1) Whether it is appropriate to repeal the S.124-A of the Indian Penal Code.
It is submitted that the ideal democratic system has one top notch goal of
abiding its constitution and achieving the objectives of the framers of the
constitution. The framers of the constitution has attempted to remark the
abolition of the provision for the offence of sedition.
At the time of the Indian movement for independence from British rule, the law of sedition was applied against
great nationalists, such as Annie Besant, Bal Gangadhar Tilak and Mahatma Gandhi, as a tool to curb dissent.
Keeping such excesses in mind, the Freedom of Speech and Expression was originally encompassed in Article 13 of
the Draft Constitution. In its original form, this provision guaranteed this right subject to restrictions imposed by
Federal Law to protect aboriginal tribes and backward classes and to preserve public safety and peace.
57A proposal for an amendment to this provision was moved in the Constituent
Assembly to permit the imposition of limitations on this right on the grounds
of “libel, slander, defamation, offences against decency or morality or
sedition or other matters which undermine the security of the State.”58
However, in light of the biased nature of judicial pronouncements pertaining
to cases of sedition in India, along with a precipitous rise in the abuse of
sedition law to incarcerate nationalists, the final drafters of the Constitution
felt the need to exclude sedition from the exceptions to the right to freedom
of speech and expression.59
A prominent objection to the inclusion of sedition as an exception to the
freedom of speech and expression was raised by Sardar Hukum Singh, who
noted that in the United States of America, any law that limited a
fundamental right is mandatorily subjected to judicial scrutiny and must be
deemed constitutional. However, by granting a blanket protection to any
sedition law that the Parliament may legislate upon, the courts in India would
be incapacitated from striking down an errant law for violating the right to
the freedom of speech and expression.60
He also criticised the validation of laws on the ground that they were “in the
interest of public order” or undermined the “authority or foundation of the
state” as classifications that were too vague.61
There was a clear consensus among the members of the Constituent
Assembly on the oppressive nature of sedition laws. They expressed their
reluctance to include it as a ground for the restriction of the freedom of
speech and expression. The term ‘sedition’ was thus dropped from the
suggested amendment to Article 13 of the Draft Constitution..
57 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth 17
available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June 10,2016)
58 Id.
59 Soli J. Sorabjee, Confusion about Sedition, August 12, 2012, available at
http://www.indianexpress. com/news/confusion-about-sedition/987140 (Last visited on March 10,
2014); See also Soli J Sorabjee, Aseem Trivedi’s cartoon’s don’t constitute sedition, September
15, 2012, available at http://newindianexpress.com/opinion/article607411.ece (Last visited on
March 10, 2014) (The most vocal opposition to such an inclusion came from the renowned
activist and lawyer Dr. K.M. Munshi. To support his position, Dr. Munshi cited the wide
divergence in the judicial interpretation of the term “sedition”. Further, he believed that public
opinion with respect to sedition had evolved over the years, and taking cognizance of the
changing nature of public opinion, a line needed to be drawn between constructive criticism of
the Government which was crucial to address the grievances of the people, and an incitement to
violence which would undermine security and disrupt public law and order).
60 Constitutional Assembl y Debates, December 7, 1948, speech by S.H. Singh 16 available at
http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on March 10, 2014).
61 Id.
Historical or genesis:
The law relating to the offence of sedition was first introduced in colonial
India through Clause 113 of the Draft Indian Penal Code (‘Draft Penal Code’),
proposed by Thomas Babington Macaulay in 1837
1. The offence of sedition
was incorporated under §124A of the IPC on November 25, 1870, and
continued without modification till February 18, 1898
2. After the initiation of
the law of sedition in 1870, it was allowed to remain in force, unaltered, for a
period of 27 years. Throughout this period, one of the primary objectives of
the British Government was to strengthen this law. By the 18th century, the
crime of seditious libel was viewed as a harsh and unjust law that was used
by the ruling classes to trample any criticism of the Crown.
3However, given
its utility; it was seen as a convenient tool in the hands of the rulers. Thus,
when a penal code was being drafted for colonial India, where the rulers had
the task of suppressing opposition, it was only obvious that seditious libel
would be imported into the territory of India. Therefore, it ultimately approved
the enactment of two cognate laws: the Dramatic Performances Act XIX of
1876 (‘DPA’) and the Vernacular Press Act (IX) of 1878. These Acts came to be
popularly referred to as ‘preventive measures’
4. While the former law was
1
Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian Freedom Struggle in
Nationalism And Social Reform In A Colonial Situation 54 (2005).
2 The Indian Penal Code, 1898, §124-A (read as follows:“Whosoever, by words, either spoken
or intended to be read or by signs or by visible representations or otherwise excite or
attempts to excite feelings of disaffection to the Government established by Law in British
India, shall be
punishable with transportation of life … to three years to which fine may be added.”).
3 Roger B. Manning, The Origins of the Doctrine of Sedition, 12(2) Alb ion 99
(Summer 1980).
4 Arvind Ganachari, Evolution of the Law of “Sedition” in the Context of the Indian
Freedom Struggle in Nationalism And Social Reform In A Colonial Situation 54
(2005).
primarily introduced to keep a check on seditious activities in plays,
5the
latter was formulated to actively suppress criticism against British policies
and decisions in the wake of the Deccan Agricultural riots of 1875-76.10
Since it came into operation in 1870, the law of sedition has continued to be
used to stifle voices of protest, dissent or criticism of the government.
While the indeterminate invoking of the provision has put it in the media
spotlight, there has been very little academic discussion with respect to the
nature of the law and its possible repeal.
The punishment for seditious offences is known to be especially harsh
compared to other offences in the IPC. It is a cognisable, non-bailable and
non-compoundable offence that can be tried by a court of sessions.
6However, its application is limited to the extent that the information had to
necessarily be a representation of facts as the truth.
7Thus, truth was a valid
defence to the act.
8It may attract a prison term of up to seven years if one is found guilty of
committing seditious acts.
9It is very difficult for a person accused of sedition
to get bail.
10The highly subjective nature of the offence makes it necessary
that courts determine on a case-to-case basis if any threat is caused to the
stability of the State or its democratic order. Leaving such a determination to
legislative or executive feat only enables a repressive government to
undermine the free speech guarantee.
115 Constitutional Assembl y Debates, December 7, 1948, speech by Damodar Swarup Seth
17 available at http://164.100.47.132/LssNew/constituent/vol7p21.pdf (Last visited on June
15, 2016).(The institution of the Dramatic Performances Act of 1876 was prompted by the
allegedly seditious nature of the two plays – Cha Ka Darpan in Marathi and Malharraoche
Natak in Bengali. It was in acknowledgement of the provocative nature of these plays that
Mr Hobhouse, while introducing the Act, observed that “drama has been found to be one of
the strongest stimulants that can be applied to the passions of men. And in times of
excitement no surer mode has been found of directing public feeling against an individual, a
class or a government than to bring them on stage in an odious light”).
6 The Code of Criminal Procedure, 1973, Schedule I.
7 Philip Hamburger, The Development of the Law of Seditious Libel and the Control
of the Press, 37 Stan. L. Rev. 669 (1985).
