Sedition Law and India¹

An article on “Sedition Law and India” has been written by Ankan Chakraborty of MIES R M Law College, which is one of the best law colleges in West Bengal. Law is one of the most relevant and professionally viable career options today because it affects almost every aspect of our daily lives. Understanding the critical aspect of law in people’s lives, MIES RM Law College, set up one of the best modern equipped premier Law College in Sonarpur, South Kolkata, West Bengal. MIES R M Law College, Kolkata has completed many years with its brilliant journey providing the best Indian Law Education possible to future lawyers, advocates, and law officers. MIES RM Law College conducts Hon’ble High Court and Hon’ble Supreme Court / Apex court visits for its Students. It is one of the topmost renowned Law Colleges in India under Vidyasagar University and approved by the BCI.

ABSTRACT

TITLE: Sedition Law and India

Section 124A of The Indian Penal Code, 1860 lays down punishment for sedition. The Section forms part of Chapter VI (Sections 121-130) of the Indian Penal Code, 1860 which deals with offenses against the State. Section 124A was inserted into the body of the said Act in the year 1870. Under the British Raj, particularly after the successful suppression of the Wahabi Movement the then British Government felt the necessity of such a provision. Later on, that particular section was widely used by the British Government to dominate the struggle for independence.

PROBLEM IN Sedition Law and India:-

As stated earlier the Section became a key instrument to dominate political dissent. Bal Gangadhar Tilak and Mahatma Gandhi both were found guilty of sedition and were imprisoned. Even after independence during the tenure of Smt. Indira Gandhi’s sedition became a cognizable offence which meant that arrest could be made without a warrant.

76 sedition cases were registered across the country in 2021, a marginal increase from the 73 registered in 2020.Thenumberofthesecasesstoodat93in2019, 70 in 2018, 51 in 2017, 35

In 2016, 30 in 2015, and 47 in 2014².

Between 2016 and 2019, for example, the number of cases filed under Section 124A rose by 160% even as the rate of conviction dropped to 3%³.

¹Ankan Chakraborty, Student of 6th Sem of MIES RM LAW COLLEGE, SONARPUR

²https://www.nextias.com/current-affairs/05-09-2022/national-crime-records-bureau-ncrb-data-on-sedition-cases
The major problem relating to Sedition is it may lead to suppression of freedom and free speech and expression which is guaranteed by Article 19(1)(a) of the Constitution of India and is heavily used against the criticism of the Government.

SOLUTION of Sedition Law and India:-

However, Section 124A is useful to combat anti-nationalism and terrorism yet it should be understood that mere criticism of the Government does not lead to sedition. Since freedom of free speech expression has been guaranteed under Article 19(1)(a) of our Constitution, it should be taken away by the state if the right is used properly. Only the activities which may be detrimental to the territorial integrity and sovereignty of the country should have come under the ambit of Section 124A, i.e., sedition. Therefore the definition of sedition should be narrowed down. The higher judiciary must perform its supervisory powers to prevent misuse of this Section.⁴

INTRODUCTION of Sedition Law and India:-

When India was under the control of the British East India Company, the law relating to sedition was first introduced as Section 113 when Thomas Babington Macaulay drafted the Penal Code, however, it did not form the part of actual code for reasons unknown. Finally, in the year 1870, it was incorporated into the body of the Penal Code at the suggestion of James Fitzjames Stephen (1829-1894) at the time when he was preoccupied with handling legal issues in the colonial Government of India. Particularly after the successful suppression of the Wahabi Movement the necessity for such a law was felt. As stated earlier this particular Section was used immensely to suppress the voices raised against the Raj.

After independence the Constituent Assembly dropped sedition from the Constitution of India, this was due to K. M. Munshi who proposed to remove Sedition as a reasonable restriction on freedom of free speech and expression. In 1951 the first Constitutional

³https://timesofindia.indiatimes.com/blogs/toi-editorials/124a-india-sedition-law-has-seen-too-many-abuses-a-very-small-conviction-rate-time-for-it-to-go/

Textbook on the Indian Penal Code. Universal Law Publishing. pp. 220, 226– 227. ISBN978 – 8175347038.

amendment restricted the ambit of Freedom of free speech and expression by adding ‘public order’ as a reasonable restriction in Article 19(2).

