Kedar Nath Singh Vs. State of Bihar
[1962] INSC 16 (20 January 1962)
20/01/1962 SINHA, BHUVNESHWAR P.(CJ) SINHA,
BHUVNESHWAR P.(CJ) DAS, S.K.
SARKAR, A.K.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1962 AIR 955 1962 SCR Supl. (2) 769
CITATOR INFO:
R 1963 SC 996 (5) R 1964 SC1230 (9) RF 1967
SC1877 (22) D 1970 SC2015 (12) RF 1973 SC1091 (6) D 1980 SC 354 (5) RF 1980
SC1042 (11) E 1991 SC 101 (28,69,227,278)
ACT:
Sedition-Content of Statute panalising
sedition and statements conducing to public mischief-Constitutionality
of-Whether infringes freedom of speech-Indian Penal Code, 1860 (Act XLV of
1860), ss. 124A, 505-Constitution of India, Arts. (19)(1)(a), 19(2).
HEADNOTE:
Section 124A of the Indian Penal Code which
makes sedition an offence is constitutionally valid. Though the section imposes
restrictions on the fundamental freedom of 770 speech and expression, the
restrictions are in the interest of public order and are within the ambit of
permissible legislative interference with the fundamental right. There is a
conflict on the question of the ambit of s. 124A between decision of the
federal Court and of the Privy Council. The Federal Court has held that words,
deeds or writings constituted an offence under s. 124A only when they had the intention
or tendency to disturb public tranquility. to create public disturbance or to
promote disorder, whilst the Privy Council has taken the view that it was not
an essential ingredient of the offence of sedition under s. 124A that the words
etc, should be intended to or be likely to incite public disorder. Either view
can be taken and supported on good reasons. If the view taken by the Federal
Court was accepted s. 124A would be use constitutional but if the view of the
Privy Council was accepted it would be unconstitutional. It is well settled
that if certain provisions of law construed in one way would make them
consistent with the constitution, and another interpretation would render them
unconstitutional, the Court would lean in favour of the former construction.
Keeping in mind the reasons for the introduction of s. 124A and the history of
sedition the section must be so construed as to limit its application to acts
involving intention or tendency to create disorder, or disturbance of law and
order; or incitement to violence.
Niharendu Dutt Majumdar v. King Emperor,
(1942) F.C.R. 38, followed.
King Emperor v. Sadashiv Narayan Bhalerao,
(1947) L.R. 74 I.A. 89 and Wallace Johnson v. The King [1940] A. C. 231 not
followed.
Romesh Thapar v. The State of Madras. (1050)
S.C.R. 594. Brij Bhushan v. The State of Delhi.
(1950) S.C. R. 605 and Ramji Lal Modi v. The
State U.P. (1957) S. C. R. 860, referred to.
The Bengal Immunity Company Limited v. The
State of Bihar, (1955) 2 S. C. R. 603 and R. M. D.
Chamarbaugwala v. The Union of India, [1957]
S. C. R. 930 applied.
Each one of the constituent elements of the
offence of making, publishing or circulating statements conducing to public
mischief, punishable under s. 505 of the Indian Penal Code, had reference to,
and a direct effect on, the security of the State or public order. Hence the
provisions of s. 505 were clearly saved by Art. 19(2).
CRIMINAL APPELLATE JURISDICTION:- Criminal
Appeal No. 169 of 1957.
771 Appeal by special leave from the judgment
and order dated the April 9, 1956, of the Patna High Court in Cr. A. No. 445 of
1955. WITH Criminal Appeals Nos. 124 to 126 of 1958.
Appeals from the judgment and order dated May
16, 1958, of the Allahabad High Court in Criminal Appeals Nos. 76 and 108 of
1955 and Cr. M. Writ No. 2371 of 1955.
Janardan Sharma for appellant in Criminal
Appeal No. 169 of 1957:-The appellant has been convicted under ss. 124A and 505
Indian Penal Code. Both these sections are ultra vires as they contravene the
provisions of Art. 19(1)(a) of the Constitution. A speech may disturb public
order or it may not, but both are made punishable under Section 124A. The
section hits speeches of both varieties permissible speeches and impermissible
speeches. The explanation to section 124A do not affect the interpretation of
the main section. In a democratic set up a citizen is entitled to criticise the
Government with a view to change it.
Two questions arises in the cases, namely (i)
does s. 124A enact a law which is in the interest of public order and (ii) does
this section impose reasonable restrictions in the interest of public order.
The decision in I. L. R. (1958) 2 All. 84 which has declared s.124A to be ultra
vires takes the correct law.
R. C. Prasad, for respondent in Criminal Appeal
No. 169 of 1957:-Referred to the decision in Ramji Lal Modi v. State of U. P.
[1957] S.C.R.860. Stated that he would adopt the submissions to be made by Shri
C. B. Agarwala.
C. B. Agarwala for the appellant in Criminal
Appeals Nos. 124 to 126 of 1958:-The correct meaning of the provisions of s.
124A in the context 772 of the present set up and the Constitution is that
given by the Federal Court in Niharendu Dutt's case, 1942 F. C. R. 38 and not
the meaning given to them by the Privy Council in Bhalerao's case 74 I. A. 89. Interpretation
by Courts of words of statutes to a particular set of facts has been changing
with the change in the social and political structure of society and the
opinion of its reasonable members. Section 124A is in a chapter which deals
with offencss against the State. Therefore, it is not a case of libel against
any officer but of an offence against the State. Words in the English law
relating to sedition are the same as in s. 124A vide Stephen's Commentary on
the law of England, Vol. 4, page 141, Halsbury's Law of England 3rd Edition,
Vol.
10, page 169 Jowitt's Dictionary of English
law, page 1605, Stephen's History of Criminal Law, Vol.
2, page 298 and 301 Chapter 24. Under English
Law a tendency to create tumult or disorder is an essential element of
sedition. Russel on Crimes, Vol. 1, p. 229, R. v. Collins, 173 E. R. 910. R.
v. Sullivan, 11 Cox. 44. Section 124A has
been taken from the English Law (see 22 Bom. 152).
