18 Sep

The new wage code for India for 2022 is now in effect, as promised at the 2021 Union Budget. After more than a year and an extended delay past the projected April 2022 roll out deadline, the eagerly awaited four labour rules on pay, social security, industrial relations, and occupational safety, health, and working conditions are once again making headlines. The Indian government has made an effort to streamline the many wage-related laws through the New Wage Code.

In the Wage Code Bill 2019, the definition of “wage” has been changed. The monthly basic compensation of an employee must equal at least 50% of the net CTC in accordance with the New Wage Code’s revised definition of “wages” (Cost To Company).

What does this mean for employees?

Because the amount of basic pay is changing, other components like the provident fund contribution and gratuity, whose values depend on the basic salaries, will also fluctuate. The employees’ reduced take-home pay and increased contributions to the retirement fund will be the most noticeable effects of this restructure.

The take-home pay of employees in the private sector will also be slightly lowered as a result.

How will it impact payroll processing?

The compensation structure and tax obligations of the private working class as well as the salaries, provident funds, and gratuities of central government officials will all be directly impacted by these new reforms. In the Wage Code Bill 2019, the definition of “wage” has been changed. The monthly basic compensation of an employee must equal at least 50% of the net CTC in accordance with the New Wage Code’s revised definition of “wages” (Cost To Company).

Introducing new wage code 2022

The Indian federal government combined a total of 29 labour laws into four new codes during the presentation of the Union Budget 2021. The Industrial Relations Code, Code on Occupational Safety, Code on Health and Working Conditions, and the New Wage Code are the four new codes. The current labour rules have been altered in a number of ways. But the definition of “wage” has undergone the most significant alteration. This modification’s new wage code tries to directly factor 50% of the wages into employee salaries.

Many businesses now give their workers extra supplementary allowances and lower their base pay to ease the burden on the business. However, under the rules established by the New Wage Code Act of 2022, the employee’s basic pay cannot be less than 50% of the CTC. The House Rent Allowance (HRA), the Basic Wage, Retirement Benefits including PF and National Pension System, and Other Tax-Friendly Allowances are the minimum four main components of an employee’s CTC.

When new wage code will be implemented?

As of July 2022, the new wage law will be implemented and will have an impact on employees’ working hours, salary restructure, and PF contributions. According to a formal source, the new pay law for 2022 has pre-published draughts in at least 13 Indian states. The process of finalising the draught regulations of the new wage code and the other labour codes was concluded by the Center in February 2021, and the new wage code was notified on August 8, 2019.

The new pay law and other labour codes should be implemented by the States, according to the federal government. Given that it is connected to the other programmes in the system, this must take place concurrently. As a result, significant adjustments will be made to the remuneration structure of private employees in 2022, with the key change being a decrease in take-home pay and an increase in provident fund contributions.

What changes in payroll will now occur with the introduction of the new wage code?

Increased contribution for the PF or Provident Fund

Daily Tax Analysis states that the PF contribution was 12% of the base wage. The provident fund contribution, however, is expected to rise significantly, albeit exactly how much is yet to be determined given the changes made by the new pay code.

Change in Gratuity Rule

According to the Payment of the Gratuity Act of 1972, a gratuity is a sum of money given by an employer to a worker as a sign of appreciation. One of the many elements that make up the employee’s total income is the gratuity payout.

Changes in Salary Structure

When the New Wage Code Bill is put into effect in 2022, CTC will be impacted by the rise in the basic pay, and if an employee’s basic salary was less than 50%, it should be raised. Allowances for things like leave, travel, overtime, and transportation will be restricted to the remaining CTC percentage.

Changes in working hours

The four-day workweek provision in the new pay code has been welcomed, but there is a catch: the day lost merely extends over the remaining four days.

To make up for any lost time, the new rule requires that the employee log in for 12 hours each day. Your weekly hours are still regulated at 48 hours even if you work four or five days a week. The modification is intended to make it simpler for businesses to adopt four-day workweeks without actually sacrificing a day of productivity.

Additionally, factory workers’ overtime limits have been increased from 50 hours to 125 hours.

How does the new wage code 2022 impact take-home salary?

There will be a change in the total payouts as a result of the change in the definition of wages and the fact that social security components like the provident fund are now secured as a proportion of “wages.” According to experts, there would be a greater deduction from the employees’ provident funds. Consequently, the take-home pay would be lower, but the employees’ futures will be safe. The take-home pay will be considerably impacted by the employment letters and the present employees’ salary breakdown. Employers will give careful consideration to even TDS calculations based on changes in take-home pay. According to the March publication of the Grant Thornton Bharat Industry Expectation Survey, half of Indian enterprises are prepared.

According to analysts, the larger social security contribution will increase the employer’s terminal benefits. Simply said, even though the employees’ current earnings may somewhat decrease as a result of the new wage regulations, they will receive improved social security benefits that will secure their way of life after retirement.

How will it impact payroll processing?

How does the new wage code affect the taxes paid by employees?

Experts point out that employees with higher salaries will likely have a higher tax obligation as a result of a wage restructure. Why? As only 50% of the CTC will be available for tax limiting. Employees in the low and medium pay band are not anticipated to face an increased tax burden.

How does the new wage code impact the business community?

Consistency in tech definition of wages

There are at least 12 different definitions of “wages” in the existing labour regulations. The new laws’ introduction has made it possible for the term “wages” to have a single definition, which is anticipated to lessen any ambiguity about what should be counted as “wages.”

‘Inclusion’ and ‘Exclusions’ are clearly explained and have to be understood by businesses

The inclusions and exclusions under the concept of wages are explained in detail in the code of wages. Every company and corporation will need to comprehend the definition, analyse the CTC component breakdown, and review the component allocation in the event that they do not adhere to the definition of salaries and the listed inclusions and exclusions.

Much wider coverage

Businesses are not required to monitor which parts of the law apply to their employees. The new pay code has significantly greater scope than the current labour regulations, which are limited to workers or employees who receive a specific salary. The new pay code Act of 2022 applies to all employees and incorporates a new age working paradigm. The new code provides 21st-century employees with protection and legal remedies, making it appear to be highly forward-thinking and inclusive.

Faster F&F Settlement

According to the New Wage Code, wages owed to an employee must be paid within two days following the employee’s removal, dismissal, resignation, or layoff. According to Siddharth Surana, Business Strategy and Transformation Advisor, RSM India, “Businesses should take note of this and should speed up their internal processes to guarantee that dues are resolved in the required period.”

What impact will the new wage code have on international organisations employing in India?

International enterprises will experience changes in salary and hiring processes as a result of the wage code, which is applicable to all Indian employees regardless of their employer. With training and the implementation of the new wage code best practise for HR and payroll teams, it also generates additional regulations that will have a ripple impact on foreign payroll.

Now can be a good time for businesses entering the Indian labour market or those already present there to collaborate with a foreign payroll expert there. Local experts will assist in guiding decisions when it comes to potentially increasing salaries to mitigate the decrease in base salary or the implementation of supporting benefits and their taxation implications, in addition to ensuring the new wage code is followed and the systems in place are compliant.

In any case, more care will need to be taken to ensure teams are paid fairly and to prevent monetary penalties for making estimates that aren’t compliant with the wage code.

The results of new wage code implementation in 2022

The modification of salary slips will be the most obvious consequence of the new wage code’s implementation in 2022. The pay structure of the private working class has undergone numerous noteworthy changes.

Despite making greater contributions to a stable future, employees will bring less money home with them. Additionally, the timing of the pay code rise will undoubtedly have an influence on consumer confidence and household spending in India given the worldwide crisis in the cost of living, energy and raw material shortages, and the ripple effect of Covid-19.

