Chytanya S Agarwal
Introduction
In this post, I analyse the current Indian law of sedition from the perspective of strict liability principles. My argument is that Section 124-A of IPC is an offence of formal strict liability but does not satisfy the principles justifying strict criminal liability, warranting its change from an offence of strict liability to one that must incorporate a mens rea element for every element of actus reus. This argument proceeds as follows: Firstly, I demonstrate how the offence of sedition under Section 124-A constitutes an offence of formal strict liability. Secondly, I summarise the philosophical underpinnings and judicial treatment of strict criminal liability. Lastly, I conclude that Section 124-A, in its current form, does not satisfy the philosophical rationales used for imposing strict liability and, thus, needs revision. In conclusion, I observe that Section 150 of the Bharatiya Nyaya Samhita Bill (‘BNS’) rectifies this critique by qualifying the entire section with the requirement of knowledge or purpose. Kindly note that this article limits itself to an analysis of the Section 124-A of the IPC from the perspective of strict liability, and does not consider concerns pertaining to the overbreadth and the possibility of misuse of Section 150 of the BNS (for more information on that discussion, see here, here, and here).
Sedition as an Offence of Formal Strict Liability
Per Green and Husak (p.92), strict liability can be grouped under two heads – formal and substantive strict liability – only the former of which is identified with “strict liability.” Formal strict liability has a ‘mechanical’ test of mens rea, namely, that the offence does not demand proof of some form of mens rea with respect to one or more material elements for conviction (Green, p.10). In short, an offence carries formal strict liability if at least one of its material ingredients does not require the mens rea.
Section 124-A punishes the publication of seditious matter; however, its text is silent as to the mens rea requirement, and it is considered (Pande, p. J-17) to be among the “mens rea-less” offences of IPC. The Supreme Court, in Kedar Nath v. State of Bihar, read down the Section to restrict its scope to disturbance of public order only. It held that the Section applies only to words that have the “pernicious tendency or intention” of disturbing public order. So, according to Kedar Nath, if a person publishes some seditious matter that has the tendency to disturb public order without the intention of creating such disturbance of public order, then the elements of sedition are satisfied. This line of reasoning that ignores mens rea when there is “pernicious tendency” has been upheld verbatim in the later jurisprudence on sedition (see Jaitley and Dua). The Law Commission, in its 42nd Report (p.149, ¶6.16, ¶6.18), had also flagged the same and had recommended the inclusion of the mens rea of ‘intention’ or ‘knowledge’ to make the Section a “patently reasonable restriction” under Article 19(2) of the Constitution.
The Philosophical Justification of Strict Liability
The philosophy of criminal law grapples with two cardinal considerations: firstly, which acts ought to be criminalised? And secondly, what should be the nature and quantum of punishment of such offence? The “criminalisation theory” answers the first question and the “punishment theory” answers the latter. Part A will discuss the prevailing justifications for strict liability offered by the criminalisation theory. The rationale for punishing offences of strict criminal liability is laid out in Part B.
A. Criminalisation Theory
As per Hörnle (p.685), criminalisation theories seek to probe 2 main questions: Firstly, what should be the object of legal protection? Secondly, upon ascertaining the object worthy of legal protection, what kind of conduct should be prohibited? Any act must satisfy these 2 tests for valid criminalisation.
Identifying the legal good
To the first question, Hörnle traces the following objects considered deserving of protection by criminal law. First, as per the German criminal law tradition, the primary aim of the law is to protect ‘legal goods’ (called ‘Rechtsgüterlehre’ or “doctrine of protection of legal interests”). Legal goods can comprise individual goods (bodily integrity, reproductive autonomy, etc.) and collective goods (natural environment, public order, etc.). Secondly, J.S. Mill’s harm principle is considered to be at the heart of contemporary criminalization theory that seeks to prohibit wrongful harm to others. Finally, criminal laws also protect the rights of others and paramount moral values. However, there exist significant indeterminacies of threshold as to when a ‘good’ becomes a ‘legal good’, the requisite magnitude of the harm or offense, and the significance of the right or value to warrant their protection by criminal law.
Ultima ratio and attribution
Upon identifying the object worth safeguarding, the next step is to identify and prohibit acts that have a close temporal and physical nexus to that object’s security. Here, 2 principles guide criminalisation. First, the ultima ratio principle limits the state’s criminalising ability by cautioning the state to criminalise acts only as a last resort. Thus, if the undesirable consequences could be prevented by other legal instruments in a fairly effective manner, then criminal law shouldn’t be deployed. Second, the acts along with the mens rea should be causally attributable to the offender. However, this mens rea requirement might be modified with respect to “public welfare offences” and strict liability offences (Hörnle, pp.688-689).
B. Punishment Theory
There are two prominent rationales for punishment – retribution and deterrence. While the former is backward-looking and grounded on desert-based conceptions of criminal responsibility, the latter is based is consequence-based and forward-looking (Deigh, pp.194-195). In short, the former punishes past acts because they spring from a morally culpable state of mind whereas the latter punishes acts for ‘efficiency’, i.e., to prevent them from occurring in future (Deigh, pp.208-209).
