"Section 124....... is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote, or incite to violence."-- Mahatma Gandhi.

Post-independence, the role of freedom of speech and expression in a democratic country like India cannot be understated, particularly since, during the British colonial rule, nearly every form of expression was smothered by the British Government. One of the chief means of doing so was by penalizing activities which in a democratic society ought to be considered to be the highest duty of a citizen. The British Government, in order to maintain the continuity of their rule in India enacted a number of laws which were used to restrain any member of the public who dared to rebel against the British rule.

Amongst these laws was the draconian offence of sedition. The offence of sedition was imported, as section 124A of the I.P.C., from English law into Indian law during the British colonial rule. The Supreme Court is hearing petitions challenging the validity of the law on sedition and has asked the government to refrain from filing any cases under the law until the review is complete.[1] This article will trace the scope and history of the provision, its evolution, relevant cases and analyse sedition in India vs sedition in England, sedition vis-a-vis Right to Freedom of Speech and Expression, and the law as it stands today.

Sedition: Meaning, Origin and Scope

Definition
The offence of sedition is found under Chapter VI of the Indian Penal Code 1860 (IPC), under the heading 'Offences Against the State'. It needs to be noted that the word 'Sedition' does not turn up anywhere in the Indian constitution. Section 124A of the I.P.C. defines sedition and prescribes the punishment for the said offence:

"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 imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1: The expression "disaffection" includes disloyalty and all feelings of enmity.

Explanation 2: Comments expressing disapprobation of the measures of the 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."[2]

Origin
The draft Indian Penal Code 1837 formulated by the first Law Commission under the chairmanship of Thomas Macaulay consisted of Section 113 that corresponded to section 124A IPC. However, for more than 20 years the draft penal code was not enacted and when it was in 1860, the provision for sedition had been unaccountably omitted.

But it was enacted by way of a Special Act (XXVII of 1870). This was mainly due to the Wahabi Movement and the British government's intention to suppress the activities. While introducing the bill, Sir James Stephen, who was the architect of the Code of Criminal Prcedure remarked that the section had been omitted from the IPC due to "some unaccountable mistake".[3] He further stated that the adopted clause was "much more compressed, much more distinctly expressed, and freed from great amount of obscurity and vagueness with which the law of England was hampered".[4]

Section 124A of the IPC was amended in 1898 by the Indian Penal Code (Amendment) Act 1898 (Act V of 1898) providing for punishment of transportation for life or any shorter term. While the former section defined sedition as exciting or attempting to excite feelings of disaffection to the Government established by law, the amended section also made bringing or attempting to bring in hatred or contempt towards the Government established by law, punishable.

Subsequently, after India attained independence, all references to the words 'her Majesty'[5], 'British India'[6], 'or British Burma'[7] and 'Crown Representative'[8] were deleted. The provision was amended by Act No.26 of 1955, substituting the punishment as "imprisonment for life and/or with fine or imprisonment for 3 years and / or with fine". And this is how it exists today.

Scope
The offence under the section is cognizable, non-bailable, non- compoundable and is triable by the Court of Sessions. It is also a statutory requirement that no court shall take cognizance of the offence of sedition except with the prior sanction of the central or the state government.[9] Since its inception, the meaning and scope of the offence has been the subject of judicial interpretation. The main reason for this was that while defining the offence of sedition, the section uses a number of terms and phrases the meanings of which have not been exhaustively explained. It seems it has been deliberately vaguely worded.

For instance, it contains the terms 'hatred', 'contempt' and 'disaffection' and, at the same time, talks about 'disapprobation' without exciting such hatred, contempt or disaffection. Similarly, the section contains the phrases 'brings or attempts to bring into hatred or contempt' and 'excites or attempts to excite disaffection' but gives no indication as to when or how exactly is a person supposed to do so. Consequently, these words 'disaffection', 'hatred' and 'contempt' have been subject to varied interpretation by different courts.

With respect to the term 'disaffection', the section explains the meaning of this term as including 'disloyalty and all feelings of enmity.' Explanation 2 and 3 to section 124A of the I.P.C. elucidate what does not constitute the offence of sedition. Hence, the Law of Sedition as formulated, firstly vaguely expresses what is sedition and secondly, states what is not sedition.

It is well settled that in interpreting an enactment, the court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. Accordingly, the Supreme Court, in Kedar Nath Singh v. State of Bihar[10], restricted the scope of this section to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

In this case, the court observed that "the provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim to rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence."

