By Shaurya Singh Sanawar
The Indian Penal Code is a comprehensive code intended to cover all substantive aspects of criminal law. It is divided into various chapters with each chapter specifically dealing with certain classes of offences and their respective punishments. Amongst one such chapter is Chapter VI, which carries the heading -Of Offences Against the State. This chapter runs from Sections 121 to 130 of IPC.
This chapter is somewhat identical to the law of high treason as operating in England. The word treason in itself is derived from the Latin word tradere. Under the law of treason, the person is convicted on the ground of attacking a State authority to which he owes allegiance to and therefore the states, which are duty bound to protects its citizens, have enacted legislations to convict those who commit such crimes. The offences against the State as outlined in Chapter VI of IPC may be broadly classified in the following broad groups:
- Waging war;
- Assault on high officials;
- Escape of State prisoner; and
Out of above broad categories, the most controversial and troublesome has been the category of Sedition, which is defined in S.124A of IPC, 1860. Interestingly, the original code of 1860 did not contain S.124A and it was only added by IPC (Amendment) Act 1870. It is widely acknowledged that the object of such amendment was to curb the Indian uprising against the British government of the time, to curb the voices of farmers, local leaders and freedom fighters and to create an atmosphere of complete autonomy and obedience, so as to obey the said rule of law, as intended by the British. It was a tool to suppress the voices of the marginalized and punishing them under Section 124A. Notable freedom fighters like Bal Gangadhar Tilak, Mahatma Gandhi, Annie Besant, and Jawaharlal Nehru were prosecuted under this section, under the guise of promoting hatred by way of speeches and writings, to suppress their voice.
The essential ingredients of law of sedition can be divided into following parts to bring about its applicability:
- Words, signs, visible representations that,
- Bring or attempts to bring into hatred or contempt,
- Or excites or attempts to excite disaffection towards the government established by law in India to be punishable as defined under S.124A IPC
The full meaning of sedition was explained by Lord Fitzgerald in his address to the jury in Reg v Alexander Martin Sullivan2 and which was subsequently followed in Reg v Burns3 as follows: Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval….. The objects of sedition generally are to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion.
Development of the law of sedition in Pre-Independence India
The first case that was decided on the law of sedition in India was Queen Empress v. Jogendra Chunder Bose4 in which Sir Comer Petheram explained the meaning of disaffection:
“Disaffection means a feeling contrary to affection, in other words, dislike or hatred…… If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them”
Thereafter, in the celebrated judgement of Queen-Empress v Bal Gangadhar Tilak5, Strachey J of the Bombay High Court explained the law of sedition as follows:
“The offence consists in exciting or attempting to excite in others certain bad feeling towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within Section 124A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government that is sufficient to make him guilty under the section.”
However, the Federal Court in the case of Niharendu Dutt Majumdar v. The King Emperor6 tried by Sir Maurice Gwyer, CJ, differed from the earlier judicial pronouncements on the law of sedition. He observed:
“It is the answer of the State to those who, for the purpose of attacking or subverting it, seek to disturb its tranquility, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency…..Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.”
Ultimately, the Privy Council which was the highest Court of Appeal at the time settled the view in King-Emperor v. Sadashiv Narayan Bhalero 7 and held that the view expressed by the Calcutta and Bombay High Court were correct and the ratio or law laid down in Niharendu Majumdar case by Federal Court was not correct.
Development of sedition law after Independence
After the Constitution was enacted, several rights, which were earlier not available to the citizens or persons, came to be incorporated in Part III of the Constitution, the part which is better known as fundamental rights. It is important before reading further to note down some important Articles under Part III:
- Article 13: This Article declares that any law (includes bye-laws, ordinance, rules, legislations notifications, customs or usage), if inconsistent with any provision of Part III, shall be void to such inconsistency; and the State is prohibited from enacting a law taking away a right conferred under Part III.
- Article 14: This Article provides for equality before law and equal protection of laws; and if a state does make a law which creates inequality, it has to be based on intelligible differentia and reasonable classification; a law which is arbitrary and vague is void under Article 14
- Article 19: This article provides for freedom of speech to the citizens (and not to persons); and certain exceptions in the form of reasonable classifications are also provided under Article 19 (2) to (6).
- Article 21: Protection of life and personal liberty.
As soon as the Constitution came into force, all the rights conferred under Part III and other parts of the constitution, were bestowed upon the citizens (or persons) and any aggrieved person could seek a writ of a like nature, under Articles 32 or 226 for enforcement of such rights.
