CHAPTER-2

LAW OF SEDITION IN INDIA: CONSTITUTIONAL ARTICULATION

After the Constitution of India came into operation an important question relating
to the Constitutionality of Section 124-A of the Indian Penal Code came in to existence.
Article 19 of the Constitution was raised in a few cases leading to a conflict of decision in
high courts. There are two divergent views in this regard. The protagonist of one view
hold that Section 124-A of the Indian Penal Code is ultra vires of the Constitution in so
far as it seeks to punish merely bad feelings against the Government. It is unreasonable
restriction on freedom of speech and expression guaranteed under Article19 (1) (a) and is
not saved under Article 19(2) of the Constitution by the expression ‘in the interest of
Public order’58
While in their draft Constitution the Constitution framers included ‘Sedition’ and
the term ‘public order’ as a basis on which laws could be framed limiting the
fundamental right to speech (Article13) in the final draft of the Constitution though, both
‘public order’ and Sedition were eliminated from the exception to the right of freedom of
speech and expression (Article 19(2). The contradiction which rose upon before the
framer of the Constitution was that whether the word Sedition is too used in Article 19(2)
and if it was to be used in what sense it was to be used. On one hand they must have
before their mind the very widely accepted view supported by numerous authorities that
Sedition was an offence against the 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. In these circumstances it is not
surprising that they decide not to use the word ‘Sedition’ in clause (2) but used the more
general words which cover Sedition and everything else which make Sedition such as
serious offence. That Sedition does undermine the security of the state usually through
the medium of public disorder is also a matter which undermines the security of the
state.59

58
Ram Nandan v. State of Uttar Pradesh, A.I.R ALL 101. Article 19(1)(a) of the Constitution,
59
Brij Bhushan and Anr v.The State of Delhi.1950.

54
SCOPE OF THE SECTION 124-A BEFORE THE CONSTITUTION:
The essence of an offence under Section 124-A of the Indian Penal Code is the
intention with which the language complained of is used. The intention must be judged
primarily by the language itself. Where a person makes a speech the whole object of
which is to rouse the people and make them determined to resist the action of the
authorities and to insist on certain things being done or not done, and profess to teach the
people rebellion or revolution and how to take charge of the country he is punishable
under this Section 124-A of the Indian Penal Code. There should be absolutely and
successful exciting of feeling of disaffection for committing the crime under Section 124-
A of the Indian Penal Code. Even the unsuccessful attempt to exciting of feelings of
disaffection and if any prisoners has tried to excite such feelings of disaffection in other
he would also be penalised as per the provision of Section 124-A of the Indian Penal
Code. In other words successful attempt unsuccessful attempt to excite disaffection
places on same footing. A person cannot take plea that his act is unsuccessful attempt to
excite disaffection towards established Government. The offences consist in exciting or
attempting to excite in others certain bad feelings 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 Article to excite rebellion or
disturbance, his act would doubtless fall within Section 124-A of the Indian Penal Code.
But even 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. 60Where
the Publication of Article in a Newspaper evinces a clear attempt to create feeling of
partiality to Government. It cannot be urged in defence that the accused had failed in his
endeavour. If the attempt is made, the accused cannot shelter him behind the fact that
those to whom he may have addressed himself have either been too discreet or too
temperate to act upon the obvious meaning of the teaching. To determine whether an

60
Queen Empress v. Bal Gangadhar Tilak 22 BOM CR LJ 927

55
attempt to commit offence mentioned in Section 124-A of the Indian Penal Code is
committed by the publication of certain Articles, it is necessary to determine what is their
meaning what is the innuendo they convey, and what is the correct meaning, if any they
have. The probable or Natural effect of the words used must then be decided, that is
whether they are calculated to bring into hatred or disloyalty or enmity. Shouting
objectionable slogans in a Meeting such as ‘Destroy the dishonest Government’ a ‘long
live bloody revolution ‘is seditious within the meaning of Sedition. Sedition embraces all
those practices whether by words, deed or writing, which are calculated to subvert the
Government. There is no general rule can be laid down that criticism of the subordinate
officials of the Government and not of the Government itself is seditious.

ALTERATION OF THE LAW BY THE CONSTITUTION OF INDIA IN

SECTION 124-A:
When the Constitution came into existence in 26 January 1950. In it there is an
Article which is related to freedom of speech and expression came under 19(1) (a) of the
Constitution. According to which sub Section (2) enacts, nothing in sub clause (a) of
clause (1) shall affect the operation of any existing law in so far as it relates to, or prevent
the state from making any law relating to, libel, slander, defamation, contempt of court or
any matter which offends against decency or morality or which undermines the security
of, or tends to overthrow, the state.
Article 13 of the Constitution enacts as follows: -
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistence with the provision of this
part, shall to the extent of such inconsistency, be void.
(2) The State shall not make any Law which takes away or abridges the rights
conferred by this part and any Law made in contravention of this clause shall to
the extent of the contravention be void.
(3) In this Article unless the context otherwise requires-
(a) Law includes any ordinance, order, By-law, rule, Regulation, Notification,
custom or usage, having in the territory of India the Force of Law;
(b) ‘Laws in Force’ includes Laws Passed or made by a legislature or other
Competent authority in the territory of India before the Commencement of

56
 this Constitution and not Previously appealed, Notwithstanding that any such
law or any part thereof may not be then in operation either at all or in
particular areas.
The quarry which is related to Section 124-A of the Indian Penal Code is that how far
Section 124-A is affected by Article 19(1) (a) of the Constitution by which every citizen
of India has been given the right of freedom of speech and expression. But this right is
qualified by Article 19(2) of the Constitution.
In the draft Constitution clause (2) of Article 19 was as follows:-
Nothing in sub-clause (a) of clause(1) of this Article shall affect the operation any
existing Law, or Prevent the State from making any law relating to libel, Slander,
Defamation, Sedition or any other matter which offends against decency or morality or
undermines the authority or foundation of the state.61 In this connection it is to be noted
that the ‘Sedition’ occurred in clause(2) of Article 19 of draft Constitution but in the
Constitution for the expression ‘Sedition’ the expression ‘contempt of court’ has been
substituted.
OMISSION FROM THE CONSTITUTION:
During the drafting of the Constitution much discussion occurred over whether
the term “Sedition” should be included as a restriction upon the right to free speech,
(finally Article 19(2).) K.M Munshi a lawyer and activist for the Indian independence
movement argued that it should not be included because of the way in which Sedition has
been used as a mechanism of state oppression; its “curious fortune.” “Our notorious
Section 124-A of the Indian Penal Code,” sometime a criticism of the District Magistrate
was urged to be covered by Section 124-A of the Indian Penal Code.

UNCONSTITUTIONAL AND INAPPROPRIATE:

Under Article 13(1) of the Indian Constitution renders void any law which is
incompatible with the Constitution. The Sedition law if in conflict with Article 19 of the
Constitution would be invalid. A number of cases in the 1950 probe the question of
Constitutional compatibility. This question remained even after the Constitutional

61
In the Draft Constitution the Word ‘Sedition’ Occurs after the Word ‘Defamation’.

57
amendment in 1951, which added public order to the list of factors that could legitimately
restrict freedom of speech.
In the Case of Tara Singh Gopi Chand v. The state62 chief justice Eric Weston
explained the irrelevance of Section 124-A in the contemporary political setting. He said
India is now a sovereign democratic state. Governments may go and be caused to go
without the foundations of the state being impaired. A law of Sedition thought necessary
during a period of foreign rule has become inappropriate by the very nature of the change
which has come about.63 The flexibility and resilience of an independent democracy
meant that it should not only withstand but should thrive upon fervent critique and
disagreement which is the fruit of a plurality of voices. Eric Weston concluded that, “the
Section then must be held void.” Such sentiment is reflective of K.M Munshi. As a matter
of fact the essence of democracy is criticism of Government. The party system which
necessarily involves an advocacy of the replacement of one Government by another is its
only bulwark; the advocacy of a different system of Government should be welcome
because that gives vitality to a democracy.
Eight years later, this position was again furthered in two cases. One was that of
Sabir Raja, whereby criticism of the chief minister of utter Pradesh was held not to
amount Sedition. 64 In Ram Nandan case the high court of Allahabad overturned the
conviction of Ram Nandan for a speech he made to a group of villagers. Section 124-A of
the Indian Penal Code was again held to be unconstitutional. Justice Gutru explained that
it was possible for people who legitimately and peaceably criticise the Government to be
caught in “the mischief of Section 124-A. For this it should be invalidated.65

IS THE LAW ON SEDITION COMPATIBLE WITH DEMOCRACY?

The registering of a case of Sedition against Ms Arundhati Roy, Syed Ali Gilani
etc. for their speeches made at a convention on ‘Azadi the Only Way’ for Kashmir is
bound to appall all who are committed to the core values of democracy and human rights.

62
Tara Singh Gopi Chand v. The State 1951 CRILJ 449.
63
Tara Singh Gopi Chand v. The State 1951 CRILJ 449.
64
Sabir Raja v. The state, Cri App No 1434 of 1955, Dated 11-2-1958 (ALL) Cited in Ram Nandan v. The State
A.I.R 1959 ALL 101.
65
Ram Nandan v. The State A.I.R 1959 ALL 101.

58
It hardly makes any difference that the case has been registered on the direction of a court
and not by the police. So long as this anti- democratic law, which is the legacy of the
colonial British Government, is retained by the Republic of India, the courts are bound to
implement them. However, a plain reading of the provision on Sedition under section
124A of the I.P.C. makes it clear that such laws have no place in a democracy. It provides
that ‘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’ It is obvious
that it is only an authoritarian Government -foreign or local- which can make excitement
or disaffection against a Government a criminal offence. Under a democratic system, it is
the normal function of the opposition parties to create disaffection against the
Government with a view to oust it from power by mobilising popular support and replace
it if possible. Even groups and individuals aggrieved by the policies of a Government
have the right to create public opinion against it and campaign to dethrone it. The whole
process of opposing the existing Government in a democracy is to create disaffection
against it by drawing attention to its short- comings like corruption, sell out to certain
interests – Indian or foreign-, incompetence or alleged anti-people character. Slogans like
‘Sadi-gali Sarkar ko Ek Dhakka Aur Do’ (Give a final push to this rotten Government’)
‘Singhasan Khali Karo ki Janta Aati Hai (Vacate the throne, the people are coming’- i.e.,
to occupy it) are out and out Acts of Sedition Under the Present Law under section 124-
A.
The description of the elected Government as ‘ The Government established by
law in India ‘ in the provision also leads to the inescapable conclusion that the draconian
provision was enacted by the colonial Government and has been retained by the rulers of
the Republic of India to Suppress the voice of dissent. In Fact, elsewhere in the Indian
Penal Code (I.P.C.), the words Government of India or the State Governments occur to
refer to the Union or State Government instead of ‘Government established by Law in
India’ giving credence to the view that the provision has been blindly retained. Similarly
Section 125 of the I.P.C. has been retained which makes‘ waging war against any Asiatic
Power in alliance with the Government of India or at peace with Government of India’ a

59
criminal offence punishable with imprisonment for life . The reference to the Asiatic
Power in alliance with or at peace with the Government of India is the relic of the
Imperial British rule when the Imperial Government formed alliances against its rivals
Powers. Today, there are no entities known as Asiatic Powers and India is not in alliance
with any such power. India, after independence, has been one of the chief architects of
the Non-aligned Movement and continues to be at peace with all countries. The
repressive relic of the Imperial British Government continues to be retained by the rulers
of democratic India and may be misused also.66
The Law in its present form also obliterates the distinction between the State and
the Government. It is an indisputable fact that the State is permanent and sovereign, but
the Government is neither sovereign nor permanent. The Indian State would continue to
exist while the Government may go on changing. Thus, to oppose a Government, attack
its policies and carry on a campaign to alienate the people from it to oust it by legitimate
means is the right of a people in a democracy, and it cannot be misconstrued as Sedition.
Thus, the Government or some people may consider Ms Arundhati Roy’s view
that Azadi is the only solution of Kashmir problem seriously flawed and for her view is a
nail in our democracy’s coffin apart from being illogical. How does speaking in favour of
Azadi for Kashmir attract Section 124-A of the I.P.C.? Is it an act of bringing the
Government of India into hatred or contempt or creating disaffection against it? To
support Azadi for Kashmir –rightly or wrongly- is only to oppose the Kashmir policy of
the Government of India which every Indian has the right to do. It is a problem created by
the rulers who not only failed to win the mind and the hearts of the peaceful people of
Kashmir but have alienated a large number of people and created the present mess. After
creating this problem, they have no moral or legal right to ask the people not to discuss it
and mind their own business. After all, it is our brethren- Kashmiris and the others- who
are dying there, it is our resources which are being used and misused there, and it is our
heart which bleeds at every death of an innocent Indian on either side in this domestic

66
Dr. Prabhakar Sinha (Democracy Corruption and Political Rights the Judiciary and the Law).

60
conflict, and it is our right and also the duty to join the search for a solution without any
threat from the Government. In a democracy, the people have the right to discuss and
their representatives the right to decide.
The anachronistic imperial law on Sedition is a direct attack on our freedom of
speech and expression guaranteed by the Constitution and should be scrapped forthwith.