It is worthy to note that to constitute an offence under Section 124-A of the IPC it is not necessary that one should excite or attempt to excite mutiny or rebellion or any kind of actual disturbance, it would be sufficient that one tries to excite feelings of Hatred or Contempt towards the government. Both successful and unsuccessful attempts to excite disaffection are placed on the same footing. So even if person had only tried to excite the feelings he could be convicted. Whether any disturbance or outbreak was actually caused by such attempt is absolutely immaterial.[11]

Some important characteristics related to offence of sedition are [12]:

1. To urge people to rise against the Government, or not to obey the lawful authority of the Government or to subvert or resist the authority amounts to 'disaffection' is sedition. However, suggesting a different form of government is not necessarily to bring the present government into hatred or contempt, thus it does not constitute Sedition.
    
2. Disaffection may be excited in a number of ways: Writings of any kind, poem, drama, story, novel, may be used for Sedition. But the seditious writings if it remains in the hands of the author or unpublished does not constitute Sedition because publication of some kind is necessary. However this publication may be made in any manner, as for instances, by post. It can even take from of woodcut or engraving of any kind.
    
3. Not only the author of seditious matter but also whosoever uses in any way words or printed matter for the purposes of exciting feelings of disaffection is libel. Thus the printer, the publisher, the editor or the owner of the press of a seditious publication is also libel like the author unless he proves that he was absent and was not aware of the contents of the paper.
    
4. It is well settled now that intention of the accused forms an essential part of the offence of sedition. It is necessary to take into consideration the state of the country and of the public mind at the date of publication. Justice Strachey in Queen Empress v. Bal Gangadhar Tilak[13] observed that intention must be gathered from the language of the articles. The time, the place, the circumstances, and the occasion of publication are important too.
    
5. Explanation 2 and 3 are more in the nature of exceptions to the section. The two together balance sedition and bona fide criticism. In Kedar Nath Singh, it was observed that "criticism of public measures or comments 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."
    

Offence of Sedition in India and the Offence of Sedition in England

The provisions of section 124A of the I.P.C. are essentially based on common law. Until 1972, the Law of Sedition in England was uncodified. The offences involving sedition were the common law offences of seditious libel, seditious conspiracy and seditious words. There was a great deal of insecurity because of the lack of a statutory definition.

The Fox's Libel Act codified seditious libel for the first time in 1792. However, there was still no statutory definition for sedition. Sedition in the common law consists of any act done, or words spoken or written and published, which has or have a seditious tendency and is done or are spoken or written and published with a seditious intention.

Over a period, requirement of seditious intention and that the jury was the only judge to decide such an intention evolved as two safeguards in England. In Ram Nandan v. State[14], the Allahabad High Court observed that in England "sidetious libel consists of speaking words with a sediutious intention" and that in colonies "...an intention to incite violence is not an ingredient of the offence of sedition" whereas in England it is. It was only in Kedar Nath Singh that the intention to incite violence or public disorder was held to be an essential condition of sedition. The Law of Sedition, as it existed in England, was abolished in 2010 by section 73 of the Coroners and Justice Act, 2009 under Gordon Brown's Labour government.

Law of Sedition: Evolution through various cases

Pre-Independence Interpretation

The first case in which section 124A of the I.P.C. was attracted was Queen-Empress v. Jogendra Chandra Bose[15], also known as the 'Bangobasi' case. In this case, the proprietor, editor, manager and printer of the said newspaper were accused of committing the offence of sedition.

At the trial, Sir C. Patheram, C.J. observed that "whenever the prefix 'dis' is added to a word, the word formed conveys an idea the opposite to that conveyed by the word without the prefix". Accordingly, he interpreted the word disaffection to be a feeling contrary to affection; in other words, dislike or hatred. He distinguished the word 'disaffection' from the word 'disapprobation'. It is not mandatory that some disturbance or disaffection be produced as a result of his words and it is sufficient that such words were "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". However, no verdict was announced as the jury did not reach a unanimous decision. Later the case was withdrawn after Bose had tendered apology.

In 1897, the infamous trial of Bal Gangadhar Tilak[16] took place, more commonly referred to as the 'First Tilak Trial'. The defendant was accused of sedition for publishing an article in newspaper- Kesari invoking the example of the Maratha warrior Shivaji to incite overthrow of British rule. The trial had taken place before Justice Strachey, who elaborately expounded the law and his observations were, for a long time, regarded as an authority on the Law of Sedition.

During the course of the trial, Justice Strachey, addressing the jury pointed out that the section consists of two parts namely, the general clause and the explanation. The court then explained what constitutes 'feelings of disaffection'. He observed that "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 second case was the case of Queen-Empress v. Ramchandra Narayan[17], in which the first accused was the editor and the second accused was the proprietor, printer and publisher of a weekly newspaper called 'Pratod', which was printed and published in the Satara District at Islampur. In Ramchandra Narayan, attempt to excite feelings of disaffection to the Government was defined as, equivalent to an attempt to produce hatred towards the Government as established by law, to excite political discontent, and alienate the people from their allegiance'.

However, it was clarified that every act of disapprobation of Government did not amount to disaffection under section 124A IPC, provided the person accused under this section is loyal at heart and is 'ready to obey and support Government'.

Thus, it can be seen that, as early as in 1897, the section had been influenced to a great extent by judicial pronouncements. The controversial nature of the term 'disaffection' is evident considering the extent to which the meaning of the same had been deliberated upon in these trials and the definitions offered were not identical. In-fact it was because of this confusion in the meaning of the word 'disaffection' that the Legislature decided to repeal and substitute the section, as it stood then, with a new section 124A in 1898.

After these cases, in Niharendu Dutt Majumdar v. the King Emperor[18] the Federal Court digressed from the literal interpretation given to section in 124A IPC in Bal Gangadhar Tilak. The court held that the offence of sedition was linked to disruption of public order and prevention of anarchy and until and unless the speech leads to public disorder or a reasonable anticipation or likelihood of it, it cannot be termed seditious.[19] Thus, the crux of the defence argument in Bal Gangadhar Tilak was affirmed. The appellant was consequently acquitted by the Federal Court opining that all unpleasant words cannot be regarded 'actionable'

Later on, this definition was overruled in the case of by the Privy Council which was the highest court of appeal at that time. The reading of 'public order' in Section 124A IPC in Niharendu, was not accepted and the literal interpretation in Bal Gangadhar Tilak, and later in Ramchandra Narayan, and Amba Prasad, was upheld.

Post- Independence Interpretation

Sedition was not acceptable to the framers of the Constitution as a restriction on the freedom of speech and expression, but it remained as it is in the penal statute post-independence. After independence, section 124A IPC came up for consideration for the first time in the case of Romesh Thapar v. State of Madras[20]. The Supreme Court declared that unless the freedom of speech and expression threaten the 'security of or tend to overthrow the State', any law imposing restriction upon the same would not fall within the purview of Article 19(2) of the Constitution.

The Punjab High Court in Tara Singh Gopi Chand v. The State[21], declared section 124A IPC unconstitutional as it contravenes the right of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution observing that ―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.

By the first Constitutional Amendment two additional restrictions: namely, 'friendly relations with foreign State' and 'public order' were added to Article 19(2), for the reason that the court in Romesh Thapar, had held that freedom of speech and expression could be restricted on the grounds of threat to national security and for 'serious aggravated forms of public disorder that endanger national security' and not 'relatively minor breaches of peace of a purely local significance'.

After this amendment, there were three different views expressed by three different high courts. First was that of the High Court of Patna wherein the court had held that section 124A of the IPC is not violative of Article 19(1)(a) as guaranteed by the Constitution on the ground that the expression 'in the interests of public disorder' has a wide connotation.

Second was the view given by High Court of Manipur wherein it was held that part which imposes a restriction on the right to freedom of speech and expression is void and ultra vires the constitution but the part which relates to exciting hatred or contempt against the Government established by law in India to be valid. The third view was given by the Allahabad High Court[22] wherein the section 124A of IPC had been held to be Ultra Vires the Constitution on the ground that it infringes the fundamental right to freedom of speech and expression and is not saved by the provisions of article 19(2).

The constitutional validity of section 124A IPC came to be challenged in the case of Kedar Nath Singh. The Constitution Bench upheld the validity of section 124A and kept it at a different pedestal. The Court drew a line between the terms, 'the Government established by law' and 'the persons for the time being engaged in carrying on the administration'. At the same time, the Court struck a balance between the right to free speech and expression and the power of the legislature to restrict such right observing thus:

"The security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with view to punishing offences against the State, is undertaken. Such a legislation has, on the one hand, fully to protect and guarantee the freedom of speech and expression, which is the sine quo 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 the 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."