Section 124A must, therefore, be interpreted
in the same manner as sedition is interpreted in England and it must be held
that a tendency to disturb public order is an essential element of the offence
under s. 124A. Articles 133 and 133A of the Canadian Criminal Code which deal
with sedition have been given the same interpretation, 1951, canadian S. C. R.
265. The view taken in Tilak's case 22 Bom. 1112, in Bhalerao's case 74 I.A. 89
and in Wallice Johnsons case[1940] A. C.
231 that incitement to violence or a tendency
to disturb public order was not a necessary ingredient of s. 124A, is not the
correct view.
1942 F. C. R.38 takes the correct view and
lays down that the tendency to disturb public order is a necessary ingredient
of the offence under s. 124A. Devi Saran's case 32 Pat. 1124 also takes the
same view.
773 There are two interpretations of s. 124A
before the Court, one taken by the Federal Court and the other taken by the
Privy Council. This Court should accept the interpretation given by the section
Court, as that interpretation would make the section Constitutional. Even if
the interpretation put by the Privy Council be accepted as correct one, section
124A will still be valid. The section certainly contemplates cases where the
speech is likely to disturb public order and as such the section in the interest
of public order as contemplated in Art. 19(2) and the mere fact that some cases
in which the public order is not likely to be disturbed are also included
therein, cannot invalidate the section. This court took a similar view in
Ramjilal Modi's case [1957] S. C. R. 860 and in Virendra's case [1958] S. C. R.
308, the decision Lohia's case [1960] 2 S. C. R. 821 does not affect this case,
as in that case it was found that that provisions curtailing freedom of speech
were not in the interest of public order as the connection between the
provisions and disturbance of public order as too remove. Even if the section
be held according to the Privy Council view to include which threaten public
order and those which the section can be held valid with respect s where public
order is threatened as the two of case are severable.
[1957] S. C. R. 930, [1941] F. C. 72 [1951]
S. C. R. 682, [1953] 1059 and 65 L. Ed, 1139.
P. Verma for the Attorney-General of Article
374(2) of the Constitution perversion of the Federal Court shall have the rect
as the decision of the Supreme Court. Decision of the Federal Court in 1942
F.C.R. 38 be deemed to be a decision of this Court and should be held binding.
A tendency to disturb public order is
inherent in s. 124A itself.
Gopal Behari for respondent in Criminal
Appeal No. 124 of 1958:-The interpretataion of s. 124A by 774 the Privy Council
has been accepted by the High Court. Even in English Law sedition does not
necessarily include an intention to disturb public order, 79 C. L. R. 101.
Explanations (2) and (3) would be redundant if section 124A is interpreted to
incorporate the English view of sedition. The Allahabad High Court as well as
other High Courts have given the same interpretation of s. 124A as the Privy
Council has. See 1941 All. 156, 1930 Lah. 309, 56 Cal. 1085 and 10 Luck. 712.
The decision in Lohia's case also [1960] 2 S.C.R. 821 governs the present case
also section 124A punishes such speeches also as have no tendency to disturb
public order and contravenes Art.
19(1)(a). It is not saved by Art. 19(2) as
placing of restriction on such speeches is not in the interest of public order.
It is not open to the Court to rewrite the section by removing from its purview
such speeches as have no tendency to disturb public order and to confine it to
such speeches as have a tendency to disturb public order. The whole section
must fail; it cannot be dissected.
C. B. Agarwala in reply:-In English law is a
necessary ingredient of seditious intention it must have a tendency to cause
tumult or di R. v. Alred, 22 Cox. C. C. 1, R. v. Burdott, 101, 803;
R. v. O'Brien, 6 St. Tr. (N. S.) 571. The
Council has only said that actual incite violence was not a necessary
ingredient of It has not gone further and has not laid tendency to disturb
public order was not a ingredient of s. 124A. Even though public is not an
ingredient of the offeence under there is a tendency to disturb public speeches
or writings which bring or atte bring into hatered or contempt or excite or at
to excite dissatisfaction towards the Government established by law.
1962. January 20. The Judgment of the court
was delivered by 775 SINHA, C. J.-In these appeals the main question in
controversy is whether ss. 124A and 505 of the Indian Penal Code have become
void in view of the provisions of Art. 19(1)(a) of the Constitution. The
constitutionality of the provisions of s. 124A, which was mainly canvassed
before us, is common to all the appeals, the facts of which may shortly be
stated separately.
In Criminal Appeal 169 of 1957, the appellant
is one Kedar nath Singh, who was prosecuted before a Magistrate, 1st Class, at
Begusarai, in the district of Monghyr, in Bihar. He framed the following
charges against the accused person, which are set out in extenso in order to bring
out the gravamen of the charge against him.
"First.-That you on 26th day of May,
1953 at village Barauni, P. S. Taghra (Monghyr) by speaking the words, to wit,
(a) To-day the dogs of the C. I. D are loitering round Barauni. Many official
dogs are sitting even in this meeting. The people of India drove out the
Britishers from this country and elected these Congress goondas to the gaddi
and seated them on it. To-day these Congress goondas are sitting on the gaddi
due to mistake of the people. When we drove out the Britishers, we shall strike
and turn out these Congress goondas as well. These official dogs will also be
liquidated along with these Congress goondas. These Congress goondas are
banking upon the American dollars and imposing various kinds of taxes on the
people to-day. The blood of our brothers- mazdoors and Kishanas is being
sucked. The capitalists and the zamindars of this country help these Congress
goondas. These zamindars and capitalists will also have to be brought before
the people’s court along with these Congress goondas.
776 (b) On the strength of the organisation
and unity of Kisans and mazdoors the Forward Communists Party will expose the
black deeds of the Congress goondas, who are just like the Britishers. Only the
colour of the body has changed. They have to-day established a rule of lathis
and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs and other
weapons with them.
