Black's Law Dictionary defines sedition as"An agreement, communication, or other preliminary activity aimed at inciting treason or some lesser commotion against public authority" –
"The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set-up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy" - Nazir Khan v. State of Delhi, (2003) 8 SCC 461
Democracy is the essence of a system of government where the will of the people is supreme. It naturally follows that in a democracy, the freedom of speech and expression is a basic right that is guaranteed to every citizen of the country and is the corner stone of a healthy democracy.
In the words of George Washington:
"If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter."
Section 113 of Macaulay's Draft Penal Code of 1837-39 dealt with Sedition, but was omitted from the Indian Penal Code, 1860. However it was added as Section 124-A by Act 27 of 1870 and was as follows:
"124-A. Exciting Disaffection.— Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished …...
Explanation.—Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the methods of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause."
Thereafter this section was amended by the Indian Penal Code Amendment Act (4 of 1898). As a result the single explanation to the section was replaced by three separate explanations as they stand now. This section, after successive amendments, i.e. AOs of 1937, 1948 and 1950, constitutional changes, by, the Government of India Act, 1935, the Independence Act of 1947 and the Indian Constitution of 1950. Section 124-A, now reads as under:
"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." – inputs from Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769.
Here it is very imperative to understand as to how freedom of speech which is enshrined in Article 19 of the Constitution of India and more importantly the history of restrictions as imposed under 19(2) came about and its impact on or sustainability of section 124A of IPC.
Part III of the Constitution of India bestows upon the citizens the right to Freedom of Speech. Article 19 (1) protects some of our most cherished freedoms, and the right to freedom of speech and expression falls within sub clause (a) of Article 19 (1) as:
"19. (1) All citizens shall have the right—
(a) to freedom of speech and expression;"
However, the right under Article 19(1)(a) is not absolute since clause (2) of Article 19, itself, imposes certain restrictions.
The restrictions under Article 19 (2) have their own history. In the draft Constitution, Article 19 was introduced as Article 13 and clause (2) which imposed restrictions on the right to freedom of speech stated that the nothing in the Article "……shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of State".
After discussions, the right to freedom of speech came in as Article 19. From Clause (2) 'Sedition' was taken out and the last line, "undermines the authority or foundation of State" was changed to "undermines the security of or tends to overthrow, the State".
Thus our constituent assembly decided to give up the colonial legacy of sedition and moved ahead. This was also the basis of judgements, in 1950, by Supreme Court as well as couple of High Courts, wherein other than some State Acts dealing with public order, section 124A IPC, was held to be void as being not covered under the reasonable restrictions of Article 19(2).
However, the above judgments, prompted introduction of the 1st Constitutional Amendment in 1951 which was hotly debated and objected to amongst other, notably by Dr. S. P. Mookerjee, but was ultimately passed, wherein further restrictions were added to Article 19 (2) i.e. relation with foreign states; Public order; incitement to offence. The reason behind this Amendment, barely one and a half years after adoption of Constitution, was summed up by then Law Minister Dr. B.R. Ambedkar, while introducing the Amendment as:
"The necessity has arisen out of certain judgments which have been delivered by the Supreme Court as well as provincial High Courts"
Further he said that "All these cases have resulted in the decision that they are void laws, that is to say, in view of the provisions contained in clause (2) of Article 19, the courts have held that all these Acts, however valid they might have been before the Constitution came into existence, are bad laws now, because they are inconsistent with the Fundamental Rights".
The anxiety of Dr. Ambedkar stemmed from the fact that the Apex Court had struck down various enactments/government orders passed by State Legislatures/Governments that sought to prohibit the circulation of certain newspapers on the ground that the material contained therein was likely to disturb public order. In Romesh Thappar 1950 SCR 594 and Brij Bhushan (1950) SCR 605, the Supreme Court held that since "public order" was not a permissible head under Article 19(2) for imposing restrictions, therefore, the orders/enactments were liable to be struck down. Master Tara Singh's case decided by Punjab High Court involved the validity of Sec. 124A & 153A IPC.
Thereafter by the 16th Constitutional Amendment Act, 1963 the words "the sovereignty and integrity of India" were added to Article 19 (2).
In the much debated judgment, Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769, the Supreme Court in 1962, upheld the constitutional validity of section 124A IPC, by holding:
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.
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 124-A has been characterised, comes, under Chapter VI relating to offences against the State.
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.
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.
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.
Then Supreme Court in Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709, went on to hold that:
One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.
Then came Nazir Khan v. State of Delhi, (2003) 8 SCC 461 wherein it has been held 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 laws of the country. 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 constitutions of the realm, and generally all endeavours to promote public disorder.
The concept of the right to freedom of speech and expression was distilled by Justice R.F. Nariman in Shreya Singhal v. Union of India, (2015) 5 SCC 1 holding:
"There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in."
So, today whatever may be said about the maintainability of section 124A IPC or that we are still continuing with colonial legacy, but, in fact it's been "We the People of India" who in 1950 adopted Article 19 by specifically dropping 'Sedition' from clause (2) but in 1951 brought it back under the garb of 'Public Order' and not only decided to continue with the colonial legacy but subsequently either by amending the constitution or bringing in statutes imposed more curbs / fetters on the free speech. Various chances came in between but we never decided or had the courage to remove the fetters on free speech.
Section 124A IPC has been used by Government & decried by Opposition since its inception, it has been used to muzzle the press or depending on the ideology of parties governing, from one spectrum to other, without exception, the voice of opposition either directly or indirectly and to target organizations / parties from extreme right to extreme left ideology depending upon the dispensation.
Jury is still on, debates on social media & other forums continue to support either view point depending on the available platform, but, in spite of whatever are the pros & cons of Section 124A, there appears to be no chance in the near future that either the Legislature or the Judiciary is going to change their stance whatever may be the hue & cry.
Views are personal only.
(Author is a Delhi based lawyer. firstname.lastname@example.org)