Law of Sedition and Right to Freedom of Speech and Expression

Whether or not the Law of Sedition, as it stands, is violative of the right to freedom of speech and expression enshrined under article 19(1)(a) of the Constitution has been a debatable issue ever since the Constitution came into force. Article 19(1) of the Constitution guarantees six fundamental rights, the first of which is the right to freedom of speech and expression. It implies a free exchange of ideas, dissemination of information and knowledge and freedom of expression of opinion. Freedom of expression includes the right to express one's convictions, ideas and opinions and also includes the right to publish, circulate and distribute and communicate one's expression in any manner and through any medium.

The right to be informed, right to silence, the freedom of discussion, certain forms of demonstrations, the right to criticize the Government and the right to discuss political affairs are part of the right to freedom of speech and expression.[23] The right to free political discussion is not merely a civil right guaranteed by way of right to freedom of speech and expression but is a political duty of every citizen. Everyone in the land should be free to think his own thoughts, to have his own opinions and to give voice to them, in public and in private, so long as he does not speak ill of his neighbor and free also to criticize the Government or any party or group of people, so long as he does not incite anyone to violence.

However, it is important to note that there can be no absolute right and no person can be said to be absolutely free from restraint. Enjoyment of one's own rights is always subject too certain restrictions including the enjoyment of the rights of others. Complete absence of restraint would lead to disorder and anarchy. The reasonable restriction to the six fundamental rights can be found under clauses (2) to (6) of Article 19. Restrictions upon right to freedom of speech and expression can be found clause (2) of Article 19.

In Kedar Nath Singh the Supreme Court construed Section 124A of IPC in a manner to avoid the section being declared as void or unconstitutional, by reason of contravention with Article 19(1)(a) of the Constitution. But it has narrowed down the meaning, application and scope of the section to cover only those activities which intend or tend to create disorder or disturb public peace by resorting to violence.

Law of Sedition in India in the Present context

In spite of the limited construction adopted by the Supreme Court, section 124A of the IPC has continued to be misused by successive governments to stifle legitimate criticism which have, thereby, encroached upon the right to freedom of speech and expression of citizens. Even the subordinate courts have, on certain occasions, ignored the limitation placed upon section 124A of the IPC and have erroneously interpreted the words of the section literally contrary to the ratio of Kedar Nath Singh. It is still seen that the lower judiciary and executive have, on many occasions, appeared to have turned a blind eye towards the principle laid down by the Supreme Court in Kedar Nath Singh.

Both Central and state government continue to charge anyone who dares to criticize them. According to data compiled by the National Crime Records Bureau (NCRB) from 2014 to 2016- the only period for which figures are available for sedition cases on its database- a total of 179 people were arrested on this charge[24]. However, by the end of 2016, police had not filed a chargesheet in over 80 per cent of cases. In courts, over 90 per cent of sedition cases are pending trial.[25] Consider the following instances of the 21st century:

In September 2001, cartoonist Aseem Trivedi was arrested after a complaint that his cartoons mocked the constitution and national emblem. The charges were dropped a month later following widespread criticism and public protests. Doctor and activists Binayak Sen was convicted of Sedition by a trial court in 2010 and sentenced to life imprisonment but was granted bail in 2011.

In March 2014, 60 Kashmiri students in Uttar Pradesh were charged with sedition for cheering for Pakistan in a cricket match against India. Authorities dropped the charges following legal advice from the law ministry. In August 2014, authorities in Kerala charged seven young men, including students, with sedition after a complaint that they had refused to stand up during the national anthem in a cinema. In October 2015, folk singer S Kovan was held in Tamil Nadu for two songs criticising the state government for allegedly profiting from state-owned liquor shops at the expense of the poor.

In February 2016, student leader Kanhaiya Kumar was arrested and charged with sedition for allegedly shouting anti-India slogans. He was later freed on bail. The latest addition to this list is Sharjeel Imam[26], a former scholar of Jawaharlal Nehru University- where Kanhaiya Kumar was also a research scholar.