(c) The Forward Communist Party does not
believe in the doctrine of vote itself. The party had always been believing in
revolution and does so even at present. We believe in that revolution, which
will come and in the flames of which the capitalists, zamindars and the
Congress leaders of India, who have made it their profession to loot the
country, will be reduced to ashes and on their ashes will be established a
Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything
from the Congress relers. They (Congress rulers) have set up V. Bhave in the
midst of the people by causing him wear a langoti in order to divert the
people's attention from their mistakes. To-day Vinova is playing a drama on the
stage of Indian politics. Confusion is being created among the people. I want
to tell Vinova and advice his agents, "you should understand it the people
cannot be deceived by this illusion and fraud of Vinova". I shall vinova
not to become a puppet in the of the Congress men.
These persons, understand the Yojna-of
Vinova, realise that Vinova is an agent to the Congress Government.
(e) I tell you that this Congress Government
will do no good to you.
777 (f) I want to tell the last word even to
the Congress Tyrants, "you play with the people and ruin them by
entangling them in the mesh of bribery, black-marketing and corruption. To-day
the children of the poor are hankering for food and you Congress men are
assuming the attitude of Nawabs sitting on the chairs..." Brought or
attempted to bring into hatred or contempt or excited or attempted to excite
disaffection towards the Government established by law in the Indian Union and
thereby committed an offence punishable under section 124A of the Indian Penal
Code and within my cognizance.
Secondly.-That you on the 26th day of May,
1953 at village Barauni, P. S. Tegra (Monghyr) made the statement, to wit, (a)
To- day the dogs of the C. I. D. are loitering round Barauni. Many official
dogs are sitting even in this meeting. The people of India drove out the
Britishers from this country, And elected these Congress Goondas to the gaddi
and seated them on it. To-day these Congress Goondas are sitting on the gaddi
due to the mistake of the people. When we have driven out the Britishers, we
shall strike and turn out these Congress Goondas. These Congress Goondas are
banking upon the American dollars and imposing various kinds of taxes on the
people to-day. The blood of our brothers Mazdoors and Kisans is being sucked.
The capitalists and the zamindars of this country help these Congress Goondas.
These zamindars and capitalists will also
have to be brought before the people's Court along with these Congress Goondas.
778 (b) On the strength of organisation and
unity of kisans and mazdoors the Forward Communist Party will expose the
black-deeds of the Congress Goondas, who are just like the Britishers. Only the
colour of the body has changed. They have, to-day, established a rule of lathis
and bullets in the country.
The Britishers had to go away from this land.
They had aeroplanes, guns, bombs, and other
reasons with them.
(c) The Forward Communist party does not
believe in the doctrine of votes itself. The party had always been believing in
revolution and does so even at present. We believe in that revolution, which
will come and in the flames of which the capitalists, zamindars and the
Congress leaders of India, who have made it their profession to loot the
country, will be reduced to ashes, and on their ashes will be established a
Government of the poor and the downtrodden people of India.
(d) It will be a mistake to expect anything
from the Congress rulers. They (Congress rulers) have set up V. Bhave in the
midst of the people by causing him wear a langoti in order to divert the
attention of the people from their mistakes. To-day Vinoba is playing a drama
on the stage of Indian politics. Confusion is being created among the people. I
want to tell Vinova and advise his agents, "You should understand it that
the people cannot be deceived by this Yojna, illusion and fraud of Vinova. I shall
advice Vinova not to become a puppet in the hands of the Congress men. Those
persons who understand the Yojna of Vinova, realise that Vinova is an agent of
Congress Government.
779 (e) I tell you that no good will be done
to you by this Congress Government.
(f) I want to tell the last word even to
Congress tyrants "you play with the people and ruin them by entangling
them in the mesh of bribery, black-marketing and corruption.
To-day the children of the poor are hankering
for food and you (Congress men) are assuming the attitude of Nawabs sitting on
the chairs".......
With intent to cause or which was likely to
cause fear or alarm to the public whereby any persons might be induce to commit
an offence against the State of Bihar and against the public tranquility, and
thereby committed an offence punishable under section 505(b) of the Indian
Penal Code and within my cognizance.
After recording a substantial volume of oral
evidence, the learned Trial Magistrate convicted the accused person both under
ss. 124A and 505(b) of the Indian Penal Code, and sentenced him to under go
rigorous imprisonment for one year. No separate sentence was passed in respect
of the conviction under the latter section.
The convicted persons preferred an appeal to
the High Court of Judicature at Patna, which was heard by the late Mr. Justice
Naqui Imam, sitting singly. By this judgment and order dated April 9, 1956, he
upheld the convictions and the sentence and dismissed the appeal. In the course
of his judgment, the learned Judge observed that the Judge observed of the
charge against the appellant was nothing but a vilification of the Government;
that it was full of incitements to revolution and that the speech taken as a
whole was certainly seditionus. It is not a speech critising any of is
measures. He held that the offences both under ss. 124A 505(b) of the Indian
Penal Code had been made out.
780 The convicted person moved this Court and
obtained special leave to appeal. It will be noticed that the constitutionality
of the provisions of the sections under which the appellant was convicted had
not been convassed before the High Court. But in the petition for special
leave, to this Court, the ground was taken that ss. 124A and 505 of the Indian
Penal Code "are inconsistent with Art. 19(1) (a) of the
Constitution". The appeal was heard in this Court, in the first instance,
by a Division Bench on May 5, 1959. The Bench, finding that the learned counsel
vco the appellant had raised the constitutional issue as to the validity of ss.
124A and 505 of the Indian Penal Code,
directed that the appeal be placed for hearing by a Constitution Bench. The
case was then placed before a Constitution Bench, on November 4, 1960, when
that Bench directed notice to issue to the Attorney General of India under r.
