The uproar of our countrymen against the barbaric atrocities committed against them compelled the government in power, to enforce the law of sedition, which had found its shelter in Section 113 of Macaulay's Draft Penal Code of 1837-39. The enforcement of the enactment of the law, brought deleterious effects, which till date, tends to bring a chill down the spines of the alleged violator.

The Section, as was introduced in 1870, was titled 'Exciting Disaffection'. An act, which perpetrates a feeling of disaffection towards the Government, through words or signs or visible representation or otherwise, was punishable under Section 124A of the Indian Penal Code, 1860. Exception to the offence was carved out in the explanation, wherein, disapprobation of the measures of the government which were in tune with the dogma(s) set out by the government was not brought into the clutches of the offence.

The first case¹ of sedition in British India, colloquially known as the 'Bangobasi' case, was tried by a Jury. C.J. Sir Comer Petheram, expounded the law to the Jury, as, any person using any word, spoken or written, to his audience to insinuate the idea of not obeying the lawful authority or subverting or resisting the authority, would be guilty of the offence, even though, no overt act in pursuance of such non-obeying the lawful authority has been committed.

The notable and celebrated case of 'Queen-Empress v. Balgangadhar Tilak'² came before the Bombay High Court. Mr. Tilak was charged with the offence of creating disaffection in the society towards the British Rule and its administrators. Justice Strachey explained the law, with an interesting observation that a man is guilty, if he excites or attempts to excite feelings of disaffection; it is immaterial that any feelings of disaffection or enmity towards the government should have been excited, because a mere attempt to excite such a feeling, ensuing, an unsuccessful act would also be on the same footing as a successful seditious act

A divergent view was taken by the Federal Court in the matter 'Niharendu Dutt Majumdar v. King-Emperor'³, wherein, the Court observed that the offence of sedition comes into the picture, when the Government fails in its duty to preserve order in the society and as an aftermath, men through words, deeds or writing, create an atmosphere of attacking or subverting or disturbing the tranquility or create public disturbance and promote disorder and incites others to do the same. This pragmatic view was disapproved by the Judicial Committee of the Privy Council and the earlier views taken were upheld.

In the year 1898, the law was amended, resultantly replacing the single explanation with three separate explanations, which explanations remain in the present form. Explanation 1 to the Section, provided a definition of "disaffection", which included disloyalty and all feelings of enmity, whereas, Explanations 2 and 3 to the Section were the exception to the Section and were deployed as the safeguarding principles.

The wheels of the law of sedition were turned with the Government of India Act, 1935, the Independence Act, 1947 and the Indian Constitution of 1950. After Independence, the harrowing law has found its haven under the head "Of Offences against the State".

After gaining Independence, the states of Madras and Punjab enacted laws curbing the sacrosanct fundamental right of speech and expression. These laws were challenged before the Supreme Court in two notable cases, 'Romesh Thapar v. State of Madras⁴' and 'Brij Bushan and Anr. v. State of Delhi⁵'. The laws permitted the states, for maintaining "public order" and "public safety", to impose a ban upon the entry and circulation of a journal. The Supreme Court in both cases held that the imposition of such restrictions were in excess to Article 19 (2), i.e. reasonable restrictions. It was duly observed in Romesh Thapar (supra) that the word "sedition" which occurred in Article 13(2) of the Draft Constitution, was ultimately deleted in Article 19(2) of the Constitution, which insinuated that criticism of the government and its authorities may not be regarded as a justified ground in curbing the fundamental right of speech and expression, unless the same has been orchestrated to overthrow or undermine the security of the State.

The tussle between the law of sedition and the fundamental right of speech and expression was laid at rest by the Constitutional Bench of the Supreme Court

The constitutional vires of Section 124A of the Indian Penal Code, 1860, was challenged before the Supreme Court of India in the matter 'Kedar Nath Singh v. State of Bihar⁶'. The Court held that the continued existence of the Government established by law is an essential condition of the stability of the State. The Court, recapitulated the law of sedition, that only such activities which are intended or have a tendency, to create disorder or disturbance of public peace by resorting to violence would attract such an offence. On a reading of the provision, it is evident that criticism of the Government, however strongly worded, would be within the contours of the fundamental right of speech and expression. In case, the lakshman rekha, is stretched by using words which have pernicious tendency or intention of creating public disorder or disturbance of law and order, would fall within Section 124A.

The dictum laid down in Kedar Nath (supra) propagated the idea of free speech, more importantly, criticism in a constructive manner, however, the Court was conscious that the continued existence of the Government established by law was an essential condition to the stability of the State.

Following the pursuit of such an essential condition, the state of Gujarat, followed the footsteps of its brother and sister states. The views of Mao-Tse-Tung were captured in a book intituled 'Extracts from Mao-Tse-Tung', which according to the state of Gujarat contained seditious matter, resulting in every copy of the book being forfeited. Litigation ensued. The Court⁷ observed that the passages in the book acquainted the readers with the principles of communalism and by no stretch of imagination, excited people to create public disorder with a view to subvert the government; to condemn them as seditious would close the doors of knowledge to philosophy. It categorically held that it is for the people to decide what is best for them, without intervention of Court and Government, and in order to arrive at an intelligent choice, free propagation of ideas is an essential requisite.

