence in laying down a set boundary for
curtailment of free speech has discouraged the judiciary from defining hate speech.
The Law Commission of India was requested to comment on the necessity to define
hate speech and provide positive suggestions to strengthen the Election Commission
to restraint the growing problem of hate speeches.

In Jafar Imam Naqvi v. Election Commission of India362 a writ petition was

filed for issue of writ of mandamus to the Election Commission so that appropriate
steps could be taken against the hateful speeches of candidates standing in the
election. The Court dismissed the petition by reasoning that the petition under Article
32 relating to election campaign speeches does not fall within the ambit of public
interest litigation. The court refused to legislate on matters where the legislative intent
is visible.

361
AIR 2014 SC 1591
362
AIR 2014 SC 2537
113
 The Supreme Court in Brij Bhushan v. State of Delhi363 held that since public
order is connected to the public safety, it must be considered equivalent to security of
the State. This interpretation by the Supreme Court was adopted by The Constitution
(First Amendment) Act, 1951 whereas ‘public order’ was inserted as a ground of
restriction under 19(2).

In Ram Manohar Lohia v. State of Bihar 364 Supreme Court differentiated

between law and order, public order and security of State in the following words:

“One has to imagine three concentric circles. Law and order

represents the largest circle within which is the next circle representing public
order and the smallest circle represents security of State. It is then easy to see
that an act may affect law and order but not public order just as an act may
affect public order but not security of the State.”365

In O. K. Ghosh v. E. X. Joseph366 the court suggested that the highest standard

must be applied for restricting article 19(1)(a) when imposed in the interest of security
of the state. Furthermore to impose reasonable restriction under article 19(2), the
relation between restriction and public order must be direct and not remote or
fanciful.

In Ramji Lal Modi v. State of U.P. 367 the Supreme Court upheld the
constitutional validity of section 295A of the Indian Penal Code by concluding that
the section 124A does not encompass all act of insult to or attempt to insult the
religion or the religious beliefs of a class of citizens but merely criminalizes those acts
of insults to or attempts to insult which are deliberately done with hateful intention of
hurting religious feelings. Further the Court clarified that the expression in the
‘interest of public order’ under article 19(2) is much wider than ‘maintenance of
public order’ signifying that an act that does not disturb public order, can still be
restricted ‘in the interest of public order’.

In Ramesh v. Union of India368 the Supreme Court held that a speech cannot
be looked into in isolation where the movie in question intends to impart message of
peace. Therefore it is not the act itself but the possibility of its effect on public
tranquility that justifies restriction under article 19(2). In Supdt. Central Prison v. Dr.
Ram Manohar Lohia369 the Court held:

“The problem of defining the area of freedom of expression when it

appears to conflict with the various social interests enumerated under Article
19(2) may briefly be touched upon here. There does indeed have to be a
compromise between the interest of freedom of expression and social interests.

363
Supra note 117
364
1966 AIR 740
365
Ibid
366
AIR 1963 SC 81
367
Supra note 248
368
AIR 1988 SC 775
369
Supra note 155
114
 But we cannot simply balance the two interests as if they are of equal weight.
Our commitment to freedom of expression demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing
and the community interest is endangered. The anticipated danger should not
be remote, conjectural or farfetched. It should have proximate and direct
nexus with the expression. The expression of thought should be intrinsically
dangerous to the public interest. In other words, the expression should be
inseparably locked up with the action contemplated like the equivalent of a
spark in a powder keg”. 370

The court clearly suggested that freedom speech is can only be restricted if it
is imminently dangerous to the community.

In Shreya Singhal v. Union of India371 the court declared section 66A of the
Information Technology Act 2000 void on the ground as it failed to establish any
close relationship between the restriction and the act. The court held that:

“...the nexus between the message and action that may be taken based
on the message is conspicuously absent – there is no ingredient in this offence
of inciting anybody to do anything which a reasonable man would then say
would have the tendency of being an immediate threat to public safety or
tranquility.”372

In State of Maharasthra v. Sangharaj Damodar Rupawate 373 the Court

observed that in to analyse the affect of the texts used in the material in question,
standards of a reasonable, strong-minded, firm and courageous men must be used and
not those of feeble and frail persons who would not be competent to interpret the
situation correctly.

