Authors- Vishal Choudhury and Subhajit Lodh Chowdhury
Sedition, as defined by section 124A of the Indian Penal Code, refers to an act wherein a person attempts to excite disaffection or bring into hatred or contempt against the Government established by law in India.[i] This can be done through words, signs, or visible representation. The offence may attract life imprisonment along with a hefty fine. For a long duration of time, the law has been perceived as being archaic and a tool for stifling dissent in a democracy. It has been described as a ‘dangerous hangover from British colonialism.’[ii]Unsurprisingly, many activists have demanded the repeal of this provision, arguing that it violates Article 19(1)(a) of the Indian Constitution, which guarantees freedom of speech and expression to all the people in the country.
The authors make an argument in favour of the law being repealed. For better clarity, the article has been divided into the following sub-topics-
1. Brief History
2. Development of the law in the colonial era
3. Development of the law after independence
4. Contentious issues
[I] Brief History
Before 1832, the definition of Sedition was very wide and vague. People could be convicted for raising “disaffection or discontentment” against the Government. After 1832 this underwent a change after Sir Fitzjames Stephen in ‘A History of Criminal Law in England,’ written in the 19th century, mentioned howSedition had almost become irrelevant at that time and only “direct incitement” against the Government should be considered as a seditious act.[iii] Ironically, Stephen, under the capacity of Law Member of the Viceroy’s Council, later went on to introduce an amendment to incorporate Section 124A in the IPC in 1870.
The original draft of the IPC was drawn up in 1937 by the Indian Law Commission under the leadership of Lord Thomas B. Macaulay. Section 113 of this draft made it an offence to “excite feelings of disaffection against the government.”[iv] The word “disaffection” in the draft made it difficult to ascertain which activities amounted to Sedition conclusively. However, it was narrower than the pre-1832 definition as it did not include the excitement of feeling of hatred, contempt, or ill will against the Government.[v] Nonetheless, Section 113 of this draft failed to make it to the final version of IPC in 1860.[vi]
In 1870, an amendment was affected in the IPC incorporating the previously discarded Section 113 as 124A in the code.[vii] This was done to curb the Wahabi uprisings against the Christians, later confirmed by the Lieutenant Governor of Calcutta in 1898.[viii]
[II] Development of the Law in Colonial era
The clause, as introduced in 1870, did not include the terms ‘hatred’ or ‘contempt.’ They were included later, through an amendment to Section 124A.[ix] Also, the section currently has three explanations to it, which were introduced through an amendment in 1898.[x] They mainly focus on comments attempting to express disapprobation against the Government, which is not an offence. It also defines disaffection as feelings of ‘disloyalty and all feelings of enmity.’ However, we need to look at how the law has developed through various cases in the colonial era, which ultimately led to the landmark judgement in Kedar Nath v. State of Bihar[xi] in 1962.
The first case[xii] which arose under this section is popularly known as the Bangobasi case(Queen Empress v. Jagendra Chunder Bose). Here, a clear distinction was observed between the word ‘disaffection’ and ‘disapprobation.’ While disaffection was construed as being opposed to affection, and hence similar to hatred and contempt, disapprobation was interpreted as mere disapproval. Sedition itself was broadly conceptualised by the Chief Justice in this case. The incitement of any disposition to resist the lawful authority of the land would amount to Sedition. Also, actual incitement would be immaterial, and the only intention would be necessary to charge a person.
The next significant case[xiii] is Queen Empress v. Bal Gangadhar Tilak, in the Bombay High Court.[xiv] Here, the judge agreed with the Bangobasi judgement, stating that disaffection merely meant the absence of affection and the presence of feelings of hate and dislike. At the same time, a person would be guilty of the offence regardless of the degree of disaffection. Also, a person would be guilty if he/she attempted to excite disaffection, regardless of whether he/she succeeded. Sedition was again construed in very broad terms by the court.