Additionally, with the revision to the wage legislation in 2022, taxes will inevitably increase. Why? Taxes will rise in tandem with the rise in the basic pay. However, under the current regulations, a portion of HRA and Bonus are non-taxable.

Under the new pay legislation, the non-taxable portion will be considerably reduced and fall between 20 and 25 percent. The taxable portion of HRA will grow due to an increase in basic wage, which will also result in an increase in HRA tax. However, those with high incomes will be impacted by these changes, while those with low incomes won’t see a meaningful increase in their taxable income.

Conclusion

To implement the New Wage Code 2022, the State Governments must adopt their own regulations. The new wage law is generally considered to be employee-positive, albeit there may be a compliance fee and considerable paperwork to do.

References

17 Sep

INDIAN ANTI-DEFECTION LAW

Prime Legal

Articles

INTRODUCTION

The anti-defection law in India has an all-pervasive impact on the lives of ordinary citizens as it seeks to promote parliamentary discipline and decorum and prevent unethical tactics from being used by politicians. While such aims are indeed laudable there are its critics who claim that this law has created more problems and complications than ever before. There has been a continuous struggle between the supporters of the law on one hand and its detractors on the other.

Aaya Ram Gaya Ram was a phrase that becomes popular in Indian politics after a Haryana MLA Gaya Lal changed his party thrice on the same day in 1967. The Anti Defection Law sought to prevent such political defection which may be due to rewards of the office or other similar considerations.

The Tenth Schedule was inserted into the Constitution in 1985. It lays down the process by which legislators may be disqualified on grounds of defection by the Presiding Officer of a legislature based on the petition by any other member of the house. A legislature is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directive of the party leadership on a vote. This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House. The law applies to both Parliament and state assemblies.

The Supreme Court off lately has been adjudicating defection-based disqualification petitions from different state legislative assemblies. In the process, the court has reviewed the limits of the speaker’s discretion.

When Haryana held its first election in 1967 after the state was carved out from Punjab, an independent candidate named Gayalal won the assembly elections. Later he joined the Congress party; in the evening, he joined the United Front, and within 9 hrs he joined the Congress again, which ultimately means M.L.A. Gayalal switched his party thrice within 9hrs. This incident gave rise to “Aaya Ram Gaya Ram” politics in our country, and the defection got the new term, “Aaya Ram, Gaya Ram.” Unfortunately, this didn’t end here. Within 15 days, Gayalal again joined the United Front. In another notorious event in 1979, Haryana also came into the limelight when Bhajan Lal became CM of the state. The next, year Indira Gandhi came into power in the central government. He joined the Congress party with forty other M.L.A.s It is worth mentioning here that more than 50 state governments have fallen because of these defections since Independence’s enactment.

These acts of defections had to be curbed to maintain the dignity of the constitutional machinery and assemblies; then, the prime minister of the country, late Rajeev Gandhi, enacted the 52nd amendment of the Constitution, and the10th Schedule was added, which defined the word defection and known as Anti-Defection law. Various provisions have been provided by the law, which discusses grounds under which any member of the state legislature or Parliament can be disqualified. In most common forms, defection means jumping from one political party to the other after getting elected.

BACKGROUND

The phenomenon of defection is not peculiar to India. It is prevalent in democracies all over the world, which have adopted the party system. In Great Britain, famous politicians like Winston Churchill, William Gladstone and Ramsay Macdonald used it during their careers as political tactics. Similarly, in Australia, Canada and USA, this practice of defection has been noticeable.[1]

In India, the need to tackle defection arose only after 1967. Before 1967, there were only about 500 instances of defection and that too, mostly at the state level. Such defection occurred mostly for ideological reasons and not due to the lure of office. These defections further strengthened the fabric of Indian democracy and curbing such defection would have been akin to undermining and eroding the freedom required setup.[2] After Fourth General Election in the country, however, the practice of defection took an alarmingly unprecedented turn. Many legislators switched sides thanks to the use of office and abruptly switched back when the promises made to them were not fulfilled. Between 1967 and 1972 more than 50% of the legislators switched sides at least once.[3] This practice of switching sides to gain office came to be known as ‘Horse-Trading’.

The first attempt to analyse this malady came in December 1967 when the Lok Sabha appointed a high-level committee to look into the problem and make recommendations. The committee was constituted under the chairmanship of the then Union Home Minister Y.B. Chavan and consisted of legal and political luminaries such as M.C. Setalvad, Jayaprakash Narayan, H.N. Kunzru, M. Kumaramangalam and Madhu Limaye among others. The committee placed its report before the Parliament in February 1969. The committee’s recommendations included that:

Political parties should arrive at a code of conduct amongst themselves.
In cases of defection for ideological reasons, the defector should be disqualified from continuing as a legislator but is allowed to stand again.

In cases of defection due to the lure of the office or pecuniary gains, the defector should not only be disqualified from the office but also be prevented from standing for a specified period.

What emerges is that no definite stand for or against defection was taken. It was proposed to regulate defection and only a certain category of defections were sought to be prohibited. However, these recommendations were not acted upon immediately. it was only in May 1973 that the government introduced the Constitution (32^nd Amendment) Bill, 1973 to give effect to recommendations made 4 years earlier. However, there was strong opposition to the bill and it became a matter of public debate. This bill was then referred to a joint committee of the 2 Houses. However, the Lok Sabha was dissolved before this committee could complete its deliberation and the bill lapsed.

It was not until 5 years later when the Janata Party came to power in 1978 that an attempt was made to bring forward a bill on defection. However, this was opposed at the stage of introduction itself not only by the opposition but also by some members of the ruling party and the motion for introducing the bill was withdrawn.[4]

It was not until the Rajiv Gandhi Government came to power 7 years later that any move was made in this direction. It began on 17^th January 1985 with the presidential address to both Houses of Parliament in which he said that the government intended to introduce a bill relating to the matter. To fulfil the promise made by President, the Government introduced the 52^nd Amendment Bill in Lok Sabha just a week later on the 24^th of January. The Prime Minister prolonged the talks with the opposition groups; it was after this that the Bill was finally passed. Lok Sabha passed it on 30^th and Rajya Sabha on 31^st January. The Act came into force with effect 1^st of March after having received Presidential assent on the 15^thof February. The constitution 52^nd Amendment Act, 1985 amended Acts 101, 102, 190, and 191 of the constitution providing further grounds for disqualification from membership of Parliament and State Legislature.

HISTORICAL EVOLUTION OF LAW

After enacting the Constitution in the year 1950, we had the first general elections in our country in which Congress secured a whopping victory. Still, with time, the political scenario took a turn, and we came across coalition governments in various states. Floor crossing started which led to a vicious cycle of defections and floor crossing. In the late 1960s, most defectors were from Congress. In 1977, the Bhartiya Lok Dal ran 94 turncoat candidates, including 21 from Congress. Many of them migrated back to Congress once it became clear that Indira Gandhi was set to win the 1980 elections. This period is considered a weak point of Congress in Indian Politics.

With all those defections in this phase, the most dramatic case of defection in that era was that of Mr Gaya Lal, who contested state assembly elections as an independent candidate. As result, he switched the parties between Congress and United Front thrice a day. Ultimately, the president was forced to implement President Rule in the state, giving rise to Aaya Ram, Gaya Ram politics in our country.

THE INTERNATIONAL SCENARIO ON ANTI-DEFECTION LAW

Anti-defection law isn’t applicable in India only. It’s rife in various other countries like the People’s Republic of Bangladesh, Kenya, an African country, etc. Article 70th of the People’s Republic of Bangladesh Constitution says a member shall vacate his seat if he resigns from or votes against the directions given by his party. The Speaker refers the dispute to the committee. Section forty of the Kenyan Constitution states that a member United Nations agency that resigns from his party must vacate his seat. The choice is by the Speaker, and therefore the member might consider attractiveness to the state supreme court.