8 Id.
9 The Indian Penal Code, 1898, §124-A.
10 See PSA Pillai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
11 Eric Barendt, Freedom of Speech 170 (2006).
In this paper, we attempt to make a case for scrapping the provision for
sedition in the IPC and any other laws making seditious acts an offence. In
Part II, we examine the judicial application of the law of sedition in India since
the colonial era to highlight their vagueness and the non-uniform way in
which it has been applied. In Part III, we discuss the findings of the court in
Kedar Nath v. State of Bihar
12(‘Kedar Nath’), which upheld the constitutional
validity of §124A, and demonstrate that the law has evolved considerably
since then. In Part IV, we analyse two specific aspects of the offence of
sedition: the nature of the ‘government established by law’ and the effect of
the shift to a democratic form of government post independence. In Part V,
we undertake an analysis of all sedition cases that have come before the high
court’s and the Supreme Court of India between 2000 and 2015. We will draw
from the English experience with the crime of sedition, explaining why it
should find no place in a modern democracy. Finally, in Part VI, we provide
some concluding remarks to our discussion.
D. DEVELOPMENTS I N THE L AW POSTINDEPENDENCE
After India attained independence in 1947, the offence of sedition continued
to remain in operation under §124A of the IPC.62 Even though sedition was
expressly excluded by the Constituent Assembly as a ground for the
limitation of the right to freedom of speech and expression, this right was still
being curbed under the guise of this provision of the IPC. On three significant
occasions, the constitutionality of this provision was challenged in the courts.
These cases shaped the subsequent discourse in the law of sedition.
Following the decision in Niharendu Majumdar, §124A was struck down as
unconstitutional in Romesh Thappar v. State of Madras,63 Ram Nandan v.
State,64 and Tara Singh v. State65 (‘Tara Singh’). In Tara Singh, the East
Punjab High Court relied on the principle that a restriction on a fundamental
right shall fail in toto if the language restricting such a right is wide enough to
cover instances falling both within and outside the limits of constitutionally
permissible legislative action affecting such a right.66 During the debates
surrounding the first amendment to the Constitution, the then Prime Minister
Jawaharlal Nehru was subjected to severe criticism by members of the
opposition for the rampant curbs that were being placed on the freedom of
speech and expression under his regime.67 This criticism, accompanied by
the rulings of the courts in the aforementioned judgments holding §124A to
be unconstitutional, compelled Nehru to suggest an amendment to the
Constitution.68 Thus, through the first amendment to the Constitution, the
additional grounds of ‘public order’ and ‘relations with friendly states’ were
added to the Article 19(2) list of permissible restrictions on the freedom of
speech and expression guaranteed under Article 19(1)(a).69 Further, the
word ‘reasonable’ was added before ‘restrictions’ to limit the possibility of
misuse by the government. 70 In the parliamentary debates, Nehru stated
that the intent behind the amendment was not the validation of laws like
12 Kedar Nath v. State of Bihar, AIR 1962 SC 955.
sedition. He described §124A as ‘objectionable and obnoxious’71 and opined
that it did not deserve a place in the
scheme of the IPC.
62 The Indian Penal Code, 1860, §124A. (“Sedition.— 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. Explanation 1 – The
expression” disaffection” includes disloyalty and all feelings of
enmity. Explanation 2 – Comments expressing disapprobation of the
measures of the Government with a view to obtain their alteration by lawful
means, without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence 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 offence under this section”).
63 Romesh Thappar v. State of Madras, AIR 1950 SC 124.
64 Ram Nandan v. State, AIR 1959 All 101.
65 Tara Singh v. State, AIR 1951 SC 441.
66 Id.
67 Narrain, supra note 42.
68 Id.
69 Id.
70 Id.
71 Id.
The Court in Kedar Nath’s case stated that the section related to sedition was
a reasonable restriction both on grounds of ‘public order’ and ‘security of the
state’. Further, the addition of the phrase ‘in the interest of public order’ in
Article 19(2) through the first constitutional amendment with retrospective
application was seen as an attempt to validate the interpretation given by
Fazl Ali, J. in Brij Bhushan v. State of Delhi83 (‘Brij Bhushan’) whereby ‘public
order’ was allied to ‘security of thestate’.84 Consequently, the amendment
was seen as a validation of the law of sedition. Since then, however, a clear
distinction has been drawn by courts between the terms ‘public order’ and
‘security of the state’.86 The difference, essentially, is one of degree. While
the terms have not been precisely defined, public order is synonymous with
public safety and tranquillity and has only local significance. Security of the
state, on the other hand, would involve a national upheaval such as
revolution, civil strife or war.87 Thus, an argument that a law justified ‘in the
interest of public order’ would also consequently be justified in the interests
of the ‘security of the state’ would not stand. Further, it would also be
difficult to argue that the law could be saved on the grounds of being ‘in the
interests of public order’.
For the purpose of above mentioned permissible restriction, the breach of
public peace may be categorised as: offences against ‘law and order’, ‘public
order’ and ‘security of the state’. According to the judgment of the Supreme
Court in Ram Manohar v. State of Bihar88 (‘Ram Manohar Lohia’) these may
be viewed as three concentric circles, with ‘law and order’ forming the
outermost circle, ‘public order’ the next circle and ‘security of the state’ the
innermost circle. These form a hierarchy of disturbances of peace, with
security of the state possessing the highest standard of proof. Thus, if a
restriction is to be justified on the grounds of ‘security of the state’, it would
have to be subjected to a higher standard than that applied in cases of
‘public order’. As has already been stated, sedition is an offence against the
State and punishes an act intended to subvert the government established
by law. It is difficult to imagine how the mere disturbance of public order
could attract a charge for an offence against the state, given that the term
‘in the interests of public order’ is used in an extremely localised context.89
These could include punishing loud and raucous noise caused by
noise-amplifying instruments in public places or preventing utterances likely to
cause a riot. It is submitted that the appellants have failed to prove that
under which of the three circle the charged offence of sedition belongs. Thus
it is for the appellant to bring the circle or circles alongwith the such
corresponding standard of proof for the purpose of conviction.
A. MAINTENANCE OF PUBLIC ORDER AS A LIMIT ON FREE SPEECH
82 While it was widely accepted by various scholars and authorities that sedition
was essentially an offence against public tranquillity and was represented by any
form of public disorder, the Judicial Committee had stated that the intention or
tendency to incite disorder was not an essential element of the crime of sedition as
defined in the IPC.
83 Brij Bhushan v. State of Delhi, AIR 1950 SC 129 : (1950) 51 Cri LJ 1525.
84 Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, ¶29.
85 Id., ¶33 (The Court cited the decision in Debi Soren v. State, AIR 1954 Pat 254 to
support this
contention).
