Law of Sedition in India, IPC & CrPC

Law of Sedition in India, IPC & CrPC

A Short Summary of the Law of Sedition in India

Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless they are being used to incite mobs or crowds to violent action.

A Short Summary of the Law of Sedition in India

News reports are indicating that an FIR has been registered with respect to a public meeting organised on the Jawaharlal Nehru University (JNU) campus on the evening of 9th February. These reports claim that the meeting was about the hanging of Afzal Guru, and it is alleged that during its course, some people raised incendiary slogans. According to reports, the FIR has been registered under Section 124A of the Indian Penal Code (sedition), and the Police have already arrested one person.

It is important to note that under the Indian law of sedition, the events at the public meeting, even if completely true, do not even come close to establishing an offence. In Kedar Nath Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear that allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’ to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this phrase. In Indra Das v. State of Assam and Arup Bhuyan v. State of Assam, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised. In Shreya Singhal v. Union of India, the famous 66A judgment, the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that only the latter could be punished.

Therefore, advocating revolution, or advocating even violent overthrow of the State, does not amount to sedition, unless there is incitement to violence, and more importantly, the incitement is to ‘imminent’ violence. For instance, in Balwant Singh v. State of Punjab, the Supreme Court overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984, i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented by Hindus and Sikhs in Chandigarh.

Thus, words and speech can be criminalized and punished only in situations where it is being used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.

Sedition laws in India

Altogether, Sedition laws are found in the following laws in India:

1.      the Indian Penal Code, 1860 (Section 124 (A))

2.      the Code of Criminal Procedure, 1973 (Section 95)

3.      the Seditious Meetings Act, 1911 and

4.      the Unlawful Activities (Prevention) Act (Section 2 (o) (iii)).

Some Famous Sedition Trials:

It is accepted that the first time, the act was invoked, was against Jogendra Chandra Bose, the editor of Bangobasi, for voicing against Age of Consent Bill, 1891.

Bal Gangadhara Tilak. First in 1897 for exhorting to act against Rand, the Plague Commissioner. Second in 1909 in respect of certain articles published in the “Kesari” in May and June 1908, for which he was deported to Mandalay.

Gandhiji in 1922, for three articles published in the magazine Young India.

Cartoonist Aseem Trivedi, 2011. He was arrested in Mumbai under IPC Section 124 (sedition), section 66 A of Information Technology Act and section 2 of Prevention of Insults to Nation Honour Act. The Kanpur-based artist had been accused of putting up banners mocking the Constitution during a rally of anti-corruption crusader Anna Hazare in Mumbai and posting the same on his website.

Dr Binayak Sen was accused of sedition by the Chhattisgarh government in 2011. An Indian paediatrician, public health specialist and activist, Dr Binayak Sen is the national vice-president of the People’s Union for Civil Liberties. He was accused of acting as a Maoist messenger

Arundhati Roy, Hurriyat leader Syed Ali Shah Geelani and others were booked on charges of sedition by Delhi Police for their “anti-India” speech at a seminar in 2010, for advocating independence for the disputed Kashmir region.

Praveen Togadia was in 2003 slapped with the charge of sedition by the Rajasthan government. The charges include an attempt “to wage a war against the nation.”

Latest case against JNUSU President Kanhaiya Kumar.

Indian Penal Code

The Indian Penal Code (IPC) is the main criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Thomas Babington Macaulay. It came into force in British India during the early British Raj period in 1862. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code has since been amended several times and is now supplemented by other criminal provisions.

After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code. The Ranbir Penal Code (RPC) applicable in Jammu and Kashmir is also based on this Code.[2] After the separation of Bangladesh from Pakistan, the code continued in force there. The Code was also adopted by the British colonial authorities in Colonial Burma, Ceylon (modern Sri Lanka), the Straits Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes in those countries.

Objective

The objective of this Act is to provide a general penal code for India. Though not an initial objective, the Act does not repeal the penal laws which were in force at the time of coming into force in India. This was so because the Code does not contain all the offences and it was possible that some offences might have still been left out of the Code, which were not intended to be exempted from penal consequences. Though this Code consolidates the whole of the law on the subject and is exhaustive on the matters in respect of which it declares the law, many more penal statutes governing various offences have been created in addition to the code.

Structure

The Indian Penal Code of 1860, sub-divided into twenty three chapters, comprises five hundred and eleven sections. The Code starts with an introduction, provides explanations and exceptions used in it, and covers a wide range of offences.

Code of Criminal Procedure (India)

The Code of Criminal Procedure (CrPC ) is the main legislation on procedure for administration of substantive criminal law in India. It was enacted in 1973 and came into force on 1 April 1974. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty. Additionally, it also deals with public nuisance, prevention of offences and maintenance of wife, child and parents.

At present, the Act contains 484 Sections, 2 Schedules and 56 Forms. The Sections are divided into 37 Chapters.

