India: Tracing The History Of Sedition In India

Last Updated: 5 August 2019
Article by Ashima Obhan and Shivam Patanjali

On July 03, 2019, the Ministry of Home Affairs through a written statement informed the Rajya Sabha that the present Government has no plans on amending the laws on sedition in the country so as to ensure that the Government has effective means to combat anti-national, secessionist and terrorist elements. In an election, where national security was a huge factor for the political parties, a stance that was taken by certain political parties was that they would like to amend the present sedition laws in our country1, whereas, the ruling party's stand was that they would like to toughen the existing sedition laws.2

What is Sedition?

Sedition has broadly been understood by many as an offence against public tranquility and being connected in some way or the other with public disorder3. Sedition, as per the law is defined as any words, either spoken or written, or by signs, or by visible representation, that could bring or attempt to bring either hatred, or contempt, or excite or bring to excite any disaffection (including disloyalty or any feeling of enmity) towards the Government established by law4. Sedition is a criminal offence under Section 124A of the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") which could attract either imprisonment up to three (3) years or even imprisonment for life. The law not only allows for imprisonment but also grants the courts the discretion of levying a fine along with imprisonment.

However, any comments that show disapproval of any actions or steps or administrative actions taken by the Government, which have been made with an intent to ensure the Government alters the steps taken by it would not be considered as sedition provided that such statements do not excite or attempt to excite hatred, contempt or disaffection towards the Government.

Section 124A: Constitutional or Unconstitutional

The 1950's witnessed three important decisions with regards to Sedition laws. These were Tara Singh Gopi Chand v The State5(hereinafter referred to as the "Tara Singh Decision"), Sabir Raza v. The State6(hereinafter referred to as the "Sabir Raza Decision") and Ram Nandan v. State7, (hereinafter referred to as the "Ram Nandan Decision").

The Courts in the Tara Singh Decision and in the Sabir Raza Decision were of the opinion that Section 124A of the IPC had become void on the enforcement of the Constitution.

It was in the Ram Nandan Decision, that the Allahabad High Court had to decide the constitutional validity of Section 124A of the IPC. The High Court declared Section 124A of the IPC void by holding that the ministers who formed a part of the Government, were men who frame important questions of policy and need a strong opposition in Parliament. The Court remarked that the Government apart from the opposition is also subject to popular approval/disapproval. The Court held that for the possibility of working of our democratic system, it was essential for criticism of policies and execution of policies and  "if such criticism without having any tendency in it to bring about public disorder, can be caught within the mischief of Section 124-A of the Indian Penal Code, then that Section must be invalidated because it restricts freedom of speech in disregard of whether the interest of public order or the security of the State is involved, and is capable of striking at the very root of the Constitution which is free speech (subject of limited control under Article 19(2) )."8

This judgment of the Allahabad High Court was overruled by the Supreme Court in 1962 by the Supreme Court in Kedar Nath Singh v. State of Bihar9. The Supreme Court upheld the constitutionality of Section 124A of the IPC and differentiated between disloyalty to the Government and commenting upon the measures of the Government without inciting public disorder through acts of violence. The Supreme Court held that the expression "Government established by law" was considered as the visible symbol of the State, which was different from a person who was engaged in carrying out administration. The need for Section 124A was highlighted by the fact that if the visible symbol of the State, which is an essential condition of stability of the State is subverted then the very existence of the State would be in jeopardy. This was the rationale for having characterized Section 124A as an offence against the State. The Court was of the view that any act within the meaning of Sedition under Section 124A which could have the effect of subverting the Government would be a crime as the feeling of disloyalty towards the "Government established by law" would import the idea of public disorder by the use of actual violence. Therefore, any words which has the idea of subverting the Government by violence means even implicitly is an offence. The Supreme Court did however clarify that the Section has been carefully worded to "indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments,however strongly worded, expressing disapprobation of actions of the Government,without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence."10

The Supreme Court being the custodian of fundamental rights has the duty to strike down any legislation that violates any fundamental rights, including those that affect freedom of speech and expression which is an essential condition of a democratic Government. However, freedom of speech and expression does have certain restrictions. A citizen can use his freedom of expression to criticize the Government, as long as the citizen does not incite people to violence against the Government, which is considered as a reasonable restriction imposed. Upon a reading of Article 19(1) and 19(2) the Supreme Court concluded that there could be no doubt that had Article 19(2) not been existent, Section 124A would be unconstitutional, however, the expression "in the interest of.. public order" had to be given great amplitude as it is far more comprehensive.