In Arumugam Seervai v. State of Tami Nadu 374 the Apex Court took into
consideration the historical context of the words in question and defended
prosecutions under the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 for using the words `pallan', ‘pallapayal' `parayan' or
`paraparayan' with the wrong intent to offend.

In Bilal Ahmed Kaloo v. State of Andhra Pradesh375 the Court had to interpret
the provision of sections 153A and 505(2) of Indian Penal Code. The court held that
the common element in these sections is that it punishes an act that encourages feeling
of hostility, dislike or disgust between different class of people and communities and
also includes those acts that are prejudicial to upkeep of harmony. The court
concluded that to attract the provision of these sections, involvement of at least two
groups or communities is essential. Neither of the two sections can be attracted if the

370
Ibid
371
Supra note 158
372
Ibid
373
(2010) 7 SCC 398
374
(2011) 6 SCC 405
375
Supra note 284
115
feeling of only one community or group is hurt without any indication of another
community or group.

In Babu Rao Patel v. State of Delhi 376 the Court in interpreting section
153A(1) of the Indian Penal Code concluded that it encompasses not only the
promotion of feelings of enmity or ill will on grounds of religion but also the
incitement of such feelings on grounds of race, religion, community, language or
caste.

4.2.3 Hate Speech and Freedom of speech and expression

Right to freedom of speech and expression is one of the most valuable rights.
It is this liberty that bestows a person with individual independence. Those belonging
to the liberal school of thought consider free speech as an essential part of an
individual’s autonomy. They argue that even if a speech is unpleasantly or critical, it
should not be restrained as long as there is no malicious intention to overthrow the
government or disrupt the stability of the state. Freedom of speech is essential for a
healthy democracy. Free flow of opinion and dissenting opinion keeps the democratic
system alive. To allow dissenting opinion to exist has given shape to the principles of
free speech. Free speech keeps a check on the state’s power to regulate affairs.

Hate speech has not been specifically defined under the Indian law. Hate
speech can be an expression that has the potential to hurt or offend an individual on
the basis of one’s association with a particular group. In this regard it is important to
analyse that an offensive speech can be restricted if it hurts sentiments or dignity and
does not merely offend the individual. The minorities or vulnerable groups are most
likely to be subjected to hate speech as the marginalized section of the society.

The principle of freedom of speech and expression was a measure against the
undemocratic power of the state.

4.2.4 Global view on Hate Speech

Unregulated free speech carries with it the risk of abuse of this freedom in a
discriminatory, hostile and offending manner to marginalize a group or section of the
society. Under the International law hate speech can be understood as any form of
expression intended to incite racial hatred aimed against individuals on the grounds of
their race, religion or intolerance “expressed by ‘aggressive nationalism and
ethnocentrism.’377 Article 1 of the Universal Declaration on Human Rights( UDHR),
adopted by the United Nation’s General Assembly in 1948 establishes the principle of
equality among human beings, including the right to freedom from discrimination,. It
serves as the cornerstone of human rights law. Article 1 reads a follows:

376
AIR 1980 SC 763
377
See Anne Weber, Manual on Hate Speech, available at
http://icm.sk/subory/Manual_on_hate_speech.pdf Last visited 08.01.2020
116
 “All human beings are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one another
in a spirit of brotherhood.”378

This principle is supported by Article 2, which provides with the same rights
and freedoms without any discrimination on any ground. 379 There is no specific
provision in the UDHR for prohibitions on hate speech or incitement to hatred.
Article 19 promises everyone the right to “seek, receive and impart” both
“information and ideas”, through “any media and regardless of frontiers.” This
freedom of expression is essential for human rights protection.