The Full Bench decision of the Allahabad HC in Queen Empress v. Amba Prasad agreed with the cases above on the question of interpretation of Section 124A.[xv]
It is necessary to mention two more cases of prime importance under this sub-topic- Niharendu Dutt Majumdar v. King Emperor and King Emperor v. Sadashiv Narayan Bhalerao.[xvi]
Chief Justice Maurice Gwyer, speaking for the Federal Court in the Niharendu Majumdar case, stressed upon the fact that maintenance of public order was every Government’s primary responsibility, and it was for this duty that the offence of Sedition stood. Hence, to constitute an offence under the section, the words and representations must reasonably subvert public order and disturb public tranquillity. Public disorder was held to be the gist of this offence. The judgement was fundamentally opposed to the earlier judgements, as the construction of Section 124A was narrowed down to a certain extent.
In the Sadashiv Narayan case, however, the Privy Council rejected the Chief Justice’s interpretation of the law. They reasoned that the Federal Court had ‘proceeded on a wrong construction of Section 124A’ and ‘disaffection’ was not restricted to ‘disorder’ only. The Privy Council essentially upheld the view in the Bal Gangadhar Tilak case.
In this background, the issue of Sedition was debated in the Constituent Assembly.[xvii] ‘Sedition’ was initially included as an exception to Freedom of Speech and Expression. There was considerable opposition to this, which ultimately led to the word being dropped from the list of exceptions. However, Sedition under Section 124A of the IPC continued to be a statutory offence because Article 372 of the Constitution provides that any existing law in force in India as in January 1950 would continue to remain in force unless explicitly modified or removed by the legislature.
 Development of the law after independence
At the outset, it is significant to note that the first constitutional amendment in 1951, relating to Article 19(2), among other articles imposed new restrictions on Freedom of Speech and Expression.[xviii]These included ‘security of the state’ and ‘public order.’ It was in this backdrop that the case of Kedar Nath v. State of Bihar was decided in 1962.
Before the Kedar Nath case, Section 124A was struck down as unconstitutional in Romesh Thappar v. State of Madras[xix], Ram Nandan v. State[xx], and Tara Singh v. State.[xxi]The constitutionality of the law was finally decided in the Kedar Nath case, wherein five judges of the Supreme Court upheld the law as being valid. The essential interpretation of Section 124A in the case has been applied almost unequivocally in subsequent cases. The following observations were made in the case-
i. The court reasoned that when more than one interpretation may be given to a legal provision, it must uphold that interpretation, which makes the provision constitutional. Hence, Section 124A was a reasonable restriction under both ‘public order’ and ‘security of the state’ under Article 19(2).
ii. The court followed the Federal Court’s judgement in Niharendu Dutt case and laid down that an act would amount to Sedition, only if it is done to incite violence, and disturb public order, even though a plain reading of the section might not suggest such a requirement.
iii. The court laid down a clear distinction between ‘government established by law’ and ‘persons for the time being engaged in carrying on the administration.’ The former represented the visible symbol of the state, and any attempt to subvert it by violent means would amount to Sedition.
The court relied on the phrase ‘in the interests of public order’ to give Sedition a rather wide ambit, which could be applied to dissidents almost at will. Any speech which threatened to disturb public order by inciting violence, regardless of the proximity between the speech and its consequences, would fall under the ambit of Sedition. But the latter interpretation has been bypassed by subsequent judicial decisions, to limit the power of the state to curtail free speech.[xxii]Thus, in the Balwant Singh case[xxiii] in 1995, the Supreme Court distinguished between ‘advocacy’ and ‘incitement.’ The accused had raised slogans of ‘Khalistan Zindabad’ a couple of times, but he was not charged with Sedition, as incitement to violence was missing. In the more recent Shreya Singhal case, in which the court struck down Section 66A of the IT Act, it observed that only ‘incitement’ and not ‘advocacy’ would amount to a reasonable restriction under public order.
Therefore, Kedar Nath’s broad formulation of “tendency to disrupt public order" has now been replaced by a much tighter “incitement" standard. And that is how the law stands today. In the next section, the authors will discuss the problems with the current interpretation of Sedition law, and the need to revisit Kedar Nath.
