Crim -2 .docx

LITERATURE REVIEW LAW OF SEDITION

Submitted to: Professor Dr. K. V. K. Santhy Faculty of Criminal Law Submitted by: Aaryan Wasnik Year 1, Semester 2 Section A, Roll no. 61

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CONTENTS CONTENTS ..................................................................................................................................................... 2 INTRODUCTION ............................................................................................................................................. 3 Summary of the Articles................................................................................................................................ 5 Political Speech and Sedition .................................................................................................................... 5 Free Speech – Sedition: Reflections and Transitions ................................................................................ 8 ‘Modernizing the Crime of Sedition’ ....................................................................................................... 10 Analysis and Review .................................................................................................................................... 12

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INTRODUCTION It is the law of sedition which is, perhaps, one of the most debated topics of criminal law. The criminal justice system across the world has evolved the law of sedition which went through protests and movements by the general people of the country to bring it to the form that it currently is. Sedition is a crime which is very similar to, but falling short of Treason. Sedition is derived from ‘Seditio’ which means ‘a revolutionary separation and dissent.’ Sedition is defined as the act of attempting to incite by words, deeds or writing with the intent to cause violent discord in the society against the government. This act is considered to be highly transgressional and the offender may be punished for a term in prison for a length or fine or both. However for convicting a person for sedition, his evil consequences should be felt over a considerable area or a section as a bad example that would incite violence against the said authority. The establishment and conviction of the crime of sedition is a little different and diverted between countries like England, America, Australia, India etc. Some Country’s law of sedition requires intention to be an essential element in constituting the crime of sedition. This paper discusses and therefore compares the codification and prosecution of the law of sedition in different countries. The researcher will be reviewing three articles on the law of sedition and analyze them to lay down important elements and clashes between the lineage of law of sedition in these countries. The Articles reviewed are 1) Political Speech and Sedition by Sir Geoffrey Palmer1, 2) Free Speech, The People's Darling Privilege: Struggles for Freedom of Expression in American History2 by Michael Kent Curtis and 3) ‘Modernizing’ the Crime of Sedition?3 By L.W. Maher. The researcher also notes that the articles are based about the sedition laws in foreign countries. Hence, while attempting the review of these selected articles the researcher will also try to bring 1

Palmer QC, Sir Geoffrey, Political Speech and Sedition (2009). Victoria University of Wellington Legal Research Paper Series Palmer Paper, No. 51. 2 Michael Kent Curtis. Free Speech, the People's Darling Privilege: Struggles for Freedom of Expression in American History, Duke University Press (2000). 3 L.W. Maher, ‘Modernizing’ the Crime of Sedition?, Labour History, No. 90 (May, 2006), pp. 201-209, Liverpool University Press.

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in the Indian scenario of the law of sedition in this paper along with filling the gaps of the incomplete arguments of the articles. It is the primary objective of the researcher to bring into notice the evolution of the law of sedition from its rigid nature in the beginning to a more flexible and tending towards a positive free speech of the public.

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Summary of the Articles Political Speech and Sedition This article discusses the reform of the law of Sedition in New Zealand by repealing the provisions of sedition law from its Crimes Act 1961. The article discusses how the history of sedition laws in different jurisdiction and perhaps the similarities in the history of sedition laws in New Zealand led to the ultimate removal of this law. The repeal was successful by the amendment which was passed with the royal assent.4 A similar amendment was proposed in the year 1989 but did not pass for a variety of unconnected reasons. But recently the law commission recommended that this part (sedition law) of the crimes act is where reform is both necessary and straightforward. Understanding the English law on sedition will benefit the recent repeal of the New Zealand’s law of sedition. There is some discrepancies and uncertainty about the term sedition and its appropriate meaning between prosecutions. Perhaps, Prosecution stumbled upon a set of narratives which ranged between strongly expressed dissent which was political in nature and those who had the clear intention are whose act directly incited violence in the said region against the constituted authority. The English statute on the law of sedition, law of treasons 1351 defines many hostile actions against the king to be prosecuted as treasonable. The definition or scope of the offense expanded in the reign of King Henry VIII. The Prosecution of Crime of sedition was made wider by the decision of a case 5 by Star chamber Court in 1606 which made possible the prosecutions of common public who used words that urged violence or protests against the authorities of the government or public officials or government institutions. The seditious offences were defined as the speaking or publishing by either words or deeds to incite contempt, violence or hatred for the officials in authority. This happened in England after three centuries after the Star Chamber court judgment. It was also justified in a English case of R v Tutchin.6 The libel act was passed (1792) which made a provision that the issues should be decided by the jury as opposed to the earlier practice where judges decided the issues on sedition. This was said 4

Crimes (Repeal of Seditious Offences) Amendment Bill 2007, No 120-1. De Libellis Famosis (1606) 5 CO Rep 125a, 251. 6 R v Tutchin, (1704) 14 State Trials (OS) 1096, 1128. 5

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to be a constitutional reform and which is still in practice. A liberal democratic leaning government in the nineteenth century transformed views of common public who then demanded that people should be allowed to freely express criticism of the government, these views and hence changes resulted in tightening (compressing the width) of the sedition laws. There was a general breeze of acceptance of the notion that government or sovereign is similar as that who is present to serve the needs of the common public rather than a great superior authority who could do no wrong. Sir James Stephen commented on such issue and said, ‘no condemnation of the government, without direct provocation of disorder and violence, would be considered a seditious libel.’7 Sedition was only considered to be an act of incitement or encouraging the revolt against the government rather than actual revolt itself in the nineteenth century. Sir James Stephen defined Seditious intention as mere intention to incite violence against the sovereign authority, which was approved by the court in the case R v Burns.8 However, sedition is still considered an offense punishable by law and mentioned as recently as 1991 by the High courts.9 It was prescribed that the words should be used with the intention to achieve other than but along with the intention to cause violence. In the philosophic interview, the 1644 speech by John Milton appeals to parliament for the liberty from pre-publication censorship of literary writings. He argues that such step would be ‘fore mostly to the hindrance of all learning and to discontinuation of spreading truth’, “when complaints are freely heard, deeply considered and speedily reformed, then is the utmost bound of civil liberty attained that wise men look for.”10 J.S. Mill’s essay On Liberty11 also had remarkable importance on freedom of expression. There were opposing views as well who opined that the law of sedition could be regulated as regulation a lighting a fire or shooting a gun. However, they argued that the United States First Amendment protects the freedom that is the freedom of self-government.12

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Sir James Stephen, A History of the Criminal Law of England, (London 1883), Vol 2, 375. R v Burns, (1886) 16 Cox CC 355, 377. 9 R v Chief Metropolitan Stipendiary Magistrate: Ex Parte Choudhury [1991] 1 QB 429 10 J. Milton, ‘Areopagitica: A Speech for the Liberty of Unlicensed Printing’ to the Parliament of England in 1644, and J Milton Prose Writings (1958) 145. 11 J S Mill ‘On Liberty’ in Three Essays (1991) 14, 21. 12 A Meiklejohn ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245, 249. 8

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Thus, we can identify four validations for the value of freedom of speech.13 “The prominence of discovering truth; the significance of citizens participating in democracy; the significance of free speech as an characteristic of each individual’s right to self-development; and a disbelief or doubt of government that provides checks and balances to the power of political leaders.”14 New Zealand’s effort to reform Law on Sedition is inspired from the United States first amendment. Draws Inspiration from the provision that: “Congress shall make no law … abridging freedom of speech or of the press.” The case New York Times v Sullivan15 holds importance as it held that actual

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rea has to be proved by the authority for suing for a

defamatory falsehood statement made by and person and cannot award damages unless proved. It was significant also for its positive contribution in the way of civil rights movement and not only for the free speech and anti-sedition movement. Prof. Harry Kalven said, “The central meaning of the First Amendment is that seditious libel cannot be made the subject of government sanction.”16Sedition thumps at the heart of the democratic government and the notion of political freedom extinguishes when government can use its supremacy and its courts to subjugate its criticizers. In New Zealand, early attempts to repeal the sedition laws were quite unsuccessful. Until 1993, the offence of criminal libel was defined as ‘any person by either spoken or written causes harm to the reputation of the government office or any public official by inciting other person to cause violence or protests against the said authority causing injury in his process of functioning in his office.’ Most compelling reason for abolition of the criminal libel in 1977 by the committee was because they thought and reasoned that the civil action present in the country against the acts of defamation or related to the crime in picture was already enough to convict these offenders and the criminal recourse was unnecessary.17 However the committee on law reform accepted the contention by the civil liberties council that the endorsements of the criminal law against 13

Eric Barendt, Freedom of Speech, (2 ed, Oxford University Press, 2005), 6. Supra note 1. 15 New York Times v Sullivan, 376 US 254 (1964). 16 Harry Kalven Jr. ‘The New York Times case: A note on the Central Meaning of the First Amendment’ [1964] Supreme Court Review, 191, 209. 17 Report of the Committee on Defamation Recommendations on the Law of Defamation (December 1977) 103. 14

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defamation were detrimental as they incorporated freedom of speech and public denunciation. The then newly elected government leader sir Robert Muldoon was believed to have actually put the committee’s report in the cupboard and didn’t look at it in the course of his administration. The Criminal Libel was finally repealed in New Zealand in the year 1992. The Sedition Law in New Zealand was inherited from that of the English Common Law, which was set out in the Crimes Act 1961. Sedition offences punished speech and mere speech or political speech was enough to prosecute a person under the sedition law. Law of sedition was a tool of political subjugation. Charges of seditious offences were laid down at the situations of political unrest and wars. There were many cases where liability was laid down for criticisms of particular legislations or policies of the government. These situations hint towards the abuse of the laws by the govt. for their own good in the term. While the accused were not really advocating public violence but only resorting to violence as a response to the violent government reaction itself. Ex. Maori’s trying to protect their lands. The Law Commission, hence, concluded that the seditious offences were used in America and also in foreign countries to prosecute and convict speech that might be provocative, intense and irrational, but only where there was a strong proof of intention on the part of the accused to incite immediate conditions of violence. State should have the right to prosecute and condemn seditious offences, but only when a criminal nature act or protest is the likely outcome or consequence of the act in scenario with the proof of intention. Kalven exclaimed that the presence or absence of the law of seditious offences in the criminal law of the country defined the society. It still holds true today. It is more substantial to shield the crucial elements of a liberal democracy than wear away certain freedoms in the name of ‘national security’. Freedom of expression is one of those crucial and needed elements. Author upholds the elimination of sedition law and with it, emancipation of the law of defamation and to make possible the criticisms to the government officials to make them realize about where they go wrong. Free Speech – Sedition: Reflections and Transitions This article is based on the American movement of freedom of free speech and free press with consideration with the concurrently existing anti-slavery movement in the 18th and 19th century. 8

The conflict between states’ rights and the federalists was also in the scenario with section groups like Jeffersonian republicans and federalists. Commentators in America understood the battle over sedition act as a crisis of free speech, civil liberty, and democratic government. Jeffersonian critics of sedition act invoked both state’s right and broadly protective idea of free speech for Americans. Many Republicans were invoking states’ rights to protect free speech from oppressive national legislation. Federalists Alexander Hamilton and Judge James Kent were considered the true free speech heroes because their contribution to the Jeffersonian case. They contributed a test for libel that was widely adopted in the states though it was hardly a “liberal” free speech test. In federal courts all the prosecutors were federalists appointed by President Adams (the man the prosecutions sought to protect from criticism), all the marshals who would pick the jury were also appointed by President Adams; and the judges were typically federalists, and many of them had been appointed by President Adams The no federal power and states’ rights argument was deployed between 1798 and 1800 to protect free speech. Scholars complained that the sedition act was a violation of the basic right or privilege of Americans to freedom of speech and was incompatible with the representative government. When Jeffersonian newspapermen were prosecuted for common law seditious libel the defense of exercising states’ rights was irrelevant. Otis tried to make a distinction between fighting for free speech and abolition of slavery and warned that abolition of slavery would result in giving rights to those who had none. The sedition act debate was both about the scope of free speech in a democracy and about the scope of national power. Important case before Learned Judge James Kent was People v Croswell. Kent was one of the judges in the court hearing this case. Kent Advocated the principle that truth for good motives and justifiable ends was protected expression. This principle was proved influential and was embraced in many states in the nineteenth century. In an opinion for People v Croswell, Kent insisted that the crime of libel required intent and intent was for the jury to decide. Truth of good intention and justifiable ends was evidence of 9

good intention and essential to the liberty of the press. However he rejected the notion of a totally unshackled press The Author appreciates Kent’s ‘Truth for good motives and justifiable ends’ and denotes it as a considerable advance over common law rules of seditious libel, which held truth to be no defense and publication the only issue for Jury. In 1812 case of United States v. Hudson and Goodwin, the decision of this case ended the prospect of federal prosecutions for common law of seditious libel. Subsequently, State seditious libel became less and less common, and eventually came to an end. Reflections from the events by the authorSedition act was a paradigm case that highlights the central meaning of free speech in a democracy. Harry Kalven called sedition act the Anti-thesis of meaningful protection of free speech. Freedom of speech and political liberty are irreconcilable with the standard of crime of sedition. Crux of the offense of sedition was the assertion that support and denunciation of public policy and conduct of public authorities could be penalized as a crime. “The crime of sedition controverts the idea that “we the people” ultimately governs, because it pursues to guard public policies, government officials, and major social institutions from public debate and criticism.”18 Free speech and democracy were not simply won in the battle over the Sedition Act. They had to be struggled for again and again and again. Not all the struggles were successful. ‘Modernizing the Crime of Sedition’ This Article revolves around the sedition laws in the Australian criminal law. The revision of Sedition laws in Australia by the amendment in the Schedule 7 of the Anti-Terrorism Act.19 It is believed that the very objective and the application of the law of sedition have been to deteriorate political dissent. “It is literally a ‘political’ crime.”20