(2.1) ARTICLE 19(1) (2) OF THE CONSTITUTION OF INDIA:

Only Article 19(1) (a) of the Constitution is restricting a person by doing such Act
which is against the integrity and sovereignty of the India. This ground was also added
subsequently by the Constitution 16th amendment Act 1963. The main object behind this
is to prohibit anyone from making the statements that challenge the integrity and
sovereignty of India. Reasonable restrictions can be imposed on the freedom of speech
and expression, in the interest of the Security of the State. All the utterance intended to
endanger the Security of the State by crimes of violence intended to overthrow the
Government, waging war and rebellion against the Government, external aggression or
war etc, may be restrained in the interest of the Security of the state.67 The problems
related to meaning and scope of the Section 124-A of the Indian Penal Code is the
question of vires which arises because of the guarantee of freedom of speech in the
Constitution of India and the Power of the Courts under the Constitution to Act as the
guarantors and protectors of Liberties. Article 19(1) (a) says that all citizens shall have
the Right to freedom of speech and expression. But this Right is subject to limitation
imposed under Article 19(2) which empowers the State to put ‘Reasonable’ restriction on
the following grounds, like Security of the State, friendly relations with the foreign
States, public order, decency and morality. Contempt of Court, Defamation, Incitement to
Offence and Integrity and Sovereignty of India. The limits set out the freedom of speech
and expression by Article 19(2) as originally enacted came to be considered by the
Supreme Court in few cases. 68 Referring to the limits set out by Article 19(2) to
permissible legislative abridgement of the Right of free speech and expression the Court
held that they were very narrow and stringent. Freedom of Speech and expression means

67
State of Bihar v. Shailabala Devi A.I.R 1952 SC 329.
68
Romesh Thappar v. State of Madras, (1950) S.C.R. 594.

61
the Right to express one’s own conviction and opinions freely by words of mouth,
writing, Printing, Pictures or any other mode. It thus includes the expression of one’s idea
through any communicable medium or visible representation, such as gesture, signs and
the like.69 The expression connotes also publication and thus the freedom of the Press is
included in this category. Free propagation of ideas is the necessary objective and this
may be done on the platform or through the press. The freedom of propagation of ideas is
secured by freedom of circulation. Liberty of circulation is essential to that freedom as
the liberty of publication, indeed, without circulation the publication would be little
value. 70 Freedom of expression has four broad special purposes to serve:
(1) It helps an individual to attain self-fulfilment;
(2) It assist in the discovery of truth;
(3) It strengthens the capacity of an individual in participating in decision making;
(4) It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change. All members of society should be
able to form their own beliefs and communicate them freely to others.
In Tara Singh v. State71 the validity of Section 124-A of the Indian Penal Code
was directly in issue. The east Punjab High Court declared the Section volative as it
curtailed the freedom of speech and expression in a manner not permitted by the
Constitution. The Court was of the opinion that Section 124-A had no place in the new
democratic set up.72 By the Constitution 1st amendment Act 1951 two changes
consequence were introduced in the provision relating to freedom of speech and
expression.
(1) It considerably widened the latitude for legislative restriction on free speech by
adding further grounds therefore,
(2) It provided that the restriction imposed on the freedom of speech must be
reasonable.

69
Lowell v. Griffin (1939) 303 US 444.
70
Romesh Thappar v. State of Madras A.I.R 1950 SC 124.
71
Tara Singh Gopi chand v. State A.I.R 1951 E.P.27.
72
India is now a Sovereign Democratic State. Governments May go and be Caused to go Without the
Foundation of the State Being Impaired. A Law of Sedition Though Necessary During a Period of Foreign
Rule has Become Inappropriate by the Very Nature of the Change which has come about. Per Weston,
c.j.id at 29.

62
It is to be seen now whether Section 124-A of the Indian Penal Code is in conflict with
the amended clause (2) of article 19 or not. There appears to be three different views on
the questions as reflected by the decision of the Courts. These can be summarized as
under.
(i) Section 124-A of the Indian Penal Code is ultra vires the Constitution in as much
as it infringes the fundamental Right of freedom of speech in article 19(1) (a)
and is not saved by the expression ‘in the interest of public order’.73
(ii) Section 124-A is not void because the expression ‘in the interests of public order’
has a wider connotation and should not be confined to only one aspect of
public order to violence. It has a much wider content and embraces such as
Action as undermine the authority of Government by bringing it into hatred or
contempt or by creating disaffection towards it from this point of view Section
124-A is saved under clause (2) of article 19.74
(iii) Section 124-A Indian Penal Code is partly void and partly valid. In Indramani
Singh v. State of Manipur75 it has been held that Section 124-A which seeks to
impose restriction on exciting mere disaffection or attempting to cause
disaffection is ultra vires but the restriction imposed on the Right of free
speech which makes it punishable to excite hatred or contempt towards the
Government established by Law in India is covered by clause (2) of Article 19
of the Constitution of India and can held intra vires.
Whether restriction under Article 19(2) may be imposed in the interest of Public or
not has been clarified by the Supreme Court; it held that restriction imposed must have a
reasonable and rational relation with the Public order, otherwise it would be invalid. 76 In
order to save Section 124-A of the Indian Penal Code from being questioned as infringing
the freedom of speech and expression guaranteed by the Constitution the apex Court in
Kedar Nath v. State of Bihar77 limited the application of the provision to Acts involving
intention or tendency to create disorder, or disturbance of Law and order, or incitement to

73
Ram Nandan v. State, A.I.R 1959 ALL.101.
74
Debi Soren v. State A.I.R 1954 PATNA 254.
75
A.I.R 1955 Manipur 9.
76
V.K Javali v. State of Mysore, A.I.R 1966 SC 1387.
77
1962 Supp 2 SCR 769.

63
violence. 78 A Constitutional bench explained the meaning of the words ‘excite
disaffection’ and also upheld the Constitutional validity of Section 124-A. The Supreme
Court observed:
The Security of the State which depends upon the Maintenance of Law and other is
the very basic consideration upon which legislation with a view to punishing offences
against the state is undertaken. Such legislation has on the one hand fully to Protect and
guarantee the freedom of speech and expression, which is a sine qua non of a democratic
form of Government that our Constitution has established. But the freedom has to be
guarded against becoming a licence for vilification and condemnation of the Government
established by Law, in words which incite violence or have a tendency to create public
disorder. A citizen has a Right to say or write whatever he likes about the Government or
its measures by way of criticism or comment, so long as he does not incite people to
violence against the Government established by Law or with the intention of creating
public disorder.
The Supreme Court further held that ‘Government established by Law’ is the visible
symbol of the state. The very existence of the state will be in jeopardy if the Government
established by Law is subverted. Hence the continued existence of the Government
established by Law is an essential condition for the stability of the state. That is why
‘Sedition’ as the offence in Section 124-A comes under the offences related to State. In
other words any written or spoken words etc. Which have implicit in them the idea of
subverting Government by violent means, which are compendiously included in the term
‘revolution’ which have been made penal by the Section.

(2.2) CONSTITUTIONAL VALIDITY OF SECTION 124-A:

Section 124-A of the Indian Penal Code which makes Sedition offence is
constitutionally valid. Though the Section imposes restriction on the fundamental
freedom of speech and expression. But the condition is that restrictions are in the interest
of public order and are within the ambit of permissible legislative interference with the
fundamental right. Both federal court and Privy Council had different opinion of the
ambit of Section 124-A of the Indian Penal Code. The federal court has held that words,

78
Ebrahim Sleiman Sait v. M.C Mohammed, (1980) 1 SCC 398.

64
deeds or writings constituted an offence under Section 124-A only when they had
intention or tendency to disturb public tranquillity to create public disturbance or to
promote disorder, whilst the privy council has taken the view that it was not an essential
ingredient of the offence of Sedition under Section 124-A that the words etc, should be
intended to or to be likely to incite public disorder. Either view can be taken and
supported on good reasons. If the view taken by the federal court was accepted Section
124-A would be use Constitutional but if the view of the Privy Council was accepted it
would be unconstitutional. It is well settled that if certain provision of law construed in
one way would make them consistent with the Constitution and another interpretation
would render them unconstitutional the court would lean in favour of the former
construction. Keeping in and the reason for the introduction of Section 124-A and the
History of Sedition the Section must be so construed as to limit its application to acts
involving intention or tendency to create disorder, or disturbance of law and order, or
incitement to violence. 79
An Allahabad case having held that Section 124-A imposed restriction on
freedom of speech and expression not in the interest of general public declared Section
124-A as ultra vires the Constitution.80 But overruling this decision Supreme Court held
that Section 124-A intra vires. Supreme Court said that if the word Sedition is deleted
from Article 13(2) it shows that criticism of Government exciting disaffection or bad
feelings towards it is not to be regarded as a justifying ground for restricting the freedom
speech and expression and Press unless it is such as to undermine the security of or tend
to overthrow the State. So keeping in mind all the points Supreme Court set very narrow
and stringent limits for freedom of speech and expression. Freedom of speech and
expression is foundation of all democratic organisations. According to Supreme Court
without freedom of speech and expression, free political discussion no public education,
functioning of the democratic Government is not possible. A freedom of such amplitude
might invoke risks of abuse. Therefore unless a law restricting freedom of speech and
expression is directed solely against the undermining of the security of the state or the

79
Kedar Nath v. State of Bihar on 20 January, 1962. Equivalent Citation: 1962A.I.R 955, 1962 SCR SUPL. (2)
769. Bench Sinha, B.P.
80
Ram Nandan v. State of UP. A.I.R 1959 ALL 101 : 1959 CRLJ 128 (FB)

65
overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19,
although the restriction which it seeks to impose may have been conceived generally in
the interest of public order. It follows that Section 9(1-A) of Madras Maintenance of
Public order Act, 1949 which authorises impositions of restrictions for the wider purpose
of securing public safety or maintenance of public order falls outside the scope of
authorised restrictions under clause (2) and is therefore void and unconstitutional. 81
After coming into force of the Constitution the validity of this Section was
considered by the Supreme Court in Romesh Thappar82 and Brij Bhushan’s83 Cases.
After the decision of these cases Constitution first amendment came into existence in
1951. According to the Supreme Court if any person criticise of public measure or
comment on Government action, within reasonable limit and consistent with the
fundamental right of freedom of speech and expression than he would not be came under
the Section 124-A of the Indian Penal Code. Only when the words have the pernicious
tendency or intention of creating public disorder or disturbance of law and order that the
provisions of the Section are attracted. Any act which has the effect of subverting the
Government by bringing that Government into contempt or hatred or creating
disaffection against it would be within the penal statue because the feeling of disloyalty
to the Government established by law or enmity to it imports the idea of tendency to
public disorder by the use of actual violence on incitement to offence. The protagonist of
one view hold that Section 124-A of Indian Penal Code is ultra vires of the Constitution
insofar as it seeks to punish merely bad feelings against the Government. It is
unreasonable restriction on freedom of speech and expression guaranteed under Article
19(1) (a) and is not saved under Article 19(2) of the Constitution by the expression ‘in the
interest of public order’.
In Tara Singh v. State of Punjab84Section 124-A of the Indian Penal Code was struck
down as unconstitutional being contrary to freedom of speech and expression guaranteed
by under Article 19(1)(a). According Chief justice Watson, that- India is now a sovereign
democratic State. Government may go and caused to go without the foundation of the

81
Romesh Thappar v. State of M.P, A.I.R 1977 CRLJ 551 :( 1977) SCC 677:1977 SCC (CRLJ) 147.
82
A.I.R 1950 S.C. 124.
83
A.I.R 1950 SC 129.
84
A.I.R 1951 EP 27; Romesh Thappar v. State of Madras,A.I.R 1950 SC 124: 1950 SCR 594.

66
state being impaired. A law of Sedition though necessary during the period of foreign
rule has become inappropriately by the very nature of the change which has come about.
The advocates of the others view held that Section 124-A of the Indian Penal Code is
Constitutional, and is not in contravention of Article 19(1) (a) as it is saved by the
expression ‘in the interest of public order’ in Article 19(2). It has been stated that the
expression in the interest of public order is of wider connotation, and include not only the
acts which are likely to disturb public order but something more than that. The
Constitution 40th amendment act, 1976, incorporated the Prevention of Publication of
objectionable matter act, 1976, in the 9th schedule by objectionable matter we mean the
matter which incites disaffection towards the Government or to commit any offence or to
interfere with the production and distribution of essential commodities or seduction of
any matter or armed forces, defamation of the president, vice president, prime minister,
speaker, or governor of a state. Restriction imposed on any of these grounds could not be
challenged on the ground of unreasonableness.85 Also with the inclusion of fundamental
duties by the 42nd amendment, the implication is that nobody should exercise his freedom
of speech and expression so as to violate the fundamental duties, and it is likely that the
courts may be inclined to give a harmonious interpretation to the restriction imposed on
the exercise of the right for the enforcement of the fundamental duties as they have done
in the case of fundamental rights and the directive principle of state policy. For instance if
a person is illegally detained, a writ of habeas corpus can be obtained by the detenue. But
if the Government does not separate judiciary from the executive or introduce free he and
compulsory education the court cannot help the aggrieved.86
When Supreme Court held the validity of Section 124-A of the Indian Penal Code
under the freedom of speech and expression, there is no separate guarantee of freedom of
the press and the same is included in the freedom of expression, which is conferred on all
citizens.87It has also been by this judgement that freedom of the press under the Indian
Constitution is not higher than the freedom of an ordinary citizen. It is subjected to same
limitation as are provided by Article 19(2). It has been held by the court in the above

85
V.N. Shukla’s Constitution of India by Mahendra P. Singh 11th Edition Published by Eastern Book
Company.
86
The Constitutional Law of India 46th Edition By Dr. J.N. Pandey by Central Law Agency .
87
Virendra v. state of Punjab, A.I.R 1958, SC, 986.

