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Curator: Divya Srinivasan, Student, B.A., LL.B. (Hons.), National Law University, Delhi

Contributors: Manish, Research Fellow, Centre for Communication Governance at National Law University, Delhi and Aishwarya Ayshman, Student, B.A., LL.B. (Hons.), National University of Juridical Sciences

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INDEX – SEDITION (THEORETICAL ASPECTS)

Roger B. Manning, The Origins of the Doctrine of Sedition, Albion: A Quarterly Journal Concerned with British Studies, Vol. 12, No. 2 (Summer, 1980), pp. 99-121.

The author provides an account of the historical evolution of the doctrine of sedition which is important for analyzing the basis of modern Sedition Laws.

M.G. Wallace, Constitutionality of Sedition Laws, Virginia Law Review, Vol. 6, No. 6 (Mar., 1920), pp. 385-399.

This article examines the constitutionality of Sedition Laws in the United States and its relation with the freedom of speech and expression. The author also provides an account of the historical underpinnings of Sedition Laws.

Walter Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, The Supreme Court Review , Vol. 1970, (1970), pp. 109-159

The author analyses the Alien and Sedition Laws in America in the backdrop of Freedom of Press and the Alien and Sedition Laws.

Article 19, Submission to The Australian Law Reform Commission’s Review of Sedition Laws, April 2006 [Open Access]

This is a report submitted to the Australian Law Reform Commission’s Review of Sedition Laws. The report is relevant for the arguments it advances against sedition Laws from a constitutional perspective. While the report is set in an Australian context, it includes international perspectives of sedition law, and is therefore relevant of other jurisdictions.

Joshua Azriel, Five years after 9/11 Terrorist Attacks: Are New sedition laws needed to capture suspected terrorists in the United States, 6(1) Connecticut Public Law Journal 1 (2006) [Paid Database]

This article, by looking back through almost the last 100 years of American history, shows that the current laws on sedition and free speech in the post-9/11 era parallel those adopted from two other time periods in American history, i.e. World War One and the Cold War. It also argues that changes in current sedition laws are not needed to fight the war on terrorism five years after the attacks on September 11, 2001.

William Mayton, Seditious Libel and the lost guarantee of a Freedom of Expression84(1) Columbia Law Review 91 (1984) [Paid Database]

This article advances a new understanding of the original guarantee of freedom of speech under the American Constitution, before the First Amendment. It is also about the modern implications of the original guarantee about speech-how it provides tougher and more juridical standards for limiting discretionary government power over speech and how it avoids costs to speech that America presently tolerates under a wholly rights-oriented and litigation-intensive mode of protecting speech.

Julia SchenckKoffler&Bennet L. Gershman, The New Seditious Libel69 Cornell Law Review 816 (1983-84) [Paid Database]

This Article argues that the law on seditious libel is essentially anti-democratic. It seeks to demonstrate that authoritarianism, political insecurity, diabolization of dissenters, and a hysterical fear of opposition have traditionally accompanied waves of prosecution for seditious libel. In conclusion, it proposes a theory of how courts should decide these cases under an enlightened view of freedom of speech and suggest the outlines of a first amendment theory that would spell the death of seditious libel.

Laurence W Maher, ‘The Use and Abuse of Sedition’ (1992) 14 Sydney Law Review 287 [Open Access]

The article examines fragments of the history of sedition and like prosecutions in Australia, the United Kingdom and the United States of America in the twentieth century. It argues that, as long as the various sedition offences remain, governments will inevitably be tempted to use them improperly, especially when highly unpopular opinions are expressed, that the law of sedition is anachronistic and an unjustified interference with freedom of expression, and that abolition of sedition offences at both Commonwealth and State level is therefore to be preferred to any attempt to “modernise” the crime of sedition.

June Eichbaum, The antagonism between Freedom of Speech and Seditious Libel, 5 Hastings Constitutional Law Quarterly 445 (1978)[Open Access]

This article debates the question of whether the First Amendment repudiated seditious libel at the time of its adoption. It discusses the widely criticized Sedition Act of 1798 and concludes that even though the modern consensus is that the 1798 Act violated the First Amendment guarantees of right to freedom of speech and press, the proposition that the First Amendment at its adoption repudiated the common law crime of seditious libel remains doubtful.

Geoffrey Winston Russell Palmer, Political Speech and Sedition, 11 & 12 Yearbook of New Zealand Jurisprudence 36 (2009) [Open Access]

This article considers the law of sedition, tracing its history through the origins and evolution of such laws in England. It discusses the philosophy behind freedom of expression, identifying the four commonly held justifications for the principle. It contemplates the tradition of free speech in the United States and the relationship between First Amendment free speech, defamation, and sedition, as illustrated in the case New York Times v Sullivan. It argues that sedition (in the form of defamation against the government) strikes at the very heart of democracy and that political freedom ends when government can use its powers and its courts to silence its critics.

