Legal History Of Sedition - IPC 124A

During the Crown rule, the seditious laws were enacted in Britain as a precautionary measure to forbid any futuristic uprising against the Ruling crown & Government. These laws prevented any, act, speech, publication either made orally or in writing which were made with an intent to dethrone the crown or pull down the government. The word sedition means any act, speech, publication either orally or in written form made with an intent to incite a group of people to rebel against the sovereign or the elected authority of the state. Hence, because of this definition even a mere critical comment on the working of the authority of the state or monarch was treated as a seditious act.

Long before sedition became an offence in the United Kingdom, there was Treason Act 1351, which defined what treason was. The Act made it an offence "for a man or a woman to compass or imagine the death of the sovereign, his queen or their eldest son and heir. However the words, compass and imagine have a wider meaning , where the word compass meant to plot, scheme or plan and the word imagine as per Blackstone were synonyms"^[1]. Many legal scholars of that duration were of the opinion that the Treason Act, 1351 was not a very well worded and a clumsy legislation.

However the Act of 1351 only the writing or the speaking to be treason, it did not lay down in clear terms but nonetheless listed down the necessity of an explicit act which was in lieu of "compassing" or "imagining" the death of the ruling authority. Thus, in the year 1397 followed by the year 1488 similar acts were passed which clearly stated that mere words written or spoken "compassing" or "imagining" the death of the ruling authority were sufficient enough to be charged with the offence of Treason. Also the Act of 1488 made it only a felony.

During Queen Elizabeth era i.e. from 1590 onwards, Sedition Act 1661 was passed by the parliament of England, which stated that, any, act, speech, publication either made orally or in writing which were made with an intent to dethrone the crown or pull down the government or create the feeling of disaffection towards the ruling authority of the state,shall be an offence. During that time period sedition was analogous to the Treason Act of  1695 & the Treason Felony Act 1848. One of the main reason why the Sedition Act was passed and enacted was because, Britain had acquired a lot of overseas countries, and called them as British colonies. All the people in these British colonies wanted to be free of the crown rule and hence there were lot of agitations and rebellions against the crown rule.

In 1977, The Law Commission had published a working paper no.72, in its second programme, item XVIII, titled Codification of The Criminal Law " Treason , Sedition and Allied Offences". This working paper spoke in detail as to why there is a need for codification of various criminal laws and especially those related to treason, sedition and allied offences. The paper stated that the common law definition of the word "Sedition" is very uncertain. Nonetheless per Fitzgerald J. in E. v. Sullivan (1868) 11 Cox C.C. 44 at p. 45, who made an attempt to define the term "sedition", he stated that "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 tranquility of the state, and lead ignorant persons to endeavor to subvert the government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection and to 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."^[2]

The law of treason and sedition go hand in hand since time immemorial. Sedition is an off shoot of Treason in The United Kingdom. However during the 1990's there was no specific law which criminalized the act of sedition in the English Common law but nonetheless it was held to be an offence if :-

• There are oral or written publication of words with a seditious intention, however if the words are written, it will amount to seditious libel;
• An agreement to further a seditious intention by doing any act^[3]

Article 114 of Stephen's digest of the criminal code^[4] also defines elaborately what amounts to sedition and what does not amount to sedition. Article 114 of the Stephen's digest states that "A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, [or to incite any person to commit any crime in disturbance of the peace,] or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects. An intention to show that His Majesty has been misled or mistaken in his measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to secure their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill-will between classes of His Majesty's subjects, is not a seditious intention." The working paper was of the opinion that there was no need to continue with making sedition a criminal offence, because given the criminal statistics it came to light that for more than 150 years ago from 1977 hardly anyone was charged with the offence of Sedition. The punishment for Sedition or seditious libel was a matter of court's discretion but nonetheless if one was found guilty he/she could be sentenced for life imprisonment.

India was under the rule of the East India Company for almost 200 years. Hence, a majority of the Laws prevalent in India are a gift from the British. Thus, the law on Sedition is also  an off-shoot of the British Raj in India. Initially, the law criminalizing the offence of sedition was omitted from the original Indian Penal Code, 1860. However, the draft Indian Penal Code which was first drafted by Lord Macaulay in the year 1837 contained detailed provisions on the offence of sedition. Later on in the year 1870 under section 124A, the offence of sedition was inserted due to constant rebel against the British Rule in India. Hence, to suppress such a rebellion section 124A was made an offence.

