DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

IPC Project on:

“WAGING WAR AGAINST STATE”

SUBMITTED TO: SUBMITTED BY:

Mr. Malay Pandey Abhishek Kumar
Asst. Professor 180101006 Sec-A
RMLNLU BA LLB (HONS.)
ACKNOWLEDGEMENT
In a student’s academic journey, project writing is one of the most significant challenges that
a student faces. I am presenting this project but this would not have been possible without the
guidance and blessings of so many peoples.

I take this opportunity to express my profound gratitude and deep regards to my guide Mr.
Malay Pandey for her exemplary guidance, monitoring and constant encouragement
throughout the course of this project. The blessings, help and guidance given by her time to
time shall carry me a long way in the journey of life on which I am about to embark.

I take this opportunity to thank all my seniors and for their constant support and guidance
throughout the making of my project.

I also take this opportunity to thank my college librarian for his constant help in finding and
providing me book on this topic. I would like to thanks the staff of Madhu Limaye library for
their help for finding material on this topic.
Introduction
Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is
unique in itself as it places all the three aspects at par as regards the punishment. Under the
general law a distinction has been made between abetment which has succeeded and
abetment which has failed. But as far as the legislature is concerned it treats both in the
same manner because the crime is treated of highest offence against the state.

The expression waging a war means waging a war in the manner usual in war.1 A deliberate
and organized attack upon the government forces and government institutions amounts to
waging a war. 2The first reform came in the year of 1870 where it was made illegal for
conspiring against the nation itself. This was introduced in the form of section 121A and
121B of section 4 of Chapter IV. This was the first reform in the subject. It is an offence to
conspire against the Government of India by means of criminal force, or the show criminal
force. Under this section, it is not necessary that any act or illegal omission should take
place in pursuance thereof, whereas under section107 abetment includes the engaging with
one or more persons in any conspiracy for doing of a thing, if an act or illegal omission takes
place in pursuance of that of a conspiracy, and in order to the doing of that thing. In other
words except in respect of the offences particularized in sec.121A conspiracy per se is not an
offence. The position changed in 1913 when the Criminal Law Amendment Act came into
force. It passes an emergency piece of legislation which gave an extended effect to the law
of conspiracy of India.

1
The Indian Penal code K.D Gaur pg.221
2
https://www.loc.gov/rr/frd/Military_Law/pdf/Constraints-waging-war
Jublia Mallah v. Emperor' AIR 1944 Pat 58 (B):
the distinction between levying war against the King and committing a riot. The distinction
seems to consist in this, although they may often run very nearly into each other. Where the
rising or tumult is merely to accomplish some private purpose, interesting only to those
engaged in it, and not resisting or calling in question the King's authority or prerogative then
the tumult, however numerous or outrageous the mob may be, is held only to be a riot. For
example, suppose a mob to rise, and even by force of arms to break into a particular prison
and rescue certain persons therein confined, or oblige the Magistrates to set them at liberty
or to lower the price of provisions in a certain market, or to tear down certain enclosures,
which they conceive to encroach on the town's commons. All such acts, though severely
punishable, and though they may be resisted by force, do not amount to treason. Nothing is
pointed against either the person or authority of the King.... But, wherever the rising or
insurrection has for its object a purpose, not confined to the peculiar views and interests of
persons concerned in it, but common to the whole community, and striking directly the
King's authority or that of Parliament, then it assumes the character of treason. For
example, if mobs; were to rise in different parts of the country to throw open all in closures
and to resist the execution of the law regarding enclosures wheresoever’s attempted, to pull
down all prisons or Courts of Justice, to resist all revenue officers in the collecting of all or
any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general
measure, which by law can only be authorized or prohibited by authority of the King or
Parliament, amount to levying of war against the King and have always been tried and
punished of treason. It is, therefore, not the numbers concerned, nor the force employed by
the people rising in arms, but the object which they have in view that determines the
character of the crime, and will make it either riot or treason, according as that object is of a
public and general, or private and local nature. The then Legislative member of the Govt. of
India was Sir James Fitzjames Stephen who later became one of the Judges of the H. C. in
England & was perhaps the greatest authority of his generation on criminal law. In his Digest
of the Criminal Law Edn. 8, p. 57, one of the meanings given to the expression "to levy war"
is "attacking in the manner usual in war the King himself or his military forces, acting as such
by his orders, in the execution of their duty."