1, O.41 of the Supreme Court Rules. The matter was once again placed before a
constitution Bench on February 9, 1961, when it was adjourned for two months in
order to enable the State Governments concerned with this appeal, as also with
the connected Criminal Appeals Nos. 124-126 of 1958 (in which the Government of
Uttar Pradesh is the appellant) to make up their minds in respect of the
proseocuions, as also in view of the report that the Law Commission was
considering the question of amending the law of sedition in view of the new
set-up. As the States concerned have instructed their counsel to press the
appeals, the matter has finally come before us.
In Criminal Appeals 124-126 of 1958 the State
of Uttar Pradesh is the appellant, though the respondents are different. In
Criminal appeal 124 of 1958, the accused person is one Mohd, Ishaq Ihahi. He
was prosecuted for having delivered a speech at Aligarh as Chairman of the
Reception Committee of the All India Muslim Convention on October 30, 781 1953.
His speech on that occasion, was thought to be seditious. After the necessary
sanction, the Magistrate held an enquiry, and finding a prima facie case made
out against the accused, committed him to the Court of Session. The learned
Sessions Judge, by his Judgment dated January 8, 1955, acquitted him of the
charge under s. 153A, but convicted him of the other charge under s. 124A, of
the Indian Penal Code, and sentenced him to rigorous imprisonment for one year.
The convicted person preferred an appeal to the High Court. In the High Court
the constitutionality of s. 124A of the Indian Penal Code was challenged.
In Criminal Appeal No. 125 of 1958, the facts
are that on May 29, 1954, a meeting of the Bolshovik Party was organised in
village Hanumanganj, in the District of Basti, in Uttar Pradesh. On that
occasion, the respondent Rama Nand was found to have delivered an objectionable
speech in so far as he advocated the use of violence for overthrowing the
Government established by law. After the sanction of the Government to the
prosecution had been obtained, the learned Magistrate held an enquiry and
ultimately committed him to take his trial before the Court of Sessions. In due
course, the learned Sessions Judge convicted the accused person under s. 124A of
the Indian Penal Code and sentenced him to rigorous imprisonment for three
years. He held that the accused person had committed the offence by inciting
the audience to an open violent rebellion against the Government established by
law, by the use of arms. Against the aforesaid order of conviction and
sentence, the accused person preferred an appeal to the High Court of
Allahabad.
In Criminal Appeal 126 of 1958, the
respondent is one Parasnath Tripathi. He is alleged to have delivered a speech
in village Mansapur, P.S. Akbarpur, in the district of Faizabad, on September
26, 1955, in which he is said to have 782 exhorted the audience to organise a
volunteer army and resist the Government and its servants by violent means. He
is also said to have excited the audience with intent to create feelings of
hatred and enmity against the Government. When he was placed on trial for an
offence under s. 124A of the Indian Penal Code, the accused person applied for
a writ of Habeas Corpus in the High Court of Judicature at. Allahabad on the
ground that his detention was illegal inasmuch as the provisions s. 124A of the
Indian Penal Code were void as being in contravention of his fundamental rights
of free speech and expression under Art. 19(1)(a) of the Constitution. This
matter, along with the appeals which have given rise to appeals Nos. 124 and
125, as aforesaid, were ultimately placed before a Full Bench, consisting of
Desai, Gurtu and Beg, JJ. The learned judges, in separate but concurring
judgments, took the view that s. 124A of the Indian Penal Code was ultra vires
Art.
19(1)(a) of the Constitution. In that view of
the matter, they acquitted the accussed persons, convicted at aforesaid in the
two appeals Nos. 124 and 125, and granted the writ petition of the accused in
criminal Appeal No. 126. In all these cases the High Court granted the
necessary certificate that the case involved important questions of law
relating to the interpretation of the Constitution. That is how these appeals
are before by on a certificate of fitness granted by the High Court.
Shri C. B. Agarwala, who appeared on behalf
of the State of Uttar Pradesh in support of the appeals against the orders of
acquittal passed by the High Court, contended that the judgment of the High
Court (bow reported in Ram Nandan v. State (1) in which it was laid down by the
Full Bench that s. 124A of the Indian Penal Code was ultra Art. 19(1)(a) of the
Constitution and, 783 therefore, void for the reason that it was not in the
interest of public order and that the restrictions imposed thereby were not
reasonable restrictions on the freedom of speech and expression, was erroneous.
He further contended that the section impugned came within the saving cl. (2)
of Art. 19, and that the reasons given by the High Court to the contrary were
erroneous. He relied upon the observations of the Federal Court in Niharendu
Dutt Majumdar v. The King Emperor (1). He also relied on Stephen's Commentaries
on the Laws of England, Volume IV, 21st Edition, page 141, and the Statement of
the Law in Halsbury's Laws of England, 3rd Edition, volume 10, page 569, and
the cases referred to in those volumes. Mr.
Gopal Behari, appearing on behalf of the
respondents in the Allahabad cases has entirely relied upon the full Bench
decision of the Allahabad High Court in his favour. Shri Sharma appearing on
behalf of the appellant in the appeal from the Patna High Court has similarly
relied upon the decision aforesaid of the Allahabad High Court.
Before dealing with the contentions raised on
behalf of the parties, it is convenient to set out the history of the law, the
amendments it has undergone and the interpretations placed upon the provisions
of s. 124A by the Courts in India, and by their Lordships of the judicial
Committee of the Privy Council. The section corresponding to s.
124A was originally s. 113 of Macaulay's
Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal
Code as it was enacted in 1860. The reason for the omission from the Code is
enacted is not clear, but perhaps the legislative body did not feel sure above
its authority to enact such a provision in the Code. Be that as it may, s. 124A
was not placed on the Statute Book until 1870, by Act XXVII of 1870. There 784
was a considerable amount of discussion at the time the amendment was
introduced by Sir James, Stephen, but what he said while introducing the bill
in the legislature may not be relevant for our present purposes. The section as
then enacted ran as follows:
"124A. 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 with transportation for life or for any term, to which, fine may be
added, or with imprisonment for a term which may extend to three years, to
which fine may be added, or with fine.
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
measures of the Government, with the intention of exciting only this species of
disapprobation, is not an offence within this clause." The first case in
Indian that arose under the section is what is known as the Bangobasi case
(Queen-Empress v. Jagendra Chunder Bose (1)) which was tried by a Jury before
Sir Comer Petheram, C J. while charging the jury, the learned Chief Justice
explained the law to the jury in these terms:
785 "Disaffection means a feeling
contrary to affection, in other words, dislike or hatred. Disapprobation means
simply disapproval. It is quite possible to disapprove of a men's sentiments or
action and yet to like him. The meaning of the two words is so distinct that I
feel it hardly necessary to tell you that the contention of Mr. Jackson cannot
be sustained. 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 bearers 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." The next case is the celebrated case of Queen-Empress v.
Balqanqaddhar Tilak (1) which came before the Bobay High Court. The case was
tried by a jury before Strachey, J. The learned judge, in the course of his
charge to the jury, explain the law to them in these terms:
"The offence as defined by the first
clause is exciting or attempting to excite feelings of disaffection to the
Government.
What are "feelings of disaffection"
? I agree with Sir Comer Petheram in the Bangobasi case that disaffection means
simply the 786 absence of affection. 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. That is what the law means by
the disaffection which a man must not excite or attempt to excite; he must not
make or try to make others feel enmity of any kind towards the Government. You
will observe that the amount or intensity of the disaffection is absolutely
immaterial except perhaps in dealing with the question of punishment: if a man
excites or attempts to excite feelings of disaffection, great or small, he is
guilty under the section. In the next place, it is absolutely immaterial
whether any feelings of disaffection have been excited or not by the
publication in question. It is true that there is before you a charge against
each prisoner that he has actually excited feelings of disaffection to the
Government. If you are satisfied that he has done so, you will, of course, find
him guilty. But if you should hold that charge is not made out, and that no one
is proved to have been excited to entertain feelings of disaffection to the
Government by reading these articles, still that alone would not justify you in
acquitting the prisoners. For each of them is charged not only with exciting
feelings of disaffection, but also with attempting to excite such feelings. You
will observe that section places on absolutely the same footing the successful
exciting of feelings of disaffection and the unsuccessful attempt to excite
them, so that, if you find that either of the prisoners has tried to excite
such feeling in others, you must convict him even if there is nothing to show
that he succeeded. Again, it is 787 important that you should fully realise
another point. The offence consists in exciting or attempting to excite in
others certain bad feeling towards the Government.
It is not the exciting or attempting to
excite mutiny or rebellion, or any sort of actual disturbance, great or small.
Whether any disturbance or outbreak was caused by there articles, is absolutely
immaterial. If the accused intended by the articles to excite rebellion or
disturbance, his act would doubtless fall within section 124A, and would
probably fall within other sections of the Penal Code. But even if he neither
excited nor intended to excite any rebellion or outbreak or forcible resistance
to the authority of the Government, still if he tried to excite feelings of
enmity to the Government, that is sufficient to make him guilty under the
section. I am aware that some distinguished persons have thought that there can
be no offence against the section unless the accused either counsels or
suggests rebellion or forcible resistance to the Government. In my opinion,
that view is absolutely opposed to the express words of the section itself,
which as plainly as possible makes the exciting or attempting to excite certain
feelings, and not the inducing or attempting to induce to any course of action
such as rebellion or forcible resistance, the test of guilt. I can only account
for such a view by attributing it to a complete misreading of the explanation
attached to the section, and to a misapplication of the explanation beyond its
true scope." The long quotation has become necessary in view of what
followed later, namely, that this statement of the law by the learned judge
came in for a great deal of comment and judicial notice. We have omitted the
charge to the jury relating 788 to the explanation to s. 124A because that
explanation has now yielded place to three separate explanations in view of
judicial opinions expressed later. The jury, by a majority of six to three,
found Shri Balgangadhar Tilak guilty.
Subsequently, he, on conviction, applied
under cl. 41 of the Letters Patent for leave to appeal to the Privy Council.
The application was heard by a Full Bench consisting of Farran, C. J., Candy
and Strachey, JJ. It was contended before the High Court at the leave stage,
inter alia, that the sanction given by the Government was not sufficient in law
in that it had not set out the particulars of the offending articles, and,
secondly, that the judge misdirected the jury as to the meaning of the word
"disaffection" insofar as he said that it might be equivalent to
"absence of affection". With regard to the second point, which is
only relevant point before us; the Full Bench expressed itself to the following
effect:
"The other ground upon which Mr. Russell
has asked as to certify that this is a fit case to be sent to Her Majesty in
Council, is that there has been a misdirection, and he based his argument on
one major and two minor grounds. The major ground was that the section cannot
be said to have been contravened unless there is a direct incitement to stir up
disorder or rebellion.
That appears to us to be going much beyond
the words of the section, and we need not say more upon that ground. The first
of the minor points is that Mr. Justice Strachey in summing up the case to the
jury stated that disaffection meant the absence of affection".
But although if that phrase had stood alone
it might have misled the jury, yet taken in connection with the context we
think it is impossible that the jury could have been misled by it. That
expression was used in connection with the 789 law as led down by Sir Comer
Petheram, in Calcutta in the Bangobashi case. There the Chief Justice instead
of using the words "absence of affection" used the words
"contrary to affection". If the words "contrary to
affection" had been used instead of "absence of affection" in
this case there can be no doubt that the summing up would have been absolutely
correct in this particular. But taken in connection with the context it is
clear that by the words "absence of affection" the learned Judge did
not mean the negation of affection but some active sentiment on the other side.
Therefore on that point we consider that we cannot certify that this is a fit
case for appeal." In this connection it must be remembered that it is not
alleged that there has been a miscarriage of Justice." After making those
observations, the Full Bench refused the application for leave. the case was
then taken to Her Majesty in council, by way of application for special leave
to appeal to the Judicial Committee. Before their Lordships of the Privy
Council, Asquith, Q. C., assisted by counsel of great experience and eminence
like Mayne, W. C. Bonnerjee and others, contended that there was a misdirection
as to the meaning of section 124A of the Penal Code in that the offence had
been defined in terms to wide to the effect that "disaffection" meant
simply "absence of affection" and that it comprehended every possible
form of bad feeling to the Government. In this connection reference was made to
the observations of Petheram, C.J. in Queen-Empress v. Jogender Bose(1). It was
also contended that the appellant's comments 790 had not exceeded what in
England would be considered within the functions of a Public journalist, and
that the misdirection complained of was of the greatest importance not merely
to the affected person but to the whole of the Indian Press and also to all her
Majesty's subjects; and that it injuriously affected the liberty of the press
and the right to free speech in public meetings. But in spite of the strong
appeal made on behalf of the petitioner for special leave, the Lord Chancellor,
delivering the opinion of the Judicial Committee, while dismissing the application,
observed that taking a view of the whole of the summing up they did not see any
reason to dissent from it, and that keeping in view the rules which Their
Lordships observed in the matter of granting leave to appeal in criminal cases,
they did not think that the case raised questions which deserve further
consideration by the Privy Council. (vide Gangadhar Tilak v. Queen Empress)
(1).
Before noticing the further changes in the
Statute, it is necessary to refer to the Full Bench decision of the Allahabad
High Court in Queen Empress v. Amba Prasad (2). In that case, Edge, C.J., who
delivered the judgment of the Court, made copious quotations from the judgments
of the Calcutta and the Bombay High Courts in the cases above referred to.
While generally adopting the reasons for the decisions in the aforesaid two
cases, the learned Chief Justice observed that a man may be guilty of the
offence defined in s. 124A of attempting to excite feelings of disaffection
against the Government established by law in British India, although in a
particular article or speech he may insist upon the desirability or expediency
of obeying and supporting the Government. He also made reference to the
decision of the Bombay High Court in the Satara (3) case. In that case a Full
Bench, consisting of Farran, C.J., and Parsons and Ranade, JJ, 791 had laid it
down that the word "disaffection" in the section is used in a special
sense as meaning political alienation or discontent or disloyalty to the
Government or existing authority. They also held that the meaning of word
"disaffection" in the main portion of the section was not varied by
the explanation. Persons, J., held that the word "disaffection" could
not be construed as meaning 'absence of or contrary of affection or love'.
Ranade J., interpreted the word
"disaffection" not as meaning mere absence or negation of love or
good will but a positive feeling of aversion, which is akin to ill will, a
definite insubordination of authority or seeking to alienate the people and weaken
the bond of allegiance, a feeling which tends to bring the Government into
hatred and discontent, by imputing base and corrupt motives to it. The learned
Chief Justice of the Allahabad High Court observed that if those remarks were
meant to be in any sense different from the construction placed upon the
section by Strachey, J., which was approved, as aforesaid, by the Judicial
Committee of the Privy Council, the later observations of the Bombay High Court
could not be treated as authoritative. As the accused in the Allahabad case had
pleaded guilty and the appeal was more or less on the question of sentence, it
was not necessary for their Lordships to examine in detail the implications of
the section, though they expressed their general agreement with the view of the
Calcutta and the Bombay High Courts in the first two cases, referred to above.
The section was amended by the Indian Penal
Code Amendment Act (IV of 1898). As a result of the amendment, the single
explanation to the section was replaced by three separate explanations as they
stand now. The section, as it now stands in its present form, is the result of
the several A.O.S. of 1937, 1948 and 1950, as a result of the constitutional
changes, by the Government of India Act, 1935, by the Independence Act of 1947
and by the Indian 792 Constitution of 1950. Section 124A, as it has emerged
after successive amendments by way of adaptations as aforesaid, reads as
follows:
"Whoever by words, either spoken or
written, or by signs or by visible representation, or otherwise, brings or
attempts to bring into hatred to 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 exiting or attempting to excite hatred,
contempt or disaffection do not constitute an offence under this section.
Explanation 3. Comments expressing
disapprobation of the administrative of other action of the Government without
exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section." This offence, which is
generally known as the offence of Sedition, occurs in chapter IV of the Indian
Penal Code, headed 'Of offences against the State'. This species of offence
against the State was not an invention of the British. Government in India, but
has been known in England for centuries. Every State, whatever its form of
Government, has to be armed with the power to punish those who, by 793 their
conduct, jeopardise the safety and stability of the State, or disseminate such
feelings of disloyalty as have the tendency to lead to the disruption of the
State or to public disorder. In England, the crime has thus been described by
Stephen in his Commentaries on the Laws of England, 21st Edition, volume IV, at
pages 141- 142, in these words.
"Section IX. Sedition and Inciting to
Disaffection-We are now concerned with conduct which, on the one hand, fall
short of treason, and on the other does not involve the use of force or
violence. The law has here to reconcile the right of private criticism with the
necessity of securing the safety and stability of the State. Sedition may be
defined as conduct which has, either as its object or as its natural
consequence, the unlawful display of dissatisfaction with the Government or
with the existing order of society.
The seditious conduct may be by words, by
deed, or by writing. Five specific heads of sedition may be enumerated
according to the object of the accused. This may be either
1. to excite disaffection against the King,
Government, or Constitution, or against Parliament or the administration of
justice;
2. to promote, by unlawful means, any alteration
in Church or State;
3. to incite a disturbance of the peace;
4. to raise discontent among the King's
subjects;
5. to excite class hatred.
It must be observed that criticism on
political matters is not of itself seditious.
The test is the manner in which it is made.
Candid and honest discussion is permitted.
The law 794 only interferes when the
discussion passes the bounds of fair criticism. More especially will this be
the case when the natural consequence of the prisoner's conduct is to promote
public disorder." This statement of the law is derived mainly from the
address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin
Sullivan (1).