86 V.N. Shukla, Constitution Of India 135 (M.P. Singh, 2008).
87 Id.
88 Ram Manohar v. State of Bihar, AIR 1966 SC 740 : (1966) 1 SCR 709.
89 Id.
90 Balwant Singh v. State of Punjab, (1995) 3 SCC 214 : AIR 1995 SC 1785.
B. POST-INDEPENDENCE CHANGE IN NATURE OF GOVERNMENT
It must be noted that the Court was still driven by the notion of sedition as a
crime that affected the very basis of the State. It had thus been included
under the section related to ‘Offences against the State’ in the IPC. The
rationale for the criminalisation of such acts is generally that it fosters “an
environment and psychological climate conducive to criminal activity” even
though it may not incite a specific offence.96affecting the foundations of the
state. This change in the form of government has made a law of the nature of
sedition obsolete and unnecessary. Lastly, it has also been emphasised that
the courts must take into consideration the growing awareness and maturity
of its citizenry while determining which speech would be sufficient to incite
them to attempt to overthrow the government through the use of
violence.101 Words and acts that would endanger society differ from time to
time depending on how stable that society is. Thus, meetings and
processions that would have been considered seditious 150 years ago would
not qualify as sedition today.102 This is because times have changed and
society is stronger than before.103 This consideration becomes crucial in
determining the threshold of incitement required to justify a restriction on
speech. Thus, the audience must be kept in mind in making such a
determination. In S. Rangarajan v. P. Jagjivan Ram104 (‘Rangarajan’), the
Court held that “the effect of the words must be judged from the standards of
reasonable, strong-minded, firm and courageous men, and not those of weak
and vacillating minds, nor of those who scent danger in every hostile point of
view.”105 It gives an indication of what sort of acts might be considered
seditious, when it observes that the film in question did not threaten to
overthrow the government by unlawful or unconstitutional means, secession
or attempts to impair the integrity of the country.
97 Cass R. Sunstein, Free Speech Now, U. Chi. L. Rev. 260 (1992).
98 Id.
99 It must be remembered, however, that a call to alter the form of
Government is not punishable
under this section.
100 See Tara Singh Gopi Chand v. State, 1951 Cri LJ 449 (per Eric Weston,
C.J.).
101 Seervai, Constitutional Law of India 718 (2010).
102 Id.
103 Bowman v. Secular Society Ltd, 1917 AC 406 .
104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
105 Id., ¶¶20.
104 S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
1. Clear Acquittal Cases
In one such case, P.J. Manuel v. State of Kerala,106 the accused affixed posters on a
board at the Kozhikode public library and research centre, exhorting people to
boycott the general election to the Legislative Assembly of the state.107 The poster
proclaimed, “No vote for the masters who have become swollen exploiting the
people, irrespective of difference in parties.” Consequently, criminal proceedings
were initiated against him under §124A of the IPC for the offence of sedition. The
Kerala High Court observed that it needs to be examined whether the publication or
preaching of protest, or even questioning the foundation or form of government
should be imputed as “causing disaffection towards the government” in a modern
democracy. The content of the offence of sedition must be determined with
reference to the letter and spirit of the Constitution and not to the standards applied
during colonial rule. In support of its view, it cited authority to demonstrate that
even the shouting of slogans for the establishment of a classless society in line with
the tenets of socialism would not be punishable as sedition.108 Further, it noted
that §196 of the Code of Criminal Procedure, 1973, (‘CrPC’) mandates that the
government must expressly authorise any complaint filed for an offence against the
State (under Part VI of the IPC) before the Court can take cognisance of such an
offence. It thus held that the impugned act did not constitute the act of sedition and
quashed the criminal proceedings against the petitioner. Courts have also
consistently found that criminal conspiracies and acts of terrorism did not constitute
seditious acts. In Mohd. Yaqub v. State of W.B.,117 the accused had admitted to
being a spy for the Pakistani intelligence agency ISI. He would receive instructions
from the agency to carry out antinational activities. He was thus charged for
sedition under §124A of the IPC. Citing the elements of sedition that were laid down
in Kedar Nath, the Calcutta High Court found that the prosecution had failed to
establish that the acts were seditious and that they had the effect of inciting people
to violence. Thus, the accused were found not guilty as the strict evidentiary
requirements were not met.
106 P.J. Manuel v. State of Kerala, ILR (2013) 1 Ker 793.
107 Id.
108 Alavi v. State of Kerala, 1982 KLT 205; Balw ant Singh v. State of Punjab, (1995)
3 SCC 214 : AIR 1995 SC 1785.
117 Mohd. Yaqub v. State of W.B., (2004) 4 CHN 406
A recent Convention organized by People’s Union of Civil Liberties (PUCL) and participated in
by other Human Rights organizations heard accounts of widespread and systematic misuse of the
sedition law across India. All forms of democratic struggles - from farmer’s agitations to citizens
protesting against state policies - have been criminalized and prosecuted under sedition laws.
Consequently, thousands of ordinary citizens have not only suffered violation of fundamental
freedoms and liberties but also forced to undergo major personal, emotional and financial
hardships due to imprisonment and in the process of seeking legal remedies. The Convention,
therefore, resolved to launch a nation-wide signature campaign to collect at least a million
signatures to present it to Parliament demanding the immediate repeal of Sedition Law, i.e., Sec.
124 (A) IPC. Colonial era sedition law contained in section 124 A of the Indian Penal Code,
makes creating hatred or contempt for or disaffection towards the government established by
Law in India, an act of sedition punishable with imprisonment for life, whether such disaffection,
hatred or contempt is created by words spoken or written or by signs or visible representation.
This section forms part of chapter VI of the Indian penal Code that deals with “offences against
the State”, a passage that deals with serious offences including waging war against the State.
Section 124 A was introduced by the British Government in 1870 when the colonial government
felt that such a draconian law was needed to suppress the freedom struggle. Some of the most
famous sedition trails of 19th and early 20th centuries were those of Indian nationalist leaders
including Tilak, Gandhi and Maulana Azad. All the repressive laws used by the British against
the freedom struggle have been retained in Independent India, despite constitutional provisions
mandating scrutiny.Jawaharlal Nehru’s views were totally against this provision when he said in
1951, “Take again Section 124 (A) of the Indian Penal Code. Now so far as I am concerned that
particular Section is highly objectionable and obnoxious and it should have no place both for
practical and historical reasons, in any body of laws that one might pass. The sooner we get rid
of it the better.”In fact, it is the constitutional right of every citizen to expose the misdeeds of the
government he/she disapproves of and create disaffection and disloyalty among the people and
work for throwing it out of power through democratic means – of course without resorting to
violence. Hence, the law is incompatible with democracy in which anybody who is dissatisfied
with the government has the right to create disaffection against it and seek its removal at the next
election. In fact, it is the legitimate right of every citizen to expose the misdeeds of the
government it disapproves of, create disaffection and disloyalty among the people and work for
throwing it out of power. Disloyalty to a government is different from disloyalty to the State. Of
late this provision is being used by the State to suppress the peaceful people’s movements and
Human Rights activists. Using sedition law to silence peaceful criticism is the hallmark of an
oppressive government. The Indian parliament should immediately repeal this Colonial Era
Sedition Law.
http://www.pucl.org/Topics/Law/2011/sedition.html
, last visited on 16, July 2016.
Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M.
Business laws, Imperial Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5,
2016, ISSN: 2454-1362
The dictionary meaning of sedition is conduct or speech inciting people to rebel
against the state. Its legal meaning is inciting violence towards insurrection of
established order and lawful authority, including subversion of the Constitution.
Hardik Patel
In 2015 The Gujarat government booked a Patel leader under sedition for sending
messages containing “offensive language against the Prime Minister, the State Chief
Minister and Amit Shah, the President of BJP”. These cases are indicative of a high
level of intolerance being displayed by governments towards the basic freedom
enjoyed by citizens. Democracy has no meaning without these freedoms and
sedition as interpreted and applied by the police is a negation of it.
Kanhaiya Kumar
In February 2016, JNU, Jawaharlal Nehru university student union president
Kanhaiya Kumar was arrested on charges of sedition under section 124-A of Indian
Penal Code. However this arrest has raised a political turmoil in the country with
academicians and activists marching and protesting against this move by the
government. While those associated with JNU, past and present feel that the
government is stifling and ruthlessly suppressing dissent, there is another part of
the population that believes JNU for long has been supporting antiIndia activities
and the students involved must be punished for this act. Protests by both sides are
continuing. Kanhaiya Kumar is the president of JNUSU. On 2 March 2016 the videos
purporting to show this activity were found to be fake and he was released after
three weeks in jail.
Yet, it is not the first time that the sedition law has been used in independent India.
And it will not be the last time. It is neither rare nor frequent. But it happens often
enough when it serves a political purpose. Governments invoke the law and the
opposition cries foul. The irony of double standards is striking. The same political
parties when in government cite the national interest and when in opposition wax
eloquent about rights or freedom. In the present mess, there are no winners. There
are only losers. The government runs the risk of losing support of young people,
who are an important political constituency, and the wrath of students might spill
over on to the streets. Moreover, it distracts the government from its priority tasks.
That can help in progress of society in India. Past judgments of the honorable courts
have always became the tale between section 124A and article 19(1) where one
deals with freedom of speech and one controls the autonomy words against state is
not a matter of freedom. Anything in against of national interest is subject to
sedition. After all autonomy is as autonomy does.
A case against the sedition law Kaleeswaram Raj
-http://www.niyamasabha.org/focus/Focus-Mar-2016.pdf
Henry Ward Beecher (1813-87), the American preacher and social reformer, said: “It takes a
hundred years to make a law; and then after it has done its work, it takes another hundred years
to get rid of it.” The Jawaharlal Nehru University episode evocatively makes out a formidable
case for junking Section 124A (sedition) of the Indian Penal Code (IPC) once and for all. The
textual or literal tone of the provision is per se undemocratic, for it penalizes dissent with an
obfuscating vocabulary. The provision criminalizes words bringing, or attempting to bring,
“hatred or contempt” or “disaffection” towards the government. By prescribing a
disproportionate optimum punishment of life imprisonment even for the words spoken, it designs
a nefarious power structure that is inherently illiberal and dangerously oppressive. Section 124A
finds its legal legitimacy in the Constitution Bench decision in Kedar Nath Singh vs State of
Bihar (AIR 1962 SC 955). The judgment, which is apparently ambivalent and intrinsically
wrong, needs to be reviewed by a larger bench insofar as it validates the provision. The
reasoning in the judgment does not stand the test of constitutional experience of the country or
the subsequent developments in the concept of freedom across the world. The binary of
individual liberty and state security is no longer a contested concept, for a synthesis of these
“opposing ideas” has been vividly demonstrated by many modern democracies. Parliament is
unlikely to repeal the provision, for those in power often have needed it and even benefited from
it. An introspective gesture from the apex court alone seems to be the way ahead for those who
believe in the cause of liberty of thought and imagination. It is high time Section 124A was held
void, for it is legally unnecessary, constitutionally invalid and democratically untenable. There
are at least four prominent reasons for invalidating Section 124A by recalling the ratio in Kedar
Nath, which is an epitome of an obsolete precedent insofar as it retains Section 124A.
KEDAR NATH IS AMBIVALENT
The validation of Section 124A in Kedar Nath is neither categorical nor assertive. In paragraph
25 of the judgment, the court said: “ .... (I)f it is held .... that the gist of the offence of sedition is
incitement to violence, in other words bringing the law into line with the law of sedition in
England was the intention of the legislators when they introduced Section 124A into the IPC in
1870, ... (then) the law will be within the permissible limits laid down in clause (2) of Article 19
of the Constitution. If on the other hand, we give a literal meaning to the Section ... it will be true
to say that the Section is not only within but also very much beyond the limits laid down in
clause 2 (of Article 19).” In paragraph 26, the court has resorted to a dialectical logic and
validated the provisions: “It is well settled that if certain provisions of law construed in one way
would make them consistent with the Constitution, and another interpretation would render them
unconstitutional, the court would lien in favour of the former construction.” Thus, Kedar Nath
laid down the law: If activities do not create disorder or have the pernicious tendency to create
public disorder, there is no offence. If otherwise, it is a punishable offence. Therefore, according
to Kedar Nath, the provision is reasonable in terms of Article 19(2) of the Constitution. Thus, the
question of constitutionality is decided by the bench in contextual and contingent terms. Even
while accepting the possibility of interpreting the provision as unconstitutional, Kedar Nath has
validated it by construing the law, which is otherwise vague, at least to the extent to which it
needed a construction. This hermeneutical error in Kedar Nath contains inherent dangers. The
penal provisions, unlike the other statutes, are primarily interpreted and invoked by the
executive. As such, there is an enormous element of subjectivity in invoking Section 124A.
Although theoretically, the Kedar Nath judgment advocates an objective test, the question
whether the words spoken by the accused has a tendency to create disorder is again a matter of
subjective decision by the executive, which runs the police-the jury on the street. Kedar Nath
himself was an activist of the Forward Communist Party. The charge against him specifically
refers to his speech. In a folkloric rhetoric, he, inter alia, said: “The Forward Communist Party
does not believe in the doctrine of vote itself. The party had always believed in revolution and
does so even at present. We believe in that revolution, which will come and in the flames of
which the capitalists, zamindars and the Congress leaders of India, who have made it their
profession to loot the country, will be reduced to ashes and on their ashes will be established a
government of the poor and the downtrodden people of India.” The Kedar Nath judgment also
considered the speeches by a Bolshevik Party leader from Uttar Pradesh and one Ishaq Ilmi, the
chairman of the reception committee of the All India Muslim Convention in Aligarh. Thus,
literally it was the speech that invited sedition charges in many of the appeals considered by the
Supreme Court in Kedar Nath. Having found that mere words, unless accompanied by an
intention to scuttle “law and order”, cannot lead to sedition, the court should have gone further
into the realm of legal realism. The country had to pay a heavy price in terms of liberty for
retaining Section 124A in the IPC. The inhospitable history of the provision shows that it was
used to stifle democratic dissent. Many journalists, writers and activists have been booked for
dissent. The voices of thousands of Koodankulam anti-nuclear plant activists, who led peaceful
agitations, were muffled with sedition charges. It is time to rethink the “unbearable reluctance”
in Kedar Nath to do away with the provision. If Section 124A punishes only the pernicious
activities against the state, it is no longer necessary in the IPC. There are other provisions in the
IPC that take care of such offences more effectively. In Kedar Nath, the Supreme Court has not
examined the sufficiency of other provisions even after noting the inherent dangers of the
sedition part. Apart from Section 124A, the court, in Kedar Nath, dealt with Section 505 of the
IPC relating to “statements conducing to public mischief’. The court, however, did not analyse
the more visible forms of offences to topple the regime. Sections 121, 12lA and 122 deal with the
offence of “waging war against Government of India” or in any way facilitating such a war.