Thus, it can be said that sedition has been used by the Government to muzzle dissent and haras journalists, activists and others, who protest against Government or its policies. In many cases, the courts have had to remedy the injustice done to the accused. The Supreme Court also once pointed out the casual manner in which trial courts award sentences on charge of sedition. This is not to say that sedition is always misused but it has been increasingly misused to fulfil the political agenda of the party in power.

Conclusion
Due to its rampant misuse, the desirability of section 124A of IPC has repeatedly been questioned. This has largely been due to its regular collision with Right to Freedom of Speech and Expression. In a democracy, people should be free to express their views, opinions, criticisms and beliefs. This is the fundamental requirement of democracy i.e. the participation of people and it will not be possible if people are punished so severely even for criticising government policies. Protection has been provided by the court through the precedent setting Kedar Nath Singh case but still we see cases of sedition because of ignorance of the lower judiciary and the police regarding the essential ingredients required for sedition.

The abolition of sedition by the U.K. has also raised the question whether Section 124A of the IPC should be repealed. In any case, its constitutionality in India has been upheld by the apex court though with severe restrictions on its meaning and scope.

The Law Commision of India in 1971 made some crucial recommendations to consider while revising the law[27]. In its consultation paper on sedition in 2018, the Law Commission again suggested the revision of the law. After over a century of criticism, the law may finally be revealed as the Supreme Court is currently hearing petitions against its validity.

References:

• Biswas S, 'Why India Needs To Get Rid Of Its Sedition Law' (BBC News, 2019) accessed 10 June 2022
• Donogh W R, A Treatise On The Law Of Sedition And Cognate Offences In British India, Penal And Preventive, Primary Sources, Historical Collections (Thacker, Spink 1911) accessed 8 October 2019
• Gupta D, 'Justice Deepak Gupta: Law Of Sedition Needs To Be Toned Down If Not Abolished' (The Wire, 2019) accessed 8 October 2019
• Kumar A, 'Law Of Sedition A Comparative Study' (Shodhganga, 2019) accessed 10 October 2019
• Law Commission, Consultation Paper on Sedition, (2018)
• Lohiya S, Law Of Sedition (Universal Law Publishing 2014)

End-Notes:

1. Aneesha Mathur, 'SC Puts Sedition Law On Hold Till Review Complete, Says No New Cases To Be Filed For Now' (India Today, 2022) accessed 25 June 2022
2. The Indian Penal Code 1860, s 124A.
3. William Russel Donogh, A Treatise On The Law Of Sedition And Cognate Offences In British India, Penal And Preventive, Primary Sources, Historical Collections (Thacker, Spink 1911), p. 2, accessed 8 October 2019.
4. Ibid, p. 60.
5. Omitted by Adaptation Order, 1950.
6. The words 'British India' were substituted by the Adaptation Order, 1948, the Adaptation Order, 1950 and now reads 'India'
7. The words 'or British Burma' were inserted by the Adaptation Order, 1937 and omitted by the Adaptation Order, 1948.
8. The words 'or the Crown Representative' were inserted after the word 'Majesty' by the Adaptation Order, 1937 and were omitted by the Adaptation Order, 1948
9. The Code of Criminal Procedure, 1898 s 196(1)(a).
10. AIR 1962 SC 955.
11. Queen Empress v. Bal Gangadhar Tilak, (1897) 22 BOM 112.
12. Shivani Lohiya, Law Of Sedition (Universal Law Publishing 2014).
13. Bal Gangadhar Tilak n 11.
14. AIR 1959 All 101.
15. ILR 1891 Cal 35.
16. Bal Gangadhar Tilak n 11.
17. ILR (1898) 22 Bom 152.
18. AIR 1942 FC 22.
19. Ibid.
20. AIR 1950 SC 124.
21. AIR 1951 Punj 27.
22. Kedar Nath Singh n 14.
23. M P Jain, Jasti Chelameswar and Dama Seshadri Naidu, Indian Constitutional Law (8th edn, LexisNexis 2018) 1219.
24. Ministry of Home Affairs, 'Crime In India - Statistics' (National Crime Records Bureau 2016) accessed 10 May 2022.
25. Deeptiman Tiwary, 'Sedition Case Reality Check: Only Two Convictions In Three Years' (The Indian Express, 2019) accessed 15 May 2022.
26. 'Sharjeel Imam Denied Interim Bail In Sedition Case' (Thehindu.com, 2022) accessed 25 July 2022.
27. Law Commission, Indian Penal Code (Law Com 42, 1971) para 25.1.