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Supra note 2. Hansard (House of Representatives), 29 November 2005, pp. 43-107. 20 Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends, Princeton University Press, Princeton, NJ, 1961. 19

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The law of sedition had been obsolescent, if not obsolete from establishment of Commonwealth of Australia i.e. 1901 till recently i.e. 2005. The author says that the prevailing law of sedition is wholly self-defeating because once it is established that a seditious offence has been committed, every person can use the seditious statement made by the offender because it is now a part of a court’s case report. This situation has not been unprecedented and yet approved in Australia. This amendment of rewriting sedition law has resurrected an obsolescent law. Even if there are no cases or trials under the new amended law, the amendment will have an alarming effect on the eccentric ideas of the burning political nature of the country. “The mere existence of the law enables it to be put to other uses, most notably as a vehicle for obtaining and executing search warrants which can be used for oppressive collateral purposes.”21 “Australian interests are at threat from terrorists, that a terrorist attack in Australia is feasible and could well occur, and that it is necessary to continue the work of identifying people intent on doing harm.”22 Government’s stand for renaissance of the law of sedition is unpersuasive on 3 counts 1. The government, in the case of intrinsic values such as freedom of expression and individual liberty, is duty bound to recognize specific harm in order to justify the restriction put on such values. 2. The author is skeptical about the intention of schedule & with regards to penalizing offender. If yes, then the advocators for it sh0uld be able t0 chalk out deficits in the existing law on that issue. The law of Sedition has been existed along with the various other prohibitions on criminal law on violence, incitement to violence, etc.23 If at all there is a gap between the existing criminal law and current, the government and state governments have ignored to correct it. Hence, it makes no rightminded sense to bring back such an amendment to the proviso embodied in schedule 7 to rectify such deficiency. 3. The very language of the provision in schedule suggests clearly that when you apply the term ‘sedition’ to any crime, it will be a speech related crime which does not guarantee 21

Supra note 3. Supra note 3. 23 Griffith, 'Sedition, Incitement and Vilification'. 22

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that it might carry with it the potential to incite violence against the said authority. The use of abstraction ‘good faith’ makes matters worse. In the United States, First Amendment was given full expressi0n. Even speech where people appealed to overthrow the government in power were also protected by the freedom enclosed in the first amendment ‘except where extreme situations of lawless behavior were incited.’24 It is the question of Proximity and degree.25 Hence, having mentioned all these events from the history, it demonstrates us that an open, free and c0nfident C0untry like Australia d0es n0t need the Schedule 7 law 0r anything resembling it.

Analysis and Review Law of sedition in the history of the major Democracies is a heated topic for debate. The New Zealand’s new amendment made possible the repeal of the existing law of sedition the author considered the repeal as a reform in the legal course of New Zealand. With tracing the history of sedition laws to the English common law the author exclaimed that the public criticism of the government should not be curbed unless directly inflicting incitement for violence. The author says it is essential to safeguard the freedoms in the democracy like freedom of expression. The second article on free speech and sedition is purely based on the American movement of anti-slavery and related free speech. There were people like Otis who opposed the free speech for the common people of the country saying that counter action will result in giving rights to those who had none. However, the author is of the view and has cited many scholars who opposed slavery and advocated for free speech for people and press. The author contends that the law of sedition contradicts the very principle of the first amendment and the ‘we the people’ doctrine. ‘Modernizing’ the crime of sedition is an article based on the new amendment of sedition laws in the Australian criminal law. Calling the offence of sedition as a political crime, the author encounters certain loopholes in discussing the new passed amendment. The author exclaims that the government should protect the fundamental values of the democracy like freedom of speech and not curb it by this legislation. Author says that the unnecessary legislation regarding the 24 25

Brandenburg v Ohio 395 US 444, 447 (1969). Schenck v US 249 US 47 at 52 (1910).

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seditious offences has linked with it other indirect motives to be achieved by the government and lastly, he argues that the language of the legislation is ambiguously articulated creating vague gap between the offences. While discussing the sedition law of overseas jurisdictions the Indian version of it is also in a political debate. Section 124A of the Indian Penal Code26 encompasses the offence of sedition. The recent debate is over the sedition case against the student body presidents and members of the JN University, Kanhaiya Kumar, Umar Khalid, etc. While talking about this issue many legal practitioners and politicians have expressed counter opinions on this issue for instance Kapil Sibal said “There is no need for sedition law in today’s time, it is colonial law.” This case is an example of how government uses its power and sedition as a tool to suppress the political criticism as also discussed in an article discussed above. Even if the convictions do not happen, the mere charge for sedition to the people raising voices is a way in which government makes us feel its presence as a superior authority. The researcher while concluding the paper supports the views presented in the articles with regard to scrapping the Law of Sedition from the context of Criminal Law.

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Indian Penal Code, (Act No. 45 of 1860).

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