The International Covenant on Civil and Political Rights (ICCPR) was

adopted in 1976. It propounds equality and non-discrimination in the enjoyment of
rights. Article 19 of the ICCPR makes similar promises as UDHR and guarantees the
right to freedom of expression. It protects the right to hold opinions, to seek, receive
and impart information and ideas. Restriction can however be imposed to “protect the
rights or reputations of others or for the protection of national security or of public
order (ordre public), or of public health or morals”.380

Article 20(2) of the International Covenant on Civil and Political Rights

provides the complete international guideline for the legal regulation of hate speech.
The Article reads as follows:

“Any advocacy of national, racial or religious hatred that constitutes

incitement to discrimination, hostility or violence shall be prohibited by
law.”381

Thus, Article 20(2) demands for freedom from incitement to discrimination,

violence and hostility resulting from advocacy of hatred to the status of an
international legal human right. This protection serves the purpose of developing the
values of acceptance, integrity and dignity and an international human right enjoyed

378
See Article 1 of UDHR, available at
https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf
Last visited, 08.01.2020
379
Article 2 reads as follows: Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status. Furthermore, no distinction shall be made on the basis of the
political, jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or under any
other limitation of sovereignty.
380
See Article 19 (3)(a) and (b) available at
https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx`
Last visited, 08.01.2020
381
See Article 20(2) of ICCPR, available at
https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-
english.pdf Last visited, 08.01.2020
117
by all subjects of such incitement.382 Moreover, Article 20(2) places a standard for
hate speech.

Article 4 of the International Convention on the Elimination of All Forms of

Racial Discrimination, 1966 (ICERD) condemns “…ideas based on racial superiority
or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or
ethnic origin…”383

Like Article 20(2) of ICCPR, the Human Rights Council’s ‘Report of the
Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression’ provides for restraining exchange of information. The grounds
provided for restriction are “child pornography (to protect the rights of children),

 hate speech (to protect the rights of affected communities), defamation (to protect
the rights and reputation of others against 
 unwarranted attacks), direct and public
incitement to commit genocide (to protect the 
 rights of others), advocacy of
national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence (to protect the rights of others, such as the right to life).”384

European Union and United Kingdom

Article 10 of the European Convention of Human Rights promises freedom of

expression to all. It reads as follows:

“(1) Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of frontiers. This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals, for
the protection of the reputation or rights of others, for preventing the

382
See https://www.standleague.org/bigotry-and-hate/freedom-of-religion-and-
human-rights/international-covenant-on-civil-and-political-rights.html
Last visited, 08.01.2020
383
See Article 4 of ICEPD, available at
https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx
Last visited, 08.01.2020
384
See Point 25 of The Human Rights Council’s ‘Report of the Special Rapporteur on
the promotion and protection of the right to freedom of opinion and expression’
https://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pd
f Last visited, 09.01.2020
118
 disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary.”385

European Court of Human Rights is responsible for determining cases related

to hate speech. It has helped develop the law keeping in mind the convention values.
The court also safeguards against unnecessary interference of the state with the
freedom of expression so that a balance could be achieved between the legitimate
social need and upholding the principles and values underlying ECHR.

In Handyside v. United Kingdom, 386 the court observed that on imposing

restrictions on freedom of expression, it is important to carefully analyse the speech
as every offensive speech cannot be held restricted. This principle is an extension of
the liberal view as it puts all kinds of speech on the same platform.

One might argue that in an unequal society, free speech leads to discrimination
against the marginalized section of the society. If all kinds of speeches are protected,
it can give rise to subjugation of the minority by the majority section of the society.

The European Commission against Racism and Intolerance in point 3 of its

Recommendation No. 7 provides that the “exercise of freedom of expression,
assembly and association may be restricted with a view to combating racism. Any
such restrictions should be in conformity with the European Convention on Human
Rights.”387

The content of the speech and the context on which it was made is relevant in
examining the permissibility of the speech. The court considers several factors in
determining the imposition of restriction by taking into consideration Article 17 of the
convention, which stipulates that the limitation imposed should be within the
parameter provided in the convention.

