"Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen"
This section was amended in 1898. As a result of the
amendment, the single explanation to the section was
replaced by three separate explanations as they stand now.
The section, as it now stands in its present form, is the result
of several AOs of 1937, 1948 and 1950, as a result of
the constitutional changes, by the Government of India Act,
1935, by the Independent Act of 1947 and by the Indian Constitution of 1950. Section 124A, as it has emerged after
successive amendments by way of adaptations as aforesaid,
reads as follows:
“124A. Sedition - Whoever by words, either spoken or written,
or by signs or by visible representation, or otherwise,
brings or attempts to bring into hatred or contempt, or
excites or attempts to excite disaffection towards the
Government established by law in India shall be
punished with transportation for life or any shorter
term 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 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 offence, which is generally known as the offence
of Sedition, occurs in Chapter VI of the IPC. 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, jeopardise 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 the case of Reg Vs. Alexander Martin Sullivan reported as [(1867-71) 11 Cox's Criminal Law Cases, 44 at p. 45], Justice Fitzerland, in the course of his address to the jury, observed that;
“Sedition is a crime against society, nearly allied to
that of treason and it frequently precedes treason by a
short interval. Sedition in itself is a comprehensive
term, and it embraces all those practices, whether by
word, deed or writing, which are calculated to disturb
the tranquillity of the State, and lead ignorant persons
to endeavour 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 endeavours to promote public
disorder.”
Jogendra Chunder Bose was the first man to be tried under Section 124A of IPC for allegedly inciting rebellion against the British Crown by an article which was written by him in his magazine called 'Bangobasi' wherein, he had criticized the move of raising the legal age for sexual intercourse for women from 10 to 12 years and he called it "forced Europeanisation". This case is popularly known as the Bangobashi Case (Queen Empress Vs. Jogendra Chunder Bose, (1892) I.L.R 19 Cal. 35) and was tried by a jury before Sir Comer Petheram, C.J. while charging the jury, the Hon'ble 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 hearers or readers, he will be guilty of the offence of attempting to excite 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."
Secondly, the most celebrated case was Tilak Trial [Queen Empress Vs. Bal Gangadhar Tilak reported as (1898) ILR 22 Bom. 112] which was tried by a jury before Justice Strachey and he explained the law to the jury in the following 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. You will observe that the amount or intensity of the affection is absolutely immaterial except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will, of course, find him guilty. But if you should hold that that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feelings in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not 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 articles to excite rebellion or disturbance, his act would doubtless fall within Section 124-A, and would probably fall within other sections of the Penal Code. But even if 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. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.”
Tilak was eventually found guilty by the jury, by a majority of six to three, thus he applied for leave to appeal to the Privy Council. A Full Bench heard the application and it was 'inter alia' contended on behalf of Tilak that the Judge misdirected the jury as to the meaning of the word “disaffection” insofar as he said that it might be equivalent to “absence of affection”. The Bench while refusing to grant leave opined that “The first of the minor points
is that Mr Justice Strachey in summing up the case to
the jury stated that disaffection meant the ‘absence of
affection’. But although if that phrase had stood alone
it might have misled the jury, yet taken in connection
with the context we think it is impossible that the jury
could have been misled by it. That expression was
used in connection with the law as laid down by Sir
Comer Petheram in Calcutta in the Bangaboshi case.
There the Chief Justice instead of using the words 'absence of affection' used the words ‘contrary to
affection’. If the words ‘contrary to affection’ had
been used instead of ‘absence of affection’ in this case
there can be no doubt that the summing up would
have been absolutely correct in this particular. But
taken in connection with the context it is clear that by
the words ‘absence of affection’ the learned Judge did
not mean the negation of affection, but some active
sentiment on the other side. Therefore, on that point, we consider that we cannot certify that this is a fit case
for appeal. In this connection, it must be remembered that it is not
alleged that there has been a miscarriage of justice.”
Subsequently, the case was taken to the Privy Council by way of SLP and it was contended on behalf of Tilak that there was misdirection as to the meaning of Section 124-A of the Penal Code in that the offence had been defined in terms too wide to the effect that “disaffection” meant simply “absence of affection”, and that it comprehended every possible form of bad feeling to the Government. In this connection, reference was made to the
observations of Petheram, C.J. in Queen Empress v. Jogendra Chander Bose(Supra) . It was also contended
that the appellant's comments had not exceeded what in
England would be considered within the functions of a
public journalist and that the misdirection complained of
was of the greatest importance not merely to the affected
person but to the whole of the Indian press and also to all
Her Majesty's subjects; and that it injuriously affected the
liberty of the press and the right to free speech in public
meetings. Lord Chancellor, while dismissing the application, observed that taking a view of the whole of the summing up they did not see any reason to dissent from it, and that keeping in view the Rules which Their Lordships observed in the matter of granting leave to appeal in criminal cases, they did not think that the case raised questions which deserve further consideration by the Privy Council.