 Contentious issues and problems with Section 124A
There are various problems with the current interpretation of Section 124A, which the authors will now address. These mainly stem from the Kedar Nath case, and the practical reality of the law in the country.
As discussed earlier, the apex court in the Kedar Nath case upheld Section 124A as being a reasonable restriction under both ‘public order’ and ‘security of the state’ mentioned in article 19(2) of the Constitution. However, this is a problematic exposition.[xxiv]
The apex court, in Ram Manohar v. State of Bihar[xxv], viewed ‘law and order,’ ‘public order,’ and ‘security of the state’ as three concentric circles, with ‘law and order’ forming the outermost circle, and ‘security of the state’ forming the innermost circle. Thus, an act may be against public order, but not necessarily against state security. But, Section 124A is an offence against the state under the IPC. A mere disturbance of public order can hardly be viewed as being against the security of the state. Thus, an argument that a law justified ‘in the interest of public order’ would also be justified in the interests of the ‘security of the state’ cannot stand. A restriction justified on the grounds of ‘security of the state’ has to be subjected to a higher standard of proof than ‘public order.’
Further, in the Kedar Nath case, the Supreme Court observed that while interpreting an enactment, the court must not merely stick to the literal meaning of the words but also consider the “antecedent history of the legislation, its purpose and the mischief it seeks to suppress.”[xxvi] If one uses the parameters above to interpret Section 124A in the present context, it reveals important details. An MHA report released in 2018 states that only two accused of Sedition were convicted of it in 3 years.[xxvii] While the cases filed under the same amount to 179 from 2014 to 2016, these show a weak antecedent to an already marred history of the sedition law.[xxviii] The purpose of the law, as seen in contemporary times, has only been to curb democratic dissent and suppress the critics of governmental policies. This purpose was outlined in the recent Shehla Rashid case in which she was accused of seditious activities for criticizing the abrogation of Art. 370.[xxix] The mischief that the section seeks to suppress can already be achieved under other sections in the IPC as well. These include Chapter VIII of the IPC, which contains offence against public tranquillity, and Section 499, which deals with criminal defamation. There is no ingenuity attached to section 124A. Hence, Section 124A is redundant in our democratic polity.
Justice Deepak Gupta, of the Supreme Court of India, recently launched a scathing attack on Section 124A of the IPC[xxx], and the reasons why it should be either toned down or struck down. He expressed dissatisfaction over the 1974 amendment to the law, which made it a cognizable offence. According to him, this led to unnecessary harassment by the officials. Justice Gupta also reflected upon the dichotomy of the individual and the state. Hence, any criticism of an individual can never amount to Sedition, as he/she is not above the state.
He also discussed the hypocrisy and double standards of the police officials, who readily claim a shortage of personnel in cases of rape or murder but are swift to react in cases of Sedition. This, according to him, reflects a class divide that cannot be allowed to persist in a democracy with Rule of Law. Justice Gupta talked at length about how dissent and criticism is an integral part of freedom of speech and expression and cannot be curtailed by the Government. His speech raised some fundamental questions, which the authors have tried to address in the article.
Freedom of Speech and Expression is an inalienable and inherent human right, without which the idea of a democratic polity would fall apart. This right to think and express one’s thoughts constitutes and forms a part of the basic structure of the constitution and is enshrined under Article 19(1)(a) of the Constitution of India. Without violating the law or inciting conflict, everyone has the right to dissent and disagree with the majority and with those in power. This belief is exemplified using J. H.R Khanna’s dissent in A.D.M Jabalpur v. Shivakant Shukla[xxxi]wherein the dissenting opinion holds more value than the majority judgement. One of the principles of democracy is that its citizens must be fearless in expressing their views, although such views displease the Government.
Sedition was introduced as a law by the British to curb all criticisms against the established Government, primarily to defeat the demand for independence. The main goal was to deprive its subjects of their inalienable rights. A similar law existed in Britain. However, it was an offence of misdemeanor punishable with only two years of imprisonment, while in India, committing the same offence would lead to ‘banishment for life.’ The difference was simply due to the reason that India was a colony. It is disappointing that an archaic law such as Sedition has continued till date. It survives only as a painful reminder of colonial oppression.
