In yet another reminder to those in power, the Supreme Court on Monday reiterated that only remarks that provoke violence and disorder amount to sedition, and "making a strong criticism of the government" was not seditious or even defamatory. The two-judge bench said authorities were "bound by" the 1962 Constitution Bench ruling, according to which an individual can be charged with sedition only if his acts caused "incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace". Authorities, however, seem unaware of this nuanced position, as a result of which activists, writers, student leaders, actors, and poets are being arbitrarily booked in sedition cases. In a subsequent judgment, the apex court went one step further and unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised. Merely making calls for a violent revolution against the State cannot amount to sedition unless it can be proven that there is an incitement to “imminent” violence. More importantly, in its popular judgment on Section 66 of the IT Act in 2015, the apex court makes a clear distinction between “advocacy” and “incitement”, stating that only the latter can be punished as per law.
Under Section 124(A) of the Indian Penal Code, a person can be charged with sedition if his speech or act “attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government”. The sedition law was first promulgated by the British Raj in a bid to stifle free speech and expression, which posed a serious threat to its colonial rule. In a proud democratic republic like India, it is a real shame that our governments still use the same British-era sedition law to stifle freedom of speech and expression. In response to being charged under Section 124A, Gandhi once told a British judge that “sedition was the highest moral duty of a citizen”. Since the law is about “disaffection against the state”, Gandhi said that “affection cannot be manufactured or regulated by law”.