1. WHETHER THE CONVICTION OF MR. MUSTIFI IS VALID UNDER SEC.

124A OF THE
PENAL CODE?

The conviction of Mr Mustifi is not valid under § 124A of the Penal Code.

§124A of the Penal Code reads as follows –

“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 impris-
onment which may extend to three years, to which fine may be added, or with fine.”

1.1. Criticism of the Government

The public rally called by Mr. Mustifi on March 28, 2018 at the Pillar of Justice aimed at
protesting against the current government for the environment of fear and communalism that
it had created, as is clear from paragraph 6 of the factsheet.1 The words of the impugned speech
that merit focus are reproduced as follows –

“What has dawned upon this nation is a mockery of some of the core constitutional principles
that we inherited from our predecessors. The government, which is supposed to be the guardian
of our holy book, has abused it. The government, in its pursuit of propagating Dadduism, has
shook heaven and earth, bringing the country to ruins ……...The government is adopting a
majoritarian attitude and dividing the nation on the basis of religion.”

In his speech, he admonishes the government for propagating Dadduism and destroying the
secular fabric of the country, thus abusing the Constitution which embodied the principles of
secularism and fraternity. 2 He abhorred the government for adopting a majoritarian attitude.

According to Explanation 3 of §124A, comments that express disapproval of the government

or its actions without exciting (or attempting to excite) hatred, contempt or disaffection
(disloyalty and all feelings of enmity)3, will not constitute an offence. And the speech of Mr
Mustifi in no manner does so. The speech when seen in the context of the current environment

1
“The environment of the country at that point made it extremely clear that the perambulatory promise of the
country being a secular one, was slowly but steadily under threat”
2
Para 2, factsheet
3
Explanation 1 to §124A
of the country is a scathing disapproval of the government’s complacency and non-action. As
is evident from the banner of the campaign that was launched under his leadership – Baand
Karo Yeh Sajhedari, Aab Toh Leloo Zimmedari (Please stop colluding and take up some real
responsibility) – Mr Mustifi is demanding the government to take responsibility for its actions.
A call for government accountability cannot be regarded as a seditious action.4

As observed by the Privy Council, with the change of times and a shift from bureaucratic to
popular dispensations in a democratic country, a government can neither afford to be
hypersensitive nor impervious to criticism.5 The question of how much criticism a government
can tolerate is indicative of the self-confidence of a democracy.6 Criticism on political matters
is not in itself seditious.7 A citizen has the right to say or write whatever he likes about the
Government, or its measures, by way of criticism or comment.8 According to the explanations
provided in §124A, criticism of public measures or comment on Government action, even if
strongly or harshly worded, would be consistent with the fundamental right of freedom of
speech and expression.9

1.2. Campaigning against the ruling party not against ‘government established by
law’

The words “demands for overhaul of the machinery” can be construed to be a demand for the
removal of the government. It can be adduced from the slogans raised by Memejahan Sharma
and the crowds during the rally where they demand the resignation of the Prime Minister Mr.
Gotia Kut.10 Campaigning to bring down a particular government by a particular ruling party,
does not amount to exciting disaffection towards ‘the government established by law’11 for
there is a difference between the ‘government established by law’ and the ‘persons for the time
being engaged in carrying on the administration’.12 This statement postulates that demanding
the ousting of a government is not akin to sedition for one criticises or targets the persons

4
Pillai, 12th edition
5
Niharendu Dutt Majumdaar v Emperor AIR 1942 FC 22.
6
Oxford Handbook of the Indian Constitution
7
Stephen, Commentaries on the Law of England, vol IV, 1950, pp 141-142.
8
Kedar Nath v State of Bihar, 1962
9
Id.
10
Factsheet para 13, “Gotia tu hai bewafa, ab toh de de istifa”
11
Pillai, 12th edition.
12
Kedarnath v State of Bihar, 1962
currently holding an office and does not challenge the institution of the office per se, which
cannot be held to be going against the State.

1.3. No instigation of violence

The offence of sedition has been given a coterie of interpretations throughout the decades.
However, the law was finally settled in the case of Kedar Nath v State of Bihar.13 The Supreme
Court, narrowing the ambit of §124A, held that any speech or expression impugned to be
seditious must be followed by an act or attempt to spur violence or disorder. Public disorder or
the reasonable anticipation or likelihood of public disorder is the gist of the offence.14

The means through which this ‘overhaul’ is aimed to be achieved, as spelt out by Mr. Mustifi,
is reproduced as follows –

“The only panacea to this anathema is to enter the Parliament and teach them a lesson! Let’s
go and overtake what is truly ours! Let us remember that WE THE PEOPLE are the true
democratic representatives and that true democracy exists in us…”

This statement should not be construed in its literal sense and rather be analysed through the
sieve of the context in which it was made for not doing so would render it devoid of its essential
meaning. With the next general elections scheduled to be held in March 2019,15 it effectively
makes the current year a time when campaigning would be at its full swing. When seen in this
background and given that Mr. Mustifi is the leader of the Mulq-e-Awami League (a political
party),16 the above words are intended to exhort the crowd at the rally to “enter the Parliament”
by getting elected to the Parliament in the next general elections and defeating the V&P Party,
which will be akin to “teach[ing] them a lesson”. This implication is supported by the words
which follow this proposition where Mr. Mustifi claims that “they” (the common people) were
the “true representatives” of the democracy.

Thus, the impugned words do not, either implicitly or explicitly, incite violence or disturb
public disorder and do not present any tendency of the same.
1.3.1. Violent protests not a direct result of the speech

13
1962 AIR 955
14
Niharendu Dutt Majumdaar v Emperor AIR 1942 FC 22.
15
Factsheet para 8
16
Factsheet para 13
The anticipated danger arising out of the impugned speech or expression should not be remote,
conjectural or far-fetched. It should have proximate and direct nexus with the expression. The
expression of thought should be intrinsically dangerous to the public interests.17

Mr Mustifi’s speech in no manner instigated violence neither did it aim to disrupt public order
[1.2]. Many nationwide movements took place following his speech. Some of these protests
turned violent. However, these protests cannot be inextricably linked to the impugned speech.
In other words, the protests turning violent were not a direct result of Mr. Mustifi’s speech.
These instances were one-off incidents which were too remote from the speech. There is no
direct chain of causation between the speech and the violent protests. Thus, any possible
imputation that Mr Mustifi’s speech stirred violence does not hold good.

17
S. Rangarajan v P. Jagjivan Ram, 1989