The provision on Sedition (S.124A) in the Indian Penal Code 1860 (hereinafter IPC) has been a dreaded penal provision in both Pre-independent as well as Post-Independent India. In British India, it was a tool in the hands of the colonial government to curb revolutionary activities and in particular the national struggle for freedom against the British regime but in independent India it has often been misused right from the beginning by successive central and state governments to harass their critiques. Indians got independence from British rule on August 15 1947 but not from the many draconian British era laws including S.124A of the Indian Penal Code. Notwithstanding the conviction of freedom fighters such as Bal Gangadhar Tilak and Mohandas Gandhi under the sedition law, independent India choose to keep this provision for times to come. Even high profile individuals like Arudhanti Roy could not save herself from the heat of this law for being too critical of the government and for allegedly sympathising with the Kashmiri separatist cause. This is quite ironic that the principles of liberty and freedom for which India fought against the British colonial government did not hesitate to harass other individuals rallying for the same principles, once it got rid of the colonial government. Though this project, the author intends to look at the history of the sedition law in India and its misuse by successive colonial as well post-colonial governments.
This main objective this project work is to understand the provision of Sedition in the Indian Penal Code 1860 by analysing its history, controversies and case laws.
1. Whether Supreme Court was right in upholding the constitutional validity of the sedition law in the case of Kedar Nath v State of Bihar 1962?
2. Whether sedition provision has been misused by the State to the detriment of the fundamental right of speech and expression?
This research work is based on doctrinal method of research.
Indian Penal Code 1860– Provision on Sedition is contained in the Indian Penal Code 1860, hence this statute proved to be an important source in the making of this project.
Disaffection and the law– This amazing piece on ‘Sedition’ has been written by Siddharth Narayan. In this article, he discusses the history of sedition law in India and its chilling effects in civil liberties in a nuanced manner.
Free Speech, Nationalism and Sedition-This article in Economic and Political Weekly was written by Justice AP Shah in the context of some recent controversies surrounding the Sedition law.
Fear of the Intellectual-This article on sedition has been written by Romila Thapar in Economic and Political Weekly. In this article she discusses sedition law as a tool in the hands of govt. to harass intellectuals.
Kedar Nath Singh v State of Bihar AIR 1962 SC 955-This is the landmark supreme court case which saved the constitutionality of the sedition provision.
Ram Nandan v State AIR 1959 All 101-This landmark judgement of the Allahabad HC declared the sedition provision of the Indian Penal code as unconstitutional.
Brij Bhushan v State of Delhi  Supp SCR 245-In this case provision of S.124A of the IPC was challenged and it was argued that it is violative of the freedom of speech and expression under Article 19 of Indian Constitution.
Romesh Thapar v State of Madras AIR 1950 SC 124-This case pertained to a ban on a weekly journal ‘Crossroads’ in the name of securing order.
CHAPTER 1- SEDITION IN IPC- A BRIEF HISTORY
Sedition law is often comes into limelight in India whenever it is invoked against any high-profile individual. Few years ago, it was in limelight when it was invoked against few students of the Jawaharlal Nehru University (JNU) for their alleged support to Kashmiri separatism. The ongoing 17th general election in India has brought it again in limelight as Congress Party has promised in its manifesto to repeal this provision if it comes into power. The sedition provision is contained in S.24A of the Indian Penal Code 1860 and was brought into IPC by the British regime in India to suppress the freedom struggle and curb other revolutionary activities. It’s legacy of misuse continued even after independence as successive Indian governments did not hesitate in invoking it to curb dissent and harass individuals too critical of the government policies. In the opinion of senior advocate Rajeev Dhawan it is a prime example of a colonial legacy of brute suppression inherited by independent India.
Initially the provision was part of the S.113 of the draft penal code drafted by Lord Macaulay but somehow it could not find place in the final draft that was enacted in the year 1860. Many British legal Luminaries included James Stephen (a Judge in British India) later opined that the omission was by mistake and not deliberate.