The First amendment of the Constitution of United States of America prohibits

making any law that restricts the exercise of free speech. In Cohen v. California388 the
court held that the state is not empowered with the discretion to decide between good
and bad speech. This special importance given to speech sets apart the United States
Constitution from other democracies around the world. However not all speeches are
protected under the American constitution. In Chaplinsky v. New Hampshire 389 the
American Court classified different kinds of speech and held that forms of expression
which are obscene, blasphemous and slanderous cannot be protected under First
Amendment.

385
Article 10 of ECHR, available at
https://www.echr.coe.int/Documents/Convention_ENG.pdf Last visited, 09.01.2020
386
Handyside v. United Kingdom, Application no. 5493/72 (1976)
387
See ECRI General Policy Recommendation No. 7 on National Legislation to
Combat Racism and Racial Discrimination, available at https://rm.coe.int/ecri-
general-policy-recommendation-no-7-revised-on-national-legislatio/16808b5aae Last
visited, 08.01.2020
388
Cohen v. California 403 U.S. 15 (1971)
389
315 U.S. 568 (1942)

119
 In Beauharnais v. Illinois390 the court endorsed the conviction of Beauharnais
prohibiting libel amounting to unrest or breach of peace on grounds of race, colour,
creed or religion. The court adjudged the speech to be outside the ambit of the First
amendment as it lacked any social relevance and is against societal morality.

In New York Times v. Sullivan 391 the court observed that it is important to
establish that the speaker had malicious intent to defame before restraining the speech
in question. Further the court opined that such safeguard would ensure that the rights
are not regulated and restrained unnecessarily to dampen the spirit of public debate.

In R.A.V. v. City of St. Paul392 the court held that content-based prohibition of
speech for categories of unprotected speech is not permitted under the First
Amendment. The ordinance in question was held invalid as it prohibited certain words
on the basis of race, colour, creed, religion or gender. The court decided on such
discriminations to be invalid under the First Amendment.

In Wisconsin v. Mitchel 393 the court upheld a statute penalising hate crime in
the following words:

“Nothing in our decision last term in R. A. V. compels a different

result here. That case involved a First Amendment challenge to a municipal
ordinance prohibiting the use of "`fighting words' that insult, or provoke
violence, `on the basis of race, color, creed, religion or gender.'" ... Because
the ordinance only proscribed a class of "fighting words" deemed particularly
offensive by the city i.e.., those "that contain . . . messages of `bias-motivated'
hatred," ... we held that it violated the rule against content-based
discrimination... But whereas the ordinance struck down in R.A.V. was
explicitly directed at expression (i.e.,"speech" or "messages"), the statute in
this case is aimed at conduct unprotected by the First Amendment.”394

In Schenck v. United States395 the court developed the clear and present danger
test. The speech must pass this test to qualify as hate speech. This test was improved
in Brandenburg v. Ohio 396 to imminent threat of lawless action test. The Court
opined:
“Freedoms of speech and press do not permit a State to forbid
advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.”397

390
343 U.S. 250 (1952)

391
New York Times v. Sullivan 376 U.S. 254 (1964)
392
R.A.V. v. City of St. Paul 505 U.S. 377 (1992)
393
Wisconsin v. Mitchell508 U.S. 47 (1993)
394
Ibid
395
249 U.S. 47 (1919

396
395 U.S. 44 (1969)
397
Ibid
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4.2.5 Identifying Principles of Hate Speech

Freedom of speech is the lifeblood of a democratic society. 398 Restrictions

should only be imposed if there is an incitement to disrupt peace and stability. The
Apex court in Shreya Singhal v. Union of India399 rightly concluded that freedom of
expression can be restrained under article 19(2) when it reaches there is an element of
incitement present. Just on the mere thought of it being offensive or unpopular, law
should not restrict it. Incitement is the most integral element in determining the need
of imposing restraint on free speech.