67
cases that press is not immune from paying taxes, from following labour laws, regulating
services of the employees, Law of contempt of court, Law of defamation and with respect
to regulation of commercial Activities of a Newspaper.
Further restrictions have been imposed on the freedom of speech and expression by
Article 51-A defining fundamental duties of a citizen 42nd Amendment in 1976. Under
Article 51 A, No one should in exercise of the freedom of expression or the press do any
of the following acts:
(1) To Disparage the Constitution, its ideals and institutions, the National Flag or the
National Anthem.
(2) To Undermine the Sovereignty, Unity and Integrity of India.
(3) To disrupt the spirit of common brotherhood among all the people.
(4) To Insult the rich Heritage of our composite culture.
It has been held by the Supreme Court that the right to speech and expression includes
right to acquire and import ideas and information about the matters of common interest.
Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers. While the Supreme Court decision lay to rest the
debate on the scope and Constitutionality of the Section 124-A of the Indian Penal Code,
the life Sedition law is entangled with that of political dissent in the country. A brief
search for reported high court and Supreme Court cases on Sedition gives an indication of
the kinds of situations where the Sedition law commonly used. For instance in 1947 the
Government prosecuted Ghulam Rasood choari, the Editor of an Agra based Urdu
weekly called Ehsas for exhorting the Muslim of the country especially the Muslim of
Kashmir to violence against the Government and bringing the readers of paper into
‘hatred’ and contempt disaffection with a Government.88
In his Urdu weekly Ghulam Rasool described Indian rules over Kashmir as
tyrannical. It was alleged by the prosecution that this Article was published during the
crucial period when Kashmir was being debated in the security council and when the
Indian Government sent a note of protest against the talks going on between Pakistan and

88
Ghulam Rasood choari v. The State 1968 CRILJ 884

68
china regarding the Sino-Pakistan to locate and align their common border in the
occupied areas of Jammu and Kashmir. It is further alleged that the Article was published
and curtailed during the critical period of Moharam in order to make a strong appeal to
the Muslims and to incite communal fanaticism amongst the Muslims. The session court
in Agra convicted Ghulam Rasood of offences under Section 124-A and 505 of the Indian
Penal Code sentencing him to six months rigorous imprisonment.
Regarding to the Constitutionality of the Section 124-A of the Indian Penal Code two
opinion bring out with remarkable clarity. It shows that firstly that Sedition is essentially
an offence against public tranquillity and secondly that broadly speaking there are two
classes of offence against public tranquillity.
(a) Those accompanied by violence including disorders which affect tranquillity of
considerable number of person or extensive local area.
(b) Those not accompanied by violence but tending to cause it such as seditious
utterances, seditious conspiracies, etc.
Both these classes of offence are such as will undermine the security of the state or tend
to overthrow it if left unchecked, and as I have tried to point out, there is good deal of
authoritative opinion in favour of the view that the gravity ascribed to Sedition is due to
the fact that it tends to seriously affect the tranquillity and security of the state. In
principle, then it would not have been logical to refer to Sedition in clause(2) of Article
19 and omit matters which are not less grave and which have equal potentially for
undermining the security of the State. It appears that the framers of the Constitution
preferred to adopt the logical course and have used the more general and basic words
which are apt to cover Sedition as well as other matters which are detrimental to the
security of the State as Sedition.89

(2.3) RIGHT TO FREE SPEECH IN A CENSOR DEMOCARCY:

The Constitution (first amendment) act, 1951, two changes were introduced in the
provision relating to freedom of speech and expression. Firstly, it considerably widened
the latitude for legislative restriction on free speech by adding further grounds therefore;

89
Stephen‘s Criminal Law of England (Vol.11 Page No 242 and 243).

69
secondly it provides that the restriction imposed on the freedom of speech must be
reasonable. It is to be seen now, whether Section 124-A of the Indian Penal Code is in
conflict with the amended clause (2) of Article 19 or not. There appears to be three
different views on the question as reflected by the decision of the courts. These can be
summarized as under:
(1) Section 124-A Indian Penal Code is ultra vires the Constitution in as much as it
infringes the fundamental right of freedom of speech in Article 19(1) (a) and is
not saved by the expression ‘in the interest of public order’.90
(2) Section 124-A is not void because the expression ‘in the interests of public order’
has a wider connotation and should not be confined to only one aspect of public
order to violence. It has a much wider content, and embraces such action as
undermines the authority of Government by bringing it into hatred or contempt or
by creating disaffection towards it. From this point of view Section 124-A Indian
Penal Code is saved under clause (2) of Article 19.91
(3) Section 124-A of the Indian Penal Code is partly void and partly valid. In Indra
Mani Singh v. state of Manipur92 it has been held that Section 124-A of the Indian
Penal Code which seeks to impose restriction on exciting mere disaffection or
attempting to cause disaffection is ultra vires , but the restriction imposed on the
right to free speech which makes it punishable to excite hatred or contempt
towards the Government established by law in India, is covered by clause (2) of
Article 19 of the Constitution of India and can be held intra vires.
Whether restriction under Article 19(2) may be imposed in the interest of public
or not has been clarified by the Supreme Court, it held that restriction imposed must
have a reasonable and rational relation with the restriction imposed must have a
reasonable and traditional relation with the public order, otherwise it would be
invalid.93

90
Ram Nandan v. State ,A.I.R 1959 ALL.101.
91
Debi Soren v. State, A.I.R 1954 Patna 254. The Supreme Court has also endorsed the view of Patna High
Court in so far as the Expression ‘in the Interest of Public Order’. Is Concerned.
92
A.I.R 1955 Manipur 9.
93
V.k Javali v. State of Mysore, A.I.R 1966 SC 1387.

70
 Freedom of speech and expression in modern liberal democracies:
‘I disapprove of what you say, but I will defend to the death your right to say it’ –
Voltaire.
Freedom of speech and expression is the concept of being able to express oneself
freely whether through words of mouth, literature, art or any other medium of
communication. It is often regarded as an integral concept in modern liberal
democracies. On the other hand censorship represent denial of freedom of speech of
expression, they have been so accepted through various court decision. Films in India
have been censored on the ground of obscenity, sex, and violence. Where films have
been banned or targeted in the nature of maintaining public order, respecting beliefs,
sentiments and traditions or for criticising the state on certain issues. There should be
attempts to find as motion pictures in India are concerned.
In 2008 Maharashtra Navnirman Sena, (MNS , Maharashtra reconstruction army)
, spear headed by Raj Thackeray, unleashed unprecedented violence to push back the
poor North Indian economic Migrants (largely from the states of Uttar Pradesh and
Bihar) from Maharashtra, especially from Mumbai, reasoning that they have caused
unemployment opportunities of the Marathi’s (resident of Maharashtra ) and have
caused unemployment problem. Hence they should be repatriated to their home
states, if necessary by force. The state Government of Maharashtra had been almost a
mute speactor to this regionalism until it spilled over and invited strong notice from
the central home ministry. Finally the state home department registered 54 criminal
cases against Thackeray for rioting, assault, damage to properties, provoking hatred
among different communities, etc. Even so, Thackeray managed to get bail in all
cases. 94 When kamal khan tried to capture the plight of those migrants in his film
‘Deshdrohi’ otherwise callous state Government immediately banned the movie for
two months acting on the report of the police that if the film is released in the same
formant it may lead to ‘law and order’ problem of the state.95 The Bombay high court
had cleared the screening of the film on the ground that the state ban on its release

94
See Lyla Bavadam, Hate Campaign, Frontline, November.21, 2008, at 24-26.
95
Fears of MNS Backlash Prompted ‘Deshdrohi’ Ban. Expressionondia.com, November 13, 2008

71
 was based on ‘extraneous ground’. Yet the film was released in the state. Finally
Supreme Court cleared the movie for screening in the state.

FREEDOM OF SPEECH IN INDIA:

Freedom of speech and expression enjoys special position as far India is
concerned. The importance of freedom of expression and speech can be easily
understand by the fact that preamble of Constitution itself ensure itself ensures to all
citizens inter alia, liberty of thought, expression, belief, faith and worship. The
Constitutional significance of the freedom of speech consists in the preamble of
Constitution and is transformed as fundamental and human right in Article 19(1) (a)
as ‘freedom of speech and expression’. Explaining the scope of freedom of speech
and expression Supreme Court has said that the words ‘freedom of speech and
expression’ must be broadly constructed to include the freedom to circulate one’s
view by words of mouth or in writing or through audiovisual instrumentalities.96
Freedom of speech and expression means the right to express one’s own convictions
and opinions freely by words of mouth, writing, printing, pictures or any other mode.
It thus includes the expression of one’s idea through any communicable medium or
visible representation, such as gesture, sign, and the like.97
Moreover, it is important to note that liberty of one must not offend the liberty of
others. Patanjali shastri, J. in A.K. Gopalan case, observed, ‘man as a rational being
desires to do Many things, but in a Civil society his desires by other individuals’. It
therefore includes the right to propagate one’s views through the print media or
through any other Communication channel for example the radio and this television.
Every citizen this country therefore has the right to air his or their views through the
printing and or the electronic media subject of course to permissible restrictions
imposed under Article 19(2) of the Constitution. In sum the fundamental principle
involved here is the people’s right to know. Freedom of speech and expression
should, therefore receive generous support from all those who believe in the

96
Romesh Thappar v. State of Madras, A.I.R 1950 SC 124.
97
Lowell v. Griffin. (1939) 303 US 444.

72
 participation of people in the administration. We can see the guarantee of freedom of
speech and expression under followings heads.
The freedom of speech and expression includes liberty to propagate not one’s
view only. It also includes the right to propagate or publish the view of other
people. 98 Otherwise this freedom would not include the freedom of press. Freedom of
speech and expression has four broad special purposes to serve:
(1) It helps an individual to attain self –fulfilment.
(2) It assists in the discovery of truth.
(3) It strengthens the capacity of an individual in participating in decision making.
(4) It provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change. All the members of society should be
able to form their own beliefs and communication them freely to others.

THE RIGHT TO SECEDE CANNOT BE ACCEPTED IN THE GRAB TO RIGHT

TO FREE SPEECH:
‘No democracy permit right to Sedition’ the right to secede cannot be accepted in the
grab of right to free speech. The right to free speech enshrined in the Constitution
cannot be used against the country.
BJP takes strong exception to the demand for secession of Kashmir made a
seminar in New Delhi in which hard line Hurriyat leader Syed Ali shah Geelani and
other Kashmiri separatists as well as Naxal and Kahalistani sympathizers had come
together to demand independence for Kashmir. It is shocking that the central
Government choose to look the other way while ‘unacceptable’ views aired in the
name of freedom of speech. When a group of separatists got together to hold a
seminar to promote Sedition under the nose of the Government has stunned the
Nation. In a democracy the right to secede cannot be accepted in the grab of right to
free speech. The right to free speech enshrined in the Constitution cannot be used
against the country. It is dismaying to note that the Government did not take any
preventive measure and used has not taken any action to punish guilty. The central

98
Srinivas v. State of Madras A.I.R 1931 MAD .70.

73
 Government should not forget that there are two responsibilities and obligation of the
state to prevent such events and to punish the offenders. On the other hand the
Government exercised the option of looking the other way which is not available to it.

CENSORSHIP IN INDIA:
Article 19(1) (a) of the Constitution of India promises right to free speech and
expression in India to all its citizens. 99 However reasonable restriction can be
imposed on the enjoyment of this freedom by the state under clause 2 of the Article
19 on the grounds, the interest of the sovereignty and integrity of India, the security
of the state, friendly relations with foreign states or incitement to an offence. The
prime legislation in this respect is the cinematography act 1952, no.37 of 1952 and
the cinematograph (certification) rules 1983. The 1952 act was enacted to provide for
the certification of cinematography films for exhibition and for regulating their
exhibition. Censor board after examination film, either sanction the film for restricted
or unrestricted public exhibition. Article 19(2) of the Constitution Section 5-B (2)
empowers the Central Government to devise necessary guidelines in this regard.100
The Central Government is now vested with revision powers under Section 6(1), even
of its own motion, to call for the record of any proceeding before the board or FACT
in relation to any stage, except a matter of appeal pending proceeding before the fact,
to give necessary order and the board must dispose it off in continuity with such
order. The main object behind this act to restrict the freedom of speech and
expression in such a manner without demolish the basic structure of Article 19(1) of
the Constitution. One of the great defender of free speech, Ronald Dworkin, has
stated that there are three main reason why free expression matters.
(1) We cannot collective control of the culture; we must have the right to tell people
what they do not want to hear.
(2) There is an issue of democratic transparency, where a free press has a duty and
responsibility to hold Government and other powerful groups accountable.

99
Indian Constitution Article 19 Clause 1.Protection of Certain Rights Regarding Freedom of Speech etc.
100
www.cbfcindia.tn.nic.in visited on 26May 26, 2015.at 5:00 pm.

74
 (3) Democratic fairness , if we want people to accept democratic procedure and laws
that express the will of the majority, then everyone must have not just a vote but
a voice, however much we may dislike what they are saying
Article 19(2) of the Constitution is to be exercised so as to serve the large public good,
but unfortunately in practice it has been manipulated on many occasions to strangulate
the freedom of speech and expression. The grounds mentioned there in have often
interpreted very widely to clamp down on movies at the slightest opportunity. Under such
circumstances the question arises do we really need such restriction? After witnessing all
those arbitrary attack on the freedom of speech, it appears that ‘reasonable restriction’
really needs consideration to match up with the so called globalize and liberal world.
Censorship on the motion pictures under different circumstances has not been imposed on
valid Constitutional or legal grounds but to serve the interest of different powerful group
whether social, religious, or political. Under no circumstances the censorship of
aforementioned nature can be justified. Often the excuse of India being a diverse Country
with unique set of problems has been put forward and the need of restriction has been
over emphasized. But in reality the restriction have served more in the negative sense
than for positive development. The logic of public interest or public good which has been
consistently used as shield by the state while censoring films is in several instances
somewhat bizarre. Whether ‘Deshdrohi’ or the Gujarat riot films otherwise, the state
squarely failed to provide a solution to the real problem but whenever any film tried to
focus the issue, it was instantaneously banned. If the state not provides the hearing touch
to the victims then at least, the state is not safeguard anybody’s interest by censoring
films. Often the states have advanced the maintenance of ‘law and order’ as justification
for censorship. It is completely untenable. If at all a film is to be restrained legally it can
be possible for the maintenance of ‘public order’ or protecting the ‘security of the state’.
And these three concepts have been judicially distinguished from each other.101 One has
to imagine three concentric circles, the largest representing ‘law and order’. The Next
representing ‘Public order’ and smallest representing ‘Security of the State’. Hence an act
may affect ‘Law and order’ but not ‘Public order’. The court reasoned ‘the contravention

101
Ram Manohar Lohia v. state of Bihar, A.I.R 1966 S.C 740.

75
of law always affects order but before it can be said to affect public order, it must affect
the community or the public at large’. In the light of this judgement we can assert that
mere law and order problem or apprehension of the same cannot be valid ground for film
censorship.

(2.4) THE CONSTITUTIONAL ASPECT OF LEGAL CONTROL OVER

ELECTRONIC MEDIA:

Electronic media played a vital role in our democracy. The supreme court has
widened the scope and extent of the right to freedom of speech and expression and held
that the Government has no monopoly on electronic media and a citizen has under Article
19(1)(a) a right to telecast and broadcast to the viewers or listeners through electronic
media television and radio any important event. The Government can impose restriction
on such a right only on grounds specified in clause (2) of Article 19 and not on any other
ground. State monopoly on electronic media is not mentioned in clause (2) of Article 19.
The court directed the Government to set up an independent autonomous broadcasting
authority which will free Doordarshan and Akashvani from the shackles of Government
control and ensure conditions in which the freedom of speech and expression can be
meaningful and effectively enjoyed by one and all. In a historic judgement in secretary,
ministry of I and B v. cricket association of Bengal (CAB)102 explain the scope of
electronic media in our democracy.
The Supreme Court held that the fundamental right to freedom of speech and
expression includes the right to communicate effectively and to as a large population not
only in this country but also abroad. There are no geographical barriers on
communication. A citizen has a fundamental right to use the best mean of imparting and
receiving communication and such have an access to telecasting for the purpose. At
present electronic media like TV and radio is the most effective means of
communication. However since Airways are public property and they must be used for
public good. They are therefore subject to certain limitations. The court directed the

102
(1995) 2 SCC 161.

76
Government to establish an independent autonomy public authority representing all
Sections of society to control and regulate the use of airways. A monopoly over the
electronic media is inconsistent with the right to freedom of speech and expression.
Broadcasting media must be under the control of public. Justice Reddy in his concurring
judgement suggested that suitable amendments should be made to the Indian telegraph
act keeping in view of modern technological developments in the field of information and
communication.103

CRIMINAL LIBILITY OF MEDIA:

Media person are basically under the same obligation as the people in general abide
by general principles of penal law. Media in its exercise of free criticism may slip either
intentionally or through its routine activity into any kind of criminal liability under
different circumstances. The Indian Penal Code envisages certain crimes which a media
person may get entangled into face prosecution. The right to free speech of media persons
cannot extend to Sedition, by bringing disrepute of the state, or affect the reputation of
individual leading to defamation or represent obscene or base material disturbing the
moral and sense atmosphere of society. In case they do so the criminal provision of the
Indian Penal Code are attracted. Thus defamation, Sedition and obscenity are the main
ground where the media persons could be vulnerable to face prosecution.
In M. Hassan v. Government of A.P,104 it has been held that the denial by jail
Authorities to journalist and videographer to interview the condemned prisoners in ail
amounts to deprivation of a citizen’s fundamental right to freedom of speech and
expression under Article 19(1) (a) of the Constitution. Every citizen has a right to
propagate his ideas and views on many aspects of prisoner’s life through available media
without any fear or favour as long as they stand the test of reasonable restriction. The
reason given by the jail authorities for refusing permission for interviewing prisoners
sentenced to death was that,
(1) It will give opportunity to public to campaign for reducing their sentence.
(2) It may lower the position of the court.

103
The Constitutional Law of India 46th Edition by Dr. N.N PANDEY, Published by Central Law Agency.
104
A.I.R 1998 A.P .35 (FB).

77
 (3) Prisoner had not expressed their desire for interview.
(4) It cannot be allowed for safety and security reasons.
The court held that these restrictions are not mentioned in Article 19(2) of the
Constitution. A film movie, television or video graphs are modes of communicating the
views and ideas as such refusal to interview the willing condemned prisoner is illegal and
unconstitutional.
In case of reporting the press is guided by its own restriction and censorship as
given in cinematograph act 1952. If there is any objectionable element and situation
which falls within prohibitions mentioned in Article 19(2) it can be prohibited in public
interest. Thus at very stage before reporting or releasing, there will be a check and
counter check by the authorities. Reporters and producers also are aware of the
consequences if they or exhibit objectionable items or information. In that situation
media may also be responsible for prosecution. Even the jail manual permits the prisoner
to be interviewed by others including friend provide he is willing. A friend includes a
journalist and which in turn includes a videographer. In view of all this it is not just and
proper for jail authorities to prevent the petitioners to interview the condemned prisoner
orally and by videography.
Criticism of Government is not Sedition. The expression Sedition generally
means of defamation of the state. But the legal meaning of Sedition is different. As we
know Sedition is crime against the state. The state intends to bring in all kinds of
separatist tendencies into this word and curb the writings or campaign causing
disaffection. According to Sir James Stephen105 they are not connected with open
violence but they presuppose disaffection with the existing Government in various ways.
This offence in English law is a crime against the crown and Government, but not as
serious as treason.106 According to English law Sedition is the misdemeanour of
publishing verbally or otherwise any words or documents with the intention of exciting
disaffection, hatred or contempt, against the sovereign or the Government and
Constitution of the kingdom or either house of parliament and the administration of
justice. Now Sedition is generally uses to suppress the voice of those person who

105
Criminal Law England, Chapter 24.
106
Walker: Oxford Companion to English Law, Vol. 3 Page No 317, 318.

78
criticised the Government. While the Constitution provides a guarantee to freedom of
speech and expression, which is exercised by the media, the criminal law imposes certain
restriction on that freedom for protecting the social or group interests and public
tranquillity.

MEDIA AND CRIME OF MISCHIEVOUS STATEMENTS:

Section 505 related to public mischief says that whoever makes publishes or
circulates any statement, rumour or report includes:
(a) With an intent to cause ,or which is likely to cause, any officer, solider, sailor or
airman in the army, navy, air force of India to mutiny or otherwise disregarded or
fail his duty as such,
(b) With an intent to cause, or which is likely to cause, fear or alarm to the public or
to any Section of the public whereby any person may be induced to commit an
offence against the state or against the public tranquillity,
(c) With an intent to cause or which is likely to incite , any class or community of
persons to commit any offence against any other class or community shall be
punished with imprisonment which may extend to three years or with fine or with
both.

PROMOTING ENMITY BETWEEN GROUPS, 153-A:

(1) Statement creating or promoting enmity, hatred or ill will between classes
whoever makes, publishes or criticising any statements or report containing
rumour or alarming news with intent to create or promote or which is likely to
create or promote, on ground of religion, race , caste , place of birth, residence,
language , or community or any other grounds whosoever, feelings of enmity,
hatred or ill-will between different religious racial language or imprisonment
which may extend to three years or with fine or with both.
(2) Offence under Sub-Section (2) committed in place of worship etc-whoever
commits an offence specified in sub-Section (2) in any place of worship or in any
assembly engaged in the performance of religious worship or religious

79
 ceremonies, shall be punished with imprisonment which may extend to five years
and shall also be liable to fine.
(3) Commits any act which is prejudicial to the maintenance of harmony between
different religious, racial, language or regional groups or castes or communities
and which disturbs or is likely to disturb the public tranquillity.
(4) Any person who organise any exercise, movement, drill or other similar activity
intending that the participants in such activity shall use or be trained to use
criminal force or violence of knowing it to be likely that the participants in such
activity will use or be trained to use criminal force or violence or knowing it to
likely that the participants in such activity will use or be trained to use criminal
force or violence, against any religious , racial, language or regional group or
caste or community and which activity for any reason whatsoever cause or is
likely or cause fear or alarm or a feeling of insecurity amongst members of such
religious racial, language or regional group or caste or community shall be
punished with imprisonment which may extend to three years or with fine or with
fine or with both.
(5) Offence committed in place of worship etc-(2) whoever commits an offence
specified in subsection (I) in any place of worship or in any assembly engaged in
the performance of religious worship or religious ceremonies shall be punished
with imprisonment which may extend to five years and shall also be libel to fine.

EXCEPTION:
It does not amount to an offence within the meaning of this Section when the
person making, publishing or circulating any such statement, rumour or report, has
reasonable grounds for believing that such statement , rumour or report is true and
makes, publishes or circulates it in good faith and without any such intent as aforesaid.
In Kedar Nath Singh case the Constitutional validity of Section 124-A of the Indian Penal
Code and Section 505 was upheld. They are held to not violate of Article 19(1) (a) of the
Indian Constitution.

80
(2.5) FREEDOM OF SPEECH AND EXPRESSION AND THE MEDIA
REGULTION:
The media in India enjoys a great deal of freedom and when it is threatened the
response is vociferous. Nevertheless, there is the need to maintain a balance between free
expression and other community and individual rights, this responsibility should not be
borne by the judiciary alone, but by all those who enjoy these rights.107
There is often confusion regarding the classification of the news media. It is a
business under Article 19(1) (g) of the Constitution of India, or an activity deserving
protection under Article 19(1) (a) as a right to freedom of speech and expression? This
question is critical determining the standards applicable to the conduct of the many news-
providing outlets in India today. The right to express opinions freely is critical in a
democracy. The freedom of speech and expression is however is confused and equated
with the necessity to overlook the media as a business (falling under Article 19(1) (g),
which is fundamentally flawed. The rights and duty of a citizen and the rights of media
both are different and cannot be considered same. Freedom of speech and expression
includes freedom of circulation, to the extent that the ability to propagate one’s
expression is inherent in that freedom. 108 However a recipient of news and a publisher of
news belong to fundamentally different interest groups. This is precisely why expressing
an opinion per se and the business of publishing/circulating news have been so clearly
distinguished by our law makers. Both therefore need different levels of oversight to
ensure that a later right enshrined in Article 19(1) (g) does not abrogate or limit the rights
enshrined in Article 19(1) (a). Freedom of press under Article 19(1) (g) has to be secured
as such to allow the public to be well informed. Also the democratic credentials of a state
are judged today by how mindful the press is to ensure that the ordinary citizen actually
gets the right to free speech and expression to enable an effective democracy and that
such a right is not denied to them for commercial ends.
The Constitution the supreme law of the land, guarantees freedom of speech and
expression under Article 19, which deals with ‘protection of certain rights regarding
freedom of speech etc. According to Article 19(1) (a) states that ‘all citizens shall have

107
Www. Orfonline.org April 2013 visited on 31 May 2015.
108
Romesh Thappar v. State of Madras (1950) SCR 594.

81
the right to freedom of speech and expression.’ The open discussion of ideas allows
individuals to fully participate in political life, making informed decision and
strengthening society as a result especially in large democracy such as India.

RESTRICTION ON THE FREEDOM OF MEDIA:

In India the right of a person engaged in the media business are covered under
Article 19(1) (g) subject to restriction under Article 19(6) whereas the right of general
public to freedom of speech and expression are covered under Article 19(1) (a), subject to
restriction on under Article 19(2). According to Article 19(2), “reasonable restrictions on
the exercise of the right conferred by” Article 19(1) (a) may be lawfully enacted. The
circumstances in which this fundamental right may be curtailed are wide ranging. Vague
criteria such as ‘decency morality’ and friendly relations with foreign states’ lay a heavy
burden of discretion on the judiciary. However some restrictions are necessary as press
rights must not be allowed to overrun the rights of individuals and the interests of society.
Article 19(2) does not by itself curtail the right to free speech and expression it allows
other laws to be made which may have that effect. As clearly stated in Sakal paper v.
union of India109 executive orders cannot be made to restrict Article 19(1) (a) using 19(2)
as justification the restriction must have the authority of law. Furthermore the
determination of whether the restriction is reasonable or not should be made on a case by
case basis110 as a general standard could not adequately cover the range of circumstances
in which restriction may apply. This will ensure that the ‘practical result’ of actions taken
by the state is properly considered to avoid cases of disproportionate restriction along
with their form.111
Entities engaged in the business of news/media have engaged as a prime source of
information helping people to cultivate opinions on the political, economic and social
situation in the country. The traditional print media still retains influence and television is
widely popular, but public opinion, especially of youth, can be gauged through social
networking platforms and the so called ‘New Media’. In this way the media continues its

109
A.I.R (1962) SC 305 PARA 863.
110
State of Madras v. V.G Row (1952) SCR 597.
111
Dwarkadas Shrinivas v. The Sholapur spinning and weaving co Ltd (1954) SCR 674.

82
role as a kind of non-formal educator, helping citizens to make judgements, often by
presenting views which are contrary to those Governments.112 This vaunted position
occupied by the media, including surveying the judiciary, executive and legislature alike,
does not come without a share of responsibility. Hence the restrictions on the business of
news/media under Article 19(6) are necessary to ensure an effective protection of the
rights of common citizens under Article 19(1) (a).
While any restriction of free speech and expression must be reasonable, there is
no provision exhorting the individual to be reasonable in the exercise of their rights. It
could be argued, in fact that ‘if liberty means anything at all, it means the right to tell
people what they do not want to hear.” Nevertheless the right to free speech and
expression does not exist in a vacuum and must be balanced with other rights. It is
maintaining this balance that the idea of responsibility as part of a right comes into play.
Thus the contradiction between freedom of expression and intervention by authorities
remains. As noted above the reasonableness of restriction on freedom of speech is
decided on a case by case basis. Any intervention by the state would be dictated by
societal standards of acceptability. The laws currently in place show the state will step
into prevent violence and harm to reputations. The popular restriction to other
Government measure such as the policing of the internet show that in these cases the
Government seems to be going too far.
Once the way is clear for the Government to intervene the extent and result of that
intervention must be specified. There needs to be clearly defined spectrum with caution
or fines at one end, and imprisonment at the other, which can be applied to reign in
infringing expression. The punishment will, of course, depend on the circumstances of
the intervention, with proportionality the key principle to follow. While individual will
have to rely on authorities being fair and just, the media industry may be able to pre-empt
Government action. If the industry was to regulate itself, any offence could be dealt with
at that level. In order to maintain effective self regulation, the industry first needs to
create an architecture which supports it. In first place any industry association or body
responsible for regulation would need universal membership. Allowing potential member

112
Indian Express Newspaper (Bombay) Ltd v. Union of India (1985) SCR (2) 287.

83
to opt-out defeats the point of self regulation and leaves the system vulnerable. In
addition the association should endorse a basic code of ethics and guidelines on
transparency, so that provides of news adhere to a minimum standard. Finally it is
important that this association or advisory body has real punitive powers. The threat of
real and meaningful sanctions beyond fines which may not even register with corporate
sponsored entities must be used to ensure press quality113.

INTERNATIONAL OBLIGATIONS:
India is a part of the international community and has certain obligation regarding
the freedom of expression. Article 253 empowers parliament to make for implementing
international agreements. International interaction is no longer the preserve of those
privileged enough to travel. India is a party to the United Nations charter, which is the
governing document of the United Nations the largest and most inclusive international
organisation in the world. In the 1940’s India supported the universal declaration of
Human rights (UDHR) the definition specified in that document are key to understanding
the united nations charter Article 19 of the UDHR provides for freedom of opinion and
expression “through any media”. Additionally India ratified the international covenant on
civil and political rights (ICCPR). The ICCPR allows states to derogate from some of the
rights enshrined in the convention in times of public emergencies “that threaten the life of
the nation and the existence of which is officially proclaimed”. 114Article 19 of the ICCPR
safeguard freedom of expression in addition to other fundamental rights. It is clear that
the international community regards freedom of expression as a key component of
democracy. The importance of the free flow of information has also been emphasised,
implying support for a free press. In 1946 the UN general assembly adopted resolution
59(1) which stated that “freedom of information is a fundamental human right and the
touchstone of all the freedom to which the United Nations is consecrated.” From an

113
Media Freedom and Article 19 by Anahita Mathai form ORF ISSUE BRIFE April 2013, visited on 30 may
2015.
114
Article 4 of the ICCPR.

84
international perspective it is logical to read press rights into Article 19(1) (a) and (g) of
the Constitution though they are not expressly mentioned.

(2.6) HATE SPEECH IN INDIA:

Hate speech means a speech which is designed to promote hatred on the basis of
race, religion, ethnicity or national origin. The Constitution of India and its hate speech
law aim to prevent discord among its many ethnic and religious communities. The laws
aim to prevent discord among its many ethnic and religious communities. The law allow
a citizen to seek the punishment of anyone who shows the citizen disrespect “on grounds
of religion, race, place of birth, residence, language, caste or community or any other
ground whatsoever”. The law specifically forbid anyone from outraging someone’s
“Religious Feelings”.
In the Indian context the contemporary meaning of the term ‘hate speech’ is
inextricable from its origin (as a form of legal action) in colonial attempts ‘to assume the
role of the rational and neutral arbiter of supposedly endemic and inevitable religious
conflicts’.115 Hate speech has primarily been understood in India as referring to speech
intended to promote hatred or violence between India’s religious communities. Macaulay
in his commentary upon the Indian Penal Code, explicitly endorsed this interpretation of
‘hate speech’ under Indian law, observing that the principle underlying chapter
‘prohibiting of offences relating to religion and caste’ is that every man should be
suffered to insult the religion of another.116 The prohibition of ‘certain (racist) forms’ of
speech inciting violence have been found invalid in the united states in R.A.V v. City of
St Paul117 (on the ground that, by specifically targeted certain forms of vilifying speech,
the state unlawfully engaged in ‘viewpoint discrimination) equivalent restriction upon
racial and religious vilification have been upheld in India. Such measures have been

115
Asad Ali Ahmed, Spectres of Macaulay: Blasphemy, The Indian Penal Code, and Pakistan’s Postcolonial
Predicament in Reminder Kaur, Censorship in South Asia: Cultural Regulation from Sedition to
Seduction, Indiana University Press, 2009, Page No 173.
116
Thomas Macaulay, Indian Penal Code, 1838, 2002 Reprinting, Pages No 101.
117
505 US 377 (1992).

85
adjudged necessary for the ‘maintenance of communal harmony’118 Irrespective of the
truth or untruth of such statements.119
Nazi demonstration though Constitutionally protected in the united sates on the
ground that speech causing offence cannot be restricted on that basis alone, may hence be
prohibited in India on the ground of ‘Public order’. India’s departure from the US
approach may reflect its Constitution’s unique emphasis upon the preservation of the
rights of minorities and the state’s duty to ensure a social order for the promotion of the
welfare of the people. The Supreme Court has concluded that ‘the public interest’ must
be ‘without a doubt have pre-eminence over any individual interest’. The judicial
attitudes on display in Joseph Bain D’souza v. Bal Thackeray (1995) an illustrative in this
respect. The court rather than serving as a neutral arbiter of the meaning and potential
consequences of hate speech, align themselves with its perpetrators. The rhetoric of the
court frequently mirrors that of the respondent.
The Pakistani infiltrators and the anti-national Muslims and Moulvis and Mullahs
poured poison in Bhendi bazaar locality. It is pertinent to note that in the said Article
criticism is only against Pakistani infiltrators and anti-national Muslims and non Muslims
as whole. In this manner the court endorsed the conspiracy theories of the respondent,
abjuring judicial neutrality in order to criticise the anti-national or traitors Section of
Muslims and their selfish leaders who are creating rift between Hindus and Muslims. The
court further endorsed the nation that the readers of the editorial are not likely to develop
hatred, spite or ill-will against Muslims as a whole but may developed hatred towards
those Muslims indulging in anti-national activities. Often offending statements120 made
by the leaders of political parties appear in the newspaper during elections. But the moot
question here is as to whether the election commission can effectively handle such hate
speeches and penalise the authors of such speeches.
There are various provision like Section 29A(5) and (7) of the representation of
people act empowering the commission to examine the document filed by a political
party at the time of its registration and the application so filed must be accompanied by

118
Virendra v. State of Punjab A.I.R 1957 SC 896.
119
Raja Gopal v. Province of Madras A.I.R 1948 MAD 326.
120
Manohar Joshi v. N.B Patil A.I.R 1996 SC 796,807.

86
its Constitution rules which should contain a specific provision to the effect that the
association body would bear true faith and allegiance to the Constitution of India as by
law established and to the principles of socialism, secularism and democracy and that
they would uphold the sovereignty, integrity and unity of India. However the election
commission does not have the power to deregister/derecognise a political party under the
representation of people act once it has been registered. A registered political party is
entitled to recognition as a state or national party only upon fulfilling the conditions laid
down in paragraph 6A or 6B of the election symbols (reservation and allotment) order,
1968. The election commission in exercise of its powers under paragraph 16A of symbols
order, can take appropriate action against a political party on its failure to observe model
code of conduct or in case the party fails to observe or follow the lawful direction and
instruction of the election commission. The model code of conduct provides certain
guidelines which may Inter-Alia that no party or candidate shall indulge in any activity
which may aggravate existing differences or create mutual hatred or cause tension
between two different castes and communities, religious or linguistic and no political
party shall make an appeal on the basis of caste or communal feelings for securing votes.
It furthers provides that no religious place shall be used as forum for election propaganda.
However the election commission only has power to control hate speech during the
existence of the code of conduct and not otherwise.
In Ramesh v. Union of India121 while dealing with the subject supreme court observed
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 sent danger in every point of view. There are several statutory provisions
dealing with the subject such as:
(1) Indian Penal Code 1860 Section 124-A, 153-A, 153-B, 295-A, 298, 505(1),
505(2).
(2) The code of criminal procedure 1973 Sections 95, 107, 144, 151, and 160.
(3) Unlawful activities (prevention) act 1967 Sections 2(f), 10, 11, 12.
(4) The representation of people act, 1951 Sections 8, 123(3A), 125.

121
A.I.R 1988 SC 775.

87
 (5) Protection of civil rights act, 1955 Section 7.
(6) Religious institutions (prevention of misuse) act, 1980 Sections 3 and 6.
(7) Information technology act, 2000 and information technology (intermediaries
guidelines) rules, 2011 Section 66A, 69, 69A rule 3(2) (b), rule 3(2) (I).
(8) The cable television networks (regulation) act, 1995 and the cable television
network (rules), 1994 Sections 5, 6, 11, 12, 16, 17, 19, 20 and rules 6 and 7.
(9) The cinematographers act, 1952 Sections 4, 5B, 7.
The Central Government has always provided support to the State Governments and
union territory administrations in several ways to maintain communal harmony in the
country and in case of need the Central Government also sends advisories in this regard
from time to time. The Central Government has always issued revised guidelines to
promote communal harmony to the states and union territories in 2008 which provides
Inter-Alia that strict action should be taken against anyone inflaming passions and
stroking communal tension by intemperate and inflammatory speeches and utterances.
The guidelines on communal harmony 2008 issued by the ministry of home affairs
Governments of India seek to prevent and avoid communal disturbances /riots and in the
event of such disturbances occurring action to control the same and measure to provide
assistance and relief to the affected person are provided therein including rehabilitation.
So far as the statutory provisions are concerned Section 124-A of the Indian Penal Code
1860 makes Sedition an offence punishable. When any person attempts to bring into
hatred or contempt or attempts to excite disaffection towards the Government established
by Law. Section 153A and 153B of the Indian Penal Code makes any act which promotes
enmity between the groups on ground of religious and race etc, or which are prejudicial
to National integration punishable.
In a column published in 2006 Aseem Trivedi argued that the dismal performance
of many of India’s institution of Governance was a consequence of the policy of
affirmative action, which assured disadvantage communities representation in the staffing
of all these institutions. Mumbai city police soon afterwards took up the prosecution of
this matter on the basis of a complaint received from aggrieved private citizens. On 28
January this year a trial court in Mumbai sentenced Trivedi to a six month term of
imprisonment and fine. Aseem Trivedi had, even before the formal institution of charges,

88
apologised unconditionally in the same columns’ where his content appeared and
retracted all the observation made.
The editor and two reporters of Andhra Jyoti, a Telgu language daily published
from Hyderabad and various other cities of Andhra Pradesh state in India were arrested in
June 2009, under a law preventing insult to the dignity of people of lower ritual status in
the Indian caste hierarchy. 122 K. Srinivas, the editor of the daily and two reporters, Kumar
Vamshi and N. Srinivas were picked up from their office by the police, who had no
warrant and merely said that they had evidence of an offence under the concerned law.
After this the office of the Andhra Jyoti in Hyderabad and two other cities of Andhra
Pradesh had been attacked by activists of a community based organisation. The attack
which caused serious injuries to staff member and extensive damage to property was
ostensibly in retaliation for an editorial in the newspaper that criticised the organisation’s
leader over his political stances. Reliable observers then averred that even if the editorial
was critical of the individual, there was nothing in it could be construed as an insult to the
community. Following this incident, employees of Andhra Jyoti were joined by various
journalist unions in a protest demonstration to demand action against those responsible
for the attack. The complaint that formed the basis for the arrest of the three journalists
arose from certain acts that allegedly took place during this demonstration and later set on
fire. The three journalists were released on bail after a day in detention. Their case, like
several other of a similar nature remains undecided so far.
The offence of hate speech is covered under Article 153 A of the Indian Penal
Code. There has been few authoritative determination of the application of this law in
matters involving the media. In the case of M.F Husain the celebrated painter forced into
exile after his canvases representing various figures from the Hindu religious pantheon
drew a spate of lawsuits by organised political forces the Delhi high court has ruled that
intent to cause offence is a key test. The May 2008 judgement by a single judge bench of
Delhi high court held that no such intent was manifest in the impugned canvases.
Unfortunately the authoritative ruling by the Delhi high court in a spate of criminal cases
filed against Husain under Article 153-A and other clauses of the Penal Code, failed to

122
International Federation of Journalist Asia Pacific 2012.

89
deter numerous other litigants and other courts proved unwilling to follow the judicial
determination laid down. If the touchstone of possible violence and public disorder were
to be used to judge when Article 153-A would be applicable then a case that literally
called out for prosecution involved Bal Thackeray leader of Shiv Sena a major political
party in the state of Maharashtra. In 1993 Thackeray used the political party newspaper
Saamna to exhort his cadre into a ten day long rampage of death and destruction in the
city of Mumbai. There was not little ambiguity here nor was there any effort to disavow
responsibility for the hundreds of deaths that followed mostly of members of the Muslim
religious minority.
In 1998 Thackeray and his party were held directly responsible for the violence
by the B.N Sri Krishna commission of inquiry, set up shortly after the riots. A petition
moved by certain eminent citizens of Bombay had meanwhile come up for hearing and in
July 2000, a judicial order was issued seeking Thackeray arrest and prosecution. After a
series of retaliatory riots by Shiv Sena cadre the state Government finally secured
Thackeray’s submission to the law. But the case against him was held void soon
afterwards, because it was barred by the statue of limitations.

PROVISION OF THE INDIAN PENAL CODE RELATING TO HATE SPEECH:

Section 153-A of the relevant provision of the Indian Penal Code relating to hate
speech and Section 153-A is the one that is most often invoked. It prohibits speech or
writing which promotes enmity, hatred, ill-will or disharmony between different religious
groups or communities, punishments for contravention between different religious groups
or communities, punishments for contravention of this provision is imprisonment for
three years or a fine or both. This Section was primarily created to check fissiparous
communal and separatist tendencies and secure fraternity as so assure the dignity of the
individual and the Unity of the Nation.123This was especially essential for the
maintenance of public peace and tranquillity in a country like India where religious

123
Thomas David Human Rights: Group Defamation, Freedom of Expression and the Law of Nation
212(1997), JHON H. Mansfield, Religious Speech Under Indian Law in Comparative Constitutional
Law.(1989)

90
passion can be aroused easily. 124 While it is true that religious freedom must be
accompanied by the liberty to criticize does not include a licence to resort to offensive
speech. 125This forms the crux of the Section. Criminality under Section 153-A does
attach to the things said to done, but to the manner in which it is said or done. If the
words spoken or written are tendency to insult the feelings or the deepest religious
convictions of any Section of people, penal consequences do not follow.126
On the contrary if such words spoken or written are crude and abusive, then for
making a prima facie case in such circumstances, it is essential to establish that there was
a deliberate “intention” on the part of a person to promote disharmony or a feeling of
enmity, hatred or ill-will among different religious, racial, linguistic or regional groups
and castes or communities by his writings or speech. It has to be further established that
the public order the intention to cause disorder or incite the people to violence is the
SINE QUA NON of the offence under Section 153-A of the Indian Penal Code. When a
matter is charged as being within the mischief of Section 153-A it must be looked upon
as a whole and the class of people at whom the speech is directed and also the state of
feelings between the different classes or communities at the relevant time be taken into
account. One 4 September 2002, Vishwa Hindu Parishad President, Ashok Singhal made
the following statements. “People say that I praise Gujarat has been a successful
experiment. Godhara happened on February 27 and the next day, 50 Lakh Hindus were
on the streets. We were successful in our experiment of raising Hindu consciousness,
which will be repeated all over the country now.”
This speech was made in the immediate after math of the 2002 Godhara carnage,
when it was still a sensitive issue and people’s emotions were very volatile. It had the
potential to create another Godhara episode. By lauding the riots in Gujarat, which
caused the death of thousands of Muslims, he encouraged the further destruction of
Muslims, lives and property, thereby Blantaly violating Section 153-A. The broad scope
of Section153-A is further buttressed by Section 153-B, which prohibit ‘imputation and
assertion prejudicial to national integration.’ While Section 153-A of the Indian Penal

124
V. venkatesan, Hate and A upon Abuse, the Hindu 19 July 2008.
125
Kali Charan Sharma v. King Emperor A.I.R 1927 ALL 649.
126
Aziz Haq v. State A.I.R 1980 ALL 149.