Waging war as offence

S 121A: Conspiracy to commit offences punishable by section 121:

Whoever within or without [India] conspires to commit any of the offences punishable by
section 121, [***] or conspires to overawe, by means of criminal force or the show of
criminal force, [the Central Government or any [State] Government [***], shall be punished
with [imprisonment for life], or with imprisonment of either description which may extend
to ten years, [and shall also be liable to fine]. Explanation- To constitute a conspiracy under
this section, it is not necessary that any act or illegal omission shall make place in pursuance
thereof.] This section basically deals with two kinds of conspiracies, namely, conspiracy to
wage war (or attempt to wage war) against the government of India and conspiracy to
overawe, by means of criminal force or the show of criminal force. The offence of conspiracy
is complete as soon as two or more persons agree to do or cause to be done, an illegal act
by illegal means. The word ‘overawe’ connotes the creation of a situation, in which the
government is compelled to choose yielding to force or exposing the government or the
members of the public to a very serious danger. 3 When anybody of men, whether factory
operatives or clerks or policemen go on strike, their object clearly is to coerce their
employers into yielding to their demands. Until the early part of the 19th century
combinations of this kind in England were criminal. Subsequently, it ceased to be a crime for
the great majority of workers to resort to a strike although certain acts done by strikers
were & are still punishable as crimes. Policemen, however, & certain other classes of
employees are forbidden by law to go on strike. Each one of the applets. who went on strike
committed an offence & when each of them agreed with the others to do so, they jointly
committed another & more serious offence, namely, the offence of conspiracy. In Vertue v
Lord Clive, (1769) 4 Burr. 2472: (98 E. R. 296). Certain military officers in the army of the East
India Company simultaneously tendered their resignations of their commissions on the
ground that they had not received as much in the way of allowances as they believed they
were entitled to. Lord Clivo, in order to meet the very dangerous situation which was thus
created, had the officers placed under arrest, & when they returned to England, some of
them instituted actions to recover damages for assault & false imprisonment. These
actions were dismissed, & in dismissing them, one of the Judges observed that "this
combination was a criminal act." This decision, however, while it shows that the applets.,
were guilty of conspiracy, is of no assistance to us in deciding the real point of difficulty
arising in the appeal, which is whether the conspiracy was a conspiracy of such a kind as to
attract the operation of Section 121A, Penal Code. The marginal note to Section 121A is
"conspiracy to commit offences punishable by Section 121." This was strictly accurate
description of the section which it was proposed to enact in the bill originally introduced in
the Legislative Council. It is quite clear that the conspiracies aimed at in the bill were
conspiracies either to wage war against the King in the manner in which it is usual to wage

3
The Indian Penal code K.D Gaur pg.225
war or conspiracies to raise an insurrection with the object of subverting the
constitution.4 The section, however, as finally enacted, brought within its scope other

