The Ministry of Home Affairs of the Government of India way back in the year 2016 requested that the Law Commission of India conduct a study of the applications of Section 124A of the Indian Penal Code and recommend any necessary amendments. The Law Commission in furtherance of the said request released its 279th Report, titled, “Usage of the Law of Sedition”. The Report, in addition to maintaining the provision from the colonial era, proposed increasing the prescribed punishment from three to seven years.
Sedition:
Explained
Firstly, it would be important to discuss the term
‘Sedition’ and how it came into the Indian criminal jurisprudence.
According to Section 124A of the Indian Penal Code “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.”
Therefore, sedition could be understood as a crime against
the state that punishes content that has the potential to cause public unrest
or violence in the country by inciting hatred, contempt, or disapproval of the
government. The objective sedition law is to penalise behaviour that inspired
disapproval of the government, but disapproval was to be separated from
disaffection. Thus as long as the people convey a desire to submit to the
government’s legitimate authority, they are free to express their opposition to
the government.
The prohibition against seditious speech has its roots in
English law. Sedition in feudal England was defined as libel and slander that
would cause the rulers to lose favour with their subjects. It would be
interesting to note that this clause was left out when the Indian Penal Code
was adopted in 1860. However, Mr. James Stephen then started working to make up
for this oversight. As a result, by the Special Act XVII of 1870, sedition was
included as an offence under Section 124A of the IPC.
This clause followed the Treason Felony Act of 1848, which punished seditious statements, and throughout British rule in India, this clause was used to persecute national independence activists.
Judicial
Interpretation:
- Queen v. Jogendra Chandra Bose (1892) ILR 19 Cal 35
The first trial for sedition was held in the Bangabasi case of Queen v. Jogendra Chandra Bose. Due to the publishing of the infringing articles, the government filed sedition charges under Section 124A against the owner, editor, manager, and printer of Bangobasi before the Calcutta High Court. After reviewing the charge and the summation, the jury informed the judge that it was unable to reach a unanimous conclusion. Justice Petheram mandated a future jury trial after stating that he would only accept a unanimous decision. The accused apologized for the articles, which led to the prosecution dropping its case, therefore the retrial was never held.
- The Queen-Empress v. Bal Gangadhar Tilak (1917) 19
BOMLR 211
Bal Gangadhar Tilak was twice charged
with sedition. First, two British officers perished in 1897 as a result of
violence spread by others in response to his remarks against Britons. Then, in
1990, he wrote a piece about Shivaji, a Maratha warrior, for his journal “Kesari,”
which the government later found seditious. This instance offered an explanation
of the term “disaffection”. Justice Strachey placed relevant
materials before the jury for interpreting “disaffection’ by saying: “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.”
Tilak was convicted with a 7:2 majority
by a jury of 7 Anglo-Indians and 2 Indians and sentenced to 6 years in prison
and a ₹1,000 fine.
- In Re: Mohandas Karamchand Gandhi … v.
Unknown (1920) 22 BOMLR 36
For his politically heated essays in the
Young India periodical, Mohandas Karamchand Gandhi was charged with sedition in
1922 and prosecuted before the Sessions Court in Bhadra, Gujarat. Gandhi and
the journal’s publisher both entered guilty pleas. Gandhi presented a statement
out loud at the trial outlining the background of his animosity towards the
British administration. He said that Section 124A of the IPC violated people’
rights to freedom of speech and assembly and that “affection [towards the
government] could not be manufactured.” Gandhi was found guilty and given
a six-year jail term.
- Ram Nandan v. State of U.P AIR 1959
All 101
Ram Nandan v. State of U.P. was the first
case to address the constitutionality of Section 124-A. The Allahabad High
Court ruled that Section 124-A of the IPC is unconstitutional because it
violates Article 19(1) (a) of the Constitution. 124-A was said to restrict
freedom of speech.
- Kedar Nath Singh v. Bihar State 1962 SCR Supl. (2)
769
The decision in Ram Nandan v. State of
U.P. (1958) was overturned in Kedarnath Das v. State of Bihar. In this instance,
the court decided that activities with the potential or purpose to disturb law
and order, or to incite violence, should be outlawed under this provision.