Article forty-six of the Singapore Constitution says a member should vacate his seat if he resigns or is expelled from his party. Article forty-eight states that Parliament decides on any question about the Disqualification of a member. Section forty-seven of the South African Constitution provides that a member loses membership of the Parliament if he ceases to be a member of the party appointed him.

THE PROVISIONS OF X^thSCHEDULE: –

A member of the house is disqualified from the membership if he voluntarily gives it up or if he votes or abstains from voting contrary to the direction given by the party.
This disqualification does not apply in case of a split i.e., 1/3^rd or more of the members of a party defect.

It shall also not apply in the event of a merger i.e., 2/3^rd of the members or more merge with any other party.

The speaker, Deputy Speaker and Deputy Chairman are allowed to give up their membership after being elected to the office.
The speaker or chairman is the person to decide on questions of disqualification.
The jurisdiction of the courts regarding the disqualification of any member has been barred. However, the Supreme Court 1993 struck down this part of the schedule as unconstitutional.[5]

The Act disqualifies (a) a member of the house who voluntarily gives up his membership of a political party on whose ticket he contested the election. (b) a member of the House if he votes or abstains from voting in the house contrary to the direction of his political party without its prior permission and if his action has not been condoned within 15 days by his party. (c) to an independently elected member who joins a party after the election (d) a nominated member belonging to a political party provided he voluntarily resigns from his party, and (e) a non-party nominated member who joins a political party after six months but not if he joins within six months.
The Act exempts the cases of splits and mergers from disqualification. Members of a house do not incur disqualification if they belong to the legislature party and constitute a group representing a faction arising as a result of a split of their political party provided the group consists of at least one-third of members of the such legislature party. Again, members of a house do not incur disqualification where their political party merges with another and they claim that they have become members of such other party or a new party formed as a result of such merger, or they have not accepted the merger and opted to function as a separate group. From the time of the merger, such other party, new party or group is deemed to be the political party to which the members belong. Further, the merger is deemed to have taken place if not less than two-thirds of the members of the legislature party concerned have agreed to a merger.
These Articles debar courts from inquiring into such proceedings. Despite the procedure laid down by the anti-defection rules framed under the Act, the decision of presiding officers (who are usually nominees of majority legislature parties) may not always inspire confidence, psychologically and unconsciously they are likely to lean in favour of their political supporters. Again, it is not clear why a separate forum has been created for settling the question of disqualification on account of defection when the constitution is already provided with machinery for dealing with issues of disqualifications specified in Articles 102 and 191. Under Articles 103 and 192, these issues have respectively to be referred to the President and Governors whose decisions are final. But before doing so, they have to seek the opinion of the Election Commission and have to act according to such opinion.[6] The provision empowering presiding officers to decide questions of disqualification as a result of alleged defection is inconsistent with the existing constitutional scheme to have decisions in such matters by the Election Commission which an impartial forum is created by the constitution. There is no rational basis for such discrimination.
The Act has also taken away a judicial review in cases of disqualification based on defection. There is no such bar regarding issues of disqualifications mentioned in Articles 102 and 191. This again is impermissible discrimination and violates Article 14. Though under the existing provisions the decision of the President or the
Governor, as the case may be, is final; the courts can still intervene on the ground that he has not acted according to the opinion of the election commission because “finality can attach only to intra vires exercise of the power when a power is limited by conditions”. According to Judicial Review cannot be barred as it is part of the basic structure of the constitution.[7]

CONCLUSION

The Anti-Defection Law or 10th Schedule of the Constitution of India was interpolated in the Constitution in 1985 by the 52nd Amendment Act in order to discourse the perceived problem of the Members of Parliament (MPs) / Members of Legislative Assembly (MLAs) shifting their loyalties from the parties they supported at the time of election or defying their parties at perilous times such as during voting on a cardinal resolution.

The main objective for which the Anti-Defection law was introduced was to combat “the evil of political defection” but so far it has failed to fabricate results as the instances of political defections still continue unabated.

[1] Subhash C. Kashyap, The Anti Defection Law-promises, Provisions and Problems, 35 JPI (1989) (SCC Online web Edition).

[2] K.N. Singh, Anti-Defection Law and Judicial Review, 38 JPI 31 (1992) (SCC Online web Edition).

[3] J.K. Mittal Anti-Defection Act: A comment on its constitutionality (1987) 3 SCC (J) 25 at 26 (SCC Online Web Edition, The Law on Anti-Defection: An Appraisal, by H.R. Saviprasad: and Vinay Reddy).

[4] Subhash C. Kashyap, The-Defection Law-Premises, Provisions and Problems, 35 JPI (1989) 9, p. 11.

[5] KihotoHollohan v. Zachillhu, 1992 Supp (2) SCC 651: AIR 1993 SC 412.

[6] Election Commission v. N.G. Ranga, (1978) 4 SCC 181.

[7] Anti-Defection Act: A comment on its constitutionality, J.K. Mittal, (1987) 3 SCC J-25, SCC Online (web edition).

Article by Prime Legal

17 Sep

Right to freedom of speech and expression: Importance and Reasonable Restriction

Prime Legal

Articles

Introduction

In the contemporary world, we often come across the term ‘right to freedom of speech and expression’, which is provided to us, under article 19(1)(a) (which says that all citizens shall have the right to freedom of speech and expression) of the Indian constitution, making it one of the fundamental rights conferred to Indian citizens. The right guarantees liberty to express one’s opinion, views and beliefs. One can exercise this right, and express using verbal speech, writing, printing, pictures, different art forms and other possible ways.

But with every right comes certain responsibilities, and thus it is important to make the right subject to reasonable restrictions to protect the right from its misuse. For this purpose, article 19(2) (which says that Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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.) of the constitution holds authority which declares the right to freedom of speech and expression as ‘not absolute’, and subject to reasonable restrictions. It also provides with provisions to punish those who misuse the right to freedom of speech and expression.

Importance of right to freedom of speech and expression

Right to freedom of speech and expression is one of those rights which form the basis of any democracy, as it encourages free will of people, to think in a way they wish to, have a different opinion and express it, healthy criticism of the governmental policies is a better, and brings about liberty of thoughts and tolerance in society. It is an indispensable right in a democracy[1], as it allows people to be able to participate in different political, social, and economic affairs of the country.

The freedom of press derives its roots from Article 19(1) (a) and its maintenance is the primary duty of the Court.[2] It forms the very basis of the independence and liberty of the fourth pillar of democracy, i.e. press (or media). It gives the right to critically analyze the government and help in shaping public opinion. In Romesh Thappar v. state of madras, Patanjali Shastri CJ observed, “Freedom of speech and that of press lay at the foundation of all democratic organizations, for without free public education, so essential for the proper functioning of the process of popular Government, is possible.”

Besides, Article 19(1)(a) grants enough liberty to an individual to express his opinions on the social, economic and political affairs, to propagate one’s own view and ideology, and for the free flow of ideas, beliefs, and thoughts and strengthens the community. Most of all, it provides us with the freedom to criticise the government, it’s policies and challenge them.[3]

Freedom of speech and expression and the following:

Press: Freedom of press unlike USA, Art. 19(1)(a) does not expressly mention about the freedom of speech and expression of press. Lord Mansfield, by as early as 1784, in an English case had defined the liberty of the press as consisting in printing without previous licence, subject to the consequences of the law. Under freedom of press, a person need not take permission before publishing or bringing something to public domain, but it shall be liable for the consequences that will ensue under law, just like any ordinary citizen. It is in this sense that freedom of print has existed in England since the end of 18^th All these platforms will be treated as press including print and television broadcasting. Liberty of press implicit in the Freedom of speech and expression stands on no higher putting than the freedom of speech and expression of citizen and no privilege is attached to the press as such as distinct from the ordinary citizen. So, the press is also subject to general law of the land and is liable for the consequences of their acts like the ordinary citizen.

