Sedition is an offence defined in Sec 124 A of the IPC.

As per this definition anyone who

brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection
towards the Government by words spoken or written or by signs or by visible representation
or otherwise is guilty of the offence of sedition. The definition is so exhaustive that it does not
leave out of its purview any possible mode of self expression, simply by using the words “or
otherwise”. The punishment for the offence of sedition is life imprisonment but lesser
punishment can also be awarded.

Out of the three explanations added to the Section, two seek to clarify that expressing
disapprobation of the measures of the Government or administrative action is not an offence.
But any attempt to excite contempt, hatred or disaffection will definitely make such
permissible disapprobation also liable to be punished. It is the ordinary police constable who
will in the first person decide whether a brilliant speech made in a seminar by eminent author
or a great cartoon made by an cartoonist will cause disaffection, contempt etc. towards the
government. In an age of unenlightened patriotism and lumpenisation of politics the danger to
the life and liberty of Indian citizens who speak out against the government of the day is too
real, as is evident from some of the recent happenings.

It is therefore necessary to seriously debate sedition, and its impact on the fundamental rights
of citizens. Pandit Nehru called sedition an obnoxious piece of legislation. But his
government and all the subsequent governments retained it and misused it. Such hypocrisy of
Indian politicians kept alive this colonial law which should have been repealed by the first
Indian Parliament.

Sedition was brought into the Indian penal code in 1870, almost 10 years after the code was
enacted. Its object was apparently to silence the Indian voice. Sec 124A was adopted by the
council of Governor General of India which met in Simla on August 2, 1870. The remarks
made by J. Fitz James Stephen while presenting the bill before the council about the scope
and extent of sedition are instructive. “Language temperate in itself and justifiable as far as
the express meaning of its terms went might, if addressed to an excited mob be the clearest
proof of an intent to produce forcible resistance to authority. While genuine criticism had
nothing to fear from the proposed section, persons seditiously disposed must not suppose that
they could evade its provisions by confining themselves to what under other circumstances
and in other persons might be genuine criticism”. It is an outrageous statement of the law on
sedition which in simple language means that sedition could be slapped on persons of
seditious disposition. Honourable Fitz James Stephen was adding a new dimension to Anglo-
Saxon jurisprudence by suggesting that a man’s disposition will also make him liable under
sedition.

After sedition was introduced in the code the first major case that was tried under it was
Lokmanya Tilak’s case (Queen Empress v. Bal Gangadhar Tilak (1897) ILR 22BOM) in
which the clearest exposition of the law was made by Strachy J. While stating the law before
the jury he said “the offence consists 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”. This statement of law was later
approved by the privy council.

Another landmark case in which the scope and nature of sedition as defined in the Indian code
was explained was Sadashiv Narain Bhalerao’s case (King Emperor v. Sadashiv Narain
Bhalerao (1947) LR 74 IA 89). The privy council held “but even if he (accused) 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”.

Disaffection towards the government

Thus the law of sedition which has emerged from the decisions of the privy council during the
pre-independence era is for that a simple statement or a speech which can excite
“disaffection” towards the Government the maker of the speech or statement is liable to be
prosecuted under Sec 124A. No incitement to violence or insurrection is necessary. The
implication of this statement of law is that after the Constitution came into force, Sec 124 A
of the IPC would become violative of the fundamental right to freedom of speech and
expression. Thus sedition, a draconian law of the colonial era would have been out of the
penal code for good.

However this did not happen because in 1962 the Supreme Court upheld the constitutional
validity of Sec 124A in the Kedarnath case (Kedarnath Singh v. State of Bihar AIR 1962 SC
955). During the colonial period sedition was considered a black law and was used
extensively against the leaders of the freedom movement. Gandhi, Tilak and many other
leaders were put behind bars for many years under this law. But the constitution bench of
Supreme court painted it white and presented it before the free Indians as a necessary law in
the interest of the survival of republic.