In the case of Niharendu Dutt Majumdar Vs. King Emperor reported as (1942) FCR 38, Chief Justice Sir Maurice Gwyer has pointed out that the language of Section 124-A of the IPC, had been adopted from the English Law, and observed that;
“… generally speaking, we think that the passage
accurately states the law as it is to be gathered from
an examination of a great number of judicial
pronouncements.
The first and most fundamental duty of every
Government is the preservation of order, since order
is the condition precedent to all civilisation and the
advance of human happiness. This duty has no doubt
been sometimes performed in such a way as to make
the remedy worse than the disease; but it does not
cease to be a matter of obligation because some on
whom the duty rests have performed it ill. It is to this
aspect of the functions of Government that in our
opinion the offence of sedition stands related. It is the
answer of the State to those who, for the purpose of
attacking or subverting it, seek (to borrow from the
passage cited above) to disturb its tranquillity, to
create public disturbance and to promote disorder, or
who incite others to do so. Words, deeds or writings
constitute sedition, if they have this intention or this
tendency; and it is easy to see why they may also
constitute sedition, if they seek, as the phrase is, to
bring Government into contempt. This is not made an
offence in order to minister to the wounded vanity of
Government, but because where Government and the
law cease to be obeyed because no respect is felt any
longer for them, only anarchy can follow. 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.”
The abovesaid statement of the law expressed by Chief Justice Sir Maurice Gwyer was not approved by the Privy council in the case of King Emperor Vs. Sadashiv Narayan Bhalerao reported as 74 IA 89, wherein it was observed that there was no statutory definition of “sedition” in England, and the meaning and content of the crime had to be gathered from many decisions. It was further held that the expression "excite
disaffection" did not include "excite disorder",
and that, therefore, the decision of the Federal
Court in Niharendu’s Case proceeded on a wrong
construction of Section 124A of the IPC.
The constitutionality of Sections 124A and 505 of the IPC was challenged in the case of Kedar Nath Singh Vs. State of Bihar reported as (1962) Supp. 2 SCR 769 (Constitution Bench) on the ground that both these sections are ultra vires as they
contravene the provisions of Article 19(1)(a) of the
Constitution.
In this case, it was observed by the Supreme Court that words in the English law relating to
sedition are the same as in Section 124A of IPC. Under English Law, a tendency to create tumult or disorder is an essential element of sedition. Section 124A has been taken from the English Law. Section 124A must, therefore, be interpreted in the same manner as sedition is interpreted in England and it must be held that a tendency to disturb public order is an essential element of the offence under Section 124A. Articles 133 and 133A of the Canadian Criminal Code which deal with sedition have been given the same interpretation.
It was held that the view taken in
Tilak’s case, in Bhalerao’s case and in Wallice Johnsons case that incitement to violence or a tendency to
disturb public order was not a necessary
ingredient of Section 124A, is not the correct view. Niharendu Dutt Majumdar's case takes the correct view and lays down that the tendency to disturb public order is a necessary ingredient of the offence Under Section 124A.
The Hon'ble Supreme Court while upholding the constitutionality of Section 124A of IPC held that "With reference to
the constitutionality of Section 124A or Section 505 of the Indian Penal Code, as
to how far they are consistent with the
requirements of Clause (2) of Article 19 with particular
reference to the security of the State and public
order, the section, it must be noted, penalises
any spoken or written words or signs or visible
representations, etc., which have the effect of
bringing, or which attempt to bring into hatred or
contempt or excites or attempts to excite
disaffection towards the Government established by
law" has to be distinguished from the people for
the time being engaged in carrying on the
administration. "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 of
the stability of the State. That is why
’sedition’, as the offence in Section 124A has been
characterised, comes under Chapter VI relating to
offences against the State. Hence any act within
the meaning of Section 124A which have the effect of
subverting the Government by bringing that
Government into contempt or hatred, or creating
disaffection against it, would be within the penal
statute because the feeling of disloyalty to the
Government established by law or enmity to it
imports the idea of a tendency to public disorder by
the use of actual violence or incitement to
violence. 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. But the section has taken care to
indicate clearly that strong words used to express
disapprobation of the measures of Government with
a view to their improvement or alteration by
lawful means would not come within the section.
Similarly, comments, however strongly worded, expressing disapprobation
of actions of the Government, without exciting
those feelings which generate the inclination to
cause public disorder by acts of violence, would
not be penal. In other words, disloyalty to
Government established by law is not the same
thing as commenting in strong terms upon the
measures or acts of Government, or its agencies,
so as to ameliorate the condition of the people or
to secure the cancellation or alteration of those
acts or measures by lawful means, that is to say,
without exciting those feelings of enmity and
disloyalty which imply excitement to public
disorder or the use of violence.