According to the court, criticism of the government is not sedition unless it
also calls for or encourages violence. However, if this clause is used
arbitrarily it would be a violation of Article 19 of the Constitution of India.
- Kanhaiya Kumar v. The State of Delhi 2016 SCC OnLine
Del 1362
The Delhi High Court stated that, when
exercising one’s right to free speech and expression under Article 19 (1) (a)
of the Constitution, one must keep in mind that Part IV, Article 51A of the Constitution
outlines every citizen’s fundamental duties, which are one aspect of the same
coin. It has been argued how to define seditious activities based on the
aforementioned legal rulings. In light of this, it might be argued that the
conduct does not fall under the ambit of section 124A of the IPC unless the
words or acts in issue do not imperil the security of the State or the public,
or produce any severe public disorder.
- S.G. Vombatkere v. Union Of India (2022)
7 SCC 433
The law of
sedition has been put on temporary hold by the Supreme Court of India due to re-examination. The Supreme Court
has barred the Central and the State governments from bringing sedition charges
against anyone under Section 124A of the Indian Penal Code. The Court stated
that “All pending trials, appeals, or actions relating to charges
established under this section would be placed in abeyance.”
What does Law commission recommend:
- Incorporating the Kedar Nath Decision: According to the Law
Commission report, Section 124A needs to reflect the main points of Kedar Nath v.
State of Bihar (1962). Kedar Nath affirmed the validity of the Sedition Law by
arguing that it complies with the reasonable constraints’ on free expression
outlined in Article 19(2) of the Constitution. The Court concluded that the act
of sedition can be proven when the words or deeds have the potential to stir up
violence or public disruption. The report claims that, in its current form,
Section 124A fails to explicitly define the meaning of these actions, leading
to its ambiguous interpretation.
- According to Article 19(2), sedition is a reasonable
restriction: According to the research, there is no evidence to support the
claims that the sedition provision violates Article 19(1)(a) of the Indian
Constitution, which guarantees freedom of speech and expression. According to
the report, the Constituent Assembly decided that the phrase “which
undermines the security of, or tends to overthrow, the State” was more
important and comprehensive than “sedition.” The article also claimed
that the Government of India added new constraints to Article 19(1)(a) of the
Constitution by including the phrases “public order,” “friendly
relations with foreign states,” and “incitement to an offence.”
- Installing a New “Safeguard” Procedural: To stop
the ‘alleged misuse’ of the law, the Commission suggests significant procedural
changes be made to the Code of Criminal Procedure, 1973 (CrPC). It implies that
a police officer with the level of Inspector or higher needs to make an initial
investigation before filing the First Information Report (FIR). The Central
Government will then decide whether or not to permit the filing of a FIR in
light of the investigation report’s conclusions. Section 154 of the CrPC will
be changed as a result of this change. The Law Commission emphasises that this
suggestion was developed after the Supreme Court’s findings in S.G. Vombatkere
about potential legal abuse were taken into account.
- Increasing the duration of the sentence: The Commission
suggests increasing the sentence to seven years in jail or life in addition to
a fine. Currently, the penalty is either a three-year sentence or a life
sentence in jail. Due to a contradiction with other provisions in Chapter VI of
the IPC, which lists “Offences against the State,” the study labels
this punishment as “odd.” You may find Section 124A here. This
contradiction is addressed in the report by harmonising Section 124A’s
punishment with other Chapter VI laws.
- Adding New Terms to the Provision: The words “tendency
to incite violence or cause public disorder” should be added to the
provision, according to the report. In contrast to evidence of actual violence
or a present danger of violence, it defines “tendency” as a
“inclination to incite violence or public disorder.” Thus, if
‘inclination’ is established, the outcome of an action won’t be taken into
account. The Report emphasises that Kedar Nath proved that sedition is an
offence that can be proven without evidence of violence. Instead, the Judgement
focuses mostly on the propensity of the words or deeds to stir up conflict or
disturb the peace.
Reasons for Retaining :
The Report cites five reasons for retaining
the provisions :
- The threat posed by extremist, anti-national, and separatist
elements must be eliminated in order to safeguard national security. They
argued that the rise of social media has contributed to the spread of radical
ideas against India, which are frequently encouraged and enabled by
“adversarial foreign powers.”