It is, therefore, imperative for India, a democracy that protects basic human rights, to revisit the sedition law, and study its implications, to reach a meaningful conclusion.
[The authors are 2nd-Year students at NUJS, Kolkata]
[i] The Indian Penal Code, 1860, Section 124(A).
[ii] Index On Censorship, India’s Sedition Law is a Dangerous Hangover from British Colonialism, March 21, 2019, available at https://www.indexoncensorship.org/2019/03/india-sedition-hangover-british-colonialism/ (Last visited on June 26, 2020). [iii]W.R Donogh, A Treatise on the law of Sedition and Cognate Offences in British India (1911). [iv]Abhinav Chandrachud, History of Sedition, September 16, 2016, available at:https://frontline.thehindu.com/profile/author/Abhinav-Chandrachud/(Last visited on June 27, 2020). [v]Id. [vi]Siddharth Narain, 'Disaffection' and the Law: The Chilling Effect of Sedition Laws in India, Vol. 46(8) Economic and Political Weekly (February 19-25, 2011). [vii]Id. [viii]A Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the Nationalist Response in Engaging Terror: A Critical and Interdisciplinary Approach (2009). [ix] Gautam Bhatia, The nine lives of the Sedition Law, February 5, 2016, available at https://www.livemint.com/Sundayapp/b9neXYTVckT0UBwvU7Ev4K/The-nine-lives-of-the-sedition-law.html (Last visited on June 26, 2020). [x] The Hoot, Disaffection and the State: the Law of Sedition in India, March 11, 2010, available at http://asu.thehoot.org/free-speech/media-freedom/disaffection-and-the-state-the-law-of-sedition-in-india-8514#:~:text=In%201898%2C%20the%20law%20was,and%20all%20feelings%20of%20enmity'.(Last visited on June 26, 2020). [xi] Kedar Nath v. State of Bihar,  AIR 955. [xii]Id. [xiii]Id. [xiv]Id. [xv]Id. [xvi]Id. [xvii] Chitranshul Sinha, How “seditious speech” was dropped from draft Indian Constitution but is still a crime, August 30, 2019, available at https://qz.com/india/1699010/indian-constitution-doesnt-ban-seditious-speech-yet-its-a-crime/ (Last visted on June 26, 2020). [xviii] Nivedita Saxena and Siddhartha Srivastava, An Analysis of the Modern Offence of Sedition, (2014) 7 NUJS L Rev. 121. [xix] 1950 AIR 124. [xx] AIR 1959 All 101. [xxi]Supra note 18. [xxii]Id. [xxiii] State of Haryana v. Balwant Singh, JT 1996 (5). [xxiv]Supra note 18. [xxv] 1966 AIR 740. [xxvi] Kedar Nath v. State of Bihar,  AIR 955, ¶ 26. [xxvii]Kamaljit Kaur Sandhu, MHA data shows only 2 convicted under sedition law in 3 years, July 18, 2018, available at:https://www.indiatoday.in/india/story/exclusive-mha-data-shows-only-2-convicted-under-sedition-law-in-3-years-1289231-2018-07-18 (Last visited on June 26, 2020). [xxviii]Id. [xxix]Nirnimesh Kumar, Shehla Rashid gets protection from arrest in sedition case, September 10, 2019, available at:https://www.thehindu.com/news/cities/Delhi/shehla-rashid-gets-protection-from-arrest-in-sedition-case/article29382501.ece(Last visited on June 26, 2020). [xxx] Live Law, "Sedition Law Most Abused Today, Criticism Against Govt In Power Does Not Make Any One Less Patriotic": Justice Deepak Gupta, September 7, 2019, available at https://www.livelaw.in/top-stories/sedition-law-most-abused-justice-deepak-gupta-147872 (Last visited on June 26, 2020). [xxxi] 1976 AIR 1207.