The Hon’ble Allahabad High Court declared the sedition law void in the case ‘RamNandan v. State’⁵, subsequently the Sedition law was struck down by The Hon’ble Punjab High Court struck down the law. But in the case of ‘Kedar Nath Singh v. State of Bihar’ (1962)⁶ the Hon’ble Supreme Court of India established the constitutional validity of Section 124A of  IPC.

Section 124 A – Sedition Law and India

Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation1. — The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offense under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt, or disaffection, do not constitute an offense under this section.⁷

What does constitute an offense under Section 124A

The elements of Sedition are as follows:

⁵1962 AIR 955, 1962 SCR Supl. (2) 769

⁶1962 AIR 955, 1962 S CR Supl. (2) 769

⁷Section124A, Indian Penal Code, 1860

• If any person brings or attempts to bring hatred or contempt or excites or attempts to excite disaffection or disloyalty towards the legally established Government in India.

• Such an act can be done through spoken or written words or signs or by visible representation then it would constitute sedition.

What is meant by ‘Exciting Disaffection’:

One can be booked under Section 124A if he attempts to bring disaffection by the means as stated by the Section towards the Government established by India. But at the same time it should be noted that one person doesn’t need to attempt to initiate actual disturbance or rebellion towards the Government, in the case of ‘Queen v. Balgangadhar Tilak’8Strachey, J thought that it would be sufficient that one try to excite a feeling of hatred towards the government.

In a case, the Federal Court thought that “public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offense”. The ambit of Section 124A was further extended in the case of ‘Niherendu Dutt Majumdar and Ors. v. Emperor’⁹ where the Court opined that the acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that it is their intention or tendency. However the decision was overruled by the Privy Council in the case of ‘King Emperor v. Sadashiv Narayan Bhalerao ’¹⁰, Privy Council opined that the application of sedition does not require an incitement to public disorder.

Example of What is meant by ‘Exciting Disaffection’:

In the case of ‘Queen v. Jogendra Chandra Bose’¹¹ C.J. Petheram explained‘ disaffection’ as a feeling of contrary to affection, in other words dislike or hatred. In ‘Queen v. Bal GangadharTilak’12Strachey, J. thought that a man must not try to make others feel enmity of any kind towards the Government. But the amount and intensity of disaffection is immaterial except perhaps in dealing with the question of punishment.

• ⁸ILR22Bom. 112
• ⁹AIR1939Cal703
• ¹⁰AIR1943PC82
• ¹¹ILR19Cal.35
• ¹²ILR22Bom.112

In‘ Napuran Singh v. State of Punjab’¹³, the Propaganda Secretary of Gurudwara in the course of his speech gave very high figures of casualties following Army action in Punjab. He was charged with sedition and according to the Hon’ble High Court of Punjab even though the accused had not directed anyone to commit violence his speech tended to bring the Government into contempt and there was the possibility of occurrence of public disorder or violence as a result of his speech.

What is meant by ‘Exciting Disaffection’:

With the above-stated case law, we can say that the essence of the offense under this Section consists of the intention with which the language is used. The intention of a speaker or writer can be understood from the article or speech in controversy. To consider the intention of the accused it is necessary to take into consideration the state of the country and the public mind at the date of publication.¹⁴

Attempt:-

In the case of ‘Surendra Narayan Adhicary v. Emperor 15 the Court thought that sending through the post a packet containing a copy of a manuscript of a seditious publication with a covering letter requesting the addressee to circulate it to others, when the same was intercepted by another person and never reached the addressee, constitutes the offense of sedition.

Because as stated earlier it is immaterial whether or not actual public disturbance or violence takes place or not due to seditious elements. Mere attempts to cause public disturbance or violence by making objectionable comments towards the legally established Government in India constitute an offense under Section 124A of IPC.

¹³1986Cr LJ846 (P.&H.)

¹⁴PerLordFitzgeraldinSullivan,11Cox .50 atp. 59

¹⁵(1912) ILR 39 Cal 522

Various forms of excitement:-

Disaffection may be exciting in several ways. But seditious writing if it remains unpublished, then it does not constitute an offense under that Section. Because publication and circulation are necessary to attract this Section.

In B.G.Tilak’s case, ¹⁶ it was held that not only the author but also any person who uses in any way words or printed matter for exciting feelings of disaffection towards the Government is liable under this Section.

The printer, the publisher, the editor, or the owner of the press can be held liable unless it is proved that he was either absent or unaware of the contents of the document in controversy beyond the fact he was declared proprietor of the press.