Interpretation of Sedition

The courts have been categorical in stating that criticism of the Government is integral for the functioning of democracy and every criticism of the Government would not be considered as Sedition. The object of sedition is understood to having induced discontent and insurrection and stir up opposition to the Government by inciting the public to rebellion11.

For examining whether a speech or words, etc. are seditious in nature, the real intent of those words, speech, etc. has to be considered. The Delhi High Court in the case of Pankaj Butalia v. Central Board of Film Certification and Ors.12 reiterated the fact that while examining any offence under Section 124A, the intention with which the language of the seditious statement is made has to be looked at holistically and fairly without focusing on isolated passages.

The Supreme Court in the case of Balwant Singh and Ors v. State of Punjab13 was faced with a scenario where the appellants before the Court on the day former Prime Minster Indira Gandhi was assassinated had shouted the slogans "Khalistan Zindabad, Raj Karega Khalsa, and Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da." Upon analyzing the prosecution evidence on record it was found that the appellants had only shouted those slogans a couple of times and the slogans had not received any response from any other person. Had the appellants raised slogans with the intention to incite people or create disorder, or had the slogans resulted in any other law and order problem, Section 124A would have been applicable.

The Bombay High Court in Sanskar Marathe v State of Maharashtra and Ors.14 examined whether Mr. Assem Trivedi, a political cartoonist and social activist, through his cartoons, had committed the offence of sedition as through his cartoons, he had allegedly to spread hatred and disrespect against the Government. The matter was dismissed after the State submitted an undertaking to issue guidelines as a circular to police personnel across the state to ensure that when evaluating whether a speech, words, cartoons etc. would be seditious "(i) The words, signs or representations must bring the Government(Central or State) into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the Government and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder; (ii) Words, signs or representations against politicians or public servants by themselves do not fall in this category unless the words/signs/representations show them as representative of the Government; (iii) Comments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above are not seditious under Section 124A; (iv) Obscenity or vulgarity by itself should not be taken into account as a factor or consideration for deciding whether a case falls within the purview of Section 124A of IPC, for they are covered under other sections of law; (v) A legal opinion in writing which gives reasons addressing the aforesaid must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State."

The Allahabad High Court in the case of Arun Jaitley v. State of U.P.15had a chance to examine whether an article criticizing the judgment of the Supreme Court on National Judicial Appointment Commission would amount to sedition or not. It was held that for an offence to be constituted under Section 124A of the IPC, the words written or spoken would have to qualify as having a "pernicious tendency of creating public disorder or disturbance of law and order."

Conclusion

As discussed above, there are certain essential elements that are required for a statement, words, cartoons etc. to be considered as seditious, without which an offence of sedition cannot be made out. It has been made clear through judicial interpretation over the past 50 years that Section 124A of the IPC is constitutional and is required to ensure stability of the State and give the Government the tools to effectively combat anti-national, secessionist terrorist elements. However, there is a difference of understanding between the principles laid down by the Apex Court and actual implementation of Section 124A of the IPC which has seen many call for an amendment to the Section and terming Section 124A of the IPC as draconian. However, given the focus on national security, we might only see the law on sedition being made stronger.

Footnotes

1 https://www.indiatoday.in/elections/lok-sabha-2019/story/congress-manifesto-sedition-law-section-124a-1492013-2019-04-02

2 https://www.indiatoday.in/india/story/sedition-law-modi-govt-retain-provision-anti-national-elements-1560982-2019-07-03

3 Brij Bhushan and Anr. v. The State Of Delhi, 1950 Supp SCR 245.

4 Section 124A of the Indian Penal Code, 1860

5 1951 Cri LJ 449

6 Cri App No. 1434 of 1955, D/- 11-2-1958

7 AIR 1959 All 101

8 Ram Nandan v. State, (AIR 1959 All 101)

9 1962 AIR 955

10 ]Kedar Nath Singh v. State of Bihar, (1962 AIR 955)

11 Nazir Khan v. State of Delhi (2003) 8 SCC 4611

12 2015 (151) DRJ 37

13 (1995) 3 SCC 214

14 2015 (2) RCR (Criminal) 351

15 2016 (1) ACR 890

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions