By Anjali Rawat, Dr. Ram Manohar Lohiya National University (RMLNLU), Lucknow.

Lord Macaulay while framing the rough draft for Indian Penal Code, 1860 added a provision to give effect to sedition but due to some unaccountable reasons when it was enforced in 1860 this particular provision was not included in the Code. In 1870 the British colonial government felt the need to include this provision and prominent freedom fighters such as Bal Gangadhar Tilak and Mahatma Gandhi were arrested under it. Mahatma Gandhi even went to a length to call the law of sedition as the prince among the political sections of the Indian Penal Code, 1860 designed to suppress the liberty of the citizen. But even with this great criticism the provision regarding sedition i.e. Section 124A of IPC, 1860, stands erected and is constitutionally valid which is quite surprising as in the colonial time the British wanted to suppress Indians from revolting but now after six decades of independence, India is a democratic country and the existence of such provision is incongruous with its democracy.

Section 124A of IPC states:

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.

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.

A careful reading of Section 124A, in the backdrop of evolution in the Common Law of sedition and its entry into the IPC, reveals that the provisions of Section 124A, as observed by Sinha CJ, are based on the principle that ‘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 order’.[1] The very existence of the state, obviously, will be in jeopardy, if the government by law is subverted. Hence, the continued existence of the government is an essential condition for the stability of the state. [2]However, in present times the provision of sedition can be seen to be in contradiction with the fundamental right of freedom of speech and expression under Article 19 of Indian Constitution and there is need to do away with this provision. Tara Singh Gopichand v State[3] was the first case in which the constitutional validity of Section 124A was challenged before the court and the East Punjab High Court declared the section ultra vires to the Constitution of India. The Court observed:

India is now a sovereign democratic state. Government may go and be caused to go without the foundations of the State being impaired. 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.

Although by Constitution First (Amendment) Act, 1950 limitation to the freedom of speech and expression were introduced in Article 19(2) the Allahabad High Court in Ram Nandan v State of Uttar Pradesh[4] held that Section 124A imposed restrictions on the freedom of speech and expression not in the interest of general public and thereby infringed the fundamental right of freedom of freedom and speech. It, therefore, declared Section 124A as ultra vires to the Constitution. [5] However, the Supreme Court intervened when the pronouncement of Allahabad High Court was appealed along with other cases of sedition in Kedar Nath v State of Bihar[6]. The Supreme Court relied on the judgment of Privy Council in Emperor v Sadashiv Narayn[7] wherein Privy Council held that unless and until the speech delivered has tendency to incite people to violence the speech cannot be said seditious, i.e. the Supreme Court accepted that Section 124A of IPC, 1860 doesn’t stand the scrutiny of Article 19 of Indian Constitution but it didn’t remove the provision instead the Supreme Court read down the provision and thus it was held that Section 124A of IPC 1860 will be applicable only when the speech tends to incite people to commit violence.

But the decision of Supreme Court holds only academic value. There are flaws in the judgment of Supreme Court and they are as follows-

Firstly, when a charge sheet is filed by the police, they don’t see whether the speech concerned does or doesn’t incite violence, they are not well-versed in the laws of precedents. They follow the black and white law. They see sedition as an offence and arrest the accused. The situation with our judicial system is not hidden due to which sometimes an individual already suffers imprisonment for years even before appearing on the court.  Also, nobody follows the guideline given by Supreme Court. On March 2014, Sixty-seven Kashmiri students were charged with sedition under Section 124A, 153 and 427 of the Indian Penal Code, 1860 because they cheered for Pakistan’s cricket team as they beat India in the Asia Cup. The situation prima facie says that in no way the students wanted to incite people to commit violence, they were expressing their happiness, they had their own views which might be different from the rest of the Indians but in no way were meant to incite violence or in no way these students committed treason against nation.

Secondly, the rule given by the Supreme Court which states that Section 124A of IPC 1860 will be applicable only when the speech tends to incite people to commit violence is very subjective and inconsistent because the Supreme Court never formulated a test or any guideline to determine which kind of speech tends to incite people to commit violence which gives crevices to arbitrariness.

The Law Commission of India in its Forty Second Report did introduce some changes in section 124A of Indian Penal Code, 1860 but they were in no way the solution to the real problem. Indian is a democratic country where each and every individual has his own opinion and he can express it freely. The law of sedition has just remained as a tool of state to control and command the opinion of people which is in violation of the essence of constitution. In 2009 the English Parliament got rid of sedition by Coroners and Justice Act, 2009 and pleaded other countries to do the same. It’s high time that India follows the same path so that true democracy may exist in the country.

[1] Kedar Nath v State of Bihar AIR 1962 SC 955.

[2] Dr KI Vibhute, PSA PILLAI’S CRIMINAL LAW, 479 (10th edn, 2009).

[3] AIR 1951 East Punjab 27.

[4] AIR 1959 All 101.

[5] Vibhute, supra note 2, at 489.

[6] AIR 1962 SC 955.

[7] AIR 1947 PC 82.