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An Analysis of the term “Sedition”

Updated: Feb 20, 2022

Written by : Mayur Pokale


1. Introduction.

Sedition has been a very contentious issue in our country, especially in recent times. There have been various debates where certain members of society call it a tool of repression that is used by the state to silence its critics and that it goes against the rights of the people to express their views and opinions freely. Thereby working against the very concept of a democratic society, on the other hand, there are sections of our society that defend this law and consider it to be necessary for the survival of the state and the country and to protect its sovereignty. This debate has especially taken the front seat in recent times, it all began from certain students protesting in JNU were arrested and charged with sedition to the arrest of various journalists for reporting on the farmers' protests or various other protests were arrested and charged with sedition. Looking at all of this certain questions must arise in your minds as to what is sedition? What does it mean? Is it constitutionally legal? The article seeks to analyse the term sedition.

2. Origin of Sedition

Sedition law is inter-twined with the colonial times of India and it came into existence when the rule of India was transferred from that of the East India Company to The Queen of England. The Indian Penal Code came into being in 1860, after the recommendations of the first law commission which was headed by Thomas Babington Macaulay. Initially, section 124A was not a part of the original IPC and was only inducted in 1870 in chapter IV of the IPC which deals with offenses against the state. This was done in lieu of the rise in the Wahhabi Movement.

3. Meaning of Sedition

Sedition comes under Sec 124-A. of the Indian Penal Code, which is 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 [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.[1]

When a person is said to either by words spoken or written, or by signs, or by visible representation or otherwise attempts to excite or excites disaffection of the government is said to commit the act of sedition. The words “disaffection” over here include disloyalty and feelings of enmity to the state. There are certain important cases that define the meaning of sedition and we will also see how the meaning evolved over a period of time.

3.1 Evolution of the meaning of sedition In India

The concept was first evolved in Bal Gangadhar Tilak vs. Queen Empress[2]

This was one of the most important cases of sedition. This case played a major role in defining the meaning of the word “Disaffection” in the section. The Hon'ble Bench defined “Disaffection” as an absence of affection signifying political alienation or discontent, enmity, hatred against the government thereby creating a feeling of disloyalty to the existing government and causing alienation of the people. The judgement of the Hon'ble bench further stated that if the words either written, spoken or actions and articles did or attempted to create “Disaffection” or feeling of enmity or contempt against the Government established by law would be called as sedition. The fact that whether such actions or words does or does not cause insurrection or rebellion or any other lawless activity big or small is an immaterial fact. By this, they meant that whether or not due to incitement by the accused people do violent acts or not the accused will still be guilty of sedition for trying to attempt to incite disaffection of people against the state. In this case, Bal Gangadhar Tilak was found guilty and sentenced to 18 months of rigorous imprisonment but was later released on Bail.

Subsequently, the Federal Court of India had held in Niharendu Dutt Majumdar vs. King Emperor, (1942) [3] while defining sedition that "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", Therefore what the Hon'ble judges stated that mere abusive words were not enough but the intention to incite violence and create public disorder either directly or indirectly shall be sedition. But the Privy Council overruled this order has it had a different interpretation than that of the previous order. The fundamental difference being that the previous orders as in Bal Gangadhar Tilak vs. Queen Empress (1897) defined sedition as the act of create disaffection against the government and that whether such disaffection causes public disorder or not is immaterial as this Section deals with only the incitement of disaffection against the Government and not that of rebellion and insurrection, whereas in Niharendu Dutt Majumdar vs King Emperor (1947) it is stated that sedition is the act done by a person intentionally which brings or will bring violence and public disorder. Thereby making it completely different than the interpretations and judgements of the former cases as the Federal Court lays emphasis on sedition being done for the purpose of inciting violence and not that of only inciting disaffection against the state.

These were the two main interpretations of the meaning of sedition In Sec 124 A of the IPC.

4. Evolution of the meaning of sedition In India

After Independence K.M Munshi who was a part of the constituent assembly lead the charge to remove the word “Sedition” from section 124-A as he stated that this was an archaic and confusing word and thereby law which did not allow for criticism of the government which in itself is against the principle of a democracy a system which India is adopting as the entire premise of a democracy is the people being able to criticize their government if their wrong and enable freedom of expression. Also, the term sedition in itself is so broad and vague that it has caused confusion amongst Courts throughout the world as there is a thin line between political criticism and disaffection against the government. Hence K.M Munshi had proposed for this word to be removed and replaced with a proper set of words which would not be so vague. On December 1st, 1948 the constituent assembly unanimously removed the word “Sedition“ and thereby making Sec 124-A toothless. It should be noted here that although the constituent assembly did remove the word “Sedition”, it did ask for it to be replaced it with other set of better words which never happened and it was subsequently left blank which was never the intention of the constituent assembly as far as we can interpret from K.M Munshi’s argument. [4]

5. Resurgence of Sedition in India

All of this changed on 20th Jan, 1960 when the Supreme Court passed the judgement on the Landmark case of Kedarnath Singh Vs The State of Bihar.[5]

This iconic case was responsible for getting sedition back into India as it was in this case that the Supreme Court had looked into the constitutional validity of Sec 124A as well as reinstated “Sedition” in India. In this case Kedarnath Singh who was a member of the Forward Communist Party of Bihar he had used inflammatory speeches and used derogatory words against CID officers by calling them “Dogs” and called the ruling Congress Party at that time “Goondas” and had called for a revolution against the established government and for it to be overthrown. In this case, there were two issues in front of the court

1) Whether Sec 124 A is unconstitutional and not within the scope of the constitution i.e. Ultra Vires.