The constitutional validity of Section 124A in independent India:-

A state can indeed control and restrict the voices of certain people who raise voices intending to spread hatred, and disaffection against the state to create violence and public disturbance through Section 124A of IPC. Therefore apparently we can say that a particular Section dominates the criticisms against the state which is the foundation of every democratic country and it goes against the freedom of speech and expression as guaranteed by Article 19(1)(a) of the Constitution. But in reality, it is not so. Technically Part III of the Constitution guarantees certain rights to persons, these rights are called fundamental rights.

But these are ‘rights’ not ‘freedom’. So a right can be taken away by the State if the situation demands so. But not only Section 124A, the Constitution itself imposes restrictions upon any or all of the rights guaranteed under Article 19(1) through Article 19(2) to maintain the Sovereignty and integrity of the country, friendly relations with a foreign state, security of the state, public order, decency or morality and also to prevent contempt of court, incitement to an offense, defamation. Therefore when the Constitution itself can impose restrictions, Section 124A cannot be held liable alone as an obstacle to the enjoyment of freedom of speech and expression. Rights therefore come coupled with restrictions that govern the exercise of such rights.

¹⁶ILR22Bom.112

Romesh Thappar v. Sate of Madras

In 1950 before the first amendment to the Constitution of India to Article 19(2) in which ‘public order’ and ‘friendly relations with foreign state’ were added the Supreme Court of India invalidated the decision pronounced by the Hon’ble Madras High Court in the case of ‘Romesh Thappar v. Sate of Madras’¹⁷. The Hon’ble Madras High Court banned the Circulation of a leftist journal on the grounds of public safety which was, in the eye of the Apex Court detrimental to the freedom of free expression. Justice Patanjali Shastri emphasized that the Constituent Assembly had specifically deleted the word ‘sedition’ as an exception to the Freedom of Expression.

Tara Singh Gopi Chand v. The State

Again in 1950 the Hon’ble High Court of Punjab and Haryana held that Section 124A of IPC was unconstitutional. In the case of ‘Tara Singh Gopi Chand v. The State’^18, the Court opined that sedition violated the freedom of speech and expression which is a fundamental right. In a democratic country, political ideologies and ruling parties must not be constant. Sedition laws may have been necessary during the colonial era. However, sedition laws have lost their significance after independence. Even though Article 19(2) imposes reasonable restrictions on the rights guaranteed by Article 19(1), it should be constitutional, not excessive, Section 124A of IPC did not pass the test.

Sabir Raza v. The State

In 1958 ‘Sabir Raza v. The State’ ¹⁹ Hon’ble Allahabad High Court opined that the speech even if it disrupts public order cannot be penalised under sedition. The Court said that disruption of public order does not lead to the overthrow of the State. Only mutiny or rebellion could destroy a republic and overthrow the state.

Ram Nandan v. State

In 1959 Hon’ble Allahabad High Court in the case of ‘Ram Nandan v. State’ ²⁰ again declared Section 124A as unconstitutional since the section imposed restrictions on freedom of speech and expression and was not in the public interest.

• ¹⁷1950AIR124, 1950 SCR 594
• ¹⁸1951CriLJ449
• ¹⁹CriAppNo.1434of1955, D/-11-2-1958(All)(Zl)
• ²⁰AIR 1959A ll101, 1959 CriLJ1

Kedar Nath Singh v. State of Bihar

Three years later in the case of ‘Kedar Nath Singh v. State of Bihar’²¹ Apex Court had an opportunity to examine the constitutional validity of Section 124A and the constitution bench overruled all the previous judgments pronounced by various High Courts and declared Section 124A is a valid exception to the freedom of speech and expression so long as intends to incite violence. Justice Sinha determined the scope to apply sedition. He pointed out that any words of disloyalty towards the legally established government in ‘strong terms’ will not be sedition unless it causes “public disorder by acts of violence”.

Common Cause (A Regd. Society) v. Union Of India

In 2016, in the case of ‘Common Cause (A Regd. Society) v. Union Of India’ ²² a writ petition was filed before the Apex Court challenging the use of Section 124A by Common Cause NGO. It alleged that the Government is not taking into consideration the famous ‘Kedar Nath Singh’ judgment while applying Section 124A to dominate freedom of speech and expression of students, intellectuals, and journalists. It sought a strict framework for Police and magistrates who needed to follow the framework at the time of dealing with sedition and prosecution under sedition. A division bench led by Justice Dipak Misra pointed out that ‘Kedar Nath Singh v. State of Bihar ’²³ has established the framework that is to be followed at the time of dealing with sedition.