In Brij Bhushan v State of Delhi[4], an order issued under section 7(1) of the East Punjab safety Act, 1950, directing the editor and publisher of a newspaper to submit for scrutiny in duplicate before publication till further order all communal matters and news and views about Pakistan including photographs and cartoons. This order was struck down by the Supreme Court as unconstitutional. The hon’ble Supreme Court observed that there can be little doubt that the imposition of pre censorship on a journal is a restriction on the liberty of the press which is an essential part of the freedom of speech and expression declared by Art. 19(1)(a). In Romesh Thapar v State of Madras[5], the notification banning the entry into or circulation sale or distribution in the state of madras, or any part of it the newspaper named crossroads, published at Bombay was held invalid.

Cinema: The scope of right to freedom of speech and expression has been expanded to include a filmmaker’s right to express their thoughts and ideas using the medium of cinema. However, the filmmaker’s expression through their film subjects to restrictions if the film poses a threat to sovereignty and security of the country, national peace, etc. Ahead of this, the Cinematograph Act, 1952, and Cinematograph (Certification) Rules, 1983, prescribe the parameters and process for censorship of films and grant of certification in respect of films declared to be fit for public exhibition.

In the case of K. A. Abbas v Union of India[6], where the filmmaker was not given the ‘U’ certificate for his film which showed the ‘tale of four cities’ in a form of documentary film, ahead of some ‘obscene’ scenes in the film. The court granted the certificate and said that sex is not always obscene and it depends on at what basis it is shown. Deciding on where the constitutionality of the Cinematograph Act was challenged, and the Supreme Court held that Cinema is different from other media and has a different impact on people and thus legitimized the censorship on cinema.

In yet another case of S. Rangarajan v P. Jagjivan Ram[7], where the film was granted ‘U’ certificate after deletion of some scenes, but the High Court had abrogated the said certificate for it would harm the social harmony ahead of some controversial scenes in the movie. Deciding on the matter, hon’ble Supreme Court set aside the HC judgement and held that it was the duty of the state to protect the freedom of speech and expression since it is the right granted against the state.

Demonstrations: Demonstrations usually involve three Fundamental Rights – freedom of speech, freedom of assembly, and freedom of movement. Demonstrations can be regarded as forms of freedom of speech and expression. They are non-violent acts of persuasion. The rights to make peaceful demonstration or taking out a procession or holding out banners or arranging Public meeting, etc are democratic rights which the Constitution of India has recognized, with reasonable restrictions.

In the case of Re: Venegan Case[8], where the petitioner went to a shop with black cards and flags and shouted and asked people to not purchase anything from that shop, because apparently, it was owned by a ‘north Indian’. The Court held that the act of the petitioner was out of the ambit of the Art. 19(1)(a) because of the reasonable restrictions because he was infringing the shopkeeper’s right to do his business.

In another case of Kameshwar Prasad v State of Bihar[9], where the government of Bihar ruled the prohibition of all the government employees to participate in the demonstrations of any type. The Supreme Court held that a government job cannot take away the fundamental right to freedom of speech and expression, which includes right to initiate or participate in demonstrations.[10]

What are reasonable restrictions?

The Constitution allows imposition of reasonable restrictions on the right to freedom of speech and expression, by the State “in the interest of” or “in relation to” the public at large. This includes no such use of any words that challenge and intend to disturb the sovereignty and integrity of the country and poses any threat to the security and safety of the state and people, both from external and internal forces. In addition to that no person can make use of words which intend to defame and abuse some other person, and it is required to maintain a certain level of decency and morality while expressing oneself with any means of expression. Moreover, Freedom of speech and expression cannot act as a permit or license to incite an offence i.e. any act or omission that is made punishable by law. Also, freedom of speech cannot be admitted as a defence to contempt of court and any such use of words which do, or intend to do, to scandalize the authority and dignity of the Judiciary, are restricted under article 19(2) of the Indian constitution.

Some recent cases related with freedom of speech and expressions

In the recent case of Re: Prashant Bhushan and Anr.[11], where a supreme court Advocate Prashant Bhushan was charged with Criminal Contempt of Court by a suo moto cognisance of the apex court itself. The said advocate had posted two tweets on twitter, one of which commented on photo of CJI S A Bobde riding a fancy bike, and another which was a comment on the role of four former CJIs in the last 6 years. While there were other issues related to the case, one of them was whether the defence of right under article 19(1)(a) could be taken or not. The Supreme Court deciding on the matter on 31th August 2020, in its judgement observed “No doubt, one is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, the public expression of the same would also be at the risk of the contempt jurisdiction.”

In another case Arnab Ranjan Goswami v. Union of India and Ors.[12], where the petitioner, who is a famous TV journalist filed a writ petition, under article 32 of the constitution, in the supreme court, against number of FIRs registered against him, which was infringement of his fundamental right to freedom of speech and expression and that of liberty of press conferred under article 19(1)(a) of the constitution. The FIRs were registered after the journalist questioned the silence of Congress party’s president Mrs. Sonia Gandhi over the Lynching of two sages in Palghar in his debate show. The supreme court, in its judgement, while deciding the matter in favour of the petitioner observed that, “The exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a). The petitioner is a media journalist. The airing of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a).”

Conclusion

The Constitution of India assures several fundamental rights to a citizen of India. One of these rights conferred is right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution. Right to freedom of speech and expression enables a person to express his opinions freely with certain reasonable restrictions. It is one of those rights which are indispensable in a democracy and is guaranteed to all the citizens of India under Article 19(1)(a) of the Indian Constitution. It enshrines the principle of ‘liberty of thought and expression’ given in the Preamble.

The right to freedom of Speech and Expression gives the Indian Citizens the right to express their opinions and beliefs without any fear, by modes of words, written or spoken, pictures, or any other communicable or visual representation like gestures or signs. It also includes the liberty to propagate one’s own views as well as the right to publish the views of other people. However, the right to speech and expression is not an absolute right and reasonable restrictions may be imposed by the State under Article 19(2) of the Constitution.

Where Indian citizens have right to freedom of press, cinema, hold demonstrations and perform activities so as to express themselves, all these are subject to restrictions based upon sovereignty and integrity of the country, security and safety of people, defamation and abuse, decency and morality, perform contempt of court.

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Article by Utkarsh Sahu

[1] Romesh Thappar v. state of Madras AIR 1950 SC 124.

[2] Indian Express Newspapers v. Union of India (1985) 1 SCC 641

[3] Npradhan, ‘Constitution of India – freedom of speech and expression’ (legal service India, 2020) <http://www.legalserviceindia.com/legal/article-572-constitution-of- india-freedom-of-speech-and-expression.html> accessed 29 October 2020

[4] Brij Bhushan v State of Delhi AIR 1960 SC 129

[5] Romesh Thapar v State of Madras AIR 1950 SC 124

[6] K. A. Abbas v Union of India AIR 1971 SC 481

[7] S. Rangarajan v P. Jagjivan Ram 1989 (2) SCC 574

[8] Re: Venegan Case AIR 1952 Mad 52

[9] Kameshwar Prasad v State of Bihar AIR 1962 SC 1166

[10] All Answers ltd, ‘Freedom of Speech and Expression’ (LawTeacher.net, October 2020) < https://www.lawteacher.net/free-law-essays/constitutional-law/freedom-of- speech-and-expression-constitutional-law-essay.php?vref=1> accessed 29 October 2020

[11] Re: Prashant Bhushan and Anr. MANU/SC/0653/2020

[12] Arnab Ranjan Goswami v. Union of India and Ors. MANU/SC/0448/2020

31 May

MARITAL RAPE IN INDIA- CAN IT BE CRIMINALIZED?