Deterrent Rationale
Mixed deterrence theories propounded by Hart are premised on the standard of a fair opportunity to avoid harm. Thus, under mixed deterrence theories, strict liability may be categorically excluded because deterrence cannot be achieved at the expense of fairness (Deigh, pp.212-213). However, strict liability can find justification in the pure deterrence theory that views punishment as a method of effectively preventing crimes in future by diminishing the utility of wrongdoing. But even Bentham, who originally espoused pure deterrence theories, considered punishment to be inefficacious in cases where the offender acts under ignorance or mistake (Deigh, p.209). While Bentham’s arguments concerning the inefficacy of punishment may hold true for such unsuspecting offenders, it is irrelevant to the efficacy of deterrence meted out to other potential offenders (Deigh, p.210). As per Wootton (pp.1329-1330), strict liability does have preventative effects, making it illogical to confine offences to cases involving malice. Thus, the pure deterrence theory of punishment might support strict criminal liability for certain classes of offences.
Retributive Rationale
Because desert-based theories necessarily require a ‘guilty’ or ‘wicked’ state of mind, strict liability is sometimes considered antithetical to desert-based punishment (Alexander, pp.230-231). However,“strict liability in grading” is consonant with retributive desert on limited grounds (see Simons). “Strict liability in grading” or “constructive liability” denotes the liability that increases the punishment that an offender would otherwise suffer (see Simester and Sullivan, pp.204-211). In such situations, a person first commits crime X (called the “gateway wrong”) with mens rea. But it also results in crime Y (called the “aggravating part”) for which he/she has no mens rea. In such cases, there exists formal strict liability for crime Y, which increases the offender’s penalty (Simons, pp.1082-1085). Well-known examples of strict liability in grading include the felony-murder rule, causing death by over-speeding, causing death by grievous injury, etc.
According to Simons, strict liability in grading is justifiable on five retributive and non-retributive grounds. Firstly, committing offence X leads to a shift in the normative positioning of the actor (pp.450-451). Here, the offender’s overall culpability might be greater than that when he commits the two crimes separately. Secondly, creating the level of risk that might lead to offence Y for socially untenable or highly unjustifiable reasons is more culpable than creating the same level of risk for less unjustifiable grounds (p.452). Herein, “thin ice” principles can even justify relaxing the applicability of proportionality principles while sentencing (Husak, pp.98-99). The “thin ice” principle simply uses the analogy that a person skating on thin ice cannot complain if it collapses, causing him to fall. Thirdly, offence X may have “roughly similar culpability” to offence Y (p.454). For instance, the mens rea to inflict substantial bodily injury (offence X) might lead to murder (offence Y). Here, the “gateway wrong” is considered by society to be almost as morally blameworthy as the “aggravating part.” Fourthly, there may be a high level of risk of committing offence Y intrinsic in the commission of offence X. In such cases, the offender’s acts significantly heighten the “minimally foreseeable” risk of Y (p.455). Lastly, when a person commits X, it may or may not result in Y. Here, non-occurrence of Y’s minimises but does not negate punishment because it is mere “moral luck” that prevented Y (p.458-60).
C. Judicial Treatment of Strict Liability Offences
Judicial decisions have justified strict liability on the grounds of public interest, public health, public safety, public morals, and collective interests like a clean environment. Nonetheless, even if the statute deals with grave social evil, strict liability cannot be said to be intended by the legislature when it results in the prosecution of persons whose conduct cannot affect the observance of the law.
Mens rea can be excluded from a statutory crime only by the legislature’s express words or by necessary implication (see Indo-China Steam Navigation Co- Ltd. v. Jasjit Singh). Removal of mens rea by necessary implication happens when its inclusion would otherwise defeat the purpose of the statute (State of Maharashtra v. Mayer Hans George, Subba Rao J., ¶28) or impair its enforcement. (Nathulal v. State of MP, Subba Rao J., ¶4) Moreover, because the defence of bona fide belief or lack of negligence is not available, courts have held that strict liability should not apply to “truly criminal” offences (see here). This is because ‘stigma’ attaches to those who are convicted of truly criminal offences – something that an innocent person cannot justifiably bear. Thus, strict liability is mostly inferred in cases of ‘quasi-offences’.
Validity of Sedition as a Strict Liability Offence
In this section, I present 5 arguments as to why sedition fails to meet the justifications of strict liability offences. Firstly, there is no justifiable “legal good” that Section 124-A seeks to protect. The initial wordings of the Section criminalised only inciting or attempting to incite ‘disaffection’ towards the Government established by law. The concept of ‘disaffection’ is solely associated with the relationship of acceptance of a monarch (and not a democratic state) by the ruled (Narain, pp.33-34). Gandhi argued that ‘affection’ towards the state cannot be manufactured by resorting to criminal law. Thus, I argue that in a democratic state, it cannot be concretely established that there even exists the state’s “right to affection.” For Hörnle (pp.212, 218), the state is justified in criminalising conduct that (a) is incompatible with significant collective interests, (b) cannot adequately be protected by other means [I will deal with (b) in the next paragraph], and (c) there is absence of stronger countervailing reasons. I argue that condition (a) is unfounded, due to the absence of any legally/constitutionally recognised “right to affection” of the state (apart from its implicit mention in the fundamental duties that are non-justiciable). Moreover, condition (c) is also not met due to the presence of freedom of expression as a fundamental right, making it a countervailing reason weightier than the “right to affection.” This is buttressed by the fact that sedition was deliberately not made a ground for restricting free speech.