- The basic freedom of speech and expression protected by
Article 19(1)(a) of the Indian Constitution is subject to this “reasonable
restriction.” They claimed that “public order” and
“incitement to an offence” prohibitions are covered by sedition
law.
- The ‘conventional penal system’ is used to deal with the
terrorism issue. It contends that the mere existence of other anti-terrorism
and security laws, such as the National Security Act of 1980 and the Unlawful
Activities Prevention Act of 1967, is insufficient justification for the repeal
of the sedition statute. According to the study, without the sedition law,
those who engage in seditious activity may be charged under other statutes,
which frequently have greater penalties.
- According to the Report, in the context of India’s
contemporary democracy, the “colonial legacy” is not a compelling
enough justification for overturning the legislation. It draws attention to the
fact that other colonial legacies, such as the Police Forces and the All India
Civil Services, are still in place today without any protest. The fact that
sedition is a legacy of colonialism is not a good reason to repeal it. The Law
Commission disputes the arguments that the sedition provision is a remnant of
colonialism and should be eliminated. According to the paper, “It is
frequently asserted that the crime of sedition is a legacy of colonialism based
on the period in which it was created, particularly given its history of
application against India’s freedom fighters.”. The Law Commission drew attention
to the difference between colonial and democratic rule, arguing that while the
former penalised constructive criticism in order to protect its subjects’
interests, the later permits citizens to engage in constructive criticism of
the government.
- The Report emphasises that other laws addressing seditious
actions have been included inside treason and counterterrorism statutes in
nations where sedition laws have been overturned. It is clear that, in some of
the most developed democracies, only superficial changes have been made to the
relevant sedition provisions, leaving the provision’s core intact. “These
comparable jurisdictions, like the US, UK, etc., have their own histories,
physiographic regions, populations, cultural variety, legal systems, etc.,
which are not comparable to the conditions in India. Despite this, some of
these nations have combined their anti-sedition laws with anti-terror laws, as
per report.
Critical analysis of the Report:
The report mostly ignores recent court rulings and
international agreements pertaining to free speech and the right to disagree.
Neither the Shreya Singhal (2015) decision, which invalidated Section 66A of
the Information Technology Act, nor the Kaushal Kishor (2023) decision by the
Constitution Bench, which addressed the free speech rights of public officials,
are mentioned in the report. The Law Commission claims that while the abuse of
Section 124A is just claimed, the concerns to India’s internal security are
real. This viewpoint is not just irrational, but also flawed. The Supreme Court
has been truly apprised of the extensive history of the law’s abuse with
illustrations. If the Commission’s recommendation is adopted, the law will
become much stricter. The report argues for increasing the minimum sentence for
the crime on the pretext of “removing oddity in punishment.”
Strangely, the Commission sees nothing wrong with the law’s
text, which is ambiguous and abstract and has a built-in tendency to catch
innocent people off guard. As a result, Section 124A will continue to be harsh
because it punishes “disaffection” with the government, which
includes “disloyalty,” if these proposals are approved. This would
imply that, as at the law’s origin in 1870, any criticism of the government
could be categorised as seditious.
Notably, the study ignores the fact that the IPC
contains provisions that directly address offences against the State. Sections
121, 121A, 122, and 123 are among them. They are all concerned with the crime
of waging war against the government or other connected activities. The report
makes a distinction between Section 124A of the IPC and the wording of the
Unlawful Activities (Prevention) Act (UAPA), asserting that the latter is
required despite the former’s existence. The crucial issue is that any serious
attempt to overthrow the elected government is effectively and genuinely
covered by the aforementioned provisions of the IPC, which would then satisfy
the state’s real needs. This topic is not at all covered in the report.
The Commission’s report downplays the significance of
studying other countries’ sedition law experiences, claiming that the Indian
context is distinct. The adoption of useful ideas and best practises from
nations that have dealt with comparable legal difficulties, however, can be
hindered by this contemptuous attitude. For instance, the UK eliminated its
sedition statute in 2009 after determining that it was no longer necessary,
which may be a topic of discussion in the Indian context.