conspiracies also, & the marginal note is not a strictly accurate description of what is
contained in it. The words "conspires to overawe by means of criminal force or the show of
criminal force the Central Govt. or any Provincial Govt." clearly embrace not merely a
conspiracy to raise a general insurrection, but also a conspiracy to overawe the Central
Govt. or any Provincial Govt. by the organisation of a serious riot or a large & tumultuous
unlawful assembly. Possibly, in modifying the section as it stood in the bill, the Legislative
Council had in mind the case of Lord George Gordon (21 State Trials 486). Lord George
Gordon put himself at the head of a large mob which proceeded to the Houses of
Parliament in order to protest against the enactment of certain legislation. After having
made its protest, the mob dispersed, but certain members of it proceeded to perpetrate
outrages in different parts of the city of London. Lord George Gordon was tried on a charge
of a high treason, & was acquitted, the reason apparently being that, while he had intended
to make a demonstration outside the Houses of Parliament, he had not been a party to the
disorders which resulted from it. Section 121A, occurs in a chapter of the Penal Code which
is headed "offences against the State" whereas the offence of conspiracy is contained in the
preceding chapter, chap. VA. which is headed "criminal conspiracy." The Legislature in
enacting Section 121A clearly had in mind the English Treason Felony Act of 1848 & it did
not aim at conspiracies other than conspiracies which had a political object, that is,
conspiracies to overthrow the existing constitution or conspiracies to prevent the
enactment of legislation which was considered to be obnoxious or to compel the resignation
of a member or members of the Govt. who had become unpopular. As the section stands in
certain circumstances persons who organize a strike among police men or certain other
public or municipal employees might not render themselves liable to prosecution under it.
Clearly, however, persons do not commit this crime unless it was part & parcel of their plans
to overawe the Central or the Provincial Govt. by criminal 'force or show of criminal force.
The word “overawe " does not appear anywhere else in the Penal Code except in this
section & in another section in the same chapter (Section 124). 5

Under the Common law of England a conspiracy to commit an offence could be punished
more severely than could the commission of the offence itself, and in any case, in England a
person who incites constables to mutiny is liable to a sentence of two years' imprisonment.
In other words, in order to support a conviction on such a charge, it is not enough to show
that the persons charged have contrived to obtain possession of an armory & have, when
called upon to surrender it, used the rifles & ammunition so obtained against the King's
troops. It must also be shown that the seizure of the armory was part & parcel of a planned
operation & that their intention in resisting the troops of the King was to overwhelm &
4
Ratanlal and Dhirajlal’s The Indian Penal Code pg 432

5
The Indian Penal code K.D Gaur pg.253
defeat these troops & then to go on & crush any further opposition with which they might
meet until either the leaders of the movement succeeded in obtaining possession of the
machinery of Govt. or until those in possession of it yielded to the demands of their
loaders.

BAD LAW BREEDS TROUBLE

One of the most politically fraught laws of all time, sedition is aimed at anyone who "brings
or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards, the government established by law in India". It is the highest form of offence
against the state, merits the highest punishment and is the most misused-with successive
governments using it to stifle criticism, explained jurist Ram Jethmalani. The law clashes
with the right to freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution. It is not even part of the "reasonable restrictions" on free speech under Article
19(2). Yet sedition as a criminal offence remains in the Indian Penal Code (IPC) under Section
124-A, ruining lives touched by it: unwarranted arrests, confiscated passports, dismissal
from government jobs, no bail, no dropping of charges without a judge, tough and
expensive legal procedures, the threat of fine and incarceration for a life term. "Unless India
figures out how to treat the problem of a bad law, it will only get worse,".

"We are slapping sedition cases at a time when the draconian law is either being scrapped
or rendered toothless in most modern constitutional democracies around the world," says
P.D.T. Achary, constitutional expert and former secretary-general of the Lok Sabha. New
Zealand has got rid of the law . Australia has narrowed its scope, eliminating imprisonment.
In the US, some laws have been repealed, some have been made a dead letter. In the UK,
although the last sedition trial took place in 1947, the law was abolished in 2009-217 years
after Thomas Paine was convicted of sedition for writing the Rights of Man. "It puts India at
par with countries with the worst human rights index," adds Achary, "Saudi Arabia,
Malaysia, Iran, Uzbekistan...."

Sedition
SEDITION as a subject was hardly talked about until the 1970s and 80s and then receded
into the background until recently, when it again started receiving a considerable
measure of attention. According to some writers on English Law, the first definite instance
found of a law relating to quasi sedition offences was a provision in the First Statute of
Westminster passed in the year 1275 which provided a penalty for the publishing of false
news or tales “whereby discord may grow between the King and his people" or “the great
men of the realm". However, control of the affairs of the nation gradually devolved upon
elected representatives of the people – Parliamentary Government by means of a Ministry
nominally the King’s servant but really representing the majority party in the House of
Commons. Thereafter, laws of sedition came in the 18th century to constitute “any written
censure upon public men for their conduct as such or upon the law or upon the institutions
of the country and to take care of public disturbances which had certain tendencies". The
laws of sedition can be found in the Indian Penal Code under s 124A. Today the law of
sedition in India has assumed controversial importance largely on account of change in the
body of politic and also because of the constitutional provision of freedom of speech and
expression guaranteed as a fundamental right. The law of sedition was also embodied
in some other statutes. However, the general statement of law was similar in all the
provisions and could be gathered from s 124A, IPC. In the original draft of IPC 1860 this
section was omitted. It was inserted by an amendment in 1870 which in turn was replaced
by the amendment of 1898 . Together with these changes s124A stands as follows:
“Whoever by words, either spoken or written, or by signs, or by visible representation; or
otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to
excite disaffection towards the government established by law in India shall be punished
with imprisonment for life to which fine may be added, or with the imprisonment which
may extend to 3 years, to which fine may be added, or with fine may be added, or with fine.
Explanation 1: The expression ʺdisaffectionʺ includes disloyalty and all feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of the government
with a view to obtain their alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3: Comments expressing disapprobation of the administrative or other action of

the government without exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section. This species of offence against the State was
not an invention of the British. Government in India, but has been known in England for
centuries. Every State, whatever its form of Government, has to be armed with the power to
punish those who, by their conduct, jeopardize the safety and stability of the State, or
disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the
State or to public disorder. In England, the crime has thus been described by Stephen in his
Commentaries on the Laws of England, 21st Edition, volume IV, at pages 141-142, in these
words. The difference between the old and the new law is that in the former the offence
consisted in exciting or attempting to excite the feelings of “disaffection" but in the latter,
‘bringing or attempting to bring into hatred or contempt the government of India is also
punishable. The common law on the other hand in this subject was too wide and severe in
the initial stages. In England the growth of liberty of speech and expression, particularly with
regard to criticism of government, was gradual. Consequently, the courts began to
introduce guiding principles so as to govern the judges in deciding when an intention to
excite ill-will and hostility is seditious and when it is not. Fitzerland, J in R v. Sullivan, which
was later on approved in R v. Burns and Others observed: “sedition in itself a comprehensive
term and embraces all those practices which are directed against the state.

Elements of sedition
Stephen's, definition of seditious intention was accepted as accurate by the Criminal
Code Commissioners and by Cave J., in his direction to the jury in E. v. Burns.6 In the case of
written words this is seditious libel. Article 114 in Stephen's Digest of the Criminal Law reads
103 - A seditious intention is an intention to bring into hatred or contempt, or to excite
disaffection against the person of, His Majesty, his heirs or successors, or the government
and constitution of the United Kingdom, as by law established , or either House of
Parliament, or the administration of justice , or to excite His Majesty's subjects to attempt
otherwise than by lawful means, the alteration of any matter in Church or State by law
established , [or to incite any person to commit any crime in disturbance of the peace,] or
to raise discontent or disaffection amongst His Majesty's subjects , or to promote feelings
of ill - will and hostility between different classes of such subjects . An intention to show that
His Majesty has been misled or mistaken in his measures, or to point out errors or defects in
the government or constitution as by law established, with a view to their reformation, or to
excite His Majesty's subjects to attempt by lawful means the alteration of any matter in
Church or State by law established , or to point out , in order to secure their removal,
matters which are producing, or have a tendency to produce, feelings of hatred and ill - will
between classes of His Majesty's subjects , is not a seditious intention. 7