Before the enforcement of section 124A of IPC, the offence of sedition consisted of only exciting the feeling of disaffection against the authority of the state or creating the feeling of ill-will against the authority of the state, either by words written or spoken. This was very much analogous to the law of sedition existing in the United Kingdom during that time. However, after its codification under section 124A Indian Penal Code, this law has been used not just to suppress the voices of the Revolutionaries but it was also used to quash the voices of those who had made a mere criticism against the working of the government or any of the governmental policies enacted by them. The criticism made in good faith was considered as a form of sedition.

The first sedition case was during the year 1892, Queen v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35^[5], where the defendant was the editor of a Bengali newspaper, who had published an article which had the capability of spreading disaffection and disapprobation against the authority of the state. It was held that "If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill-will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling." W. Comer Petheram, Kt., C.J. also stated that the important question while determining a case of sedition that must be addressed is that; have such words spoken or written to create a feeling of disaffection or disapprobation in the minds of their readers, and if so, whether they intended to create such feeling by their circulation?. The defendant was found not guilty and released on bail and all sedition charges against him were dropped. This case for the first time differentiated between two terms i.e. "Disaffection" & "Disapprobation".

The 1898 amendment to the Indian Penal Code was a direct reflection of another sedition case, Queen Empress v Bal Gangadhar Tilak^[6]. In this particular case, sedition charges were levied against Bal Gangadhar Tilak, who had published an article detailing the Coronation of Chatrapati Shivaji Maharaj festival, during which several speeches were patriotic in nature. During the Coronation of Chatrapati Shivaji Maharaj festival spoke about the concept of Swaraj which means independence. It was alleged that Shivaji Maharaj gave the Swaraj speech after he had defeated and killed Afzal Khan and this according to him meant freedom from the clutches of the Moghul rule. According to Shivaji Maharaj, his triumph over Afzal Khan was the 1^st step towards getting freedom. Hence allegedly according to British officials, this article published by Tilak in his magazine Kesari was an instigating factor in the killing of 2 British Officials, since everyone who reads Kesari thought of themselves as Shivaji Maharaj and the British as Afzal khan, thus resulting in the death of 2 officials. Tilak was punished with  Eighteen months of rigorous imprisonment. This case also laid down various other aspects of sedition law for the first time in India, it broadened the definition of intent, ill or bad feeling. This case also laid down that it is immaterial whether the words published are true, nonetheless they act as evidence for prosecution under the law of sedition.

Other noteworthy cases such as Queen-Empress v. Ramachandra Narayan^[7] and Amba Prasad^[8], cases have time and again interpreted the terms "disaffection" & "disapprobation". The term disaffection does not inevitably mean the opposite of affection, whereas on the other hand it can also mean the absenteeism of affection or creating a feeling of constructive abhorrence towards the government. However, in the case of Niharendu Dutt Majumdar v. King-Emperor^[9], the federal court overturned the lower courts conviction of Niharendu Dutt Majumdar. It was held that "the mere presence of violent words does not make a speech or publication seditious rather the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency"^[10].

The decision of Niharendu Dutt Majumdar was discussed in great detail in King Emperor v. Sadashiv Narayan Bhalerao^[11]. It was opined by the judicial committee of the privy council discoursed that the Majumdar case decision was not founded on the right edifice of section 124A, and it was emphasized that the interpretation recommending the obligation of the offence of sedition only based on suggestive rebellion of forcible conflict with the government was inadmissible.

Post-independence, article 19 of the Indian constitution guaranteed the right to freedom of speech and expression which was originally the draft article 13 of the constitution. Thus article 19 (1) (a) guaranteed the right to criticism either by words spoken or written which do not tend to excite the feeling of ill-will, violence, hatred either amongst the common people or a faction of the society or against the authority of the state. Article 19 also protects all political parties who work solely on the idea of criticizing the government in power via speeches or press conferences, etc. or even speeches given against any political party or the government thereof. Tara Singh v The State of Punjab^[12] struck down section 124A of IPC as unconstitutional since it violated the right to freedom of speech and expression under Article 19 (1) (a). the aftermath of this decision was that via the 1^st constitutional amendment "public order" & "relations with friendly states" were added to the list of reasonable restrictions under Article 19 (2).