Prime Legal

Articles

Abstract:

Non-consensual sex within marriage is not considered rape in India, one of the few countries in the world. One of the more contentious issues is whether marriage provides the husband with an expectation of intercourse and whether the wife implicitly consents to sex. Will removing this exception result in the creation of a new crime? Because marital rape is not currently classified as rape, the court should read the exception. A jury of two judges from the Delhi High Court has been hearing a series of petitions aimed at overturning the Indian Penal Code’s marital rape plea since January 20, 2022. The Supreme Court ruled in the case of the State of Maharashtra v. Madhkar Naraya in 1991 that every woman has a right to privacy that must be respected. We’ll look at the concept of marital rape in this article.

Introduction:

The RIT Foundation v Union of India case was decided on May 11 by two judges from the Delhi High Court. The case in front of the Court was simple. Rape is defined by section 375 of the IPC as when a man has sex with a woman without her consent. Section 375, on the other hand, does not consider having sex with a wife without her consent to be rape. A husband cannot be accused of raping an adult wife under the law. The Delhi High Court has received four petitions challenging the constitutionality of the “marital rape exception.”

Because it is a religious ceremony, any sexual act performed within the confines of a marriage is not considered illegal. When there is no consent, rape is defined as sexual intercourse or sexual penetration. As a result, proving rape necessitates proving the absence of consent. In most cases, it is the victim’s responsibility to demonstrate that there was no consent. Minors, for example, are presumed to be unable to consent to such acts by law, so consent is unlikely. However, consent is commonly assumed when the victim and the offender are married.

In the patriarchal system that governs Indian families, women have always been regarded as property of their significant others or guardians. As a result, rape was viewed as both a theft of a woman’s property and a crime against her husband or guardian. Our legislators have been influenced by this belief system to overlook the spouse’s rape crime by granting him the protection of his spouse’s right to marry, thus quietly tolerating that women are nothing more than a protest of his sweetheart’s sexual satisfaction, with no control over his sexuality. The right of women to equality and uniformity was established with this decision.

Rape is more than just ferocity against women; it is a grave violation of a person’s fundamental right to life and individual freedom. Nothing changes because there is a link between the victim and the offender. As a result, it is incorrect to assume that having sex with your spouse is a privilege bestowed on the husband by marriage. Marital rape is associated with social shame because it silences a woman’s voice against her husband, who takes advantage of her advantageous position to break her trust and trustworthiness. It has been proven that marital rape is more traumatic, with long-term physical and mental consequences. As a result, in some countries, marital opposition to spouses has decreased. Our state fails to fulfill its responsibility to ensure sexual fairness, which includes protection from wrongdoing and mistreatment, by decriminalizing spouse rape.

Several countries have now passed laws prohibiting marital rape, revoked special cases of marital rape, or enacted laws that do not distinguish between marital and ordinary rape. This demonstrates that marital rape is now considered a human rights violation. In 2006, more than 100 countries were estimated to have made marital rape illegal, but India was not one of them. According to those in charge of the strategy, despite the fact that India has passed numerous laws and institutions addressing violence against women in their homes, such as laws prohibiting the murder of girls and domestic violence, marital rape has yet to be recognized as a crime. In India, the sacred draperies of marriage hide marital rape.

Marital Rape and laws:

In India, rape in a married relationship is not a crime. In India, laws against marital rape are either non-existent or esoteric, and are interpreted by the courts. “A man’s sexual relations with his wife, his wife who is no less than 15 years old, are not rape,” says section 375 of the Indian Penal Code (IPC). Unless the raped woman is the spouse and is not less than 12 years old, the rapist should be punished with imprisonment or imprisonment for a period that can extend to life imprisonment or up to 10 years, in addition to the fine, under article 376 of the CPI.

As a result, marital rape is only considered if the spouse is under the age of 15, and the punishment is less severe. After the age of 15, the spouse has no legal protection, which is against international human rights standards. A similar law that raises the legal age of consent for marriage to 18 protects only children under the age of 15 from sexual abuse.

When the wife is between the ages of 12 and 15, the offense is punishable by up to two years in prison or a fine, or both, under the Indian Penal Code; when the spouse is under the age of 12, the offense is punishable by up to ten years in prison and shoving. Rape of a legally separated spouse can carry a sentence of up to two years in prison and a fine, but not rape of a wife over the age of 15.

The Protection of Women from Domestic Violence Act, passed by Congress in 2005, recognizes marital rape as a form of domestic violence. A woman can sue her husband for marital rape under this law through legal division. Marital rape is irrational because it damages a woman’s affection and trust, leaving her feeling insecure and afraid. In the sacred place of marriage, he must give up his human rights. On the other hand, laws protecting the rights of victims of marital rape are inadequate and ineffective, and the methods employed are unacceptable.

These “laws” are based on the assumption that marriage entails consent to sexual activity. Is it true, however, that consenting to sexual activity entails consenting to sexual violence? The woman feels threatened and insecure as a result of the brutality, so she submits to sex. This is not the same as giving your consent to engage in sexual activity. In criminal law, the distinction between assent and non-assent is critical.

It’s odd that a woman’s right to life and liberty is protected in her marriage but not in her body. Rape should be defined differently (IPC section 375). Women have been using IPC section 498-A, which deals with the lack of remorse, to protect themselves from “unreasonable sexual intercourse directed by the spouse” until now. In any case, in marital relationships, there is no legal definition of ‘perversion’ or ‘unnatural.’ Is it possible to have too much sexual desire? Isn’t consent a prerequisite for everything? Is raping your partner legal? There is no response because both the judiciary and the legislature are deafeningly silent.

Reasons for Marital Rape not being a crime in India:

Women’s voices are silenced in a patriarchal society based on marriage. Making marital rape a crime, according to former Chief Justice of India Dipak Mishra, would cause complete anarchy in families and that our country’s survival depends on the family platform, which upholds family values. Marital rape cannot be criminalized due to existing traditions and social values. According to the Indian government, those who try to prevent women from being raped by their husbands are following Western countries’ lead.[1]

Our culture is built on the idea that once a woman marries, she gives her husband perpetual sexual consent. By mutual consent and marriage contract, the wife has thus relinquished her rights to her husband, which she cannot revoke. Judge Matthew Hale of the United Kingdom ruled that a husband cannot be held liable for raping his legitimate wife. The union government claimed in an affidavit to the Delhi High Court that a law criminalizing marital rape could be used to harass husbands, absurdly arguing that if all sexual acts between a husband and his wife occur, then the wife will be the sole judge of whether it is marital rape or not.[2]

This argument that women will falsely accuse their husbands and that, even if they do, the judiciary will be there to assist them has been made numerous times. Marital rape is a heinous, oppressive, and violent crime, which is the only valid justification or argument. Although the Indian constitution guarantees equality, the marital rape law is unconstitutional because it discriminates against women raped by their husbands.

Many women could use the criminalization of marital rape as a pretext to file a false report against their husbands, according to men’s rights activists. Making marital rape illegal, they argue, would encourage the wife to harass her husband. The male victim will not be able to prove his innocence because the wife’s relationship with her husband is essentially sexual in nature and the wife’s denunciation will be the main witness of the crime.

International Convention on Marital Rape

India should end marital impunity, according to the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW). “Any distinction made on the basis of sex which has the effect of preventing… the exercise by women, regardless of their marital status… of human rights and fundamental freedoms in the…, cultural, civil or any other field,” according to Article 1 of the CEDAW.