Laura K. Donoghue, Terrorist Speech and the Future of Free Expression, 27(1) Cardozo Law Review 234 (2005) [Open Access]

This article analyses sedition and related laws in the United States of America and the United Kingdom to determine the circumstances under which the interests of the State are secured and the opportunism of terrorist organizations avoided. It argues that the changes in the American or British law that were touted to protect free speech, are more restrictive than is widely understood. The article concludes that the national security exceptions are too broad, and has led to the use of counter-terrorism measures against non-violent opposition.

Comparative Studies:

Repeal Sedition Laws, Comparative Sedition Law, PUCL.

This website provides a comparative account of the development of Sedition laws in various jurisdictions.

James Morton Smith, The Sedition Law, Free Speech, and the American Political Process, The William and Mary Quarterly, Third Series, Vol. 9, No. 4 (Oct., 1952), pp. 497-511[Paid Database]

The article discusses Sedition Law in the American context. It examines the historical interplay between Sedition laws and the Freedom of Speech.

H.L Fu, Sedition and Political Dissidence: Towards Legitimate Dissent in China26(2) Hong Kong Law Journal 210 (1996)

This article reviews the application of laws against sedition in China and, in particular, recently publicised applications of these laws against two leading political dissidents in China. This analysis is placed within the context of a preliminary review of the development of laws against sedition principally in the United States. It concludes that it is not the abuse of China’s anti-sedition laws, as laws, which we need to be most concerned about. The more crucial problem relates to the political context, influenced often by international factors, which shapes decisions to use these laws.

Jaclyn Ling-Chien Neo, Seditious in Singapore! Free Speech and the Offence of promoting ill-will and hostility between Religious GroupsSingapore Journal of Legal Studies 351 (2011) [Open Access]

This article examines the new phenomenon of sedition laws being used to counteract speech considered offensive to racial and religious groups in Singapore. It investigates the manner in which these laws have been employed and jurisprudentially developed to restrain speech on race and/or religion in Singapore. The article argues that the current state of the law is highlyproblematic for its adverse impact on free speech as well as for its conceptual confusions with alternative bases for restraining speech.

New Zealand Law Commission, Reforming the Law of Sedition, Report 96, March 2007[Open Access]

The New Zealand’s Law Commission Report reviews the law of sedition in New Zealand, and traces its history in common law. It has concluded that the width of the seditious offences under the law means they are an unjustifiable breach of the right of freedom of expression. Considering that defaming the Government is right of every citizen, the Law Commission recommended the repeal of the sedition laws in the country.

Simon Bronitt& James Stellios, Sedition, Security and Human Rights: ‘Unbalanced’ Law Reform in the War on ‘Terror” 30 Melbourne University Law Review 923 (2006) [Paid Database]

This article provides a review of the history, structure and form of the law of sedition, focusing on the new provisions inserted into the Criminal Code Act 1995 in 2005as part of a wider counter-terrorism package. A short historical review of sedition in Australia is followed by a critical analysis of the new offences, which explores the constitutional and human rights implications of these new offences. It concludes that the law does not achieve the proposed balance between national security and human rights.

Jeyaseelan Anthony, Seditious Tendency? Political Patronisation of Free Speech and Expression in Malaysia, Education and Research Association for Consumers, [Open Access]

This book is an analysis of the draconian provisions in the Sedition Act 1948 of Malaysia,its history and how it affects the citizen’s constitutional right to freedom of speech and expression as enshrined in the Constitution. It provides some understanding of, and reasons why, the Sedition Act as enacted and adopted in 1948 by the British colonial government must be abolished, or alternatively, reformed to reflect the changes in national and global political dimensions, particularly the threat of terrorism.

INDIAN PERSPECTIVE

SarimNaved, On sedition: SarimNaved, Kafila, December 07, 2010[Open Access]

In this article, the author gives a chronological account of sedition in Indian law, and discusses the procedural aspects laid down for a magistrate to take cognizance of sedition.

SiddharthNarrain, We are all seditious now, but when did this start?, Kafila, December 06, 2010.[Open Access]

In this article, the author traces the development of Sedition Law in India from pre-colonial era to the present time.

SiddharthNarrain, Sedition and the death of free speech, Info Change News and Features, July 2011.[Open Access]

This article summarizes the recent incidents where the Sedition Laws has been invoked in India. It urges for a re-examination of the sedition law in India.

BinayakSen, Sedition law is against spirit of democracy, The Times of India, September 16, 2012.[Open Access]

The author provides his own experience of being booked under the Sedition Law and poses questions on the relevance of Sedition Laws in the present times.

A.G Noorani, Sedition and Democracy, The Kashmir Monitor, 8th December 2013[Open Access]

In this article, Noorani discusses the provision of Section 124-A of the IPC and the recent cases under it. He concludes that this provision is unconstitutional, and calls for its repeal, or at the very least, reform in the law.

Centre for Study of Social Exclusion, NLSIU and Inclusive Policy & Alternative Law Forum, Bangalore Sedition Laws & The Death of Free Speech in India[Open Access]

This manual describes the historical evolution of Sedition laws and the recent developments in this field. It also provides a comparative study of sedition laws across different countries. It deals with how sedition laws have been dealt with in contemporary India, and brings together various arguments to make the case for the repeal of these laws.