Role of Supreme Court and freedom of press

6
https://supreme.justia.com/cases/federal/us/427/347/
7
Ratanlal and Dhirajlal’s The Indian Penal Code pg 339
 In one of the earliest judgments, pre-censorship of the press was held to be
unconstitutional Ramesh Thapar vs. State of Madras, 8 Brij Bhushan vs. State of Delhi.
9
Similarly, there has been lot of differences of opinions regarding indecency and immorality
as to what constitutes indecent literature or other expressions through media. Similarly, the
law of sedition under section 124A of the I.P.C. was also subjected to dispute in Kedarnath
vs. State of Bihar, 10 when Supreme Court held the validity of this provision. 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
Virender vs. State of Punjab11 and Sakal Papers vs. Union of India12. It has also been by this
judgment 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 cases that press is not immune from paying
taxes, from following labor laws, regulating services of the employees, law of contempt of
the Court, law of defamation. It has been held by the Supreme Court that right of speech
and expression includes right to acquire and import ideas and information about the
matters of common interests in the case of Hamdard Dawakhana vs. Union of India and to
answer any criticism leveled against one's views through any media. This freedom also
includes right to impart and receive information through telecasting. It also includes
publication of advertisement and commercial speech. It also covers right to hold
telephonic conversation in privacy [PUCL vs. Union of India]13 . It is thus quite clear that right

to acquire and get information is a fundamental right under the Indian Constitution. In a
recent case, the Supreme Court held that considering the wide spread illiteracy of the voters
and at the same time there over-all culture and character they need to be well informed
about the candidate contesting election as M.P. or MLA so that they are in a position to
decide independently to cast their votes in favour of more efficient candidates. The right to
get information in a democracy is recognized in all the countries. In one of the early decision
in the case of State of UP vs. Raj Narain and Others 14, the Supreme Court of India
considered a question whether privilege can be

claimed by Government of UP under section 123 of Evidence Act in respect of Blue Book
summoned from the Government of UP and certain documents summoned from SP, Police,
Raibareilly, UP. The court observed that – “In a government of responsibility like ours,
where all the agents of the public must be responsible for their conduct, there can be but
few secrets. The people of this country have a right to know every public act, everything
that is done in a public way, by their public functionaries. They are entitled to know the
particulars of every public transaction in all its bearing." In another recent case the Court
8
https://indiankanoon.org/doc/456839/
9
www.the-laws.com/Encyclopedia/Browse/Case?CaseId=000591360000
10
https://indiankanoon.org/doc/111867/
11
judis.nic.in/supremecourt/qrydisp.asp?tfnm=4110
12
https://www.article19.org/.../en/india:-sakal-papers-(p)-ltd.-&-oth.-v.-union-of-india
13
http://www.hrln.org/hrln/right-to-food/pils-a-cases/255-pucl-vs-union-of-india-a-others-.html
14
http://www.right2info.org/cases/r2i-state-of-uttar-pradesh-v.-raj-narain
dealt with citizen's rights to freedom of information and observed as under: - “In modern
constitutional democracies, it is axiomatic that citizens have a right to know about the
affairs of the government which, having been elected by them, seek to formulate sound
policies of governance aimed at their welfare. Democracy expects openness and openness is
concomitant of a free society and the sunlight is a best disinfectant."