In the course of his address to the Jury the
learned Judge observed as follows:
"Sedition is a crime against society,
nearly allied to that of treason, and it frequently precedes treason by 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 tranquility of the State, and lead ignorant persons to endeavour to subvert
the Government and the laws of the empire. 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 constitution of the realm, and
generally all endeavours to promote public disorder." That the law has not
changed during the course of the centuries is also apparent from the following
statement of the law by Coleridge, J., in the course of his summing up to the
Jury in the case of Rex. v. Aldred (2):
795 "Nothing is clearer than the law on
this head-namely, that whoever by language, either written or spoken incites or
encourages other to use physical force or violence in some public matter
connected with the State, is guilty of publishing a seditious libel. The word
"sedition" in its ordinary natural signification denotes a tumult, an
insurrection, a popular commotion, or an uproar; it implies violence or
lawlessness in some form...." In that case, the learned Judge was charging
the Jury in respect of the indictment which contained the charge of seditious
libel by a publication by the defendant.
While dealing with a case arising under Rule
34(6) (e) of the Defence of India Rules under the Defence of India Act (XXXV of
1939) Sir Maurice Gwyer, C.J., speaking for the Federal Court, made the
following observations in the case of Niharendu Dutt Majumdar v. The King
Emperor (1);
and has pointed out that the language of s.
124A of the Indian Penal Code, which was in pari materia with that of the Rule
in question, had been adopted from the English Law, and referred with approval
to the observations of Fitzerald, J., in the case quoted above; and made the
following observations which are quite apposite:
"...generally speaking, we think that
the passage accurately states the law as it is to be gathered from an
examination of a great number of judicial pronouncements.
The first and most fundamental duty of every
Government is the preservation of order, since order is the condition precedent
to all civilisation and the advance of human happiness. This duty has no doubt
been sometimes performed in such 796 a way as to make the remedy worse than the
disease; but it does not cease to be a matter of obligation because some on
whom the duty rests have performed it ill. It is to this aspect of the
functions of government that in our opinion the offence of sedition stands
related. It is the answer of the State to those who, for the purpose of
attacking or subverting it, seek (to borrow from the passage cited above) to
disturb its tranquillity, to create public disturbance and to promote disorder,
or who incite others to do so. Words, deeds or writings constitute sedition, if
they have this intention or this tendency; and it is easy to see why they may
also constitute sedition, if they seek, as the phrase is, to bring Government
into contempt. This is not made an offence in order to minister to the wounded
vanity of Government, but because where Government and the law cease to be
obeyed because no respect is felt any longer for them, only anarchy can follow.
Public disorder, or the reasonable anticipation or likelihood of public
disorder, is thus the gist of the offence.
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." This statement of the law was not approved by
their Lordships of the Judicial Committee of the Privy Council in the case of
King-Emperor v.
Sadashiv Narayan Bhalerao (1). The Privy
Council, after quoting the observations of the learned chief Justice in
Niharendu's case (2), while disapproving of the decision of the Federal Court,
observed that there was no statutory definition of "Sedition" in
England, and the meaning and content of the crime had to be gathered from any
decisions.
797 But those were not relevant
considerations when one had to construe the statutory definition of 'Sedition'
as in the Code. The Privy Council held that the language of s. 124A, or of the
Rule aforesaid, under the Government of India Act, did not justify the
statement of the law as made by the learned Chief Justice in Niharendu's
case(1) they also held that the expression "excite disaffection" did
not include "excite disorder", and that, therefore, the decision of
the Federal Court in Niharendu's case(1) proceeded on a wrong construction of
s. 124A of the Penal Code, and of sub-para (e), sub-rule (6) of Rule 34 of the
Defence of India Rules; Their Lordships approved of the dicta in the case of
Bal Gangadhar Tilak (2), and in the case of Annie Basant v. Advocate General of
Madras (3), which was a case under s. 4 of the Indian Press Act. (I of 1910),
which was closely similar in language to s. 124A of the Penal Code.
The Privy Council also referred to their
previous decision in Wallace Johnson v. The Kinq(4) which was a case under sub
s. 8 of s. 326 of the Criminal Code of the Gold Coast, which defined
"seditious intention" in terms similar to the words of s.124A of the
Penal Code. In that case, their Lordships had laid down that incitement to violence
was not necessary ingredient of the Crime of sedition as defined in that law.
Thus, there is a direct conflict between the
decision of the Federal Court in Niharendu's case (1) and of the Privy Counsil
in a number of cases from Indian and the Gold Coast, referred to above.
It is also clear that either view can be
taken and can be supported on good reasons. The Federal Court decision takes
into consideration, as indicated above, the pre-exiting Common Law of England
in respect of sedition. It does not appear from the report of 798 the Federal
Court decision that the rulings aforesaid of the Privy Council had been brought
to the notice of their Lordships of the Federal Court.
So far as this Court is concerned, the
question directly arising for determination in this batch of cases has not
formed the subject matter of decision previously. But certain observations made
by this Court in some cases, to be presently noticed, with reference to the
interrelation between freedom of speech and seditious writing or speaking have
been made in the very first year of the coming into force of the Constitution.
Two cases involving consideration of the fundamental right of freedom of speech
and expression and certain laws enacted by some of the States imposing
restrictions on that right came up for consideration before this Court. Those
cases, reported in Romesh Thappar v. The State of Madras(1) and Brij Bhushan v.
The State of Delhi(2) were heard by Kania C.J., Pazl Ali, Patanjali Shastri,
Mehr Chand Mahajan, Mukherjea and Das, JJ, and judgments were delivered on the
same day (May 26, 1950). In Romesh Thappar's case (1), the majority of the
Court declared s. 9(1-A) of the Madras Maintenance of Public Order Act (Mad.
XXXIII of 1949), which had authorised imposition of restrictions on the
fundamental right of freedom of speech, to be in excess of cl. (2) of Art. 19
of the Constitution authorising such restrictions, and, therefore, void and
unconstitutional. In Brij Bhushan's case (2), the same majority struck down s.