Going by judicial interpretation, the word “war” has a wide and varied meaning. Section 121
says that insurrection against the government is punishable with death or life imprisonment.
Section 126 makes “depredation on territories of power at peace with the Government of India” a
punishable offence. Chapter VII of the IPC, by way of Sections 131 to 140, deals with offences
relating to the Army, the Navy and the Air Force. More importantly, any violence or call for
overturning the law and order situation or to disrupt public tranquility is otherwise punishable
under the provisions of the Code, outside the scope of Section 124A. Thus, the law and order
requirement of Section 124A is met by other parts of the IPC, which is its very basic object. As
such, the retention of Section 124A is rendered unnecessary by the Code itself. Since it is capable
of being put to unconstitutional use (not misuse) as noted by the apex court, its retention defies
constitutional logic and empirical thinking. The lack of a comprehensive analysis of the
provisions in the IPC has rendered the Kedar Nath ratio dangerously incomplete.
FOUNDATION SHATTERED
The foundational reason adopted by the Supreme Court for validating the provision was the
retention of the sedition law in England at that time. The court said: “This species of offence
against the state was not an invention of the British government in India but has been known in
England for centuries. Every state, whatever its form of government, has to be armed with the
power to punish those who, by their conduct, jeopardise the safety and stability of the state ... “
(Paragraph 15). After extracting the British equivalent of sedition law, the court said that “the
law has not changed during the course of the centuries ... “. Now that law is changed. It was
abolished in Britain as it was found untenable in the light of the Human Rights Act, 1998. The
emphasis on free speech by the European Convention on Human Rights (ECHR) accelerated the
process of expulsion of sedition laws from many democracies. New Zealand followed suit after
noting that in the United States, Canada and Australia, the law is practically in disuse. Nigeria
also abolished its sedition law. The judgment of the Federal Court of Appeal in Nigeria struck
down the part of Criminal Code of Eastern Nigeria, saying: “(T)he law of sedition which has
derogated from the freedom of speech guaranteed under this Constitution is inconsistent with the
1979 Constitution more so when this cannot lead to a public disorder as envisaged under Section
41(a) of the 1979 Constitution ... “ [State vs Arthur Nwankwo, (1985) 6 NCLR 228]. Therefore,
it is clear that the Kedar Nath ratio, in as much as it justifies itself on the basis of the erstwhile
British legislation, is no longer a good law in the legal or political sense. But since the law has
not been scrapped, the Supreme Court had to exonerate the accused in Bilal Ahmed Kaloo (1997)
7 SCC 431 and Balwant Singh (1995) 3 SCC 214 where the charges were inter alia under
Section 124A. It happened likewise in many unreported cases as well. As explained by Salvador
J. Antonett Stutts, an attorney in Puerto Rico, often obsolete precedents are not revaluated
“because of habit”, as the “habitual adherence to precedent” could lead to “incorrect results”.
The citizen’s long journey to the Supreme Court to free himself of the charges is a sad
commentary on the Indian sedition law.
TRAPPING THE INNOCENT
Kedar Nath identifies two possible interpretations of Section 124A, thereby indicating that the
provision is vague. Vagueness of a penal statute (as distinct from its potential for misuse) is not
sufficient enough to invalidate the provision. The Supreme Court recently accepted this principle
in Shreya Singhal vs Union of India (2015) [5 SCC 1], while dealing with the validity of Section
66A of the Information Technology Act, which the court struck down. The “open-ended” and
“vague” terminology in the penal provisions could be even deceptive, for it might “trap the
innocent”. As held in United States vs Reese [92 U.S. 214J, “the Constitution does not permit a
legislature to set a net large enough to catch all possible offenders and leave it to the court to step
in and say who could rightfully be detained and who should be set at liberty”. The court in
Shreya Singhal also refers to Grayned vs Rocliford [408 U.S. 104 (1972)J to say that “vague
laws may trap the innocent by not providing fair warning”. It noted the warning by Justice
Brandeis that “public discussion is a political duty”. “Vagueness” in itself is a ground to
invalidate a statute. However, its linkage with the potential for misuse of the provision is an
added reason to do away with it. The modernity and modernism in Shreya Singhal reflect an
updated constitutionalism. Kedar Nath also needs thorough modernisation surgery, ‘which
precisely means annulling Section 124A.
DEBATES OVERLOOKED
The fundamental error in KedarNath, however, seems to be that it followed the minority view of
Fazal Ali (J) in Brij Bhushan (1950), which attributed a strange reasoning for not incorporating
sedition as an exception to freedom of speech, as part of Article 19(2). Fazal Ali (J) said: “The
framers of the Constitution must have therefore found themselves face to face with the dilemma
as to whether the word ‘sedition’ should be used in Article 19(2) and if it was to be used, in what
sense it was to be used. On the one hand, they must have had before their mind the very widely
accepted view supported by numerous authorities that sedition was essentially an offence against
public tranquillity and was connected in some way or other with public disorder; and on the other
hand there was the pronouncement of the Judicial Committee that sedition as defined in the
Indian Penal Code did not necessarily imply any intention or tendency to incite disorder.”
FazalAli (J) seems to have not correctly appreciated the spirit of the objections raised by K.M.
Munshi, T.T. Krishnamachari and Seth Govind Das in the Constituent Assembly. Sedition was
initially incorporated under Article 13 of the draft Constitution, which is the equivalent of the
present Article 19. Munshi lamented: “Our notorious Section 124A of (the) Penal Code was
sometimes construed so widely that I remember in a case a criticism of a District Magistrate was
urged to be covered by Section 124A. But the public opinion has changed considerably since and
now that we have a democratic government” (Constituent Assembly Debates, 1948; Book No.2;
Vol. No. VII; page 731; Lok Sabha Secretariat; 6th Reprint, 2014). Krishnamachari felt even the
word “sedition” needed to be “resented”. He spoke unflinchingly against the draft Constitution,
which contained the word sedition under Article 13, as an exception to freedom of speech and
expression. He said: “Students of constitutional law would recollect that there was a provision in
the American Statute Book towards the end of the 18th century providing for a particular law to
deal with sedition which was intended only for a period of years and became more or less
defunct in 1802” (Ibid, page 773). Fazal Ali’s apprehension that sedition per se would undermine
the “security of the state” does not appear to be reasonable when examined in the light of the
opinion expressed in the Constituent Assembly, which were well received and accepted by the
makers of the Constitution. In Kedar Nath, unfortunately, the bench relied on the dissent on the
basis of assumptions and presumptions by Fazal Ali (J) rather than by invoking any interpretative
technique. The reference to the amendment to Clause (2) of Article 19, occurring in paragraph 22
of the judgment, does not erase this basic infirmity. Had there been an assimilation of the spirit
of liberty in the Constituent Assembly debates, the analysis in Kedar Nath might have turned
more organic, vibrant and libertarian, which in turn would have led to a different conclusion
about the validity of the provision. Viewed in this light, after 145 years of its horrendous
existence, Section 124A calls for its own annihilation by the world’s most powerful Supreme
Court.
http://decipherias.com/currentaffairs/sedition-vs-free-
speech/;%20last
%20visited%20on%2026%20July,%202016 Tilak & Gandhi
Section 124A was not part of the IPC when it was enacted in 1860. It was introduced
through an amendment in 1870.