A careful analysis of the global view on freedom of speech and expression

defines the contours for imposing restrictions on the right:

(a) The parameter of the speech: To be qualified as hate speech, the

speech must offend and carry a negative undertone of emotion. In this regard
it is important to keep in mind that all offensive statement would amount to
hate speech.

(b) Incitement : Incitement is at the heart of hate speech jurisprudence.

In order retrain free speech; it must have incitement to discrimination. The
argument that restraining speech is against the concepts of liberty and equality
has given rise to two schools of thought. The free speech advocates argue in
favour of unrestrained speech failing which the concept of equality and liberty
fails. On the other hand critics of free speech suggest that if all speeches are
given protection, it will lead to discrimination against the minorities and the
marginalized section of the society. What is important to understand is that
incitement is not only in relation to committing offence but also includes
incitement to discriminate and therefore is recognized as a ground for
restraining hate speech.

(c) Position of the author of the speech: The European Court of Human
Rights in Incal v. Turkey 400 has recognized that the position of the person
giving the speech is crucial in determining the legality of limitation imposed
by the State.

(d) Position of the individual affected by the speech : The position of

the aggrieved person is an important factor in determining whether a speech
can be restrained or not. A public figure is more likely to be subjected to hate
speech whereas a private individual or group is less likely to be subjected to it.
In this regard a public figure is expected to be more tolerant than a private
group or individual owing to his position demanding public scrutiny and
criticism.

(e) Prospective of the speech: The possible impact of the exercised

expression is essential in determining the intent at the time speech was made.

398
SS Subramani Justice, Commentary on the Constitution of India, 9th Edition, Vol.
3, (DD Basu, 2015) p. 3212
399
Supra note 158
400
Incal v. Turkey, Application no. 41/1997/825/1031 (1998)
121
 (f) Context of the speech: Not every offensive expression of opinion
can qualify as hate speech. In Bobby Art International v. Om Pal Singh
Hoon401 the court weighed the context of expression at arriving at a decision
for adjudging the restriction.

4.3 CONCLUSION
After evaluating the arguments in favour of protecting sedition law and those
against keeping sedition law as a part of our statute, it is clear that arguments in
favour of repealing section 124A outweighs the arguments in favour of keeping it as
the damage done by it since its colonial inception leaves so space for rethinking of its
continuance. For the sake of argument, one might agree that sedition law was
essential post independence due to the vulnerability faced by the country for settling
innumerable partition refugees and curtailing various secession movements. This law
however holds no justification for its existence at present times as no such exposure
faces our nation today and India must portray itself as frontrunner in upholding the
values of freedom of speech and expression for its citizens. Jawaharlal Nehru urged
that Sedition law should have no place in reality and that India must get rid of it when
it attains normalcy from post independence disturbances. 402 The law however still
remains as a part of the Indian Penal Code and has been used repeatedly to curb
political dissent. The constitutionality of sedition law was challenged in Ram Nandan
v. State 403 before the Allahabad High Court. The court declared Section 124A
unconstitutional. This decision however was overruled in Kedar Nath Singh v. State
of Bihar 404 by the Supreme Court, which held the sedition law to be valid. In its
decision, the Supreme Court tried to draw a distinction between treachery and an
expression to highlight the shortcomings of the government without inciting public
disorder.405 Although Kedar Nath case limited the scope of sedition law, it failed to
stop the state from filing sedition charges and judges refusing bail, and in some cases,
convicting accused persons of sedition based on weak evidence. The result of these
laws is devastating. It disturbs and gradually destroys, the rightful and constitutionally
guaranteed freedom to protest, disagree or condemn the government.