Balwant Singh and Anr. V. State of Punjab

In the case of ‘Balwant Singh and Anr. V. State of Punjab’²⁴ Apex Court opined that unless there is public disorder merely sloganeering cannot attract punishment under Section 124A.

Vinod Duav. Union of India

In the case of ‘Vinod Duav. Union of India’ ²⁵Mr.Vinod Dua uploaded a video on YouTube on his HW News Network YouTube Channel as part of his program ‘Vinod Dua Show’ where he discussed nationwide lockdown and serious health issues taking place due to COVID-19 and criticized that the Government’s lack of adequate testing facilities. It was said

• ²¹1962AIR955,1962SCRSupl.(2)769
• ²²WRITPETITION(CIVIL)NO.683OF2016
• ²³1962 AIR9 55, 1962 SCRS upl. (2)769
• ²⁴1962 AIR 955, 1962 SCRS upl. (2)769
• ²⁵WP (CLR) no.154 of 2020

That alleged that Mr. Dua was propagating hostile and misleading information against Prime Minister Mr. Narendra Modi to disturb public peace and create violence.

But Apex Court observed that:-

• as long as a person does incite people to commit violence against the legally established Government, he has the right to criticize the activities of the Government.

• Section 124A can be invoked only when the words or expressions used at the time criticizing the Government have harmful tendencies or intentions to destroy the law and order of the society.

Therefore this case does not attract Section 124A of IPC.

Present Status of Section 124A of IPC:-

The present status of Section 124 of IPC can be discussed with respect to the order passed by Apex Court in the case of ‘S. G. Vombatkere v. Union of India’²⁶.

• Apex Court stated that all pending trials, appeals, and proceedings concerning Section 124A of IPC be kept in abeyance. If Courts are of the
  • opinion that no prejudice would be caused to the accused, then proceedings in respect of other Sections could proceed. If a fresh case is registered under Section 124A of IPC then the accused person should have liberty to approach concerned Courts for appropriate relief. Apex Court directed Central and State Governments not to file new FIR, continue the investigation, and not to take steps under Section 124A as long as it is under reconsideration. Apex Court directed subordinate Courts to examine reliefs sought on grounds of the
  present order passed and the decision of the
  • Union of India as well.
  • It is Central Government’s duty to direct State Governments and Union territories not to file new under Section 124A.

²⁶WRIT PETITION (C) No. 682OF2021

• These directions shall remain in force until further developments in relation to this matter.
  • While dictating order Apex Court stated that personnel ready booked under Section 124A and are in detention cells can approach concerned Courts for relief.

In ‘Aman Chopra V. State of Rajasthan’ ²⁷ State Police were prevented by the Rajasthan High Court from investigating charges leveled against the accused under Section 124A.

124A was inserted into IPC when India was under the control of the British Crown

As stated earlier Section 124A was inserted into IPC when India was under the control of the British Crown. The primary objective was to dominate the struggle for independence and criticism of the Colonial Government. After independence, it was a challenge for the State to maintain the freedom of speech and expression as guaranteed by Article 19(1)(a) of our Constitution. But an individual cannot be permitted to say whatever he feels right in the name of freedom of speech. Because it may lead to violence and disaffection against the legally established Government.

But it does not mean that we do not have the right to criticize the Government which is the foundation of democracy. While criticizing the Government we must keep one thing in mind it should always be constructive criticism. Criticisms of the Government are very natural in a democracy. But such criticisms must be done with a view to altering the policies of the Government in lawful manner. Law and order should not be affected by such criticisms.

²⁷S.B.CriminalMiscellaneous(Petition)No.4062/2022

References:-

• Indian Penal Code by Prof. S. N. Mishra, central law publication; Classic Edition (1 January 2018), ASIN: B08BJS6GJC
• Textbook On Indian Penal Code by K. D Gaur, Lexis Nexis, 7^th Edition (1 January 2020), ISBN-13: 978-8194471530
• Sedition Law in India: A Timeline by Malavika Parthasarathy, 27^th April 2022 | Supreme Court Observer (https://www.scobserver.in/journal/sedition-in-india-a-timeline/)
• Is Sedition Constitutional? From Tara Chand [1950] to Aditya Ranjan [2021] by Kruthika Rand Varsha Singh, 1^st March 2021 | Supreme Court Observer (https://www.scobserver.in/journal/is-sedition-constitutional-from-tara-chand-1950-to-aditya-ranjan-2021/)

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