Whereas, Kedar Nath judgement interpreted the law of sedition as it is today. It stated that one of the most important aspects of sedition law in India was that the words either written or spoken must have instigated the violence. In Kedar Nath judgment the court relied upon the interpretation of the Majumdar case. The moot question for consideration was whether Section 124A has negated the perspective of Article 19 (1) (a) of the Constitution. It was contended that the provision of S.124A is violative of Article 19 (1) (a). Another fundamental question that arose during the interpretation was that whether or not the faction would be convicted by bringing it under the realm of the restrictions listed under Article 19 (2). The requisite of needing the law on the offence of sedition and the view of the Court in Majumdar on the presupposition of constitutionality was accepted. Thus S. 124A was held to be constitutional, and only those cases that are intended to or have a seditious tendency to incite public chaos or vehemence should be penalized under section 124A. However, in this case, the Supreme Court used 2 different interpretations of Section 124 A, Doctrine of Severability and Presumption of Constitutionality. the court did not apply the doctrine of severability because the court did not read down any part of Section 124A, rather the court read into the section and applied the Doctrine of Presumption of Constitutionality to uphold the section. It is pertinent to note that the Doctrine of Presumption of Constitutionality does not apply to pre-constitutional laws because these laws were made by the then rulers/foreigners and thus the constitutional validity of Section 124A still lingers over our head.

Over the years the law on sedition has grown bit by bit and the definition of sedition under its umbrella has broadened. Section 124A at times has also been misused. More recently the Bidar School incident in Karnataka is one of the classic examples of misuse of section 124A. in this case, a headmaster and a parent of a student were charged with the offence of sedition on the basis that they produced a play that insulted the government and had an intention of exciting the feeling of sedition amongst the minority class amidst the shaheen bagh row^[13]. Similarly, Disha Ravi, a climate activist was taken into custody under section 124A in connection to the Greta Thunberg Toolkit case. This is one of the most recent cases which talks about how "sedition law is misused to terrorize young patriotic Indians^[14]." However, any annotations or remarks expressing robust discontentment or dissatisfaction of the administrative working or other policies of the Government, Devoid of inciting or attempting to provoke hatred, disdain or cynicism, do not fall under the umbrella of sedition.

The Supreme Court on 30^th April 2021 while hearing a suo moto case^[15], a bench comprising of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat had directed the Central Government and State Governments to notify all Chief Secretaries/Directors General of Police/Commissioners of Police that any clampdown on information on social media or harassment caused to individuals seeking/delivering help on any platform will attract a coercive exercise of jurisdiction by the Supreme Court. However, this order was surpassed by the state police authorities in the case of Aamoda Broadcasting Company Private Ltd and another Vs State of Andhra Pradesh^[16] and coercive action and contempt proceedings were initiated against 2 Telugu channels, TV5 news and ABN Andhra Jyoti. These 2 Telugu Channels had filed a writ petition for quashing of FIRs and interestingly the writ petition came up for hearing before the same bench comprising of Justices DY Chandrachud, L Nageswara Rao and S Ravindra Bhat. The Supreme Court was of the view that the ambit and parameters of the provisions of Sections 124A, 153A and 505 of the Indian Penal Code necessitate analysis and there is a need to define the limits of Sedition. The most important question here is that why are we still following a draconian law established by the Britishers, when they have abolished it in the United Kingdom^[17]?