After the enactment of the Constitution, the validity of sedition law, for the first time in reference to Constitution, was tested in Tara Singh Gopichand v. State8 under which it was contested that S.124A goes against the spirit of expression of free speech guaranteed by Article 19(1) (a) and post the enactment of Constitution, such offence should be declared invalid. The East Punjab High Court declared the S.124A ultra-vires to the Constitution, as according to it, it went against the provisions of Article 19. However, in cases of Romesh Thapar v. State of Madras9 and Brij Bhushan v. Delhi10 rendered by the Supreme Court, divergent views to interpretation of Article 19 was done, and it was not clear whether a law imposing reasonable restriction under Article 19(2) could be made in terms of public order.
This created a sense of uneasiness within Parliament, and to curtail the effect of these decisions, Parliament enacted the Constitution (First Amendment) Act, 1951, by which three terms were added in reasonable restrictions under Article 19(2), which were: “public order”, “friendly relations with foreign states” and “incitement to an offence”. So now, free speech under Article 19(1)(a), which was earlier barred only against security of State, now, could be restricted on account of public order.
After the first constitutional amendment, the Patna High Court in Debi Soren v. State11 held that S.124A of IPC is valid to the Constitution as restrictions under Article 19(2) carried the expressions of ‘in the interest of general public’, which was wide enough to cover provisions of S.124A. However, the Manipur High Court in Indramani Singh v. State of Manipur12 held that S.124A was partly valid and party invalid. It held that imposing restrictions on mere exciting mere disaffection or attempting to excite disaffection is invalid, but the restriction imposed on the freedom of speech and expression which makes it punishable to excite hatred or contempt towards the government established by law in India is valid.
But the Allahabad High Court, despite the changes brought in by First Constitutional Amendment of 1951, in the case of Ram Nandan v. State of Uttar Pradesh13 held that S.124A which defined the offence of sedition, imposed restrictions on freedom of speech and expression, and the continuance of such law, was against the interest of general public and thus declared S.124A of IPC as ultra-vires or invalid qua the presence of fundamental right of free speech guaranteed by Article 19(1) (a).
This divergence of judicial opinion expressed between various High Courts was set at rest by a 5-judge Constitution Bench of the Supreme Court in the case of Kedar Nath v. State of Bihar14, by which S.124A was declared valid within permissible limits. The Supreme Court discussed the development of law of sedition right from the British Raj days and analyzed every relevant judicial pronouncement, both pre- and and post-Independence. The gist and the ratio of the judgment can be curtailed out as follows:
- Article 19(1) (a) guarantees the freedom of speech and expression and allows reasonable restrictions under Article 19(2); and any law enacted ‘in the interest of general public’ can be saved from being declared invalid on the ground of violating fundamental rights.
- A citizen is entitled to criticize or comment on the government, by way of speech or writing, but by way of such criticism and comments, he cannot incite violence against the government established by law. The speech or comment or criticism cannot be made with the intention of creating public disorder.
- The Supreme Court approved the judgement of Federal Court in Niharendu Dutt Majumdar v. The King Emperor (supra) and held that if interpretation of offence of sedition under S.124A is in consonance of the said judgement, then the law of sedition under S.124 A will be within permissible limits as laid down in Article 19(2) of the Constitution.
- The Court observed, that if two interpretations of a law are available, one of which makes it constitutional and the other makes it unconstitutional, the court has to lean in favour of the former and hold the law to be constitutional.
This is finally the position of law of sedition, as laid down by the Constitution Bench of 5-judges of the Supreme Court in 1962, which is valid even today. But while it was declared valid in 1962, the immediate question which arises is: Can it be declared invalid now in the relevant circumstances and change/passage of time?
The answer to the question is yes. But to understand how, one needs to keep in mind the various judicial pronouncements and constitutional principles developed from 1962 till today, and the social values that have changed through the passage of time within the society.
With the passage of time, the Constitution and constitutional law have undergone tremendous change. It is often quoted about law that it changes with every passage of time. A law is, by no terms absolute; it is only relative and changes quite frequently with the passage of time and the social values that change with that time. A law once declared constitutional can always be declared unconstitutional. More so in the case of fundamental rights which form the backbone of the Constitution. Interpreting the Constitution as a mere document in black and white curtails its scope and its relevance. It is a socially beneficial document which gives the citizens (or persons) certain valued democratic rights, which every person is entitled to. While interpreting the Constitution, one needs to keep in mind that the Constitution is in the form of a living document and to realise its full potential, one needs to give expansive meanings to all the rights that emancipate from it.