Conclusion:
There appears to be broad agreement that the definition of the sedition law in Section 124A of the IPC needs to be defined and changed. This includes coordinating it with the Apex court’s decision in Kedar Nath’s Case. It might be wise to reevaluate these rulings, especially the Kedar Nath, Balwant Singh, and Shreya Singhal rulings, and their effects on the sedition legislation. It is necessary to resolve the ongoing constitutional challenges to the sedition statute. It appears that the Law Commission’s findings ignored these difficulties. To make sure the law is in accordance with constitutional principles, a thorough evaluation of the law should take into account these difficulties and precedents. According to the Supreme Court, the sedition statute might not be appropriate given the contemporary societal environment. This implies the necessity for a more extensive discussion on the function of the sedition law in modern Indian society. In this regard, it is important to take into account variables like growing social media standards, changes in communication technology, and free expression restrictions.
Sandeep Kumar is working as a Law Researcher at Allahabad High Court and has completed his LL.M from National Law Institute University, Bhopal.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
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The Ministry of Home Affairs of the Government of India way back in the year 2016 requested that the Law Commission of India conduct a study of the applications of Section 124A of the Indian Penal Code and recommend any necessary amendments. The Law Commission in furtherance of the said request released its 279th Report, titled, “Usage of the Law of Sedition”. The Report, in addition to maintaining the provision from the colonial era, proposed increasing the prescribed punishment from three to seven years.
Sedition: Explained
Firstly, it would be important to discuss the term ‘Sedition’ and how it came into the Indian criminal jurisprudence.
According to Section 124A of the Indian Penal Code “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.”
Therefore, sedition could be understood as a crime against the state that punishes content that has the potential to cause public unrest or violence in the country by inciting hatred, contempt, or disapproval of the government. The objective sedition law is to penalise behaviour that inspired disapproval of the government, but disapproval was to be separated from disaffection. Thus as long as the people convey a desire to submit to the government’s legitimate authority, they are free to express their opposition to the government.
The prohibition against seditious speech has its roots in English law. Sedition in feudal England was defined as libel and slander that would cause the rulers to lose favour with their subjects. It would be interesting to note that this clause was left out when the Indian Penal Code was adopted in 1860. However, Mr. James Stephen then started working to make up for this oversight. As a result, by the Special Act XVII of 1870, sedition was included as an offence under Section 124A of the IPC.
This clause followed the Treason Felony Act of 1848, which punished seditious statements, and throughout British rule in India, this clause was used to persecute national independence activists.
Judicial Interpretation:
The first trial for sedition was held in the Bangabasi case of Queen v. Jogendra Chandra Bose. Due to the publishing of the infringing articles, the government filed sedition charges under Section 124A against the owner, editor, manager, and printer of Bangobasi before the Calcutta High Court. After reviewing the charge and the summation, the jury informed the judge that it was unable to reach a unanimous conclusion. Justice Petheram mandated a future jury trial after stating that he would only accept a unanimous decision. The accused apologized for the articles, which led to the prosecution dropping its case, therefore the retrial was never held.
Bal Gangadhar Tilak was twice charged with sedition. First, two British officers perished in 1897 as a result of violence spread by others in response to his remarks against Britons. Then, in 1990, he wrote a piece about Shivaji, a Maratha warrior, for his journal “Kesari,” which the government later found seditious. This instance offered an explanation of the term “disaffection”. Justice Strachey placed relevant materials before the jury for interpreting “disaffection’ by saying: “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.”
Tilak was convicted with a 7:2 majority by a jury of 7 Anglo-Indians and 2 Indians and sentenced to 6 years in prison and a ₹1,000 fine.
For his politically heated essays in the Young India periodical, Mohandas Karamchand Gandhi was charged with sedition in 1922 and prosecuted before the Sessions Court in Bhadra, Gujarat. Gandhi and the journal’s publisher both entered guilty pleas. Gandhi presented a statement out loud at the trial outlining the background of his animosity towards the British administration. He said that Section 124A of the IPC violated people’ rights to freedom of speech and assembly and that “affection [towards the government] could not be manufactured.” Gandhi was found guilty and given a six-year jail term.
Ram Nandan v. State of U.P. was the first case to address the constitutionality of Section 124-A. The Allahabad High Court ruled that Section 124-A of the IPC is unconstitutional because it violates Article 19(1) (a) of the Constitution. 124-A was said to restrict freedom of speech.