It has not been contended before us that if a
speech or writing excites people to violence or
has the tendency to create public disorder, it
would not come within the definition of
’sedition’. What has been contended is that a person who makes a very strong speech or uses very
vigorous words in a writing directed to a very
strong criticism of measures of Government or acts
of public officials, might also come within the
ambit of the penal section. But, in our opinion,
such words written or spoken would be outside the
scope of the section. In this connection, it is
pertinent to observe that the security of the
State, which depends upon the maintenance of law
and order is the very basic consideration upon
which legislation, with a 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. This Court, as the
custodian and guarantor of the fundamental rights
of the citizens, has the duty cast upon it of
striking down any law which unduly restricts the
freedom of speech and expression with which we are
concerned in this case. But the freedom has to be
guarded again 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. The Court, has,
therefore, the duty cast upon it of drawing a
clear line of demarcation between the ambit of a
citizen’s fundamental right guaranteed under Art.
19(1)(a) of the Constitution and the power of the
legislature to impose reasonable restrictions on
that guaranteed right in the interest of, inter
alia, security of the State and public order. We
have, therefore, to determine how far the ss. 124A
and 505 of the Indian Penal Code could be said to
be within the justifiable limits of legislation.
If it is held, in consonance with the views
expressed by the Federal Court in the case of
Niharendu Dutt majumdar v. The King Emperor that the gist of the offence of ’sedition’ is
incitement to violence or the tendency or the
intention to create public disorder by words
spoken or written, which have the tendency or the
effect of bringing the Government established by
law into hatred or contempt or creating
disaffection in the sense of disloyalty to the
State, in other words, bringing the law into line
with the law of sedition in England, as was the
intention of the legislators when they introduced
s. 124A into the Indian Penal Code in 1870 as
aforesaid, the law will be within the permissible
limits laid down in cl. (2) of Art. 19 of the
Constitution, if on the other hand we give a
literal meaning to the words of the section,
divorced from all the antecedent background in
which the law of sedition has grown, as laid down
in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also
very much beyond the limits laid down in cl. (2)
aforesaid.
The provisions of the sections read
as a whole, along with the explanations, make it
reasonably clear that the sections aim at
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. As already pointed out, the explanations
appended to the main body of the section make it
clear that 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. 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. So construed, the section, in our opinion, strikes the correct
balance between individual fundamental rights and
the interest of public order. It is also 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. The Bengal Immunity
Company Limited v. The State of Bihar and R.M.D. Chamarbaugwalla v. The Union of India.
Viewed in that light, we have no hesitation in so
construing the provisions of the sections impugned
in these cases as to limit their application to
acts involving intention or tendency to create
disorder, or disturbance of law and order, or
incitement to violence. We may add that the provisions of the
impugned sections, impose restrictions on the
fundamental freedom of speech and expression, but
those restrictions cannot but be said to be in the
interest of public order and within the ambit of
permissible legislative interference with that
fundamental right."
The law laid down by the Hon'ble Supreme Court in the matter of Kedar Nath Singh (Supra) can be summarized in the following manner:
1.) The expression “the Government established by law” has
to be distinguished from the persons for the time being
engaged in carrying on the administration. “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.
2.) Any acts within the meaning of Section 124-A which
have the effect of subverting the Government by bringing
that Government into contempt or hatred, or creating
disaffection against it, would be within the penal statute
because the feeling of disloyalty to the Government
established by law or enmity to it imports the idea of the tendency to public disorder by the use of actual violence
or incitement to violence.
3.) Comments, however strongly worded, expressing
disapprobation of actions of the Government, without
exciting those feelings which generate the inclination to
cause public disorder by acts of violence, would not be
penal.
4.) 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.
5.) The provisions of the Sections41 read as a whole, along
with the explanations, make it reasonably clear that the
sections aim at 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.
6.) 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.
7.) We propose to limit its operation only to such activities
as come within the ambit of the observations of the
Federal Court, that is to say, activities involving
incitement to violence or intention or tendency to create
public disorder or cause disturbance of public peace.
Abolition of English Sedition Law
The Law Commission in 1977, through a Working Paper no. 72, suggested the abolition of sedition law in Britain thereby opining that "it is better in principle to rely on the ordinary statutory and common law offences than to have resort to an offence which has the implication that the conduct in question is "political". Our provisional view, therefore, is that there is no need for an offence of sedition in the criminal code."
Subsequently, Section 73 of the Coroners and Justice Act, 2009 abolished the offence of sedition including the offence of defamatory libel and the offence of obscene libel in Britain.
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