91
Code deals with the offence promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, caste or Community or any other
ground whatsoever and doing acts prejudicial to maintenance of harmony etc. In State of
Karnataka v. Master P. Raju,127The Section criminalize the use of ‘words either spoken or
written, sign, or by visible representation or otherwise which.
(1) Impute to any class of person (by reason of their membership of a particular
community) an inability to “bear true faith and allegiance to Constitution of
India” or uphold the sovereignty and integrity of India (Section 153-B (1) (A).
(2) Assert, counsel, advice, propagate or publish that any class of persons, by reason
of their membership in any community, shall be denied or deprived of their rights
as citizens of India (Section 153 (1) (b).
(3) Assert counsel, advice, plead or appeal concerning the obligations possessed by
any class of persons (by reason of their membership in any community) where
such assertion, counsel, plea, or appeal cause or is likely to cause disharmony or
feelings of enmity or hatred or ill-will between such member and others persons
Section 153-B (1)(C).
These provisions co exist with other broader provision of the Indian Penal Code with
significant implication for ‘Hate speech’. These provisions include the following:
(i) Section 295 which prohibits ‘injuring or defining (any) place of worship with
intent to insult the religion of any class.
(ii) Section 295-A which prohibits ‘deliberate and malicious acts, intended to outrage
religious feelings or any class by insulting its religion or religious beliefs.
(iii)Section 298 which prohibit ‘uttering words etc, with deliberate intent to wound
religious feelings
(iv) Section 505(1) which prohibits ‘statements conducive to public mischief.
(v) Section 505(2) which prohibits ‘statements creating or promoting enmity, hatred
or ill-will between classes.
These provision are supplemented by the information technology act 2002 and its rules,
which Govern the electronic dissemination of ‘Hate speech’ under Section 66A of the

127
2006 CRLJ 4045 (SC).

92
publication of material which is grossly offensive or has menacing character which is
broadcast, despite being known to be false for the Purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or
ill-will prohibited. But now the Section 66A is strike down from the Indian Penal Code
by Indian Penal Code.128 Now a person has full freedom to express their views on internet
freely but in the sphere of limitation which is imposed by the Law. The information
technology (Intermediaries Guidelines) rules 2011, functioning in addition to the act
further expand the capacity of the Government of India to prohibit ‘Hate speech’
significantly unlike prior hate speech provisions they explicit prohibit the Hosting,
Display, Uploading, Modification, Publication, Transmission, Updating, or Sharing, of
any Information which as per clause 3(2) (b) of the rules is ‘blasphemous’ such explicit
reference to ‘blasphemy’ is unprecedented.

CONSTITUTIONALITY OF THE SECTION 153-A:

Whether the Section 153-A of the Indian Penal Code is Constitutional or not was
the main question in Tara Singh v. State,129 in which it was held that this provision
violated the freedom of speech and expression guaranteed by Article 19(1) (a) of the
Constitution and hence was unconstitutional. However with the insertion of the
expression ‘in the interest of public order’ in Article 19(2) vide the Constitution (First
amendment) act 1951 the Section is now perfectly Constitutional being reasonable
restriction on this freedom. 130 In Lalai Singh Yadav v. State131 where a book contained
criticism of some facts of Hindu religion such as the prevalence of untouchability and bad
treatment of backward classes and low caste people the writer could not be held guilty of
the offence under Section 153-A or 295-A of the Indian Penal Code as the impression
gathered from reading the book as a whole is important and not passages here and there
and out of context. Therefore the order forfeiting the book was held to be bad in law.

128
Www thehindu.com visited on 2may 2015, (Supreme Court strikes down ‘draconian Section 66A) By
Jayant Sriram on 24 may 2015.
129
(1951) 4 Punjab 193.
130
Sheikh wajih-ud-din v. State, A.I.R 1963 ALL 335.
131
1971 CRLJ 1773 (ALL).

93
(2.7) LIEBRTY OF PRESS- NO –SEDITION:
Before India gained independence there were laws in the country to restrict
freedom of speech and expression. These laws were a response to the birth and growth of
the Indian press, beginning with the publication of the well known Hickey’s Bengal
gazette. The first press law required that every newspaper should publish the name of the
editor, printer publisher. It also required that all material to be published defamation,
obscenity, Sedition etc. Equal to official secrets act and press and registration of books
act. The latter required that a copy of every book and news paper published in the country
be supplied by the Government. All these laws were intended to stifle individual and
collective expression, especially in the context of our independence struggle. They were
also a reaction not only to the mainstream Indian newspaper in English and Indian
languages but also to such journals whose exclusive focus was to overthrow the colonial
Government, as Annie Besant’s young India, Gandhi Harijan, Tilak Kesari and so on.
The law made by the British in India mostly aimed at protecting the state from legitimate
criticism of its oppressive rule. With the gaining of independence, freedom of speech and
expression were recognized as fundamental rights and were in the Indian Constitution, it
is stated: “All citizens shall have the right to freedom of speech and expression”.

PRESS LEGISLATION:
The history of press legislation in India started from 1700 A.D. during British
period. The most important and a very dominant factor which Harbings the future of the
press freedom is that in the British period all laws were passed to curb the press freedom
and not to argument its growth. From the legislation of the yore it is clear that the only
motive of the Britishers was to kill the ‘freedom of press’ and to make the press a
Government spokesman.

FREDOM OF PRESS IN PRE INDEPENDENCE INDIA:

The Press freedom is restricted by the Indian Penal Code under its provisions, it is
an offence to incite enmity between different classes of citizens to spread any rumour or
reports likely to incite members of the armed forces to mutiny or failure of duty, to cause
alarm to any Section of the public whereby there is an inducement to commit an offence

94
against the state or against public peace and to incite one class or community against
another, to utter words or to make visible representations with intent to wound religious
feelings or beliefs of another persons, or nay class of citizens.
PRESS AND REGISTRATION OF BOOKS ACT, 1867:
The earliest surviving enactment regulating the freedom of Press was passed in
the year 1867, the press and registration of books cat (25 of 1867). This Press and
registration of books act received the assent and came into being on 22nd march 1867, and
was “for the regulation of printing processes and Newspapers, for the preservation of
copies of books and Newspaper Printed in India and for the registration of such books
and Newspaper”. The objects of this act were manifold to secure information relating to
the Printing establishments and their Publications, to preserve copies of every book and
newspapers and to prevent publication or anonymous literature. Thus the act of 1867 was
regulatory law which enabled Government to regulate printing presses and newspaper by
a system of registration and to preserve copies of books and other matter printed in India.

SEA CUSTOMS ACT 1878:

Sea custom act 1978: Section 18(c) of the act prohibits the bringing into India
whether by land, or by sea “any obscene book, pamphlet, paper, drawing, painting,
representation figure or Article’. These items can be confiscated.
THE INDIAN TELEGRAPH ACT 1898:
In the interest of public safety, public order, the sovereignty and integrity and
security of the state, this act empowers the Government to have necessary interference
with the functioning of the press and to intercept, detain or not to transmit any message.
But the massage of the press, which is intended to be published by correspondent
accredited to the central Government or a State Government can be intercepted or
detained only during public emergency.

CRIMINAL PROCEDURE CODE 1898:

Section 99-A, 99-G of the Criminal Procedure Code do not impose any prior
restraint, but provide for the forfeiture of objectionable documents after they have been
printed and Published, subject to right of the judicial review against the order before a
special bench of the High court under Section 144 of the code prior restraint can be

95
imposed . But it is not directed to the press as such as it is of general application. The
Cr.PC 1973 empowers the state to forfeit copies of a publication.

PRESS (EMERGENCY) POWERS ACT 1931:

In 1931 very important event in the history of freedom movement when on the
call of Mahatma Gandhi, civil disobedience movement was launched for the attainment
of “Purna Swaraj”. This movement was highly detested by the Britishers which led them
to promulgate an ordinance to “Control the Press” which was later embodied in the press
(Emergency) power act 1931. Originally a temporary act, it was made permanent in 1935.

OFFICIAL SECRETS ACT 1923:

Official Secrets act 1923 is an Act which consolidates the relating to official
secrets and deals with offences like spying and wrongful communication of the secrete
information. This is pretty draconian piece of legislation. Section 6 of the act makes it an
offence if any person for any purpose prejudicial to the public safety and the interests of
the State
(a) Approaches, inspects, passes over or is in the vicinity of, or enters any prohibited
place.
(b) Makes any sketch, plan, model, or Note which is calculated to be or might be or is
intended to be directly or indirectly useful to an enemy or
(c) Obtains collects, records or Publishes or Communicates to any person such sketch
etc. In a prosecution for an offence punishable under Section 3(1) of the act, with
imprisonment for a term which may extend to 14 years, it is not necessary to show
that the accused person was guilty of any particular act tending to show a purpose
prejudicial to the safety or interstice of the state and not withstanding that no such
act ids proved against him, he may be convicted , if from the circumstances of the
case or hid conduct or his known character as proved, it appears that his purpose
was a purpose prejudicial to the safety or interests of the State. Happily there have
not been many cases of Prosecution under this act.

PRESS LAW REPEAL AND AMENDMENT ACT 1922:

Press Law repeal and amendment act 1922 repealed the act of 1908 and 1910.
This act of 1922 came in vogue in pursuance of the recommendation of a committee set

96
up in 1921. The object behind the Passing of this act of 1922 was that “The contingency
in view of which these acts would be served by the ordinary law and by incorporating the
provisions in the act 1910, as to seizure and confiscation of seditious publications in the
press and registration of books act, the sea customs act and the Post office act by suitable
Amendment.

ACT OF 1908 AND 1910:

In 1908 Newspapers (incitements to offences) act 1908 passed by which
Magistrate was empowered to seize a press on being satisfied that a Newspaper pirated
therein contained incitement to Murder or any other act to violence or an offence under
the explosive substances act. A more comprehensive enactment the Indian Press Act
came into existence. A more comprehensive enactment the India Indian Press Act came
in to existence in the year 1910. The Act was directed against the offence involving
violence as well as Sedition: it empowered the Government to require deposit of security
by the keeper of any press which contained matter inciting Sedition any offence under the
explosive substances act and also provided for forfeiture of such deposit in specified
contingency. The rigours of the act of 1910 were further enhanced by the criminal law
amendment act 1913 and by the defence of Indian regulation which were promulgated on
the outbreak of the First World War in 1914.

FREEDOM OF PRESS AFTER INDEPENDENCE:

After Independence in 1947 the Press initially found itself in a New and
unfamiliar situation. Its role as a crusader seemed suddenly to have withered. With
Jawaharlal Nehru at the helm of the country and with a firm democratic base established
a Militant approach seemed inconsistent. Those were the times, all over the world too,
when the adversary role of the press vis-a vis the establishment was not fully accepted or
exercised. The Press found it improper and unfair to be over critical of the New fledgling
State and Nation. The tide of Nationalism and Anti-colonialism ran very strong and a
broad National consensus existed.
Before the Independence the Press was supposed to have ‘Missionary’ goals after
independence it became a prosperous industry and the grant of Press legislation in India

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revolves round this conception of ‘Prosperity’ and not the goal for which the fourth estate
exist. Draft Constitution was under the consideration in the constituent assembly. The
Government of Indian appointed a Press law enquiry Committee to ‘Review the Press
Laws of India with a view to examine whether they are in accordance with the
fundamental right formulated by the constituent assembly of India’. This Committee
recommended inter-alia, a repeal of the Press (Emergency power) act 1923 and the
incorporation of some of its provisions in the general statutes laying down the Law of
crimes.

PRESS (OBJECTIONABLE MATTER) ACT, 1951:

The Government of India replaced the Press (Emergency) Power Act 1931 by a
revised measure, the Press (objectionable matter) act 1951. This Act of 1951 looked
innocuous as it was ‘To provide against the printing and publication of incitement of
crime and other objectionable Matter. The other improvements which were proposed
made were as follows:
(a) The Act was a temporary one;
(b) The Act of 1951 was to remain in force for a period of two years;
(c) The New Act of 1951 provided for a judicial enquiry by a Session judge before
Security could be demanded from a printing press or forfeited to Government;
(d) The Person against whom a complaint had been made, could demand the matter to
be determined with the aid of a jury, and had a right of appeal from the order of
the session judge of the high court.
The Act suffered from certain defects and bore the marks of imperialism, since there was
no need for a special Law imposing restriction upon the Publication of Certain matters
instead of leaving them to be punished under the general Law for specific offences.

THE PARLAIMENTARY PROCEEDING ACT 1956:

The Act is intended to protect the publication of reports of proceedings of
parliament, except in Newspapers. Section 3 of the Section states that No person shall be
liable to any publication in a newspaper of a substantially true report of any proceedings

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of either house of parliament, unless the publication is provided to have been made with
malice.

COPYRIGHT ACT 1957:

The act is important both for what is defined as copyright and what is not Section
-52 of the act enact that Certain acts shall not constitute an infringement of copyright
such as fair use, fair question, bonafide abridgement and the like. In so far as newspaper
are concerned Section 52(1) (b) (I) specially mentions that there will be no infringement
of copyright a fair dealing with literacy, dramatic, musical or artistic work for the purpose
of reporting current events in a Newspaper, Magazine or similar periodical.

DEFENCE OF INDIA ACT 1961:

As Mudholkar States it, upon the declaration of emergency the fetter on the power
of parliament to make laws affecting the freedoms of the press disappears and the law
made by it cannot be challenged on the ground of legislative incompetence. For as long
as the emergency lasts, a citizen cannot claim the protection, of Article 19 clause 7 of
Section 3 of this act deals with the entire gamut printing and publishing of any newspaper
or book and the imposition of censorship.

CRIMINAL AMENDEMNT ACT 1961:

In 1961 parliament enacted the criminal law amendment act 1961 (23 of 1961)
imposing restriction upon the freedom of expression and of press as well as the freedom
of assembly and of movements on grounds of ‘Security of State’. The scope of object of
this act was to stop certain activities, prejudicial to the safety and Security of India which
had been taking place in the areas bordering Pakistan and china for some time. It
supplements the criminal Law and seeks to punish persons who may question the
territorial integrity on the frontiers of India. In order to give a specific Constitutional
protection to this act Article 19(2) was amended by the Constitution (16th) amendment act
1963, inserting the words ‘Sovereignty integrity of India’ as additional ground of
restriction upon freedom of expression guaranteed by Article 19(1) (a) of the
Constitution.

