Economic Analysis of Law of Sedition
The introduction of sedition as a crime is a concept which was inscribed by the colonial rulers in order to obstruct the revolts being struck on them by the nationalists of the pre independence era. Literally, sedition as mentioned in Section 124A[i] of the Indian Penal Code was originally Section 133 of Macaulay’s Draft Penal Code of 1837-39. Sedition is intended not only to punish not one’s own disloyal feelings, but also causing (or attempting to cause) other people to have disloyal feelings towards the government.
There have been quite a few instances in the past where the use of this legal principle has been questioned in regards to the manner in which it has been put to use by the ruling government or by the police officials. Some of such instances would be analysed while enunciating the economic principles in order to analyze the efficiency of this law. The law on sedition is not very recent in its origin. The need for its existence in today’s time has always been a debatable point of law. This article seeks to examine the efficiency of this law in the light of various law and economic principles present henceforth.
High profile arrests made under sedition such as Arundhati Roy’s arrest for participating in a seminar on the Release of Political Prisoners in Srinagar, increasing demand for the repeal of 124A, due to its draconian and outmoded nature. Amidst claims that the use and abuse of sedition is out of sync with the contemporary international climate, arrests continue unabated.
- The “Harm principle” – John Stuart Mill[ii] propounded a theory while arguing for the most liberal right to speech and said there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered, an action should be considered harmful only if the harm is illegitimate and not legitimate and that only in a case of direct and clear violation should a speech be limited. To analyze the current sedition laws from mills perspective we infer, that only that form of speech that causes direct harm should be curtailed, however number of cases show how this might actually not be working in the current times. If we turn to the audience who were on the receiving end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that Mill's argument does not allow for state intervention. It is just when we can indicate direct damage to rights, which will quite often mean when an assault is made against a particular individual or persons, that it is genuine to force an authorization. One reaction is to recommend that the mischief rule can be characterized in a less stringent way than Mill's definition. The major criticism that the philosophy faces is its failure to take into account the indirect damages of a hate speech and this is in fact one of the reasons why a law based purely on harm principle would render it inefficient.
- The ‘Offense principle’- Joel Feinberg suggests[iii] that in cases where the harm principle is unable to reach the expected level of deterrence, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm. The idea is the state should endeavour to punish the act and not the actor. It’s the conduct which needs to be regulated. The idea is that every case of hate speech is looked at to measure how offensive it is. Offense that is easily avoidable should not be held accountable for whereas once that aren’t should be. It seems, therefore, that Feinberg thinks that hate speech does not in and of itself cause direct harm to the rights of the targeted group and he would be troubled by some of the prohibitions on speech found in many liberal-democracies. To talk in a strictly economic sense, the idea brought forth here is the existence of a regulated market, as long as goods being produced are capable of being differentiated from the undesired and as long as the market is regulated enough to keep information flowing regarding its quality, expected cost and benefits, it is still possible for the market to perform efficiently. Through the prism of behavioural analysis, a person’s reaction towards the risk of punishment will also play a major role in both the principles enunciated. If the larger crowd is risk averse then an arrest made in the name of sedition can actually turn them hostile against the exercise of right to free speech therefore a form of additional cost is burdened upon.
- Paternalistic Justification for Limiting Speech- The basic assumption under which this idea operates is that the state is at the best position to decide what its citizens want. Therefore if it thinks a particular action needs to be curtailed they should be allowed to impede it. However in the present arrest and dealings of cases this paternalistic behaviour is the most in question. We already witness the instances and action of state officials which cause market failure on grounds for poor study of market situation. Is it still imperative that a discretionary power must lie with them? Can they still be regarded as the ones who know what’s best?
In the light of policy analysis under various law and economic regimes, the existing inefficiency in the law regarding sedition as a punishable offense is clearly visible. All the current advances in the society actually hint at market failure in the near future and not otherwise. Any amount of regulation either through a command and control strategy or by nudging the citizens might prove to be a failure. This is where judicial intervention can be regarded as the best possible weapon to control the failing market. It has certainly the ability to impose some paternalistic restrictions on behaviour and to limit speech when it causes offense. By imposing reasonable restrictions on the free speech right and by being in a position to clearly distinguish, what does and what doesn’t fall under this category, would clearly aid in reduction of asymmetry of information and consequently incentivizing the citizens to be more well informed about the consequences of their actions. To put in layman terms, the huge lack of information gap generated among the state and its citizens is bridged by the effective judicial interpretation of law as was done in ‘Shreya Singhal v. Union of India[iv]’.
[i] Ratanlal and Dhirajlal, “Indian penal code 1860”, Lexis Nexis Butterworths Wadhwa,2009, Nagpur.
[iv] Shreya singhal v. Union of India ,W.P.(Crl).No. 167 of 2012.
Author: Swati Bisen
College: Gujarat National Law University, Gandhinagar
Disclaimer: The opinions expressed in the article or any other publication are those of the authors. They do not purport to reflect the opinions or views of Educoncours or its members.