Classification of Offences under the Code

Cognizable and Non-cognizable Offences

Cognizable offences are those offences for which a police officer may arrest without court mandated warrant in accordance with the first schedule of the code. For non-cognizable cases the police officer may arrest only after being duly authorized by a warrant. Non-cognizable offences are, generally, relatively less serious offences than cognizable ones. Cognizable Offences reported under section 154 Cr.P.C while Non-Cognizable Offences reported under section 155 Cr.P.C. For Non-Cognizable Offences the Magistrate empowered to take cognizance under section 190 Cr.P.C. Under section 156(3) Cr.P.C the Magistrate is competent to direct the police to register the case, investigate the same and submit the challan/report for cancellation. (2003 P.Cr.L.J.1282)

Summons-Case and Warrant-Case

Under Section 204 of the code, a Magistrate taking cognizance of an offence is to issue summons for the attendance of the accused if the case is a summons case. If the case appears to be a warrant case, he may issue a warrant or summons, as he sees fit. Section 2(w) of the Code defines summons-case as, a case relating to an Offence, and not being a warrant-case. Section 2(x) of the Code defines warrant-case as, a case relating to an Offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

Territorial extent, Scope and Applicability

The Criminal Procedure Code is applicable in the whole of India except in the State of Jammu and Kashmir. The Parliament's power to legislate in respect of Jammu & Kashmir is curtailed by Article 370 of the Constitution of India.

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-

(a) to the State of Nagaland, (b) to the tribal areas,

However the concerned State Government may, by notification apply any or all of these provisions in these areas. Moreover, the Supreme Court of India has also ruled that even in these areas, the authorities are to be governed by the substance of these rules.

Functionaries under the Code

1.      Supreme Court of India

2.      High Courts

3.      District and Session Judge and Additional District Judges

4.      Judicial Magistrates

5.      Executive Magistrates

6.      Police

7.      Public prosecutors

8.      Defence Counsels

9.      Correctional services personnel

Sentences which Magistrates may pass

·        The Court of a Chief Judicial Magistrate may pass any sentence authorized by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.

·        The Courts of Judicial Magistrate of First Class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding ten thousand rupees (sub by act 25 of 2005 for rupees five thousand), or of both.

·        The Courts of Judicial Magistrate of Second Class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding five thousand rupees(sub by act 25 of 2005 for rupees one thousand), or of both.

·        The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Courts of Judicial Magistrate of First Class

Bail

There is no definition of the term "bail" under the code though the terms "bailable" and "non-bailable" have been defined. It has however been defined by the Black's Law Lexicon as security for the appearance of the accused person on giving which he is released pending trial or investigation

The First Schedule to the Code, classifies the offences defined in the Indian Penal Code. Besides specifying whether an offence is Bailable or Non-Bailable it also specifies if it is Cognizable or Non-Cognizable, which Court has the jurisdiction to try the said offence, the minimum and maximum amount of punishment that can or shall be awarded for the said offence.

The Supreme Court of India can and has from time to time made certain bailable offences, non-bailable or vice-a-versa by special directions, to curb increasing menace of certain crimes in the society.[8] The State Government has the power to make certain offences bailable or non-bailable in their respective States.

Summary trials

Section 260 Clause 2 of the Code lists certain offences which may be summarily tried by any Chief Judicial Magistrate, any Metropolitan Magistrate or any Judicial Magistrate First Class. A First Class Magistrate must first be authorised by the respective High Court to that effect before he may try cases summarily under this Section.

The offences that may be tried summarily under this Section are:

1.      Offences not punishable with death, life imprisonment, or imprisonment for a term exceeding two years.

2.      Theft under Section 379, 380 and 381 of the Indian Penal Code provided that the value of the stolen property is below ₹2,000.

3.      Receiving or retaining stolen property under Section 411 of the penal code where the value of the stolen property is below ₹2,000.

4.      Assisting in the concealment or disposal of stolen property, under Section 414 of the penal code, the value of the stolen property being below ₹2,000.

5.      Lurking house-trespass (Section 454 of the Indian Penal Code) and house-breaking (Section 456 of the Penal Code) at night.

6.      Insult with an intent to provoke a breach of peace under Section 504 and criminal intimidation under Section 506 of the penal code.

7.      Abetting of any of the above-mentioned offences.

8.      Attempt to commit any of the above-mentioned offences.

9.      Offences with respect to which complaints may be made under Section 20 of Cattle Trespass Act, 1871.

Apart from the above, a Second Class Magistrate may, if so empowered by the High Court, summarily try an offence punishable with fine or with imprisonment not exceeding six months or the abettment or attempt to commit such an offence. As per section 262(2) no sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this chapter 21.

A summary trial tried by a magistrate without being empowered to do so is void. The procedure for a summoncase is to be followed, subject to special provisions made in this behalf. The maximum sentence that may be awarded by way of a summary trial is three months with or without fine.

The Magistrate may give up the summary trial in favour of the regular trial if he finds it undesirable to try the case summarily. The judgement is to be delivered in abridged form.

Judgment

Judgment is the final reasoned decision of the Court as to the guilt or innocence of the accused. Where the accused is found guilty, the judgment must also contain an order requiring the accused to undergo punishment or treatment.

Every court must deliver the judgement in the language of that court as determined by the State Government. It must contain the points that lead to the determination of guilt or innocence. It usually commences with facts and must indicate careful analysis of evidence. It must also specify the offence under the penal code or such other specific law as well as the punishment sentenced. If acquitted the offence of which the accused is so acquitted must be specified along with a direction that the accused be set at liberty.

Judgments in abridged form

According to Section 355 of the Code, a Metropolitan Magistrate may deliver judgments in abridged form and should contain:

1.      Serial number of the case

2.      Date of commission of the offence

3.      Name of the complainant (if any)

4.      Name of the accused person, his parentage and residence

5.      Offence complained of (or proved, as the case may be)

6.      Plea of the accused and his examination (if any)

7.      Final order

8.      Date of the order

9.      In cases where appeal lies from the final order, a brief statement of reasons for the decision.