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CIVIL DEFENCE ACT 1968:
The Civil defence Act was passed in 1968, to take the place as a permanent act, of
the defence of India act 1962, upon its expiry. It was passed to safeguard life and
property from attack during an external aggression not amounting to any actual combat or
internal disturbances. The act enforced the Central Government to make rules in regard to
number of matters (Section 3). The relevant provisions relating to the main provision
relating to the press are to be found in sub Section (1) (w) of Section 3 and Sub Section
(3) provided for penalty for contravention of any order made under the rules. Sub Section
(1) (w) authorised the making of any order prohibiting the printing the printing and
publication of any Newspaper containing matters prejudicial to civil defence and also for
printing and publishing such matters.

CONTEMPT OF COURT ACT 1971:

Any action taken or any writing published with an intention to bring a Court of
law into contempt or lower its authority or to obstruct or interfere with due course of
justice or Lawful process of the Court amounts contempt of Court. For example,
Publication of Proceedings of a case being heard in camera, false and grossly inaccurate
reporting of court proceedings, publication that may tend to interfere with orderly
administration of justice or publication that scandalise the court, the judges, counsels,
parties, or witness come under this category. The Press enjoys the privilege of fair
comment but personnel attacks on judges attributing partially, Political bias, corruption,
judicial dishonesty, improper motives or other considerations in the court amount to
contempt of court.
Before proceed to examine the Constitutional provision relating to the liberty of
the Press in India. It is necessary to investigate what is the meaning of liberty of the
Press. When the Indian Penal Press Commission was appointed by the Central
Government in 1952. It was required to examine among other things, ‘freedom of press
and repeal or amendment of laws not in consonance with it’.132 The commission therefore
attempted to indicate the connotation of the expression freedom of the press. It said ‘the

132
Notification Dated 23 September 1952, Issued by the Government of India, Ministry of Information and
Broadcasting.

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expression “freedom of the press” has been understood in various senses by different
persons. It is sometime confused with the idea of the independence of the press. We think
that the expression should be understood as meaning freedom to hold opinions to receive
and impart information through the printed word without any interference from any
public authority. 133 Liberty of the press exempts to classes of comments from the purview
of Sedition. In this respect the Sedition has under gone verbal changes. But they do not
substantially affect the rule as previously enacted. It is not Sedition to adversely criticize
the act and policy of the Government, so long as it is not calculated to excite hatred,
contempt or disaffection against the Government. According to Strachey justice who
said, ‘a man may criticize or comment upon any measure or act of the Government,
whether legislative or executive, and freely express his opinion upon it. He may discuss
the income tax,134the epidemic act, or any military expedition, or the administration of
justice. He may express the strongest condemnation of such measures, and may do so
severely. So long as he confines himself to that he will be protected. But if he goes
beyond the restriction for example by attributing to it every sort of evil and misfortune
suffered by the people or accusing it of hostility or in difference to the welfare of the
people, than he is guilty under Sedition. A journalist is not expected to write with the
accuracy of a lawyer or a man of science. He may do himself in justice by hasty
expression out of keeping with the general character and tendency of the Article. Every
man may publish at his discretion his opinion concerning from and system of
Government. If they be wise and enlightening the word will gain by them, if they be
weak and absurd, they will be laughed at and forgotten, if they bona fide they cannot be
criminal however erroneous.135
The fundamental right of the freedom of the press implicit in the right the freedom
of speech and expression is essential for political liberty and for proper functioning of
democracy. The American press commission has said, “Freedom of the press is essential

133
Press Commission Report Part 1 Para 1453. The Commission on Freedom of the Press in the United
States, while stressing for the Press Freedom from Various External Compulsion and Freedom of the
Achievement of its Conception of Service, Admitted that ‘Freedom of the Press is Most Commonly
Thought of in Relation to the Activities of the Government.’ (A Free and Responsible Press, Page no 79).
134
Bal Ganga DharTilak I.L.R 22 BOM.Cited with Approval in Manmohan I.L.R 38 CAL.258.
135
This Section is according to Sir James Stephen Drown Exactly as the Law was settled By the Bill C.R .L
357.

101
the care and guidance of public opinion and the press is par excellence, the vehicle
through which opinion can become articulate.’ Unlike the American Constitution Article
19(1) (a) of the Constitution does not expressly mention the liberty of the press but it has
been held that liberty of the press is included in the freedom of speech and expression.
The ‘press has no special rights which are not to be given or which are not to be exercised
by the citizen in his individual capacity. The editor of a press for the manager is merely
exercising the right of the expression and therefore no special mentioned is necessary of
the freedom of the press.’136
In a landmark judgement of the Case Maneka Gandhi v. union of India137the
Supreme Court held that the freedom of expression has no geographical limitation and it
carries with it the right of a citizen to gather information and to exchange thought with
others not only in India but abroad also. The Constitution of India does not specifically
mention the freedom of Press. Freedom of Press is implied from the Article 19(1) (a) of
the Constitution. Thus the press is subject to the restriction that is provided under the
Article 19(2) of the Constitution. Before independence there was no Constitutional or
statutory provision to protect the freedom of Press. As observed by the Privy Council in
Chaning Arnold v. king emperor. “The freedom of journalist is an ordinary part of the
freedom of the subject to whatever length the subject in general may go so also may the
journalist but apart from statue his privilege is no other and no higher. The range of his
assertions, his criticism or his comments is as wide as and no wider than that of any other
subject”. The preamble of the Indian Constitution ensures to all its citizens the liberty of
expression. Freedom of the Press has been included as part of freedom of speech and
expression under the Article 19 of the UDHR. The heart of the Article 19 says ‘ Everyone
has the right to freedom to hold opinions and expression this right includes freedom to
hold opinions and expression this right includes freedom to hold opinions without
interference and to seek receive and impart information and ideas through any media and
regardless of frontiers.’

136
Dr. Ambedkar’s Speech in Constituent Assembly Debates Vii. 980.
137
A.I.R 1978 SC 597.

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 In Romesh Thappar v. State of Madras138Patanjali shastri C.J. observed freedom
of speech and the freedom of Press lay at the foundation of all democratic organization
for without free political discussion no public education is possible so it is essential for
the proper function of the proper of popular Government. The Supreme Court observed in
Union of India v. Assn for democratic reforms139 ‘One sided information, misinformation
and non-information, all equally create a uniformed citizenry which makes democracy a
farce. Freedom of speech and expression includes right to impart and receive information
which includes right to impart and receive information which includes freedom to hold
opinions’. It has been held that the press plays a very significant role in the democratic
machinery. The courts have duty to uphold the freedom of press and invalidated all laws
and administrative actions that abridge that freedom. Freedom of press has three essential
elements. They are
(1) Freedom of access to all sources of information140
(2) Freedom of publication
(3) Freedom of circulation141
In India the Press has not been able to practice its freedom to express the popular views.
In Sakal paper ltd v. Union of India142 the daily news papers (price and page) order 1960,
which fixed the Number of pages and size which a newspaper could publish at a price,
was held to be violative of freedom of press and not a reasonable restriction under the
Article 19(2). Similarly in Bennett Coleman and co. v. Union of India143 the validity of
the Newsprint control order, which fixed the maximum number of pages, was struck
down by the Supreme Court of India holding it to be violative of provision of Article
19(1) (a) and not to be reasonable restriction under Article 19(2). The Supreme Court
struck down the rebuttal of the Government that it would help small Newspaper to grow.
In Romesh Thappar v. State of Madras, a law banning entry and circulation of journal in
a state was held to be invalid. The petitioner was printer; publisher and editor of weekly

138
A.I.R 1950 SC 124.
139
(2002)5 SCC 294.
140
M.S.M Sharma v. Sri Krishan Sinha , A.I.R 1959 SC 395.
141
Romesh Thappar v. State of Madras A.I.R 1950 SC 124.
142
A.I.R 1962 SC 305.
143
A.I.R 1973 SC 106, 2 SCC 788.

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journal in English called ‘cross road’ printed and published in Bombay. The Government
of madras, in exercise of their powers Under Section 9(1-A) of the Maintenance of public
order Act, 1949, issued an order prohibiting the entry into or the circulation of the journal
in that State. The court said that there can be no doubt that freedom of speech and
expression includes freedom of propagation of ideas, and that freedom is ensured by the
freedom of circulation. Liberty of circulation is an essential to that freedom as the liberty
of publication. Indeed without circulation the publication would be of little value.
Restriction on freedom of speech and expression can only be imposed on grounds of
‘Public Safety’ or the Maintenance of public order falls outside the scope of authorised
restrictions under clause (2) and therefore void and Unconstitutional. 144

PUBLICATION NOT AUTHORSHIP, MATERIAL:

It is consequently immaterial that the words used were not the speaker own. The
grave men of the offence consist in their publication and not their authorship. As in
defamation so in Sedition. It is no defence to say that the accused had only copied or
circulate matter which had already been published or that it has been published upon the
responsibility of one who was its author145 the only defence in such a case is inadvertence
or want of knowledge or intention. Such knowledge will, however be presumed in one
who is the declared printer or publisher under the Press and registration of books act. For
a declaration signed under Section 5 of the act to the effect that the ‘declarant’ is a printer
or publisher of the periodical there in specified carries with it the presumption that
whatever is published thereafter is published by the declarant in accordance with his
declaration. But this is merely a presumption which may be rebutted, by showing that the
declare publisher or printer was ill or absent at a given time and had therefore no
knowledge of the publication, and it is moreover submitted that the knowledge of the
publication and it is moreover submitted that the knowledge of its content much less
knowledge that its content are seditious.146

144
A.I.R 1950 SC 124.
145
Jogendra Chandra Bose, I.L.R CAL 35 AT Pages No 41, Bal Ganga DharTilak I.L.R 22 BOM 112.
146
Phanendra Nath, Supra, Followed in Chunni Lal, I.L.R 12 LAH. 483.

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LIBILITY OF PRINTER AND PUBLISHER:
The man who is the proprietor and the owner of the press and the publishing
house connected with a seditious publication cannot be allowed to contend that he shut
his eyes to everything going on upon his premises and then pretend that he has no
knowledge of the content of the Publication Printed and issued by him. Where there is a
complete prima facie case against him. If he likes and if he is able to do he can have
evidence against him. In fact he was away from the premises during the whole time that
book was being printed and that he had not been informed either of the printing and
publication or of the content of the book. But if he calls in such evidence he can be
rightly convicted of the offence under this Section.147 Where the accused the declared
proprietor and keeper of press was absent from Multan at the time of the publication of
knowledge of the pamphlet before its publication or had absent him in bad faith.
In order to evade responsibility knowing that the pamphlet was going to be
printed at his Press, it was held that the intention requisite for the offence under Section
124-A was established in this case.148 According to New English Law justice Barron
wood in a case stated that the publication must be ‘by one conscious of its contents’.
Otherwise a postman or messenger carrying a sealed parcel enclosing a libel would be
equally guilty, even though he cannot read. Lord Campbell Act has somewhat altered the
Law in this respect, but it is submitted not to extent necessary. It lays down that whenever
under the plea of not guilty evidence shall be competent to such defendant to prove that
such publication was made without his authority consent or knowledge and that the said
publication did not arise from want of due care or caution on has part. This Section
applies to all cases of criminal libel, blasphemous seditious or otherwise. It has now held
that the directors of a printing company are not criminally libel before its publication, or
grave express instructions for its appearance. It may be added that no criminal
prosecution against any proprietor, publisher, editor, or any person responsible for the
publication of a newspaper can now be insulted for any libel published therein without
the order of a judge at chamber being first had and obtained. Such application is to be
made on notice to the person accused that shall have an opportunity of being heard

147
Braja Behri Burman v. Emperor A.I.R 1931 CAL 349 at Page No 350: 32 C.R.L.J 742.
148
Chunni Lal v. Emperor, A.I.R 1931 LAH.182 at Page No 183:32 C.R.L.J.681.

105
against such application. Even under the rule so declared the apparent and this has been
always the rule. It may perhaps be added that even in this view of the law the practice of
the Indian Courts149 to sentence printers and publishers to long terms of imprisonment on
the mere presumption of knowledge cannot be supported.

RESTRICTION ON FREEDOM OF PRESS IN INDIA:

The freedom of Press comes within the ambit of freedom of speech and expression. In
a democracy freedom of press is highly essential as it (The press) acts as a watch dog on
the three organ of democracy. The legislature, the executive, and the judiciary. But the
freedom of press is not absolute in nature. It is subject to certain restrictions which are
mentioned in Article 19(2) of the Constitution. The following are the grounds of
restrictions laid in Article 19(2):-
(1) Sovereignty and integrity of India.
(2) Security of the state.
(3) Friendly relation with foreign states.
(4) Public order.
(5) Decency or morality.
(6) Contempt of court.
The grounds of ‘public order’ and friendly relations with foreign states’ were added by
the Constitution (first amendment) act 1951. While the ground of ‘sovereignty and
integrity of India’ was added by the Constitution (sixteenth amendment) act 1963.

CURRENT SCENARIO OF PRESS AND ITS ACHIVEMENTS:

As we know only press is the vital pillar of a democracy as it as watchdog of the
three organs of democracy. Through freedom of speech and expression (including of
press) is enjoyed by the citizen but there are many instances where the press has to face
to face difficulties as well. In the recent past, in the Tehlka case, the portal tehelka.com
was forced to shut down completely and its journalists were continuously harassed as the
journalist exposed the ‘Scam’ in the defence ministry involving ex-defence personnel and
central Government ministers. There are many instances where journalist were threatened
and even assaulted at times.