As rightly said by CJI N.V Ramanna "This colonial law was meant to suppress the freedom movement,the same law was used by British to silence Mahatma Gandhi, Tilak etc. Still isit necessary after 75 years of independence?" Sedition is an offence against the state and any act which topples the efforts of the state as a whole is liable to be punished provided that such acts do not fall under the restrictive umbrella of Article 19 (2). Section 124A has been abused and misused since time immemorial and the law implementing authority has time and again overlooked the ever-shining article 19(1) (a) of the Indian constitution which talks about freedom of speech and expression. It is but obvious that the conviction of offences on sedition would vary from case to case, however, there needs to be a mechanism that filters out the false or made out cases to curb or suppress the voices of the common people. There is an urgent need to re-examine the need for this undemocratic law in the world's largest democracy. What was once an instrument of British colonialism to suppress the freedom struggle cannot be retained by the state to silence the voices of its people. It will be interesting to see what the court deliberates on the matter pertaining to constitutional validity of Section 124A in the coming days.

Sedition Laws Around The World

During the 1900's in USA, Sedition Act of 1918 was enacted which was nothing but a mere off shoot of the Espionage Act of 1917. This act under its umbrella consisted of all those actions which were made against the working of the USA government or displayed the government of USA or any other governmental agency of USA thereof in an unscrupulous light. Even though there was a separate sedition law, most of the convictions were carried out under the Espionage Act of 1917.

Volksverhetzung^[18] is a German word which means incitement of hatred. The German Penal Code consists of provisions which penalises "Volksverhetzung". Any person who supports or spread Nazism, racial slur, or any other discriminatory and slanderous remarks against any section of the society or even the use of hate speech against the authority of the state provided that such actions tend to disturb public peace.

Just like India, Malaysia erstwhile British Malaya was under the control of Britain. In 1948, the British authorities in charge of Malaya enacted the Sedition Act, 1948 which is analogous to the Original English Sedition law. This Act proscribes any intentional speech made which has a seditious tendency including but not limited to instigating a feeling of disaffection towards the authority of the state. The Act also prohibits the promotion of ill-hatred amongst different factions of the populace.

The rudimentary principle of any law is to develop in order to appease the prerequisites of the people and be up-to-date with the progress taking place in the country. The law pertaining to the offence of sedition prevalent in Malaysia and India is the one enacted by the Britishers during their reign. However the Britishers themselves have abolished the law of sedition, nonetheless an act of sedition by a resident of the United Kingdom but not a citizen is a punishable offence. Hence many legal scholars are of the opinion that the law pertaining to the offence of sedition in India and Malaysia be scrapped.

The law of sedition in USA being a federal law if found guilty is liable to punished, however this law cannot contravene the right to freedom of speech, expression, press, etc. similarly Volksverhetzung in Germany is much more stricter in the sense that unlike USA, it does not protect those groups who rally out in the open exercising their right to freedom of speech and expression, however under Volksverhetzung, it is imperative for the government to first establish that the words either spoken or written impacted the public peace and order. Germany, unlike USA does not protect the rights of Neo-Nazis or any other hate group to hold public demonstrations in order to express their opinions amenably. Germany also has strict laws under the umbrella "Volksverhetzung" which bans display of Swastika or any Nazis symbol^[19]. This proviso is very much alike to that of restrictions imposed under article 19(2) of the Indian Constitution.

United Kingdom, United States of America and Malaysia all have had a separate law of sedition, however as stated earlier the law pertaining to sedition in UK was abolished in 2009. Whereas Germany and India have codified the law of sedition in their Criminal Code/Penal Code.

The law of sedition codified by Malaysia under Section 3 (2) which states that any act or speech, words, publication or other thing shall not amount to sedition if it is meant to show that any ruler has been misled or mistaken. It also states that pointing out any errors with the intention or expectation of rectifying such errors or defects in any governmental policy or legislation, etc. thereof. Thus mere criticism of Governmental policy, its implementation or even the administrative working of the Government will not amount to sedition or will not have a seditious tendency. This provision if included under section 124A of Indian Penal Code, will act as a deterrent against those who wish to misuse and abuse section 124A.

Furthermore, just like Germany under section 130 of its criminal code, section124A of Indian penal code should be empowered to have extra-territorial jurisdiction over matters which excite the feeling of hatred or violence from outside of India must be prosecuted. All such matters must be treated as domestic matters just like Germany provided that such an action must not be ultra vires the provisions laid down in the UDHR under article 19 as well as ICCPR.

The author is an advocate practicing in Bombay High Court. Views are Personal