SiddharthNarrain, ‘Disaffection’ and the Law: The chilling effect of Sedition Law in India, 46(8) Economic and Political weekly (2011) [Open Access]

This article questions the place that colonial legacy which, in its logic, believes that people are bound to feel affection for the state, and should not show any enmity, contempt, hatred or hostility towards the government established by law, has in a modern democratic state like India. It examines how these laws impact the ability of citizens to freely express themselves and limit the ability to constructively criticise or express dissent against governments.

Human Rights Watch, Repeal Sedition Law, 5th January 2011[Open Access]

In this article, Human Rights Watch calls for the repeal of sedition law in India following its widespread abuse. The article points out a number of cases where the law on sedition has been used to silence political dissent even when there is no incitement to violence.

NiveditaMenon, Sedition: The Highest duty of a citizen, Kafila, 26th October 2010 [Open Access]

This blog article argues that concepts of sedition and disaffection have no place in a modern democracy, as the provisions are unconstitutional.

Margaret Stride, Not a 21st century law, 8(17) Tehelka Magazine, 30th April 2011

This article argues that even if the sedition law was not abused like it is in India in modern times, it is a bad law that infringes on the constitutional right to freedom of expression.

GopalakrishnaSastri, The Law of Sedition in India, Book, Indian Law Institute, Bombay, 1964

Review – Modern Law Review, International and Comparative Law Quarterly

This book provides an overview of sedition law in India, taking into account the nature of the subject, its history in India, discrepancies in viewpoint during the British period and some interesting corrections of the judiciary by Parliament. It deals with laws and judgments related to sedition in the context of the Constitution, and also focuses specifically on forfeiture of documents.

Sedition in Colonial India:

Mahatma Gandhi, Statement of the Great Trial of 1922[Open Access]

This is a recording of Mahatma Gandhi’s speech during his trial for the offence of inciting disaffection against the British Government under Section 124-A of the Indian Penal Code. In his speech, Gandhi describes Section 124-A as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen”.

W.R Donogh, A treatise on the law of sedition and cognate offences in British India: Penal and Preventive, ThackerSpink and Co., Calcutta, 1911

This is a handbook on the colonial law of sedition and related offences. It discusses the origin and history of the law of sedition, and describes the important trials on sedition offences that took place in colonial India.

AravindGanachari, Combating Terror of Law in Colonial India: The law of Sedition and the Nationalist Response in M. Vardaloset. Al. (eds.) Engaging Terror: A Critical & Inter-disciplinary Approach, Brown Walker Press, 2009

This paper traces the history of Indo-British law on sedition, namely, Section 124-A of the IPC and focuses mainly on how it was used by the British to suppress Indian nationalism. It argues that the Colonial State terrorized the masses by using the law as an instrument of coercion. It compares the strategies used by BalGangadharTilak& Mahatma Gandhi in combating sedition cases foisted on them.

Case Law:

NiharenduDuttMajumdar v. King Emperor, 1942 F.C.R.38 [Federal Court]

The case held that public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence of sedition and “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.

Emperor v. Sadashiv Narayan, AIR 1947 PC 82 [Privy Council]

The Privy Council in this case over-ruled the interpretation of sedition given by the Federal Court in NiharenduDutt. It held that the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.” Thus, according to the Privy Council, incitement to violence was not a necessary ingredient of the offence of the sedition.

BrijBhushan v. State of Delhi, [1950] Supp SCR 245 [Supreme Court]

The case examines sedition in the light of the Indian Constitution. The Court in this case held that sedition undermined the security of the State, and that this was usually through the medium of public disorder. Hence, the law of sedition falls within the exceptions to Freedom of Speech and Expression provided for in Article 19(2) of the Constitution of India.

TarasinghGopichand v State 1951 CriLJ 449 [Punjab & Haryana High Court]

In this case the accused had made certain speeches in 1950 at Shahabad and Ludhiana, in connection with which he was charged with sedition. The Court opined that Section 124-A was irrelevant in a modern democracy like India, and declared it unconstitutional as it violated the Freedom of Speech and Expression.

Ram Nandan v State AIR 1959 All 101 [Allahabad High Court]

The constitutionality of Section 124-A of the Indian Penal Code was challenged in this case. The court held that the provision was an invalid restriction of Freedom of Speech as it was possible for people who legitimately and peaceably criticisethe Government to be caught in “the mischief of Section 124A of the Indian Penal Code.”

KedarNath Singh v. State of Bihar, AIR 1962 SC 955 [Supreme Court]

The constitutionality of Section 124-A of the Indian Penal Code was impugned in this case. The Supreme Court upheld the constitutionality of the sedition law (over-ruling the Ram Nandan case), but at the same time curtailed its meaning and limited its application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence. The judges observed that if the sedition law were to be given a wider interpretation, it would not survive the test of constitutionality.

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