149
Surendera .I.L.R 38 CAL 227.

106
 Despite of these difficulties the Press has achieved a lot of success in the recent
past. In Jessica Lal’s case, Manu Sharma, son of Haryana minister, killed Jessica on April
29, 1999, because she refused to serve him liquor in the restaurant where she was
working. The case was closed and all the accused were freed due to lack of evidences, but
finally the case was reopened after Media and public outcry, which led to Sharma’s
conviction. In Priyadarshini Mattoo Case, Santosh Kumar son of an IPS officer raped and
killed his colleague, Priyadarshni Mattoo, A law student in 1996, after she refused his
proposal. Ailing and aged father of Priyadarshani got judgement in October 2006, after a
long trial. The Delhi High Court rebuked lower courts and authority under investigation
for acquittal of accused. The Media played a significant role in this Case as well.
Similarly in Nitishkatara’s case the media played an important role. In Ruchika’s Case,
Ruchika Girhotra, a 14 year old tennis player was molested by then Haryana police IG
S.P.S Rathore in Panchkula in 1990. Three years later, Ruchika killed herself, which her
friend and case witness Aradhana attributes to the harassment of Ruchika and her family
by those in power. Nineteen years later, Rathore walks away with six months of rigorous
imprisonment and a 1000 rupee fine, reportedly due to his old age and the ‘Prolonged
trail’. This led to public outrage and media played a significant role in it. Later on the
Government of India asked the central bureau of investigation to re-investigate the case
and the police medals awarded to S.P.S Rathore was also stripped. A case of abetment of
suicide under Section 306 of the Indian Penal Code was filed against S.P.S Rathore. In
2005 news channel Aaj-Tak carried out operation Duryodhana which revealed 11 MP’s
of the Lok-Sabha accepting cash for asking question in the Lok-Sabha. Later on an
investigation committee was set up headed by senior congress MP Pawan Kumar Bansal.
All the 11 MP’s were found guilty and were sacked from the Lok -Sabha.150

SEDITION CHARGES AGAINST JOURNALISTS AND MEDIA IN INDIA:

There have been cases of the use of Sedition Laws against journalists even in regions
where no perceptible threat of insurgent violence exists. The Law concerned in all these
matters Section 124-A of the Indian Penal Code was in a significant ruling in 1958 by the

150
www legalservicesindia.com visited on 3 June 2015 at 5:00 pm

107
Allahabad high court held violative of the fundamental rights provisions of the Indian
Constitution. Since then however the Supreme Court taking on this case in appeal with a
number of others with similar scope, held that Section 124-A was indeed Lawful, though
only when invoked to deal with imminent threats to peace and public order. Any wider
definition the country highest court held, which made legitimate criticism of Governance
processes a criminal offence would be violative of the fundamental rights as guaranteed
by the Constitution. 151 Despite this firmly established judicial position, police and other
agencies in India have been using the Law of Sedition with seeming back of
discrimination action taken with the knowledge that the Cases involved will never go
through the full process of trial, but would serve the expedient function of silencing
critical commentary by the Media. Some cases related to Sedition against Media and
journalists were as followings:
(1) In June 2008 the Commissioner of police in the City of Ahmadabad, in the
western state of Gujarat, brought charges of Sedition and Criminal conspiracy
against two journalists and India’s largest English Newspaper the times of India.
The Criminal complaint lodged by O.P Mathur Named Bharat Desai, resident
editor of the Ahmadabad edition of the times, and Dayal a reporter with the same
Newspaper. This followed a series of reporters between May 28 and 31 in the
Ahmadabad edition of the times of India noting serious complaints against
Mathur and indicating that the inconclusive inquiries that had followed made him
ineligible for the top police post in the city. The two journalists and the publisher
of the Ahmadabad edition of the times were granted bail pending the full hearing
of the Case.152 Though the case has since lapsed into a zone of neglect it has by no
mean been dropped.
(2) K.K Shahina a reporter with the weekly News Magazine Tehlka was charged with
criminal conspiracy to intimidate witness after a story of hers appeared to cast
doubt at the prosecution of a prominent Islamic cleric and political figure on
terrorism charges in December 2010. Shahina’s story appeared in an issue of the

151
Kedar Nath Singh v. State of Bihar decided 20 January 1962; Equivalent Citations:1962 A.I.R 955; 1962
SCR Supl.(2) 769:
152
www. Asiapacific.ifj.org/en/Articles /ifj-alarmed-at-Sedition-charges-in-India. Visited on 8 June 2015.

108
 campaigning journal and website Tehlka in December 2010. It was based on
interviews with key witnesses cited in the Case made by police in Karnataka state
in southern India against Abdul Nasar Mahdani, an Islamic cleric who heads the
people’s Democratic Party, active mainly in the neighbouring State of Kerala.
Mahdani has been arrested and charged by Karnataka police for conspiracy to
detonate a series of low intensity bomb blasts in the state capital city of
Bangalore, hub of India’s information technology industry, in July 2008.
Shahina’s story cited several of the witness named by the Karnataka police as
saying that their testimony has been misinterpreted or disorder in making out the
Sedition charges against Madani. A fine example of investigative reporting in
short was transformed into the basis for criminal prosecution against the journalist
who had done the hard work to bring this abuse of power to light. Security
agencies including the police tend to be more lenient in cases involving the larger
and better organised among India’s media organisations. The same cannot be said
for the many small publications that take up Civil rights issues, especially where
they involve the adivasi population and Dalits.
(3) On 2 January 2012 police in the state of Maharashtra arrested Sudhir Dhwale in
the Eastern District of Wardha for Sedition charges. Dhawale had visited the
neighbouring district of Gondia to attend a convention on adivasi and Dalit
literature. Sudhir Dhawale a Dalit activist writer journalist and editor of a Marathi
Magazine ‘vidrohi’ were arrested by police personnel of Durgapur police station.
He was arrested with Sedition charges Section under 124-A and under Sections
17, 20 and 39 of the Unlawful Activities prevention act (UAPA). Sunil Dhawale
in his Magazine ‘vidrohi’ has tried to bring the issue of injustice and atrocities
against Dalits in the public domain so as far to make a democracy a substantive
force and Movement in the Country. It is necessary to point out that that he
engaged in these Activities not as a smartly paid cultural worker of NGO based
civil society initiatives but his efforts were supported by funds drawn from small
donations from fellow activists, concerned citizens and the poor and oppressed
masses themselves.

109
 Many journalists, social workers, and activists have strongly condemned
arrest of Sudhir dhawale as an attempt by police to Curb Dalit activists’ efforts to
seek justice in cases of atrocities against schedule castes and schedule tribes. They
demanded that Dalit activist’ Sudhir dhawale be released immediately and
unconditionally and all cases against him be abolished immediately. According to
police accounts the basis for his arrest was the interrogation of a purported leader
of the banned communist party of India (Maoist) taken into custody a few days
prior.

Two cases of journalists being charged with Sedition and related offences in recent times
need to be taken into account:
(1) Lenin Kumar the editor of a quarterly magazine Nishan was arrested in December
2008 in Bhubaneswar state capital of Orissa after his book ‘Dharma
Narekandhamalareraktarabanya’ was published. An account of the prosecution
and terror faced by the State’s Adivasi and Dalit christens the publication was
held to be provocative and intended to disturb the peace.
(2) E. Rati Rao the vice president of a civil society organisation, people Union for
Civil Liberties in the State of Karnataka was issued a Sedition notice on 26
February 2010 by the police for bringing out an in-house bulletin in the local
language. Though the publication of the bulletin, meant for circulation among
PUCL member and activists was discontinued in September 2007 the police some
critical Articles about extra judicial killings published in earlier issues to be basis
to prosecute for Sedition.

(2.8) RIGHT TO CRITICISIM:

A person has a right to say or write anything critical about the Government, or its
measures, as long it does not incite violence or intended to disturb public peace and
create disorder. In other words citizens have the right to criticize the Government and that
such criticism does not amount to Sedition as long as there is no call to violence. The
Bombay high court has ruled that the Government cannot press charges of Sedition
against what it defined as ‘fair criticism’ which includes humorous cartoons and
caricatures. Arundhati Roy when faced with the allegation of Sedition (along with SAR

110
Geelani, Varavara Rao and others ) for speaking at a seminar on Kashmir the titled
“Azadi: the only way” held in Delhi in 2010, Arundahti Roy said in News paper some
have accused me of giving ‘Hate Speech’ of wanting India to break up. She said what I
say comes from the love and pride. It comes from not wanting people killed, raped,
imprisoned or have their fingernails pulled out in order to force them to say they are
Indians. It comes from wanting to live in a society that is striving to be a just one. Pity the
Nation that has to silence its writers for speaking their minds. Pity the Nation that Needs
to jail those who ask for justice, while communal killers, mass murderers, corporate
scamsters, looters, rapists, and those who prey on the poorest of the poor, roam free.153
India’s Sedition law , Section 124-A of the Indian Penal Code says that unless the
accused incited violence by their speech or action, it would no longer constitute Sedition,
as it would otherwise violate the right to freedom of speech and expression guaranteed by
the Constitution. The Court stated: criticism of public measures or comment on
Government action, however strongly worded, would be within reasonable limits and
would be consistent with the fundamental right of freedom of speech and expression. 154 It
is only when the words, written or spoken, etc. Which have the pernicious tendency or
intention of creating public disorder or disturbance of law and order that the law steps in
to prevent such activities in the interest of public order?”

GOVERNMENT SHOULD BE BOLD ENOUGH TO TAKE CRITICISM WITH

AN OPEN MIND:
The fundamental right to freedom of speech and expression is not absolute. It is
tempered with certain restriction on the citizens who would like to use this freedom.
According to the draft circular, criticism of political leaders or Government per se does
not call for pressing of Sedition charge. It said the Sedition charge would apply only if
the said act creates disaffection towards the Government and incite violence.
Words, signs or representations must bring the Government into hatred or
contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the
Government. They must be incitement to violence or must be intended to create public

153
“Arundhati Roy Statement on Possible Sedition Case” Available at www.ndtv.com on I February 2011.
154
Kedar Nath v. State of Bihar A.I.R 1962. 955.

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disorder. Words, sign of representation against politicians or public servants per se do not
fall under the category of Sedition. ‘Comments expressing disapproval or criticism of the
Government with a view to obtaining change of Government by lawful means are not
seditious under Section 124-A of the Indian Penal Code. Obscenity or vulgarity should
also not be taken into account under the Section 124-A. It is said that police officials
should seek a legal opinion in writing from the Law officer, followed by that of the
public prosecutor before applying Sedition charge against any person. 155

(2.9) SEDITION LAW AND INDIAN DEMOCRACY:

Freedom of speech and expression is the basic right that forms the bedrock of any
State that claims to be democratic. But the right of free speech is not a Historical right.
Socrates was poisoned for asking people to question facts. The elected nobility in the
English parliament did not have the right of free speech; they had to fight with the king to
gain such a right. For a long time in history the right to speak one’s mind and articulate
one’s thoughts were subjected to extreme penalty. Many were deported, incarcerated in
prison for life, or killed for speaking what they believed was just and true. It was the
struggles of the masses, entire populations, the working and toiling common men and
women that has eventually recognized the freedom of speech and in Constitutional
statutes, engraved it as Law. The struggle continues even today under the so called
‘Democratic States’ which is no more than an expression of unequal relations under
capitalism. Throughout the third world leaders of the freedom movement, who suffered
under repressive laws framed by their colonial masters had no qualms whatsoever in
retaining those very Laws on the statue book and enforcing them against their own
citizens in order to buttress their powers.
One of the most hated provision is the Law Section 124-A of the Indian Penal
Code. This Section was dropped when Indian Penal Code came into existence in 1860.
But it was again restored by an amendment in 1870. A recent case has aroused public
anger against the archaic Law. A respected academic Dr. Binyak Sen. was convicted of
Sedition by a session court and sentenced to life imprisonment. Section 124-A of the

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Indian Penal Code punishes anyone who ‘who brings or attempts to bring excite
disaffection towards the Government.’ It is not an offence to criticise ‘The measures of
the Government’. The Government must be loved, not hated. There were conflicting
rulings during British rule. Matters came to be head in 1942 in the federal court of India.
In according to the Government of India act 1935, the Chief justice Sir Maurice Gwyer
the chief justice held that ‘Public Disorder, or the reasonable anticipation or like hood of
public disorder, is the gist of the offence’. The Supreme Court of India said the very
creation of ‘Disaffection’ leads to a ‘Feeling of disloyalty to the Government or enmity to
it imports the idea of tendency to public disorder by the use of violence.’ It uphold the
Constitutionality of Section 124-A. The citizen owes no loyalty to the Government, only
to the state. ‘Disaffection’ inevitably follows from censure. Lord bridge sharply pointed
out in a judgement of the privy council in 1990, that the very purpose of criticism
levelled at those who have the conduct of public affairs by their political opponents is to
undermine public confidence in their stewardship and to persuade the electorate that the
opponents would make a better job of it than those presently holding office.A law which
penalise such criticism is violative of the Constitutional guarantee of freedom of speech
and is unconstitutional. In Britain there have been no prosecution for Sedition since
1947.156

NO DEMOCRACY PERMITS RIGHT TO SEDITION:

“No democracy permits right to Sedition” the right to secede cannot be accepted
in the grab of fight to free speech. The right to free speech enshrined in the Constitution
cannot be used against the Country. 157 BJP takes strong exception to the demand for
secession of Kashmir made a seminar in New Delhi in which Hard-line Hurriyat leader
Syed Ali Shah Geelani and other kashmiri separatists as well as Naxal and kalistani
sympathizers had come together to demand independence for Kashmir. It is shocking that
the Central Government chose to look the other way while ‘Unacceptable’ views were
aired in the Name of freedom of speech. In a democracy the right to secede cannot be

156
A.G Noorani (An Author and a Lawyer Based in Mumbai) in Article Sedition and Democracy Published in
7 December 2013 at 7:19 am.
157
Arun jaitely Statement in October 22, 2010 During Seminar in New Delhi.

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accepted in the grab the cunt of right to free speech. The right to free speech enshrined in
the Constitution cannot be used against the country. The Central Government should not
forget that there are two responsibilities and obligation of the state to prevent such events
and to punish the offenders.
BJP is outraged by open Anti-India sentiments and demand for Sedition at the
seminar and finds these as absolutely unacceptable. It seems that the centre has abdicated
its duty to protect the Unity and integrity of the Country by allowing the function to take
place in which anti-India voices were raised. Democracy and freedom of speech and
expression does not give anybody a right to demand Sedition. No democracy permits
right to Sedition. But some misconceived representative of civil society has abolished it
as free speech. However the right to freedom and speech and expression is a fundamental
right but it has certain restriction.158 Restrictions have been imposed on the freedom of
speech and expression by Article 51-A defining fundamental duties of a citizen (42nd
amendment in 1976). Under Article 51-A, no one should in exercise of the freedom of
expression or the press do any of the following acts:
(1) To disparage the Constitution its ideals and institutions, the national flag or the
National Anthem,
(2) To Undermine the Sovereignty, Unity and Integrity of India,
(3) To disrupt the spirit of Common brotherhood among all the people,
(4) To Insult the Rich heritage of our Composite Culture.
If anybody speaks against the Sovereignty of India, Such exercise comes Under Penal
Law offences against State. 159
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158
Constitutional Provision and Judicial Pronouncement on Freedom of Information Orissa Review
November 2006.
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