The Indian Penal Code’s marital impunity also goes against General Recommendation 19, which labels mental and sexual violence against women as discriminatory. Sexual and mental harms, according to the report, deny women equal access to human and fundamental rights. General Recommendation 35 expands on General Recommendation 19 by stating that marital rape is defined by the use of coercive measures and the lack of free consent.

Despite the fact that India has not signed the CEDAW Optional Protocol, Article 2 mandates that women be protected regardless of their marital status. The organization may impose sanctions if the aforementioned provision is not followed.

India also violates the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights by granting marital immunity. According to Article 26 of the International Covenant on Civil and Political Rights, domestic law should ensure that all citizens, regardless of their status or race, are treated equally. Married and single women react to rape in the bedroom differently.

As a member state, India should not be allowed to violate any of Article 5’s fundamental rights. Due to the discriminatory nature of exception 2 to Article 376, India also violates Article 1 of the Universal Declaration of Human Rights.

India’s law also goes against the Beijing Declaration on the Status of Women. The Beijing Platform for Action encourages countries to adhere to CEDAW’s provisions, including the Optional Protocol, and to amend or repeal discriminatory provisions in national legislation.

Violence against women is a violation of their human and fundamental rights, according to the 59th session of the Commission on Human Rights, held in 2003. The United Nations has expressed concern about the dangers of laws that allow for marital rape on numerous occasions. In its annual Progress of the World’s Women report, UN Women urged member countries to make marital rape a criminal offense. He also chastised various countries’ “marry your rapist” laws.

Chief Justice Sir Mathew Hale’s book The History of the Pleas of the Crown, published in 1736, laid out the theory of implied consent. “The husband cannot be guilty of raping his lawful wife because the wife has thus given herself to her husband with their mutual consent and marriage contract, which she cannot retract,” she claimed. This theory has been adopted by the legal systems of all British colonies, as well as the British common law system. Another common law principle that supported the theory of implicit consent is the doctrine of coverage. When a woman married, her legal rights were subsumed by those of her husband, according to this doctrine. The theory of implied consent underpins this doctrine. The idea that husband and wife are the same person is a legal fiction.[3] The Doctrine of Coverture was widely accepted in England until the feminist movement in the mid-nineteenth century. It was considered oppressive to force women to exercise their legal and financial rights.

Judicial Interpretation:

We’ll look at a few examples, as well as the story of a husband who seriously injured his wife. Marital rape law does not apply after fifteen years between husband and wife, according to Queen Empress v. Haree Mythee[4]. The husband was found guilty of rupturing his 11-year-old wife’s vagina and inflicting an injury on her that resulted in her death under section 338 of the Indian Penal Code, 1860.

The Andhra Pradesh High Court held in Saretha v. T. Venkata Subbaih[5] that the enforcement of the restitution of marital rights decree violates the inviolability of the person subject to the decree, as well as marital integrity and privacy, and that person’s home intimacy.

According to the Supreme Court of Karnataka’s ruling against Krishnappa, sexual violence is an illegal invasion of a woman’s right to privacy and holiness, as well as a dehumanizing act. Non-consensual sexual intercourse is considered physical and sexual violence, according to the same decision.

The Supreme Court equated the right to choose sexual activity with constitutional rights to personal freedom, privacy, dignity, and physical integrity in the case Suchita Srivastava v. Chandigarh Administration[6].

The Supreme Court defined the right to privacy on one’s body in the case of State of Maharashtra v. Madhukar Narayan Mardikar[7]. The right of a prostitute to refuse sexual activity has been established. Stranger rape is illegal, and all women, except wives, have the right to privacy over their bodies, which includes the ability to refuse sexual intercourse and refuse consent. The issue is that marriage is highly regarded. Rather than forcing the wife to meet her husband’s every need, especially sexually, mutual respect and trust should flourish. Being raped by a friend is far more traumatic, and living with them makes it even worse.

The Supreme Court of India recognized the right to privacy as a fundamental right of all citizens in the case of Justice KS Puttuswamy (Retd.) V. Union of India.[8]

As defined by “decision-making privacy,” “the ability to make intimate decisions that primarily involve one’s sexual or procreative nature and decisions regarding intimate relationships.”

In each of these cases, the Supreme Court recognized the right to refrain from sexual activity as a fundamental right guaranteed by Article 21 of the Constitution to all women, regardless of marital status. As a result, forced sexual coexistence is a violation of the Constitution’s Article 21.

In Different Countries:

In 1932, Poland became the first country to make marital rape illegal. In 1976, Australia became the first common law country to pass reforms making marital rape a criminal offense, thanks to the impact of the second wave of feminism in the 1970s. Several Scandinavian and Communist bloc countries, including Sweden, Norway, and Denmark, as well as the former Soviet Union and Czechoslovakia, had passed laws making marital rape illegal over the previous two decades. In 1932, Poland became the first country to make it illegal. Many common law countries have abolished marital rape immunity through legislation since the 1980s. South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel are among the countries represented.

Between the 1970s and 1993, all 50 US states made marital rape illegal. The New York Court of Appeals repealed the marital exemption in 1984. The European Parliament Resolution on Violence Against Women of 1986 called for the criminalization of marital rape, which France, Germany, the Netherlands, Belgium, and Luxembourg quickly implemented. The common law principle that a marriage contract implied a woman’s consent to all sexual activities was overturned by the UK House of Lords in 1991.

The spousal rape exception was abolished in Nepal in 2002 after the country’s Supreme Court ruled that it was infringing on constitutional rights to equal protection and privacy. The statement read, “It is not a reasonable classification of the law that an act committed against an unmarried girl becomes a crime while the same act committed against a married woman does not.”

According to the 2011 United Nations Women’s Report, 52 countries have changed their laws to make marital rape a crime. The remaining countries are those that have made an exception for marital rape in their rape laws, as well as those that haven’t and can prosecute their spouse under general rape laws.[9]

Conclusion:

In India, marital rape is not entirely prohibited. It is undeniably a serious form of female abuse that necessitates government intervention. Women who have been raped by their husbands or wives are more vulnerable to a variety of attacks and frequently suffer from long-term physical and emotional issues. Marital rape is much scarier for a woman in this situation because she has to live with her tormentor on a regular basis. Due to the seriousness of the consequences of marital rape, it is clear that the crime must be criminalized. Positive legal changes for women are occurring in India, but more work is required to achieve both legal and social changes, such as criminalizing marital rape and changing attitudes toward women in marriage. The law protecting women from domestic violence has numerous flaws because it does not expressly prohibit marital rape. On the plus side, passing a law prohibiting domestic violence has paved the way for legislation prohibiting marital rape. This reflects a shift in the state’s mentality, which previously valued non-interference in family situations.

[1] https://theswaddle.com/marital-rape-inda-decriminalized-crime/

[2] https://indianexpress.com/article/explained/marital-rape-a-crime-in-many-countries-an-exception-in-many-more-4821403/

[3]https://timesofindia.indiatimes.com/city/bengaluru/no-need-to-make-marital-rape-an-offence-ex-cji-dipak-misra/articleshow/68785604.cms

[4] (1891) ILR 18 Cal 49

[5] AIR 1983 AP 356

[6] (2009) 14 SCR 989, (2009) 9 SCC 1

[7] AIR 1991 SC 207

[8] (2017) 10 SCC 1

[9]https://www.legallyindia.com/blogs/t-sareetha-vs-t-venkata-subbaiah-remembering-a-revolutionary-decision#:~:text=Justice%20Choudary%20held%20that%20%E2%80%9Ca,at%20the%20heart%20of%20the/

20 May

Sedition Law- Will It Be Scrapped?