2) Whether the intention or tendency to create disorder, or disturbance of law and order, or incitement to violence is required to constitute the offence of sedition?

As far as the first issue was concerned the Hon'ble Constitutional Bench led by Chief Justice Bhuvaneshwar Prasad Sinha declared that sec 124A is not unconstitutional and Intra Vires .i.e. within the ambit of the constitution and that it also does not infringe Article 19 (1) of the constitution which is that of Freedom of speech which will be explained further, with the second issue the court was deliberating on which meaning to be considered for sedition between that of the judgements of Bal Gangadhar Tilak vs. Queen And Empress or Niharendu Dutt Majumdar vs. King Emperor as both of them were conflicting. In the end they decided to go with the meaning and interpretation of Niharendu Dutt Majumdar vs. King Emperor as the interpretation of Bal Gangadhar Tilak vs. Queen And Empress would be unconstitutional due to Article 19 (1) as it would not allow for any criticism of the government and would prevent free speech and expression. The Hon'ble Bench therefore considered the interpretation of the Niharendu Dutt Majumdar vs. King Emperor Judgement which stated that sedition is to incite people in order to create violence and public disorder or for a common person to understand that doing so was the intention of the said person. The Hon'ble bench adopted the said interpretation and got back sedition because they believed that it was absolutely necessary to protect the state and insure that it is stable and that in order to do so we need to protect the absolute visual image of the state that is the Government established by law But the supreme court being the guarantor of rights was also aware of protecting the rights of the citizens under Article 19 (1) and that it is a right of a citizen to criticize the government without subverting the government and undermining its authority and thereby affecting the stability of the state so the Hon'ble Bench added Explanation 2 and 3 to Sec 124 A of the IPC[6].

They are as follow

“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 2 allows for a person to express his disapproval of the government measures and obtain an alteration in it by lawful means without inciting hatred or contempt or disaffection against the government

“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.”

Explanation 3 allows for people to express their disapproval against any government decision or administrative decision without inciting hatred or contempt or disaffection against the government.

These two explanations which were added by the Hon'ble bench are done in order to protect the rights of the citizen to speak freely and criticize the government but without inciting hatred or contempt, thereby also showing that the right to free speech is also important in a democracy and that peoples voices do matter. We can see that this was a very wonderful judgement as it struck the balance between freedom of speech of an individual and the limits of the freedom of speech in order to protect the integrity of the nation and to maintain public order and prevent violence.

6. Constitutional Validity of Sec 124A

It is often said by certain people that Sec 124A violates our constitution and Article 19 (1) i.e. freedom of speech. Article 19 (1) gives people the right to freedom of speech and expression but article 19(2) allows the state to create laws to put reasonable restrictions on the freedom of speech in order to protect the sovereignty and integrity of India, the security of the state and also to maintain public order. Thereby this allows the state for laws like “sedition” to be created; the same was said in Kedarnath Singh Vs. State of Bihar[7] by the Constitutional Bench of The Supreme Court. It also shows that contrary to popular belief Freedom of speech is not an absolute right and that there can be reasonable restrictions to it. Hence Sec 124A is completely constitutionally valid.

7. Conclusion

Sedition has been a bone of contention in our country ever since its inception; there are various opinions on it being bad, archaic, repressive or Good, Necessary to maintain the integrity of the nation, public order, and so on. Leaving all of that aside for a moment as far as legality is concerned Sec 124A is completely constitutional and Intra Vires. Sedition is a law which is necessary for the stability of the state, the sovereignty of the state and to maintain public order, as public safety and well-being takes a front seat rather than that of an individual’s right, not that they aren’t important and hence the supreme court through explanations 2 and 3 of Sec 124A has allowed for the people to express their disapproval against the government's measures or decisions by lawful means, without subverting or inciting hatred or contempt against the government. Thereby also protecting people’s right to Free Speech under Article 19 (1). This can be seen from the latest comment by the Supreme Court on 5/3/21 during quashing of a petition against former J&K chief Farooq Abdullah for his remarks on scrapping Article 370 under Sec 124A in which the Supreme Court said that having different opinions than that of the government is not seditious. Hence calling Sec 124A as a law which hampers the Freedom of speech is arbitrary and uncalled for. Yes, it is also true and undeniable that government agencies have used this law at their whims and fancies in certain cases but not at all in order to curb and suppress certain people’s views and their right to free speech but that is not the fault of the law it is the flaw in the agencies and the mindsets of our officials and leaders. We must keep our faith in the Judiciary who is the interpreter of our Constitution and for them to take proper decisions in cases like these.

[1] The Indian Penal Code (45 of 1860) [2] (1897) 22 Bom 112 [3] Niharendu Dutt Majumdar (1942) FCR 38. [4] A.G Norani, “ How a Supreme Court judgment brought back the sedition law in India” Frontline, Jan.15, 2021 [5] Kedarnath Singh Vs State of Bihar(AIR 1962 SC 955) [6] The Indian Penal Code, (45 of 1860) [7] Kedarnath Singh Vs State of Bihar(AIR 1962 SC 955)s

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