The last vicennial of the 19^th Century, brought constructive changes in the society with the introduction of various economic reforms, which boosted our economy tremendously. Suddenly, the tide of sorrow arrived on the surface of water and in the wee hours of 31^st October, 1984, our country rose to a shock.

After the brutal killing of our Late Prime Minister Smt. Indira Gandhi, in the streets of Chandigarh, slogans such as, "Khalistan Zindabad" and "Raj Karega Khalsa", were raised by men, who were brought to the doors of the canons of law. The Supreme Court⁸ adopting a pragmatic approach held that casual raising of slogans, either once or twice by individuals, would not in any manner excite or attempt to excite hatred or disaffection towards the Government.

With the dawn of the 21^st Century, the shadow of law of sedition was still looming. The Delhi High Court⁹ observed that an opinion against the Prime Minister or criticism of the actions of his government owing to the speeches and actions of the leader of his own government, who was against a particular community would not amount to sedition. The Court further added that when a leader of a political party becomes the head of the government, any criticism of the person and his policies would not be viewed with the lenses of sedition. Harsh criticism, which excites people to refrain from voting for a particular party or to project leaders as anti-section to the society, would also not attract the offence of sedition.

The law of sedition was scarcely used by the police machinery in the first decade of 21^st Century, in turn, paving the way for free flow of ideas, which included dissent against the government and its policies.

The law of sedition also cast its eerie shadow upon the maverick lawyer, Late Mr. Arun Jaitley. Mr. Jaitley had penned down his views on the NJAC judgment¹⁰ passed by the Constitutional Bench of the Supreme Court, which was taken with a stern view by a Judicial Magistrate of the State of Uttar Pradesh, who had taken suo-moto cognizance of the article and registered a Complaint against Mr. Jaitley under Section 124A of the Indian Penal Code. The Court¹¹ held that the article was to voice the opinion of the author in order to strike a balance between the two important pillars of our country and therefore, by no stretch of imagination, the contents of the article can be said to create public disorder or designed or aimed against the Government established by law.

The right to dissent and its intellectual discourse stands at a higher pedestal and is the heart and soul of the freedom of speech and expression.

Catastrophic effect of the law of sedition:

The National Crime Records Bureau has reported that sedition cases have increased in the recent years, with 47 cases in the year 2014 to 70 cases in 2018. In the last two years, police authorities have been rampantly invoking sedition law in order to curb the fundamental right of speech and expression. The enactment of the Citizenship (Amendment) Act, 2019, has yet again opened the doors of debate for the law of sedition; whether the draconian law is required to remain in the statute book?

With the enactment of the Citizenship (Amendment) Act, 2019, various protests were held all over the country on the ground that it violated the right to equality only on the ground of religion, pursuant to which, police authorities, among others provisions, invoked the sedition law. It is safe to argue that viewed with the lens of the authoritative pronouncements of the Courts, criticism of the Act, even taking the assistance of harsh words, albeit, without inciting disaffection towards the Government, would still be safeguarded under the fundamental right of speech and expression.

4. Default Bail: The Accused shall be well within his rights to approach the Court for seeking default bail, in case, the Superintendent of Police fails to submit the report within a period of ten days or such extension, as granted by the Special Court.

5. Interim Order: The Special Court shall pass an Interim Order, based on the Report furnished by the Superintendent of Police. In case, the Special Court holds that a prima facie case is made out against the Accused, the case shall proceed in accordance with law, however, in case, the Special Court arrives at a decision that no case is made out against the Accused, the Accused shall stand discharged.

6. Appeal: An Appeal shall lie against such Order before the concerned High Court. The Appeal shall be filed within a period of thirty days. In case, the Appellant shows reasonable cause for delay in filing the Appeal, the delay may be condoned subject to the Appeal being filed within a further period not exceeding thirty days.

The aforesaid suggestions, if implemented, shall prevent the exploitation offered by the law of sedition and shall ensure, in letter and spirit, that freedom of speech and expression and propagation of ideas is the hallmark of democracy.

Views are personal only.

(The author is a practicing advocate in New Delhi)

1 Queen-Empress v. Jogendra Chunder Bose; (1892) ILR 19 Cal 35

2 (1898) ILR 22 Bombay 112

3 (1942) FCR 38

4 AIR 1950 SC 124

5 AIR 1950 SC 129

6 AIR 1962 SC 955

7 1971 SCC OnLine Guj 75

8 (1995) 3 SCC 214

9 2007 (96) DRJ 693

10 Supreme Court Advocates on Record Association v. Union of India

11 2015 SCC OnLine All 9413