The monograph traces the contemporary understanding of the sedition law to the
interpretation placed on it by Justice James Strachey, who was asked by the British
government to preside over the sedition case against Bal Gangadhar Tilak, who was
convicted of sedition in 1897 but released in 1898. Tilak’s counsel argued that the
so-called seditious articles written by Tilak were consistent with his loyalty to the
state. Strachey held that the term “feelings of disaffection” as used in Section 124A
meant “hatred”, “enmity”, “dislike”, “hostility”, “contempt” and every form of ill will
to the government. The Judicial Committee of the Privy Council upheld his
interpretation.
In 1898, Section 124A was amended to reflect Strachey’s interpretation. The terms
“hatred” and “contempt” were included along with disaffection. Disaffection was
also stated to include disloyalty and all feelings of enmity.
Tilak was again tried for sedition in 1908. Despite a spirited defence from
Mohammad Ali Jinnah, his counsel then, the amended Section 124A helped the
British judges to sentence Tilak to six years’ rigorous imprisonment with
transportation.
Mahatma Gandhi, when he was charged under the Section in 1922, famously told
Judge Strangman, who heard his case: “Section 124A under which I am happily
charged is perhaps the prince among the political sections of the IPC designed to
suppress the liberty of the citizen. Affection cannot be manufactured or regulated
by the law.”
Constituent Assembly & section 124 A
It is almost an accident that Section 124A survived after India’s Constitution came
into force in 1950. The provision must have died a natural death in view of Article
13 of the Constitution, which states that all laws in force in the territory of India
immediately before the commencement of the Constitution, insofar as they are
inconsistent with the provisions of Part III, dealing with Fundamental Rights, shall, to
the extent of such inconsistency, be void.
Those who defend Section124A today must learn from history. The Draft
Constitution had included “sedition” as one of the grounds on which the
fundamental right to speech could be restricted. But owing to the efforts of K.M.
Munshi, the word “sedition” was deleted from the exceptions to the right to freedom
of speech and expression under Article 19(2) when it was finalised.
Bizarre cases imposed in the name of Sedition:
Some of the cases of sedition are bizarre. In 2010, a lecturer, Noor Muhammed
Bhat, in Gandhi Memorial College, Srinagar, was arrested because he added
questions on the unrest in Kashmir Valley in an examination. He was granted
interim bail by the Jammu and Kashmir High Court in 2011.
The Times of India’s resident editor at Ahmedabad, Bharat Desai, faced charges,
along with a senior reporter and a photographer, in 2008 for questioning the
competence of police officers and alleging links between them and the mafia. The
case was dismissed by the court for lack of evidence.
In the case against Sudhir Dhawale, a reputed Dalit social activist and editor of
Vidrohi, published from Gondia, Maharashtra, the police alleged that a State
Committee member of the banned Communist Party of India (Maoist) had stated in
an interrogation that he had given his computer to Dhawale. Dhawale was arrested
in 2011. A sessions court acquitted him in 2014.
NCRB data
The list of cases of misuse of Section 124A given here is not exhaustive. The
National Crime Records Bureau (NCRB) records that in 2014, 176 cases of offences
against the state were reported. Of these, 47 were reported under section 124A IPC.
Conclusion:
The NCRB may well provide data regarding the number of persons convicted and
sentenced for sedition. The number will, no doubt, be minuscule, thus confirming
that the trial and the appellate courts hardly find the evidence convincing enough to
sustain the charges. This proves that Section 124A is often a handy tool in the
hands of the government to inflict procedural punishment against its critics, just in
order to harass, threaten and intimidate.
http://www.uniassignment.com/essay-samples/law/the-pre-text-of-origin-law-constitutional-administrative-essay.php
bibliograpgy:
Table of Authority
Cases
Bennett Coleman v. Union of India, A.I.R. 1973 S.C. 106, 138 3
Bowman v. Secular Society Ltd., [1917] AC 406, 466 16
D.C. Saxena (Dr.) v. Hon’ble The Chief Justice of India, (1996) 5 S.C.C. 216 ¶29 3
Dhirendra Nath Sen v. Emperor, A.I.R. 1938 Cal 721, 723 17
Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh, A.I.R. 1955 All 193 8
Emperor v. Sadashiv Narayan Bhalerao, A.I.R. 1947 P.C. 82 16
Hunt et al. 29 C&P 91 4
In Re Cottingha'n, (1919, Colo.) 182 Pac. 2 10
Joy Chandra Sarkar v. R, 12 Cr.L.J. 348 17
Kedarnath v. State of Bihar, A.I.R. 1962 S.C. 955 4
King Emperor v. Sadashiv, 1947 (74) I.A. 89 4
LIC v. Manubhai D. Shah (Prof.), A.I.R. 1993 S.C. 171 ¶ 23 3
Namboodiripad E.M. Sankaran v. Ma,biar T. Narayanan, A.I.R. 1970 S.C. 2015 3
Nazir Khan v. State of Delhi, A.I.R. 2003 S.C. 4427 16
Niharendu v. King Emperor, (1954) F.C.R. 38 4
O'Connell et al. v. The Queen, (1844) 11 Cl.&Fin. 155 4
P. Hemalatha v. Government of Andhra Pradesh, A.I.R. 1976 A.P. 375 17
Parmanand v. Emperor, A.I.R. 1941 All 156, 157 16
Queen Emperor v. Bal Gangadhar Tilak, (1897) I.L.R. 22 (Bom.) 112 6
Queen Emperor v. Jogendra Chandra Bose, (1892) I.L.R. (Cal.) 35 6
R. v. Sulliva, (1868) 11 Cox CC 54 17
Ram Bahadur Rai v. State of Bihar, A.I.R. 1975 S.C. 223 3
Ram Chandra v. Emperor, A.I.R. 1930 Lah. 371, 374 17
Ram Nandan v. State, A.I.R. 1959 All 101 7
Rangarajan S. v. Jagjivan Ram P., (1989) 2 S.C.C. 574 3
RMD Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628 17
Romesh Thappar v. State of Madras, 1950 S.C.R. 594, 602 3
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305 (315) 4
Trial of Redhead Yorke, 25 St. Tr. 1003 4
Statutes
Pen. Code, §124A (1860) 4
Other Authorities
2 HalsBury’s Laws of England, 479 ¶812 (4th ed 2007) 10
7 Lok Sabha Secretariat, Constituent Assembly Debates, 731 (2008). 7
Law Commission of India, 42nd Law Commission Report, 149 (1971). 18
Manoj Mitta, Jawaharlal Nehru Wanted Sedition Law Out as Early as 1951, The Times of India (Mumbai) Sept. 11, 2012 at 9 7
Conventions & Treatises
International Covenant on Civil and Political Rights (ICCPR), (1966) Art. 1 12
International Covenant on Economic, Social and Cultural Rights,(1966) Art. 1 12
United Nations General Assembly, Universal Declaration of Human Rights, Dec. 10, 1948 12
Constitutional Provisions
Constitution of Afghanistan (2004) Article 4 11
Constitution of Algeria as amended in 1996 (1989) Article 6 11
Constitution of Bangladesh (2004) Article 7 11
Constitution of Belarus as amended in 1996 (1994) Article 3 11
Constitution of Brazil (1983) Article 1 11
Constitution of France (1958) Article 3 11
Constitution of Libya (1969) Article 1 11
Constitution of Mexico (1917) Article 39 11
Constitution of the People’s Republic of China as amended through March 2004 (1982) Preamble, Articles 1 and 2 11
Constitution of Venezuela (1999) Article 5 11
Indian Const., art. 19 § 1 cl. a 3
Indian Const., art. 19 § 2 4
The Constitution of the Republic of Mali (1991) Preamble and Article 25 11