The constitutional validity of sedition was upheld by the Supreme Court on the basis of an
interpretation of Sec 124A in line with the decisions of the federal court in Niharendu’s case
(Niharendu Dutt Majumdar v. King Emperor (1942) FCR 38) and certain English cases. In
this case Sir Maurice Gwyer, CJ stated the law on sedition in the following words “public
disorder or the reasonable anticipation or likelihood of public disorder is thus the gist of the
offence. The acts or words complained of must either incite to disorder or must be such as to
satisfy reasonable men that that is their intention or tendency”. In line with this statement of
law by the federal court, the Supreme Court of India held that as public disorder and violence
are the essential ingredients of sedition it is a law made in the interest of public order under
Article 19 (2) and hence is a reasonable restriction on the fundamental right of freedom of
speech.

However this statement of law made by the federal court was clearly overruled by the Privy
Council, the highest appellate court and held that the law declared in Tilak’s case was the
correct law. But the Supreme Court of India opted for the view taken by the federal court and
not by the Privy Council because it wanted to uphold the validity of sedition as a reasonable
restriction on the fundamental rights. By its own admission the statement of law made by the
Privy Council in Tilak and Bhalerao and other English cases was sound but adopted the
federal court view because it wanted the law of sedition to be in the penal statute. The
following observations of the Supreme Court in Kedarnath Singh’s case indicate why it
wanted sedition to remain on the statute book: “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 have been made penal by the section in
question”. Obviously the court wanted to stop revolution in India by upholding the validity of
sedition!

The court also weakened the base of its own judgement by observing that the federal court
took a view different from the Privy Councils because the latter’s various judgements were
not shown to the federal court. In other words the federal court would have gone with the
Privy Council on the interpretation of sedition had its views been available to it. So there was
nothing inherently infallible about the view taken by the federal court which our Supreme
court adopted as the most acceptable legal decision. Further, Article 19(2) permits reasonable
restrictions on the freedom of speech. if the law imposing reasonable restriction is made in the
interest of public order , it is constitutionally valid. This is the ground on which Kedarnath
Singh judgement upheld the constitutional validity of sedition. There is an obvious fallacy in
this argument.

The court itself says that the words “in the interest of public order” are of the widest
amplitude. “Reasonable restriction” and “words of widest amplitude” are mutually
contradictory. Restrictive provisions can’t be so open ended and wide. They need to be
narrow and restricted. The highest law court of the time had declared that public disorder or
violence is not an essential ingredient of sedition under the Indian code. This being so it
should be assumed that sedition is not a law enacted in the interest of public order and hence
outside the protective cover of Article 19(2).

Suppressing the Indian voice

The colonial Government in India inserted Sec 124A in the code for the purpose of
suppressing the Indian voice. So the law of sedition was made stringent which was different
from the English law. The English law did not define sedition but the Indian code defined it.
The privy council therefore said that if the law defines the offence in clear terms the courts
should go by that definition and as per the text of Sec 124A a simple speech or statement
which can cause disaffection towards the government and nothing more shall bring it within
the mischief of sedition. This is how the law of sedition was always enforced in India. So with
the coming into force of the Constitution, Sec 124A would have become an unreasonable
restriction on the freedom of speech and thus would have become violative of the fundamental
right. By retaining it in the code, free India’s governments repudiated the concept of human
rights evolved through long years of freedom struggle.

Every strong criticism of the government, a minister or a chief minister or the prime minister
causes some amount of disaffection towards them. When people read about the corrupt deeds
of a government what exactly is the feeling that is generated in them? Is it contempt or hatred
or a feeling of love and sympathy for such a government? In a democracy the people change
such governments through vote. No democratic government can afford to charge people with
sedition and put them behind bars for saying things which they have the freedom to say. So
the offence of sedition has no place in a democracy. That is why the British repealed it in their
own country even though they had brought in the toughest variety of sedition when they ruled
India. But democratic India even with all its bitter experience of the operation of this law by
the colonial government retained it and used it liberally against its people taking refuge under
a Supreme Court decision validating it.

There is an urgent need to review this judgement of the Supreme Court and declare sedition
unconstitutional or alternatively, parliament should repeal it at the earliest. If someone raises
slogans against India or endangers the security of India he should be dealt with under
appropriate laws. The law of sedition is too colonial, too dangerous and too destructive of the
basic freedoms of the people. It should be scrapped.