Secondly, I would proceed by conceding the (improbable) assumption that there exists a “right to affection” of the state, and that such right is a legal good. Even in this case, under the ultima ratio doctrine, it must be established that the same legal good cannot be protected by other non-criminal, legal instruments in a fairly effective manner, and that criminalisation is only used as last resort. I argue that this principle is not satisfied due to two reasons. First, if the “right to affection,” is narrowly construed as preventing disruption to public order (as was done in Kedar Nath and Balwant Singh v. State of Punjab), then, arguably, there exist sufficient laws for preventing and punishing such acts of violence and instigation. Second, any such necessity-based enquiry has not yet been undertaken since there exists a presumption of constitutionality in favour of the sedition law. This presumption has led to a reading down of Section 124-A to preserve its constitutionality. However, if such presumption no longer holds for pre-colonial laws (Navtej Singh Johar v. Union of India, Nariman J, ¶90), then its reading down is not justified.
Thirdly, as mentioned earlier, the concept of strict liability is applied primarily in cases of ‘quasi-criminal’ and regulatory offences that carry less stigma, less penalty, and are not considered “truly criminal.” However, sedition can be punished with imprisonment up to 3 years, life imprisonment, and/or a fine. Thus, the quantum of punishment, which may extend to imprisonment for life, is sufficiently high to conclude that the offence is not one to which negligible stigma or penalty attaches.
Fourthly, “strict liability in grading” or “constructive liability” is inapplicable in the context of sedition because of three reasons. First, the initial act, namely the act of publication, is not a “gateway wrong”. Mere act of publication of seditious matter without subsequent violence is not an offence in itself (see Balwant Singh). Thus, it is not so grave as to cause a change in the normative position of the actor. Second, it cannot be said that mere publication of words and the disruption of public order (the aggravating part) are of “roughly comparable culpability” since the actus reus required by the two are of vastly differing gravity. Lastly, there is no foreseeability of risk, because publication need not carry the inherent risk of disruption to public order. In such instances, the analogy of the “thin ice” principle fails. This is because the mere publication of words, without any mens rea to disrupt public order, mostly lacks any foreseeability of risk of public disorder. To use an example, artists who publish ‘seditious’ literature without mens rea stand on a different footing than an ice skater. This is because the former might never foresee any inherent risks in their activity, whereas the latter can be an inherently risky activity.
Lastly, even conceding that there exists a “gateway wrong,” I argue that the “thin ice” principle itself does not provide any guidance regarding criminalisation. I support Husak’s critique of the same. As mentioned, the “thin ice” principle simply states that a person skating on thin ice cannot complain if it collapses, causing him to fall. This analogy is used to justify strict and constructive liability. Husak (pp.98-99) critiques this principle on two grounds. First, the skater does not deserve the hardship unless he had reasons to believe that the ice was thin. This is a strong criticism of “strict liability in grading,” where, the offender (or any prudent person) may not even see any causal link between the gateway wrong (i.e., publication) and the aggravating part (i.e., disruption of public order). Second, the principle offers no guidance on the amount of censure the skater deserves. Thus, whether punishment ought to be enforced by criminal law, and the desired quantum of such punishment are questions left unanswered by this principle.
Some Concluding Remarks in the Context of the BNS
In the recent constitutional challenge to Section 124-A in S.G. Vombatkere v. Union of India, the Union submitted to the Supreme Court that it would reconsider the provisions on sedition during the winter session of the Parliament. While the challenge is based primarily on constitutional grounds and would not delve into criminal law principles, the Parliamentary re-examination of Section 124-A opened up an opportunity for a deeper and normative analysis of the law on sedition. Although the term “sedition” has been jettisoned by the newly introduced BNS, Section 150 of BNS starkly mirrors the offence of sedition, and even increased its punishment in line with the recommendations of the 279th Law Commission Report. Nonetheless, from a restricted lens of strict criminal liability, Section 150 of BNS remedies the shortfalls of Section 124-A in three ways. First, by removing the word “tendency” from the Section and by qualifying the entire offence with the words “purposely or knowingly”, Section 150 explicitly provides for a mens rea element. This negates the aspect of strict liability from the offence of sedition. Second, by removing “disaffection towards the Government” as a constituent of the offence and by replacing the same with terms including “armed rebellion” and endangering sovereignty and integrity of India”, the new Section protects a justifiable “legal good” since it is traceable to grounds for restricting Fundamental Rights [For instance, under Article 19(2)]. Third, because Section 150 does not contemplate an offence of strict criminal liability, it need not satisfy the justifications of punishing strict liability advanced by the punishment theory – something that, as explained earlier, Section 124-A did not adequately fulfil.
Chytanya S Agarwal is a third-year B.A., LL.B. (Hons.) student at the National Law School of India University, Bangalore.