The Constitution of the Russian Federation (1993) Article 3; The 1945 11
Books
2 James Stephen, History of the Criminal Law, 299 (1883) 4
3 Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, 254 (Steve Spheppard eds. 2003) (1600). 5
Aravind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response, in Engaging Terror: A Critical and Interdisciplinary Approach 98, 99, (M. Vandalos, G.K. Lotts et al eds. 2009) 6
Bodin, Six books of Republic, 35 (Tooley trans. 1980) (1576). 11
Durga Das Basu, Shorter Constitution of India, 278 (Justice A.R. Lakshmanan et al. eds. 14th ed. 2011). 3
John Hoffman, Sovereignty 97 (1998) 12
John Locke, Second Treatise of Civil Government, 65 (Thomas Hollis ed. Hackett Publishing Company 1980) (1764). 13
Kurt Mills, Human Rights in the Emerging Global Order A New Sovereignty, 39 (1998) 12
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, 247 (8th ed 2010) 11
Manning, The Mind of Jeremy Bentham, 53 (1968). 11
Marlin Randal, Propaganda and The Ethics of Persuasion, 228 (2002) 3
McIlwain, Growth of Political Thoughts in the West, 268 (1968) 11
R. Dhavan., Only the Good News: On the Law of the Press in India, 287 (1987). 6
Ratanlal & Dhirajlal, The Indian Penal Code, 660 (V.R. Manohar ed. 2010) (1896) 5
S.K. Sarvaria, RA Nelson’s Indian Penal Code, 1101 (10th ed 2008) 16
W. Ullman, Principles of Government and Politics in the Middle Ages, 72, 139, 150 (1961) 11
W.R. Donogh, A Treatise on the Law of Sedition and Cognate Offences in British India, 1 (1911). 6
Articles
Cathy Packer and Johanna Cleary, Rediscovering The Public Interest: An Analysis Of The Common Law Governing Post-Employment Non-Compete Contracts For Media Employees, 24 Cardozo Arts & Ent. L.J. 1073, 1114-1115, 1117 (2007) 15
Cindy G. Buys, Burying Our Constitution In The Sand? Evaluating The Ostrich Response To The Use Of International And Foreign Law In U.S. Constitutional Interpretation,1 BYU J. Pub. L. 1, 18 (2007) 15
Helen Stacy, Relational Sovereignty, 99 Am. Soc'y Int'l L. Proc. 396, 2034 (2005). 13
Hurst Hannum, The Status Of The Universal Declaration Of Human Rights In National And International Law, 25 Ga. J. Int'l & Comp. L. 287, 348 (1995/1996) 12
Jean d'Aspremont, Legitimacy Of Governments In The Age Of Democracy, 38 N.Y.U. J. Int'l L. & Pol. 877, 884 (2006) 15
Johan D. van der Vyver, Sovereignty And Human Rights In Constitutional And International Law, 5 Emory Int'l L. Rev. 321, 328 (1991) 14
Joy M. Purcell, A Right To Leave, But Nowhere To Go: Reconciling An Emigrant's Right To Leave With The Sovereign's Right To Exclude, 39 U. Miami Inter-Am. L. Rev. 177, 182 (2007). 12
Lorie M. Graham, Reparations, Self-Determination, And The Seventh Generation, 21 Harv. Hum. Rts. J. 47, 62 (2008) 12
Michael J. Kelly, Pulling At the Threads of Westphalia: "Involuntary Sovereignty Waiver" - Revolutionary International Legal Theory or Return to Rule by The Great Powers?, 10 UCLA J. Int'l L. & Foreign Aff. 361, 390 (2005) 12
Michel Rosenfeld, The Rule Of Law And The Legitimacy Of Constitutional Democracy, 4 S. Cal. L. Rev. 1307, 1332 (2001) 15
Roger B. Manning, The Origin of the Doctrine of Sedition, 12 Quatr. J. Con. Brth. Std. 99 (1980) 5
Ronald A. Brand, External Sovereignty And International Law, 18 Fordham Int'l L.J. 1685, 1687 (1995) 15
Srinivas Aravamudan, Sovereignty: Between Embodiment And Detranscendentalization, 41 Tex. Int'l L.J. 427, 430 (2006) 12
W. Michael Reisman, Sovereignty And Human Rights In Contemporary International Law, 84 Am. J. Int'l L. 866, 867 (1990) 12
William E. Conklin, The Origins of the Laws of Sedition, 15 Crim. L. Q. 277, 284 (1972). 4
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India Today, Throw Out ‘Sedition’ from the Penal Code, (Dec 28, 2010) available at http://indiatoday.intoday.in/story/throw-out-sedition-from-the-penal-code/1/124784.html 6
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NLSIU & ALF, Sedition Laws and The Death of Free Speech in India, 9 (2011) 6
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Introduction
It is indispensable for the operation of the democratic system [1] and for self-development and setting up a homogeneous egalitarian society. [2] Democracy is extolled because of the freedom of speech and expression present in it. This freedom comes with the freedom to critique, to critique government policies, government laws and administration. As Thomas I. Emerson say that "Opposition serves a vital social function in offsetting or ameliorating (the) normal process of bureaucratic decay", [3] it shows the requirement of criticism in a democracy. If freedom is the depiction of democracy, informed electorate is its element of survival. The former U.S. Senate from Pennsylvania, Arlen Specter has once said that the essence of the democracy is an informed
electorate. [4] A well-informed voter is the foundation of democratic structure. [5] The State cannot prevent open discussion and open expression however hateful to its policies, [6] or criticism of the incapacity of the Government. [7] Merely exciting ‘disaffection or bad feelings towards the Government’ is, therefore, no ground for restricting the freedom of speech and expression, under Art. 19(2). [8] If belief is necessary for the continuity of the democracy, criticism is must for the avoiding such democracy not to be turn cripple. An old axiom is not to follow blindly. We all live in a democratic country, and we all have right to speech and right to choose. If we have selected the government, then we should also have the right to comment on that government. This is the essence of democracy. If the people, the electors would not be having the right to criticise their own representatives then there will be no difference left, whatsoever, between a democracy and a monarchy. Ideally, there should be no law for the curtailment of freedom of speech and expression, but for the sole reason that there cannot be any such thing as absolute or uncontrolled liberty wholly free from restraint for that would lead to anarchy or disorder, [9] we have restrictions over freedoms. But these restrictions shall be reasonable. In our constitution, we have been granted right to freedom of speech and expression under article 19(1)(a) [10] , and we also have reasonable restriction under article 19(2). [11] Section 124A [12] is a substantive provision, which is a reflection of the reasonable restrictions enumerated in the Constitution. But, the restrictive clauses in Cls. (2) – (6) are exhaustive, [13] and are to be strictly constructed. [14] Though in the case of Kedarnath v. State of Bihar, [15] the Supreme Court has saved Sec. 124A of the I.P.C. from unconstitutionality by giving it a narrow construction following the view of the Federal Court in Niharendu v. King Emperor [16] and rejecting the interpretation given to it by the Privy Council in King Emperor v. Sadashiv. [17] But the question remains the same. If we live in a free-democratic country, then why should we have such anti-democratic laws on the first place? The cases of Dr Binayak Sen and Aseem Trivedi have once again initiated the debate over this draconian law.