One also needs to keep in mind that when Kedar Nath judgement was delivered, India was just 15 years into independence. The State at that time needed to ensure, that the citizens do not resort to violence or enticement, as the country had witnessed large scale exodus and violence, during Partition. It was a country in its early days of governance and the law was in its newborn stage. Even the Supreme Court, which started its operation post-Independence, has grown better with time, correcting its mistakes and creating new judicial expansions in the field of law and fundamental rights. Also one needs to remember that when Kedar Nath v. State of Bihar was pronounced, the judiciary kept the view that Articles 14, 19 and 21 are mutually exclusive as enunciated in AK Gopalan v. State of Madras 15 and there was no link between these Articles. The validity of any act which infringed Article 19 could not be tested on the anvil of Articles 14 or 21.
With the passage of time, this rigid view of the Apex Court of mutual exclusivity of fundamental rights as enunciated in Gopalan was diluted, for the first time in RC Cooper v. Union of India16 and thereafter in Bennett Coleman & Company v. Union of India. On the issue of freedom of speech and expression, perhaps the greatest pronouncement was the decision of Bennett Coleman & Company v. UOI in which a law affecting freedom of speech under Article 19(1) (a), but not directly enacted with respect to Article 19(1) (a) was declared invalid on the ground that its reasonableness has to be tested with reference to Article 19(2). This decision diluted the rigid view of AK Gopalan Case and finally in the case of Maneka Gandhi v. Union of India17, a 7-judge Bench of Supreme Court held that there was no mutual exclusivity between Articles 14, 19 and 21. A law enacted if valid under Article 19 could still be declared invalid if it did not adhere to the principles of Article 14 and Article 21. Post Maneka Gandhi, it can be profoundly argued that any law, which seeks to achieve constitutional validity, has to be tested together with Articles 14, 19 and 21.
Therefore it is safe to comment that the Constitution, which was enacted in 1950, has undergone tremendous change, in both its application and interpretation. A view once taken by the Apex Court can always be looked at again, with the new constitutional principles that have developed through time. There has been a vast expansion of fundamental rights which is evident from various judicial pronouncements. Apart from the above discussed cases, some of the other relevant decisions are:
- Joseph Shine v. Union of India18 in which S.497 of IPC, which dealt with the offence of adultery has been struck down.
- Navtej Singh Johar v. Union of India19 by which the Supreme court has decriminalized S.377 of IPC, a colonial-era law, by which the court unanimously declared the law unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”.
- Justice KS Puttaswamy v. Union of India20 in which a 9-judge bench of Supreme Court declared privacy to be a fundamental right.
Apart from all these decisions, there are several other landmark decisions which inevitably lead to the conclusion that there has been a vast expansion of fundamental rights and it is in this context that the law of sedition has to be relooked at from.
Recent position in matters of sedition
It is not a strange position to anyone who is aware about the actions of police officials in various states, invoking the law of sedition, as the offence committed, primarily to suppress the voices of students, activists and other persons, who in the minds of states incite violence to overthrow the government and create a public disorder, by way of speech or comments. The police is largely nowadays seen to invoke sedition, a law which was originally meant to punish treason, as a matter of course, to suppress the voices of persons which the state or the police believes are prejudicial to the interest of states. Recent examples include the JNU sedition case, the Shreya Singhal case, the case of cartoonist Aseem Trivedi, the Hathras case, the Disha Ravi case and many more where S.124 A IPC is invoked as a matter of course.
Anything which is slightly unacceptable to the ruling political class, across the country, is instantaneously termed as seditious. Even the valid criticisms are not seen as criticisms but as mechanisms to overthrow the elected government and tools to create public disorder.
One other major problem observed in invoking such offences is that because the gravity of the offence is quite severe, it reduces the chances of alleged accused in grant of bail, and the Magistrates are becoming less inclined day by day to granting bail to such accused. Grant of bail, which in itself is a facet of Article 21, is strangely overlooked, most of the time. And given the fact that the trials in India take several years to complete, by invocation of drastic offences like S.124A, the accused are kept in jail and bail is denied, sometimes for months, which is a very sorry state of affairs for a country which seeks to uphold the rule of law. Even the rate of conviction in offences of sedition is quite low as per recent NCRB data.
Keeping all the previous rulings in mind, the development of law of sedition as well as constitutional law (as discussed above) and keeping in mind the overwhelming misuse by police officials of S.124A, to serve their political masters, it is in my humble opinion that the judgement upholding constitutional validity of S.124 A in Kedar Nath v. State of Bihar needs to be re-considered for the following reasons:
- Mere acts of individuals, like a cartoon or a opinion piece or a pictorial representation for promoting or expressing one’s views cannot be construed as offence against the state.
- In the Kedar Nath case, Section 124A was only tested on the anvils of Article 19 because of the ruling in AK Gopalan case, whereas post-Maneka Gandhi, the court has linked Article 19 with Article 21. It needs to be tested again on the touchstone of Article 21, as curtailment under Article 19 is not restricted to Article 19(2); it needs to be just and fair and not oppressive within terms of Article 21.
- On the ground of Article 14, a law to be valid needs to be based on intelligible differentia and the classification must have rational or reasonable nexus with the object sought to be achieved. The object of S.124A was/is only to suppress dissent and such an object is not permissible in an era of free speech and transparency of 21st Century.
- It is a relic of the British era and given the fact that it is abolished in England itself needs to be taken into consideration to repeal it.
- The meaning of freedom of speech of Article 19 has been expanded very broadly by various judicial pronouncements; what freedom of speech was in 1962 cannot be considered to be the freedom of speech in 2021. In the age of digitization, where a person can publish an article or comment on innumerable social media platforms, a message or a comment on such mediums, even if criticizing or enticing people, cannot be construed to mean overthrowing of the government of the day.
- S.124 A creates a chilling effect on free speech guaranteed by Article 19(1)(a) when read with Articles 14 and 21.
- In a free democratic society established by rule of law there is no place of offences which discourage freedom of expression.
- Alternatively, if the argument of necessity of S.124A to control the public order is accepted, it needs to be significantly read down by the Supreme Court so as its misuse by the State is prevented.
How can Section 124A IPC be struck down
- Parliament can repeal the law, as S.124A is a part of IPC, which is a Central Government enactment; or
- The Supreme Court by a Constitution Bench of 7 judges or more can overrule Kedar Nath v. State of Bihar, as that judgement was delivered by 5 judges of Supreme Court.
Is there any hope moving ahead?
Recently, a Division Bench of the Supreme Court in Vinod Dua v. Union of India in a detailed judgment commented that every journalist is entitled to protection given by Kedar Nath judgement of 1962 against the offence of sedition and dismissed the arguments of its wider applicability and quashed the FIR. Similarly in Aamoda Broadcasting Company v. State of Andhra Pradesh, a 3-judge Supreme Court bench stayed the FIR against news channels charged under S.124 A for broadcasting the speech of an MP criticizing the elected state government. Justice Chandrachud during the course of arguments commented that it’s time that the Supreme Court defines what is sedition and what it not.
More recently in SG Vombatkere v. Union of India, a petition was filed under Article 32 by which constitutionality of S.124A was challenged. The then CJI NV Ramanna while discussing the case asked for the assistance of Attorney General and commented whether such a law was necessary even 75 years after Independence. Also similar petitions challenging the validity of S.124A are clubbed together to be heard to assess its validity.
With all these recent developments, one hopes that the Supreme Court stand up to its role of first guardian of citizens when their rights are infringed, as it often has done on innumerable occasions. It should take into account the tremendous misuse of the law in curbing free speech guaranteed under Article 19. It should accept the argument of it being a law of British relic curbing free speech and criticism, which has no place in an elected democracy and the thereby suffers from vice of Article 19 read together with Article 14 and 21 and on that ground alone, it should throw it in the garbage bin and scrap it.
Alternatively, if it does decide to uphold it, it must strictly narrow down its application to only offences “actually carried out against the state”. Whether it is decided one way or the other, one thing is certain- that Section 124A IPC needs to be examined again.
Shaurya Singh Sanawar is a student of Law Centre-1, Faculty of Law, University of Delhi
1 KI Vibhute, PSA Pillai’s Criminal Law(13th Edition) , 368
2 (1868)11 Cox’s Criminal Cases 44
3 (1873) 16 Cox’s Criminal cases 355
4 (1891) ILR 19 Cal 35
5 (1897) ILR 22 Bom 112
6 AIR 1942 FC 22
7 LR 74 IA 89
8 AIR 1951 East Punjab 27
9 AIR 1950 SC 124
10 AIR 1950 SC 129
11 AIR 1954 Pat 254
12 AIR 1955 Manipur 9
13 AIR 1959 All 101
14 AIR 1962 SC 955
15 AIR 1950 SC 27
16 AIR 1970 SC 564
17 AIR 1978 SC 597
18 AIR 2018 SC 4898
19 AIR 2018 SC 4321
20 (2017) 10 SCC 1