Prime Legal

Articles

Abstract:

The Supreme Court recently asked the government why the sedition law had not been repealed, stating that it is a weapon used by British citizens to silence citizens. Chief Justice NV Ramana expressed concern about the misuse of the sedition law by some state officials, comparing it to giving a carpenter a saw to cut a piece of wood and then using it to destroy the entire forest. Section 124A of the Indian Penal Code defines sedition. During the colonial era, the British used this sedition law to silence leaders like Gandhiji and Nehru. We discuss what this sedition law is, its history, section 124A of the Indian Penal Code, the status of this law in the Modi era and in different countries, and finally whether the Indian government will repeal the law in light of the Supreme Court’s recommendations.

Article:

Patricia Mukhim and Anuradha Bhasin, two journalists, recently challenged the constitutionality of the sedition law in the Supreme Court. It is not the first time that the sedition law has been challenged. Its constitutionality has been questioned numerous times in recent years and numerous incidents of abuse have been reported.

In the interest of state security, law and order, and so on, the Indian government has used this provision numerous times to reject criticisms leveled against it. It was implemented during the British era to crack down on demands for independence. During the imperial rule, the government tried and punished many people under the aforementioned provision, including the Father of the Nation and other freedom fighters. However, until now, the sedition law has been used as a convenient tool to stifle any form or expression of dissent or criticism.

What is Sedition:

Sedition is defined as an open challenge to the existing order, for example through speech and organization. Sedition is commonly defined as the subversion of a constitution and the incitement of dissatisfaction or rebellion against existing authority. Sedition is defined as any insurrection that is not aimed at the direct and open violation of the law. Seditious libel refers to the use of seditious language in writing. Someone who undertakes or promotes sedition is referred to as a seditionist. Because it is overt, sedition is often not considered a subversive act, and the overt activities that can be prosecuted under sedition laws vary by legal code.

Sedition is a type of state betrayal. Although sedition has the same ultimate effect as treason, it is typically limited to the offense of organizing or encouraging opposition to the government in a way that falls short of the more dangerous crimes that constitute treason (such as in speaking or writing).

In Indian Law:

Sedition is defined in section 124 A of the Indian Penal Code as “Anyone who, by words, spoken or written, or signs, or visible representations, or otherwise, carries or attempts to cause hatred or contempt, or excites or attempts to excite disaffection with the government established by law is punished with life imprisonment, to which a fine can be added … “

The provision also includes three explanations: 1- The term “disaffection” encompasses all the feelings of enmity; 2- Comments expressing disapproval of Government policies in order to obtain their modification through legal means, without inciting or attempting to incite hatred, contempt or disaffection, do not constitute a crime within the meaning of this section. 3- Comments expressing disapproval of administrative or other government actions that do not incite or attempt to incite hatred, contempt or disaffection do not constitute a crime under this section. This act was enacted in 1860 by the British government to prevent crimes against the state, but it did not involve sedition. It was added in 1870 due to an error in the original IPC draft.

Origin and history of Sedition law in India:

The history of the sedition law in India is fascinating. The British used the sedition law to silence dissent and imprison freedom fighters such as Mahatma Gandhi and Bal Gangadhar Tilak who criticized the policies of the colonial administration. After the Declaration of Independence, the authors of the Constitution spent a lot of time deliberating on various aspects of colonial law. One of the most vocal opponents of the sedition law, K.M. Munshi said such draconian legislation is a threat to Indian democracy. He said that “the essence of democracy is, in fact, criticism of the government”. As a result of his efforts and the persistence of Sikh leader Bhupinder Singh Mann, the word “sedition” was removed from the Constitution.

However, the controversial First Amendment, enacted by the government led by the first Prime Minister, Jawaharlal Nehru, reinstated this law. “Now, as far as I’m concerned, that particular Section (124A IPC) is highly questionable and hateful, and should have no place, whether for practical or historical reasons, if you will, in any body of law that we might pass,” Nehru said in the 1951 proposing the first amendment to the Constitution. The sooner we reveal it, the better. “However, he lingered on this because, in 1951, his government not only restored the sedition law through the First Amendment, but also strengthened it by adding two expressions:” friendly relations with states. foreigners “and” public order “- as reasons to impose” reasonable restrictions “on free speech.

Post-Independence:

After independence, the term “sedition” was removed from the Constitution in 1948, after debate in the Constituent Assembly. KM Munshi proposed an amendment to the draft Constitution that would remove the word “sedition” as a basis for limiting constitutional freedom of speech and expression. The term “sedition” was therefore removed from the Constitution when it was adopted on November 26, 1949 and Article 19 (1) (a) guaranteed absolute freedom of speech and expression. However, section 124A remained in the CPI.

Jawaharlal Nehru proposed the first amendment to the Constitution in 1951, which limited freedom under Article 19 (1) (a) and gave the state the authority to impose “reasonable restrictions” on the right to free expression.

Indira Gandhi’s government made section 124A a criminal offense for the first time in Indian history. The new Code of Criminal Procedure, 1973, which came into effect in 1974 and repealed the 1898 Colonial-Era Code of Criminal Procedure, made sedition a knowable crime.

Case laws:

Previous high court rulings were overturned by a five-judge constitution court, which upheld the constitutionality of section 124A of the IPC. The court, however, attempted to limit the court’s potential for abuse. The court ruled that, unless there is an incitement or appeal for violence, criticism of the government cannot be considered sedition. The ruling limited sedition only to the extent that the seditious speech incited “public disorder,” a sentence not found in Section 124A but added by the court.

In addition, the court issued seven “guidelines” defining when critical speech is not considered sedition.

The court stated in its guidelines for applying the new, more restrictive definition of sedition law that not all speech that expresses “disaffection”, “hatred” or “contempt” towards the state, but only speech that can inciting “public disorder” would qualify as sedition.

According to Kedarnath’s decision in 1962, the sedition law was to be used only in extreme cases where the country’s security and sovereignty were threatened. However, new evidence suggests that this law was used as a weapon as a useful tool against political opponents, suppressing dissent and free speech. According to the most recent data provided by Article 14, 25 cases of sedition were filed in response to the protests against the Citizenship Amendment Act, 22 in response to the Hathras gang rape and 27 in response to the Pulwama incident. After 2014, 96% of the 405 sedition cases filed against Indians in the previous decade were recorded.

Following the Kedar Nath verdict, “public disorder” was deemed a necessary component of the sedition. The court ruled that the mere slogan does not constitute sedition in the absence of a threat to public order. This decision in Balwant Singh v. State of Punjab (1995) reaffirmed the importance of considering the true intent of speech before labeling it seditious. The petitioners were accused of sedition after shouting in public: “Khalistan Zindabad, Raj Karega Khalsa, Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Kar” (Hindus will leave Punjab and reign).

Following decisions, such as Dr. Vinayak Binayak Sen v. State of Chhattisgarh (2011), the court found that a person can be convicted of sedition even if he was not the author of the seditious speech but simply circulated it.

In Arun Jaitley v State of Uttar Pradesh, the Allahabad High Court ruled in 2016 that criticism of the judiciary or a court ruling would not amount to sedition: former Union Minister Arun Jaitley had criticized the Supreme Court ruling of 2016 which declared the National Commission for Judicial Appointments unconstitutional in a blog post.

The India Law Commission and even the Supreme Court have issued reports highlighting the widespread abuse of the sedition law. Kedar Nath’s guidelines, as well as a textual deviation in the law, require police officers who register a case to distinguish between legitimate and seditious speech.

The Supreme Court overturned the FIRs accusing the journalist of sedition for criticizing Prime Minister Narendra Modi’s handling of the Covid-19 crisis in Vinod Dua v Union of India and warned against the abuse of the provision.

Furthermore, according to data from the National Crime Records Bureau, sedition cases increased by 163% from 47 in 2012 to 93 in 2019. However, only 3% of cases are converted into convictions. This shows how the police and other state authorities are arbitrarily applying sedition laws to terrorize citizens and silence any criticism or dissent against the regime.