Kedar Nath Case and the aftermath

Section 124A of the Indian Penal Code which makes sedition as an offence constitutionally
valid. Though the section imposes restrictions on the fundamental freedom of speech and
expression, the restrictions are in the interest of public order and are within the ambit of
permissible legislative interference with the fundamental right. There is a conflict on the
question of the ambit of s. 124A between decision of the federal Court and of the Privy
Council. The Federal Court has held that words, deeds or writings constituted an offence
under s. 124A only when they had the intention or tendency to disturb public tranquility. 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 s. 124A that the
words etc, should be intended to or 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
s.124A would be constitutional but if the view of the Privy Council was accepted it would be
unconstitutional. It is well settled that if certain provisions 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 mind the reasons for the introduction of s. 124A 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.
Each one of the constituent elements of the offence of making, publishing or circulating
statements conducing to public mischief, punishable under s. 505 of the Indian Penal Code,
had reference to, and a direct effect on, the security of the State or public order. Hence the
provisions of s. 505 were clearly saved by Art. 19(2). A speech may disturb public order or it
may not, but both are made punishable under Section 124A. The section hits speeches of
both varieties permissible speeches and impermissible speeches. The explanation to section
124A does not affect the interpretation of the main section. In a democratic set up a citizen
is entitled to criticize the Government with a view to change it. Two questions arose in the
case, namely (i) does s. 124A enact a law which is in the interest of public order and (ii) does
this section impose reasonable restrictions in the interest of public order. The decision in I.
L. R. (1958) 2 All. 84 which has declared s.124A to be ultra virus takes the correct law.
Interpretation by Courts of words of statutes to a particular set of facts has been changing
with the change in the social and political structure of society and the opinion of its
reasonable members. Section 124A is in a chapter which deals with offences against the
State. Therefore, it is not a case of libel against any officer but of an offence against the
State. Though the section imposes restrictions on the fundamental freedom of speech and
expression, the restrictions are in the interest of public order and are within the ambit of
permissible legislative interference with the fundamental right. There is a conflict on the
question of the ambit of s. 124A between decision of the federal Court and of the Privy
Council. The Federal Court has held that words, deeds or writings constituted an offence
under s. 124A only when they had the intention or tendency to disturb public tranquility. 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 s.124A that the
words etc, should be intended to or 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
s. 124A 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 provisions 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 favors of the
former construction. Keeping in mind the reasons for the introduction of s.124A 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. Each one of the constituent elements of the offence of making,
publishing or circulating statements conducing to public mischief, punishable under s. 505 of
the Indian Penal Code, had reference to, and a direct effect on, the security of the State or
public order. Hence the provisions of s. 505 were clearly saved by Art.19 (2). The main
question in controversy was whether ss.124A and 505 of the Indian Penal Code have
become void in view of the provisions of Art. 19(1) (a) of the Constitution.

Explanation-Such a disapprobation of the measures of the Government as is compatible

with a disposition to render obedience to the lawful authority of the Government and to
support the lawful authority of the Government against unlawful attempts to subvert or
resist that authority, is not disaffection. Therefore, the making of comments on the
measures of the Government, with the intention of exciting only this species of
disapprobation, is not an offence within this clause." The first case in Indian that arose
under the section is what is known as the Bangobasi case (Queen-Empress v. Jagendra
Chunder Bose (1)) which was tried by a Jury before Sir Comer Petheram, C J. while charging
the jury, the learned Chief Justice explained the law to the jury in these terms: "Disaffection
means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation
means simply disapproval. It is quite possible to disapprove of a man’s sentiments or
action and yet to like him. The meaning of the two words is so distinct that I feel it hardly
necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person
uses either spoken or written words calculated to create in the minds of the persons to
whom they are addressed a disposition not to obey the lawful authority of the Government,
or to subvert or resist that authority, if and when occasion should arise, and if he does so
with the intention of creating such a disposition in his bearers or readers, he will be guilty of
the offence of attempting to excite disaffection within the meaning of the section though no
disturbance is brought about by his words or any feeling of disaffection, in fact, produced by
them. It is sufficient for the purposes of the section that the words used are calculated to
excite feelings of ill will against the Government and to hold it up to the hatred and
contempt of the people, and that they were used with the intention to create such
feeling."The next case is the celebrated case of Queen-Empress v. Balqanqaddhar Tilak
which came before the Bombay High Court. The case was tried by a jury before Strachey, J.
The learned judge, in the course of his charge to the jury, explain the law to them in these
terms: "The offence as defined by the first clause is exciting or attempting to excite feelings
of disaffection to the Government. What are "feelings of disaffection"? I agree with Sir
Comer Petheram in the Bangobasi case that disaffection means simply the absence of
affection. It means hatred, enmity dislike, hostility, contempt and every form of ill-will to the
Government. "Disloyalty" is perhaps the best general term, comprehending every possible
form of bad feeling to the Government. That is what the law means by the disaffection
which a man must not excite or attempt to excite; he must not make or try to make others
feel enmity of any kind towards the Government. The seditious conduct may be by words,
by deed, or by writing. Five specific heads of sedition may be enumerated according to the
object of the accused. This may be either15