It is important that the higher judiciary takes effective steps to caution the trial
court from slapping charges under Section 153A, 124A and 505(2) of The Indian
Penal Code, 1860. Greater care needs to be taken while dealing with offences of such
serious nature. Further, the law enforcement agencies should give importance to the
freedom of speech and expression. Scrapping of Section 66A of Information
Technology Act has ended the menace of this draconian section, but it has led to the
overuse of sedition law, as it is the best tool to quell online dissent. It is important that
existing laws, which curbs peaceful protests and support the corrupt objectives of the
government, are repealed in totality. Unnecessary repetitions such as Section 121 of

401
Bobby Art International v. Om Pal Singh Hoon AIR 1996 SC 1846
402
Ujjwal Kumar Singh, Political Prisoners in India (New Delhi: Oxford University
Press, 1998) p. 198
403
Supra note 212
404
Supra note 176
405
See Lawrence Liang, Sedition and the Right to Freedom of Expression, available at
http://thewire.in/42412/interview-sedition-and-the-right-to-freedom-of-expression/
Last visited 27.11.2019
122
the Indian Penal Code, 1860 that covers the offences under section 124A and carry
the same sentence, can be replaced by one section.

The research study shows that sedition under the Indian law has been used to
suppress the voice of Indian people. The law enforcement agencies have used it
against intellectuals, writers and public at large for curbing dissent. The Apex Court
should uphold the role of being the protector of the rights of the citizens and declare
Section 124A unconstitutional. India does not require a draconian law of the colonial
era to suppress India's voice. Pressure can also be built on the parliament to repeal
Section 124A. The wording of section 124A reads that those will be charged with
sedition who 'excite disaffection towards the government'. This however holds no
place in the present democratic set up where people have the right to speak against
their elected representatives and policies undertaken by them. Criminalising this right
kills it altogether. There is a need to re-examine, revise, cancel or amend sedition law
that criminalises free speech and expression.

This chapter touched upon the subject of ‘hate speech’ and whether it should
be suppressed or criminalized. ‘Hate speech’ is a subjective term open to numerous
interpretations. Hate speech may be considered as any communication, which
questions a person’s honor or skill and declares him/her worthless of respect on the
bias of race, religion, caste or creed. The determination of hate speech is based on
hurt or injury to feelings. The test propounded by the court suggests that to determine
hate speech, a statement needs to be judged by a reasonable person of ordinary
prudence and not by a highly sensitive person. In reality, it is impossible to
differentiate between these two categories of people. The more one believes in one’s
version of truth, the greater hurt there will be. A religious person can be hurt by any
comment on his or her faith. Whereas an atheist can be unaffected by any remark on
religion. The idea of reforming old religious practices such as untouchability and
‘sati’ would hurt the sentiments of the orthodox. While keeping such practices in use
would hurt the reformers. The only way to bring about drastic social change in the
society is by doing something that might offend or hurt a few. It is difficult to have
laws which can prevent hate speech with precision. Any specific legislation on the
subject of hate speech would suffer from vagueness. Furthermore, it would be
difficult to implement the laws enacted on hate speech. The Prevention of Incitement
to Racial Hatred Northern Ireland Act was enacted in 1970 but could not be properly
implemented. Any legislation curbing hate speech and free expression will give rise to
intolerance and fanaticism. India is a country, which stands for unity with diversity. If
a law is enacted barring hate speech of any kind, the fundamentalists of different
religion would invoke the provision against each other's religion leading to communal
disharmony. The country does not need tyrannical laws. What it needs is a healthy
environment to exchange opinion and ideas to promote tolerance. Criminalizing hate
speech would also empower minority regimes to misuse hate speech laws against the
majority. When India was under British rule, these laws were misused to suppress the
agitation and protest of people. A speech may be vulgar and vigorous but if it lacks
the ingredient of incitement to violence it cannot be criminalized. Any statement of
superiority justified on the basis of race, religion, caste of creed the response should
be laughed at and being ridiculed instead of giving it importance. The ideal of
democracy is based on granting freedom of speech and expression even at the cost of
fanaticism and illogical statements as long as it does not incite violence. Wrong ideas

123
and opinions should be challenged by correct and reasonable ideas. The court rightly
held in Manubhai v State of Gujarat406 that:

“If the people want to adopt the philosophy of Communism as

expounded by Mao-Tse-Tung, confiscation of a book like this is not going to
stop them from doing so. The reasons for their choice would be much deeper
and if the Government wants to repel the onslaught of Communist ideology, it
is to an elimination of these reasons that the Government may well address
itself rather than proscribe a book like this which propagates the principles
and practice of Communism as expounded by one of its chief exponents, with a
view to their academic study by the people.”407

The Supreme Court of India held in Rangarajan v Jagjivan408 that freedom of

speech and expression needs to protected and upheld by the state at all times and
cannot be exploited by a narrow-minded group of people. It is important to
differentiate between a statement that causes injury to the feelings of an individual or
public at large and a speech which incites persons to violence. A speech therefore
qualifies as a hate speech when from the very nature of expression an action is caused
which disturbs public order. A statement may also qualify as hate speech when its
content is likely to be detrimental to the interest of an individual or community on the
basis of colour, caste, creed, race or religion. Particularly in India, which is a multi-
cultural society, hate speech can have a very negative impact on the dignity and
confidence of the targeted individual or community hampering the virtues of tolerance
and mutual respect. In some cases, hate speech needs to be regulated as long as the
restrictions are not extreme or arbitrary. Further it is important to take care that a
statement is not declared hate speech on the basis of assumptions or apprehensions. A
real evident connection should exist between the speech in question and likelihood of
violence. In some cases however, expression which does not constitute incite violence
can be suppressed if it is grossly offensive. Freedom of expression cannot be misused
to give unfavourable comments and opinions.

The researcher critically analysed the connected issues arising as an

implication of the freedom of speech and expression. The study also made reflections
on the abuse of sedition law. The research shows that the law has failed to provide
adequate framework for the expanding scope of freedom of speech and expression.
There is shortage of specific laws and the existing regulations need amendment.
Suitable laws are required to control hate speech moderately. The right to freedom of
speech and expression does not serve as a licence for hate speech. There have been
innumerable reports in the media of violence caused due to the hate speech of
political figures. Such a trend needs to be discouraged and curbed. With the menace
of hate speech on the rise, it is advisable to include it as a ground for reasonable
restriction under Article 19(2).

This research study attempted to analyze whether Article 19(1)(a) and Section
124A compliment or oppose each other. A few relevant conclusions can be made in
this regard. Firstly, in the view of the researcher, Section 124A infringes article

406
12 Guj L R 968, 979
407
Ibid
408
Supra note 156
124
19(1)(a) and cannot take the refuge of the provision of ‘in the interest of public order.’
The expression ‘in the interest of public order’ has a very wide connotation that often
leads to the misuse of the provision to curb dissent.

Section 124A reads as follows:

“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.”409

Exciting mere disaffection or attempting to cause disaffection cannot be held

seditious. Only those acts that directly led to ‘violence’ should be punished under
sedition law.

To punish a person under the law of sedition, higher standards of proof must
be applied. Section 124A must be read together with Article 19(2) of the Constitution
and every case must be adjudged taking into consideration the facts and
circumstances of that particular case.

The government cannot be allowed to use discretionary power in arresting a

person under the charge of sedition. In present times, the state is omnipotent and
omnipresent. An analysis of present position reveals that the state power is wielding
public opinion.

Though the sedition law was found unconstitutional by several court

judgments, the Kedar Nath case overruled all existing case, upholding the
constitutional validity of the sedition law. The judgement clearly outlines that,
“disloyalty to Government established by law is not the same thing as commenting in
strong terms upon the measures or acts of Government, or its agencies, so as to
ameliorate the condition of the people or to secure the cancellation or alteration of
those acts or measures by lawful means.”410 Therefore criticizing the actions of the
government cannot be held seditious. Expressing a non-violent opinion is a
democratic right of all citizens.

Keeping section 124A in present times indicates that the colonial continuity of
the law helps the government is deriving colonial power of the era gone by.
Considering the low conviction rate of sedition charges, it is more likely that the law
has been used to oppress dissent with immediate effect rather than curing a real
problem.