Sedition and India
The Indian Penal Code, which is a comprehensive code, intended to cover all substantive aspects of criminal law and which is the main criminal code of the country was prepared by the first law commission, which was headed by Lord Macaulay. The section corresponding to section 124A, the law that defines sedition in the IPC, was originally section 113 of Macaulay’s Draft Penal Code of 1837-39, but the section was omitted from the IPC as it was enacted in 1860. [31] James Fitzjames Stephens, the architect of the Indian Evidence Act, 1872, has been quoted as saying that this omission was the result of a mistake. [32] Another explanation for this omission is that the British government wished to adopt more wide ranging strategies against the press including a deposit-forfeiture system and general powers of preventive action. [33] In 1898, Section 124A was incorporated in the Code, and for the first time, India came across to the word Sedition. The word ‘sedition’ does not occur in section 124A or in the defence of India Rule. [34] It is only found in the marginal note to Section 124A n dos not an operative part of the section but merely provides the name by which the crime defined in the section will be known. [35] The British Parliament debates reveal that it was inserted to deal with freedom fighters. [36]
The first case on Section 124A was Queen Emperor v. Jogendra Chandra Bose. [37] Bose, the editor of the newspaper, Bangobasi, wrote an article criticising the Age of Consent Bill for posing a threat to religion and for its coercive relationship with Indians. [38] His article also commented on the negative economic impact of British colonialism. [39] Bose was prosecuted and accused of exceeding the limits of legitimate criticism, and inciting religious feelings. [40] However, the proceedings against Bose were dropped after he tended an apology. [41]
But the most famous case of sedition was the Bal Gangadhar Tilak’s Case. [42] The fundamental moral question that Tilak raised was whether his trials constituted sedition of the people against the British Indian government (Rajdroha) or of the Government against the Indian people (Deshdroha). [43] The question raised by Tilak was of up most importance then as well as today also. As per the interpretation given by the Courts across the nation, a statement against the government can also be held crime under Sedition laws. But the question is that it is the nation to whom the people pay their gratitude, and the government is merely the chosen representatives of the people, by the people. Any statement against the country, against the motherland can be termed as traitorous, but a statement against the government will only amount to criticism. We have selected the government; hence we have the full right to question their judgements, to analyse their
policies and to cherish them as well as criticise them. As it was stated earlier that criticism of the government is an essential part of democracy, and if it would be clogged then that would amount to death of democracy.
Sedition and Constituent Assembly
The irony of the sedition law used against nationalists like Gandhi and Tilak continuing in the
statute books of independent India was not lost on those drafting the Constitution. [
44
] In 1951,
the first Prime Minister of India, Jawaharlal Nehru had said that "[N]ow so far as I am concerned
that particular section [Sec. 124A] is highly objectionable and obnoxious and it should have no
place both for practical and historical reasons, if you like, in any body of laws that we might
pass; The sooner we get rid of it the better". [
45
] The freedom fighters had witnessed the ill
effect of this law, and probably that is why a leader like Jawaharlal Nehru stood against its
incorporation in Indian Penal System.
While in their Draft Constitution, the Constitutional Framers included ‘sedition’ as a basis on
which laws could be framed limiting the fundamental right to speech (Article 13), in the final
draft of the Constitution sedition was eliminated from the exceptions to the right to freedom of
speech and expression (Article 19 (2)). [
46
] This amendment was forwarded by K.M. Munshi.
As K.M. Munshi said that "I was pointing out that the word ‘sedition’ has been a word of varying
import and has created considerable doubt in the minds of not only the members of this House
but of Courts of Law all over the world; Its definition has been very simple and given so far back
in 1868; It says "sedition embraces all those practices whether by word or deed or writing which
are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the
Government"; But in practice it has had a curious fortune". [
47
] He also went to the extent of
saying that "the public opinion has changed considerably since and now that we have a
democratic Government a line must be drawn between criticism of Government which should be
welcome and incitement which would undermine the security or order on which civilized life is
based, or which is calculated to overthrow the State". [
48
] Thus the framers of our Constitution
were clearly aware of the tainted history of sedition laws and did not want the right to free
speech of independent Indians restricted by these draconian provisions. [
49
] By removing
sedition from the terms included in Article 19(2) the Constitution makers signalled their wish to
move away from the colonial order where legitimate dissent was denied to Indians. [
50
]
Interpretation of the Judiciary; Ram Nandan v. Kedar Nath
The two most important judgements in this regard will be Ram Nandan v. State [51] and Kedar Nath v. State of Bihar. [52] Both the cases were decided during the same period, but the interpretation of the law was different in both the cases. On a critical
examination, both judgements could be termed as sound, but on a practical approach, it is very difficult to ascertain.
The constitutionality of the provision was challenged in both the cases. On one hand, in Ram Nandan, the Allahabad High Court held the provision unconstitutional on the grounds of its contrariness to Article 19(2). The court relied upon the decision of Romesh Thappar v. State of Madras; [53] court took into account the interpretation of the word ‘public order’ made by the learned bench in the aforesaid case. The court looks into the history of the law, and its draconian use. They felt that in a free and civilised society, there is no place for such laws. Relying upon Dr. Ram Manohar Lohia v. Superintendent Central Prison, Fategarh [54] and held that right grated under article 19(1) is absolute in nature.