1. To excite disaffection against the King, Government, or Constitution, or against

Parliament or the administration of justice; 2. To promote, by unlawful means, any
alteration in Church or State;

3. To incite a disturbance of the peace;

4. To raise discontent among the King's subjects;

5. To excite class hatred.

It must be observed that criticism on political matters is not of itself seditious.

The test is the manner in which it is made. Candid and honest discussion is permitted. The
law only interferes when the discussion passes the bounds of fair criticism. More especially
will this be the case when the natural consequence of the prisoner’s conduct is to
promote public disorder." This statement of the law is derived mainly from the address to
the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan . In the course of his
address to the Jury the learned Judge observed as follows: "Sedition is a crime against
society, nearly allied to that of treason, and it frequently precedes treason by short interval.
Sedition in itself is a comprehensive term, and it embraces all those practices, whether by
15
Ratanlal and Dhirajlal’s The Indian Penal Code pg-347
word, deed or writing, which are calculated to disturb the tranquility of the State, and lead
ignorant persons to endeavor to subvert the Government and the laws of the empire. The
objects of sedition generally are to induce discontent and insurrection and stir up opposition
to the Government, and bring the administration of justice into contempt; and the very
tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been
described, as disloyalty in action and the law considers as sedition all those practices which
have for their object to excite discontent or dissatisfaction, to create public disturbance, or
to lead to civil war; to bring into hatred or contempt the Sovereign or the Government,
the laws or constitution of the realm, and generally all endeavors to promote public
disorder." In Brij Bhushan's case the same majority struck down s. 7(1)(c) of the East Punjab
Public Safety Act, 1949, as extended to the Province of Delhi, authorizing the imposition of
restrictions on the freedom of speech and expression for preventing or combating any
activity prejudicial to the public safety or the maintenance of public order. The Court held
the provisions to be in excess of the powers conferred on the Legislature by cl. (2) of Art. 19
of the Constitution.

Conclusion

It is thus understood that there will always be ambiguity as to whether sedition law in India
is violative of Art 19(2) of our constitution. The case of Kedar nath Singh has given this
debate a new dimension following which there have been a number of cases highlighting
and dealing with the same problem thereby providing some parameters and clarifying
the aspects of ‘what amounts to waging a war against a state’. It is only when the words
written, spoken etc., which have the pernicious tendency or intention of creating public
disorder or disturbance of law and order that steps into prevent such activities in the
interest of the society at large. So construed the law dealing with waging war against the
state in my opinion, strikes the right balance between individual fundamental rights and the
interest of public order, national interest and national security.

BIBLIOGRAPHY:

WEBSITES:

• www.lawyersclubindia.com

• www.legalserviceindia.com

• www.blogspot.com
• www.legalnote.com

BOOKS:

 The Indian Penal code (K.D Gaur) revised edition 2014

 The Indian Penal Code-As Amended By The Criminal Law (Amendment) Act, 2013( Ratanlal

and Dhirajlal’s)

 Criminal Law- Incorporating The Criminal Law (Amendment) Act, 2013(by P.S.A. Pillai)

 Criminal Manual:IPC (Universal's Legal Manual)