Many say that the British government had intentionally dropped the provision from IPC as it wanted a more draconian provision on this issue by enacting a separate legislation altogether to deal with the revolutionary activities rampant in India. As a temporary measure, they did enact a press regulation and registration act but some times later realised the need of a sedition provision in the IPC itself to deal with day to day revolutionary activities against the British Regime.
The immediate reason however for the inclusion of S.124-A in the Indian Penal Code was the threat from Indian Muslims. Since the beginning of the British Raj, Muslims had been at the forefront in posing grave challenges to the continued British rule in India, be it in the form of tripartite Muslim political alliance in the Battle of Buxar, terrific resistance from Tipu Sultan, threat of invasion from Afghanistan and most importantly the leadership given by the Mughal Emperor to the sepoy mutiny in 1857. The enmity between Muslims and British goes much deeper in history and has European connection when English rulers were rallying for the Crusade against the Ottoman Empire. Muslims therefore were both religious and political threat to the British Regime in India compared to dormant Hindu elites who except few exceptions were ready to submit to the British paramountancy India to maintain their social hierarchy and domination over a vast number of Lower castes. British knew well that Muslims being the former rulers of the subcontinent were not happy with the British ascendance over India. When it was still recovering from the 1857 sepoy mutiny, the British government got panicked by the spike in Muslim extremist activities in the form of Wahabi Movement. Wahabi Movement was an underground Muslim political-religious movement in the aftermath of the 1857 mutiny. To contain this threat at the earliest, the British government inserted the sedition provision in the Indian Penal Code 1860. The provision was greatly influenced by the Treason Felony Act operating in Britain at that time and has been worded very broadly and over a period of time it has been made more stringent by various amendments. The punishments for the the offence can extend upto life imprisonment with or without fine and the offence is also a cognisable and non-bailable. A perusal of the explanation attached with the section explains the difference between the ‘exciting disaffection against the government established by law‘ and ‘disapprobation or mere criticism of government’. While the former is prohibited, the latter is permissible to an extent. Elaborating further on this issue, Siddharth Narayan writes that underlying principle is the feeling of affection between the ruler and the ruled and that such feeling can exist only between the ruler and the ruled so ‘disaffection’ is the feeling opposite to the affectionate feeling between the ruled and the ruler.
“The ruler must be accepted as a ruler, and disaffection, which is opposite of that feeling, is the repudiation of that spirit of acceptance of a particular government as ruler.“
Though the immediate reason behind incorporation of sedition provision in the IPC was the Wahabi movement amongst the Muslims, but some of the famous trials that took place under it included many congressmen such as Bal Gangadhar Tilak and Mohandas Gandhi and the former was tried not once but thrice and in one of them, he was famously defended by Muhammad Ali Jinnah.
The provision was not repealed even after independence and the Congress government decided to keep it in the statute book despite being well aware of its repercussions. Even after drawing severe flak from the opposition and courts in numerous decisions against the broadly worded provision, the government nonetheless chose to preserve the constitutionality of S.124A by amending the constitution. In the Romesh Thapar case, court had held that the provision and its wordings such as ‘Public Order’ and ‘Public Safety’ are too wide and broad compared to the more specific restriction provided under under Article 19(2) of Indian constitution for freedom of speech and expression. As a result, the government amended the constitution and added ‘Public Order’ as one of the reason for restricting free speech and also added ‘Reasonable’ before the word ‘restriction’ in Article 19 of the Indian Constitution to safeguard it from potential misuse.
But in practice the amendment made little difference to the misuse of sedition provision by Central as well State governments readily invoked it to deal with their adversaries and thus the provision remained in the statute book. Next chapter shall analyse some of the landmark case laws in which constitutionality of S.124A was challenged.
CHAPTER 2- ANALYSIS OF CASE LAWS
There has been a plethora of trials and convictions under the Sedition law but some of them of them have been so remarkable that they still find mention in law books. In pre-independence India, sedition trials of Bal Gangadhar Tilak and Mohandas Gandhi and their defences are quite famous. In his case, Tilak pleaded that if at all he has shown or excited any defection, it is for a colonial government and not against the people of India. The first sedition case against Tilak related to the murder of British Plague commissioner Rand and Ayherst in the Province of Bombay. Prosecution alleged the murder was inspired by a speech given by Tilak in which he had referred to an incident in which Shivaji had killed Afzal Khan. Tilak was convicted and could only be released after intervention of some international figures such as Max-Weber. In 1989, an amendment was made to the provision on the intervention of the shrewd British Judge Stachey and the words ‘hatred’ and ‘contempt’ were added along with ‘disaffection’ which was explained to include all feelings of enmity and disloyalty against the government. All this was primarily done to eliminate any possible loophole in the provision which could benefit the accused. Some other provision such as Sections 153A and 505 were also added in IPC to deal with the rising cases of extremism and communal hatred by and to also deal with revolutionary preachings of some of the local newspapers.
Tilak was tried again in 1908 after an editorial by Pringle Kennedy-a leading pleader of Bihar surfaced in one of his newspaper ‘Kesari’. The editorial had severely criticised the govt. policies of curbing the press freedom. Despite rigorous defence by Muhammad Ali Jinnah in this case, Tilak was sentenced to 6 year rigorous punishment. In 1916, he was again arrested for allegedly disseminating seditious materials in Bombay Province but this time Jinnah successfully saved him from conviction by pleading that Tilak had only attacked the bureaucracy and not the government.
Another pre-independence trial that generated much hype in those times was the trial of Mohandas Gandhi in 1922 for allegedly publishing some seditious articles in his magazine ‘Young India’. Gandhi was overwhelmed when his case was compared to Tilak’s and he felt much proud and honoured in compared with Tilak. During the trial when Justice Strangman asked him that what he became such a strong ‘disaffectionist’ from a staunch royalist, Gandhi famously replied-‘Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.’ Though the judge was quite impressed with Gandhi, yet he gave him a 6 years imprisonment.
Niharendu Dutt Majumdar (1939) case for the first time tried to curtail the scope of this section by clarifying 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’ but this decision was overturned in Sadashiv (1947) case decided by the Privy Council which conclusively reaffirmed that ‘the offence consisted in exciting or attempting to excite in others certain bad feelings towards the government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small.’
Immediately after the enactment of the constitution in 1950, the rechristened Indian courts had to deal with some cases pertaining to sedition. These cases include Romesh Thapar and Brij Bhushan.
In Romesh Thapar v State of Madras 1950, the government of Madras (Now TN) had banned a weekly journal ‘Cross Roads’ by exercising its power under Section 9(1-A) of the Madras Maintenance of Public Order, Act, 1949 which empowered the govt. to prohibit publication, circulation, sale or distribution of any newspaper for the purpose of securing public safety and maintenance of public order. Petitioners challenged the validity of the this provision under Article 19(1)(a) of the constitution. The government contended that the expression “public safety” in the impugned Act, which is a statute relating to law and order, means the security of the Province, and, therefore tantamount to “the security of the State” within the meaning of article 19(2) as “the State” has been defined in article 12. After taking into consideration the totality of the circumstances, especially the dropping of the word ‘sedition’ from the draft constitution as ground of restricting freedom of speech and expression, Supreme court invalidated the said provision of Madras saying that to fit under the reasonable restriction under Article 19(2), a law restricting freedom of speech and expression must be directed solely against the undermining of the security of the State or the overthrow of it. The court held that where a law regulating freedom of speech is so widely worded that it can cover restrictions both within and outside the constitutional limits, it cannot be saved under the doctrine of severability.
In Brij Bhushan v State of Delhi 1950, RSS mouthpiece ‘Organiser’ was asked to deposit all its materials pertaining to Pakistan for scrutiny under S.7(1)(c) of the East Punjab Public Safety Act 1949 which authorised the government to take such steps so as to prevent any activity prejudicial to the public safety or the maintenance of public order. The petitioners in this case also challenged the constitutional validity of the provision. Court said that sedition is an offence against public tranquility and be either accompanied by violence or without violence and restrictions under Article 19(2) are wide enough to cover both situations and therefore dismissed the petitioners claim.
The first direct challenge to the constitutionality S.124A came before the Allahabad High court in Ram Nandan v State 1959. Ram Nandan was charged under this section for allegedly giving an inflammatory speech against the Congress government for not addressing the issues of poverty and labourers and he had allegedly incited them to overthrow the Congress regime by forming a militia. He also accused Nehru of being a traitor for allowing the Partition of Nation. Allahabad HC overturned the conviction and also declared S.124A IPC to be ultra-vires of the constitution because it restricted freedom of speech and expression regardless the fact as to whether such an expression has tendency to cause public disorder. Court termed such restrictions to be undemocratic which can strike the very roots of the constitution and the democracy.
But this decision was overturned by the SC in the case of Kedar Nath v State of Bihar 1962 which restored the constitutional validity of S.124A although limiting its scope at the same time. Kedar Nath was a communist who in his speeches targeted the Congress Government and called for a revolution to overthrow zamindars, capitalists and Congress governments. Supreme Court in this case distinguished between ‘disloyalty to government’ and criticism of govt. policies without inciting public disorder by using acts of violence. The court upheld the constitutionality of the provision using the argument that if there are two interpretations of a statute, and one interpretation will render the provision as unconstitutional while another will make it constitutional, the court shall go by the latter interpretation. The court also limited the scope and application of Sedition provision by restricting its application to only those acts ‘involving intention or tendency to create disorder or disturbance of law and order or incitement to violence’.
Despite the limits placed on the scope of the application of S.124A in the Kedar Nath case, there has been numerous charges of sedition levelled against people from diverse backgrounds including Human Right activists as was evident in case like Times of India Ahmadabad case 2008, Lenin Kumar case (Nishan Magazine) Piyush Sethia case, PUCL Karnataka case, Bilal Ahmad Kaloo case, Arudhanti Roy case, JNU controversy and many others. Some of them have been clearly maliciously motivated. Justice AP Shah in an article opined- ‘A parochial, selfish, narrow minded nationalism has caused so much misfortune and misery to the world. A mad and exaggerated form of this cult of nationalism is today running rampant.’
There is no doubt that provision on sedition in the Indian Penal Code is a draconian law brought by the British Regime of India to deal with the revolutionary activities and the national struggle for freedom by creating a fear amongst the intelligentsia and political class of those times. The fact that India got independence in August 1947 adds weight to the contention that Britishers failed miserably in their aim and it also proves that the sedition law had little effect on the revolutionary activities of the freedom fighters. Except some exceptions such as Savarkar and Aurbindo Ghose, Indian politicians such as Tilak, Gandhi, Nehru and many others chose to put a valiant fight against the British regime both on roads and in courts. In his case Mohandas Gandhi pointed out that affection towards someone including government is something which has to be cultivated with consent and respect and is not something that cannot be forced upon from outside. Tilak had said that disaffection towards government does not necessarily implies disaffection towards one’s nation and its people. Many revolutionaries even questioned the legality of the British government which they said was established in India not according to the mandates of law or people but by force and fraud. It is unfortunate that even after India became independent from the British Rule, leaders such as Nehru and Patel who had been prosecuted under this law chose to keep it in the statute book notwithstanding the grand hypes and narratives of liberty and freedom that they promised in the objective resolution of the constituent assembly as well as in the Constitution. In Ramnandan’s case, Allahabad High Court declared S.124A of IPC to be ultra-vires of the constitution but Supreme Court did not agree to this and upheld the constitutional validity this provision in the Kedar Nath case. There is no doubt that this law has been often misused by governments and in such a situation, it would not be unwise to call on the Supreme Court of India to have a relook on its decision in Kedar Nath.