Sedition is a crime punishable under section 124A of the Indian Penal Code. It does not constitute a crime. Section 124A penalties can range from three years in prison to life in prison, plus a fine. During the British Raj, the Indian Penal Code was enacted in 1860. Section 124A of the code is found in Chapter VI, which deals with state offenses.

Anyone who incites or attempts to incite hatred or contempt, or incites or attempts to arouse disaffection with the government established by law in India, by word, spoken or written, or visible signs, or representations, or by any other means, must be punished with life imprisonment, to which a fine can be added, or with a fine. A person accused under this statute is prohibited from working for the government, is required to live without a passport, and is required to appear in court if necessary.

New Challenge to Sedition Law:

Mahatma Gandhi dubbed Section 124 A the “prince among the political sections of the IPC designed to suppress citizens’ freedom”. Jawaharlal Nehru called the disposition “hateful”, saying that “the sooner we get rid of it, the better.” However, in July 2019, Nityanand Rai, Minister of State for Internal Affairs, told Rajya Sabha that “there is no proposal to repeal the provision of the IPC relating to the crime of sedition”. It is not necessary to maintain the arrangement to effectively combat the anti-nationalist, secessionist and terrorist elements. ”TRS lawmaker Banda Prakash asked the question.

The Supreme Court agreed to hear a new challenge to the arrangement following a series of petitions from reporters, Kishorechandra Wangkhemcha, Kanhaiya Lal Shukla, and Trinamool Congressman Mahua Moitra, among others. A jury of seven judges would decide whether Kedar Nath’s decision was correct. Although the government initially defended the provision, arguing that “isolated incidents of misuse” do not justify its removal, it has now informed the court that it is considering a new revision of the colonial law.

Signatories argue that other laws, such as strict counter-terrorism laws like the Unlawful Activities Prevention Act, may address Kedar Nath’s definition of limited sedition. The court’s intervention is critical because if it confirms the provision, it will have to reverse the Kedarnath ruling and uphold earlier rulings that were more liberal on free speech. However, if the government decides to revise the law, weaken it or repeal it altogether, the provision could be reinstated in a different form.

Sedition cases rise under NDA era:

Since 2010, nearly 11,000 people have been charged with 816 cases of sedition, 65 percent of them after the Modi government took power in 2014.

95 percent of the 405 Indians accused of sedition for criticizing politicians and governments over the past decade were charged after 2014. 149 of them were accused of making “critical” or “derogatory” remarks about Modi, while 144 were accused of criticizing Uttar Pradesh chief minister Yogi Adityanath.

The data shows a 28% increase in sedition cases filed annually between 2014 and 2020, or Modi’s mandate, compared to the United Progressive Alliance (UPA) administration’s second term annual average from 2010 to 2014.

To Stop Misuse:

Human rights activists and civil rights organizations have called for the repeal of Section 124A, arguing that this repressive colonial arrangement has no place in any democratic country. They argue that the legislation defines sedition in a way that undermines the rights and freedoms of citizens. It is also used when there is no threat to public order or incitement to violence.

In 2018, the Law Commission issued a consultation document requesting a review of the laws enacted under Section 124A. It was noted that the United Kingdom, the creator of the sedition law, as well as New Zealand, Australia, Indonesia, South Korea and others, have repealed their respective sedition laws. It has been argued that a British law passed to suppress the independence movement should still be valid in India.

As a result, the sedition law has been used to silence rumors of protest, dissent and criticism of the government since its inception in 1870. Furthermore, the Supreme Court’s Kedar Nath decision, which upheld the sedition law, is it came at a time when doctrines such as the “chilling effect” to free speech, which creates psychological barriers through legal sanctions, were unknown.

The growing number of sedition cases in recent years shows that the authorities are indiscriminately enforcing this exceptional law. The data clearly shows that Section 124A is known for its widespread misuse, subjective application, ambiguity, and frequent use as a tool to harass citizens for trivial reasons.

Why Should the Law be Scrapped:

Some might consider a given discourse “seditious” and “anti-national”, while others might consider it democratic and good. Regardless of judicial safeguards, successive administrations have used and abused the sedition law to achieve their political goals. The chilling effect of these rules threatens to erode, and ultimately eliminate, the legal and constitutionally protected right to protest, disagree or criticize the government.

Some points can be raised to question the sedition law. The sedition law was enacted as a constitutional safeguard to protect the state by forbidding individuals to incite “disaffection”. It’s a system designed to keep anti-government sentiment at bay. It also symbolizes the “free expression” guaranteed by Article 19 of the Indian Constitution. Indeed, it is every citizen’s legal right to expose the flaws of the government they disagree with, sow discontent and disloyalty among the population, and attempt to remove the government from power. Disloyalty to the state is not the same as disloyalty to the government. However, the state recently used this provision to crack down on peaceful protests and human rights activists. Between 2016 and 2019, the number of cases filed under Section 124-A (sedition) of the Indian Penal Code (IPC) increased by 160%, while the conviction rate decreased from 33.3% in 2016. to 3.3% in 2019. (NCRB).

Second, the UK, which pioneered the sedition laws of India, repealed them. While the UK abolished sedition laws in 2010, acclaimed writer Arundhati Roy and others have been accused of sedition for advocating independence for the disputed region of Kashmir. Sedition laws were first used in modern India. Many human rights activists have been accused of sedition.

Third, due to the ambiguity of the text, sedition has been used against political activists, human rights defenders and other individuals who are exercising or claiming their constitutional rights. Crimes must be defined by law and adhere to the concept of legality, which is a universally recognized prerequisite for a fair trial. This means that they must be clearly and precisely stated for people to regulate their behavior appropriately. Vague rules undermine the rule of law because they allow for selective judicial action and interpretation based on discriminatory policies of government officials and the personal preferences of judges.

Sedition Laws in different Countries:

In the UK, the Sedition Act was officially repealed under Section 73 of the Coroners and Justice Act, 2009, citing a chilling effect on free speech and expression. The common law of sedition, which dates back to the Statute of Westminster in 1275, when the king was considered the holder of divine right, has been called “arcane” and “of a bygone era in which freedom of expression was not seen as the right. which is today “.

Sedition is a federal offense in the United States under section 2384 of the Federal Criminal Code and is currently used against rioters involved in the January 6 attack on the capital. Despite the First Amendment’s ban on restricting free speech, “conspiracy to directly interfere with the functioning of the government” is considered sedition, not just speech.

Australia repealed its sedition law in 2010 and Singapore repealed it last year, citing several new laws that may adequately address the need for a sedition law without chilling effects.

Conclusion:

Invoking or threatening to invoke sedition is a subtle form of illegal self-censorship because it cools the exercise of one’s fundamental right to freedom of speech and expression. India should also seek inspiration in other countries, such as the United Kingdom, New Zealand and South Korea, where the sedition law has been repealed, as well as the United States, Germany and others, where the law still exists. but many of its provisions have been overturned. Legislation should allow for the expression of the widest possible range of ideas and opinions. Sedition is a repressive and antiquated colonial government that elevates government to sacred status and seeks to transform us into submissive and undisputed vassals. It has no place in a democratic society and should be phased out. Until parliament repeals the sedition law, the higher judiciary should use its supervisory powers to educate magistrates and police about constitutional guarantees of freedom of expression.

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INTRODUCTION

BACKGROUND

HISTORICAL EVOLUTION OF LAW

THE INTERNATIONAL SCENARIO ON ANTI-DEFECTION LAW

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CONCLUSION

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INTRODUCTION

BACKGROUND

HISTORICAL EVOLUTION OF LAW

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THE PROVISIONS OF Xth SCHEDULE: –

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