The decision in Ram Nandan v. State of U.P. (1958) was overturned in Kedarnath Das v. State of Bihar. In this instance, the court decided that activities with the potential or purpose to disturb law and order, or to incite violence, should be outlawed under this provision. According to the court, criticism of the government is not sedition unless it also calls for or encourages violence. However, if this clause is used arbitrarily it would be a violation of Article 19 of the Constitution of India.
The Delhi High Court stated that, when exercising one’s right to free speech and expression under Article 19 (1) (a) of the Constitution, one must keep in mind that Part IV, Article 51A of the Constitution outlines every citizen’s fundamental duties, which are one aspect of the same coin. It has been argued how to define seditious activities based on the aforementioned legal rulings. In light of this, it might be argued that the conduct does not fall under the ambit of section 124A of the IPC unless the words or acts in issue do not imperil the security of the State or the public, or produce any severe public disorder.
The law of sedition has been put on temporary hold by the Supreme Court of India due to re-examination. The Supreme Court has barred the Central and the State governments from bringing sedition charges against anyone under Section 124A of the Indian Penal Code. The Court stated that “All pending trials, appeals, or actions relating to charges established under this section would be placed in abeyance.”
What does Law commission recommend:
Reasons for Retaining :
The Report cites five reasons for retaining the provisions :
Critical analysis of the Report:
The report mostly ignores recent court rulings and international agreements pertaining to free speech and the right to disagree. Neither the Shreya Singhal (2015) decision, which invalidated Section 66A of the Information Technology Act, nor the Kaushal Kishor (2023) decision by the Constitution Bench, which addressed the free speech rights of public officials, are mentioned in the report. The Law Commission claims that while the abuse of Section 124A is just claimed, the concerns to India’s internal security are real. This viewpoint is not just irrational, but also flawed. The Supreme Court has been truly apprised of the extensive history of the law’s abuse with illustrations. If the Commission’s recommendation is adopted, the law will become much stricter. The report argues for increasing the minimum sentence for the crime on the pretext of “removing oddity in punishment.”
Strangely, the Commission sees nothing wrong with the law’s text, which is ambiguous and abstract and has a built-in tendency to catch innocent people off guard. As a result, Section 124A will continue to be harsh because it punishes “disaffection” with the government, which includes “disloyalty,” if these proposals are approved. This would imply that, as at the law’s origin in 1870, any criticism of the government could be categorised as seditious.
Notably, the study ignores the fact that the IPC contains provisions that directly address offences against the State. Sections 121, 121A, 122, and 123 are among them. They are all concerned with the crime of waging war against the government or other connected activities. The report makes a distinction between Section 124A of the IPC and the wording of the Unlawful Activities (Prevention) Act (UAPA), asserting that the latter is required despite the former’s existence. The crucial issue is that any serious attempt to overthrow the elected government is effectively and genuinely covered by the aforementioned provisions of the IPC, which would then satisfy the state’s real needs. This topic is not at all covered in the report.
The Commission’s report downplays the significance of studying other countries’ sedition law experiences, claiming that the Indian context is distinct. The adoption of useful ideas and best practises from nations that have dealt with comparable legal difficulties, however, can be hindered by this contemptuous attitude. For instance, the UK eliminated its sedition statute in 2009 after determining that it was no longer necessary, which may be a topic of discussion in the Indian context.
Conclusion:
There appears to be broad agreement that the definition of the sedition law in Section 124A of the IPC needs to be defined and changed. This includes coordinating it with the Apex court’s decision in Kedar Nath’s Case. It might be wise to reevaluate these rulings, especially the Kedar Nath, Balwant Singh, and Shreya Singhal rulings, and their effects on the sedition legislation. It is necessary to resolve the ongoing constitutional challenges to the sedition statute. It appears that the Law Commission’s findings ignored these difficulties. To make sure the law is in accordance with constitutional principles, a thorough evaluation of the law should take into account these difficulties and precedents. According to the Supreme Court, the sedition statute might not be appropriate given the contemporary societal environment. This implies the necessity for a more extensive discussion on the function of the sedition law in modern Indian society. In this regard, it is important to take into account variables like growing social media standards, changes in communication technology, and free expression restrictions.
Sandeep Kumar is working as a Law Researcher at Allahabad High Court and has completed his LL.M from National Law Institute University, Bhopal.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
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