While nationalism was used to defend ones belief in cases of colonial sedition
charges, in post independent India it is instead used to accuse individuals of sedition.
This appeal of the nation’s pride adds a moral justification to these cases, wields
public opinion against the accused. There is a rise in the use of the term ‘anti-

409
Section 124A of the Indian Penal Code 1860
410
Supra note 176
125
national’ to describe activists, intellectuals and other members of society who dare to
disagree with the government. The sedition law has played a very significant role in
assisting the government in restraining the growing voices against its policies. The
sedition law and the concept of nationalism challenge the language of human rights
and citizenship in the country. Time and again human rights activists have been the
target of the sedition law all over India. A difference has been created between the
citizen and the nation to justify that the rights of the citizen can be taken under the
pretext of the honour of the nation. A careful analysis of the section 124A of the
Indian Penal Code 1860 reveal that the sedition law doesn’t only criminalizes violent
acts of terror as a threat to the nation. It also encompasses thought crimes, wherein
evidence of ‘excitement of disaffection towards the state’ is related to the thoughts
and feelings of a person. Therefore the scope of the sedition law is so wide that it
includes a speech that it was expressed in public and can influence other people.

Many recent cases of sedition are based on invoking the idea of the
nationalism. This includes wielding public opinion against them and invoking the
angle of morality of committing a crime against the nation and not other individuals.
This creates a popular discourse around the nature of sedition and the state. This
vague law has exhibited that in propagating an idea of nationalism, it has failed to
uphold the interests of the citizens who create the nation along with them.

The sedition law has been used time and again as a political instrument by
different political parties to restrict opposition with immediate effect. It has targeted
activists, students, and journalists for exercising their individual liberties. It is a law
that is being used by the state as a modern tool of surveillance to mould public
opinion in its favour.

The sedition law can be considered as an instrument of a hypersensitive state

that is unable to tolerate dissent. It is being used as a instrument for demanding
submission to the state through a nationalist ideology. The sedition law was originally
brought for being used in extraordinary cases of a threat to national security; however
its application in the recent years shows its use for controlling speech and expression
of ordinary citizens. There is absolutely no need for a post-colonial law to continue in
independent India to on pretext of a binding single ideology of nationalism and
coercing its citizens into regulating their own freedoms.

Media has helped legitimizing arrests and maligning activists by labeling them
as ‘anti-nationals’. Popular public opinion is being wielded through social media
which serves as a platform to carry out the message of the government. Sedition law
is being used to inculcate fear in individuals and influence them to agree with the
government in any step however vague, taken by them.

The dichotomy of nation and citizen highlights the larger issue of protecting
individual rights of the citizen. Laws such as the sedition law and the Unlawful
Activities Prevention Act, are being manipulated to build a facade around state power.
People are charged under the sedition law to be used as examples for others so that
individuals are warned against doing any acts that may not be violent or directly
harmful to the state but can be still be punished. The concept of nationalism has
changed meaning from what it meant during the freedom movement and it being
specifically designed to undermine the rights of citizens. This tool of nationalist

126
rhetoric is destroying the very fabric of Indian democracy. Dissent is no longer
perceived by the government as an exercise of democratic rights and is instead used to
project ordinary thinking citizens as threat to the nation. Citizens are being labeled as
anti-nationals, Naxals, Maoist and extremists. As the idea of the anti-national citizen
gains public acceptance, the concept of nationalism to stifle various forms of dissent,
through public opinion is also on the rise.

In present times where freedom of speech and expression is guaranteed as an

international human right, one must question the need for a law like sedition that
frightens ordinary people of the country. 411

411
Ayesha Pattnaik, The art of dissolving dissent: India’s sedition law as an
instrument to regulate public opinion, available at
https://blogs.lse.ac.uk/southasia/2019/10/04/long-read-the-art-of-dissolving-dissent-
indias-sedition-law-as-an-instrument-to-regulate-public-opinion/ Last visited
29.11.2019

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