7(1)(c) of the East Punjab Public Safety Act, 1949, as extended to the Province
of Delhi, authorising the imposition of restrictions on the freedom of speech
and expression for preventing or combating any activity prejudicial to the
public safety or 799 the maintenance of public order. The Court held those
provisions to be in excess of the powers conferred on the Legislature by cl.
(2) of Art. 19 of the Constitution. Mr. Justice Patanjali Sastri, speaking for
the majority of the Court in Romesh Thappar's case (1) made the following
observations with reference to the decisions of the Federal Court and the
Judicial Committee of the Privy Council as to what the law of Sedition in India
was:
"It is also worthy of note that the word
"sedition" which occurred in article 13(2) of the Draft Constitution
prepared by the Drafting Committee was deleted before the article was finally
passed as article 19(2).
In this connection it may be recalled that
the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. The
King Emperor (2) held 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 the Privy Council overruled that
decision and emphatically reaffirmed the view expressed in Tilak's case to the
effect 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" -King Emperor v. Sadashiv Narayan Bhalerao. Deletion of
the word "sedition" from the draft article 13(2), therefore, shows
that criticism of Government exciting disaffection or bad feelings toward it is
not to be regarded as a justifying ground for restricting the freedom of
expression and of the press, unless it is such as to undermine the security of
or tend to overthrow the State. It is also significant that the corresponding
800 Irish formula of "undermining the public order or the authority of the
State" (article 40(6)(i) of the Constitution of Fire, 1937) did not
apparently find favour with the framers of the Indian Constitution. Thus, very
narrow and stringent limits have been set to permissible legislative
abridgement of the right of free speech and expression, and this was doubtless
due to the realisation that freedom of speech and of the press lay at the
foundation of all domocratic organisations, for without free political
discussion no public education, so essential for the proper functioning of the
processes of popular government, is possible, freedom of such amplitude might
involve risks of abuse. But the framers of the Constitution may well have
reflected, with Madison who was "the leading spirit in the preparation of
the First Amendment of the Federal Constitution" that "it is better
to leave a few of its naxious branches to their luxuriant growth, than, by
prunning, them away to injure the vigour of those yielding the proper
fruits" :
(quoted in Near v. Minnesotta).
Those observations were made to bring out the
difference between the "security of the State" and "public
order". As the latter expression did not find a place in Art. 19(2) of the
Constitution, as it stood originally, the section was struck down as
unconstitutional. Fazl Ali, J., dissented from the views thus expressed by the
majority and reiterated his observations in Brij Bhushan's case (1) In the
course of his dissenting judgment, he observed as follows:
"It appears to me that in the ultimate
analysis the real question to be decided in this case is whether
"disorders involving menace to the 801 peace and tranquillity of the
Province" and affecting "Public safety" will be a matter which
undermines the security of the State or not. I have borrowed the words quoted
within inverted commas from the preamble of the Act which shows its scope and
necessity and the question raised before us attacking the validity of the Act
must be formulated in the manner I have suggested. If the answer to the
question is in the affirmative, as I think it must be, then the impugned law
which prohibits entry into the State of Madras of "any document or class
of documents" for securing public safety and maintenance of public order
should satisfy the requirements laid down in article 19(2) of the Constitution.
From the trend of the arguments addressed to us, it would appear that if a
document is seditious, its entry could be validly prohibited, because sedition
is a matter which undermines the Security of the State; but if on the other hand,
the document is calculated to disturb public tranquillity and affect public
safety, its entry cannot be prohibited, because public disorder and disturbance
of public tranquillity are not matters which undermine the security of the
State. Speaking for myself, I cannot understand this argument. In Brij Bhushan
v. The State. I have quoted good authority to show that sedition owes its
gravity to its tendency to create disorders and authority on Criminal Law like
Sir James Stephen has classed sedition as an offence against public
tranquillity." In Brij Bhushan case (1), Fazl Ali, J., who was again the
dissenting judge, gave his reasons to greater detail. He referred to the
judgment of the Federal Court in Niharendu Dutt Majumdar's case (2) 802 and to
the judgment of the Privy Council to the contrary in King Emperor v. Sada Shiv
Narayan (1).
After having pointed out the divergency of
opinion between the Federal Court of India and the Judicial Committee of the
Privy Council, the learned Judge made the following observations in order to
explaim why the term "sedition" was not specifically mentioned in
Art. 19(2) of the Constitution:
"The framers of the Constitution must
have therefore found themselves face to face with the dilemma as to whether the
word "sedition" should be used in article 19(2) and if it was to be
used in what sense it was to be used. On the one hand, they must have had
before their mind the very widely accepted view supported by numerous
authorities that sedition was essentially an offence against public
tranquillity and was connected in some way or other with public disorder; and,
on the other hand, there was the pronouncement of the Judicial Committee that
sedition as defined in the Indian Penal Code did not necessarily imply any
intention or tendency to incite disorder. In these circumstances, it is not
surprising that they decided not to use the word "sedition" in clause
(2) but used the more general words which cover sedition and everything else
which makes sedition such a serious offence.
That sedition does undermine the security of
the State is a matter which cannot admit of much doubt. That it undermines the
security of the state usually through the medium of public disorder is also a
matter on which eminent Judges and jurists are agreed.
Therefore, it is difficult to hold that
public disorder or disturbance of public tranquillity are not matters which
undermine the security of the State." 803 As a result of their differences
in the interpretation of Art.19(2) of the Constitution, the Parliament amended
cl.(2) of Art. 19, in the form in which it stands at present, by the
Constitution (First Amendment) Act, 1951, by s. 3 of the Act, which substituted
the original cl. (2) by the new cl. (2). This amendment was made with
retrospective effect, thus indicating that it accepted the statement of the law
as contained in the dissenting judgment of Fazl Ali, J., in so far as he had
pointed out that the concept of "security of the state" was very much
allied to the concept of "public order" and that restrictions on
freedom of speech and expression could validly be imposed in the interest of
public order.
Again the question of the limits of
legislative powers with reference to the provisions of Arts. 19 (1)(a) and
19(2) of the Constitution came up for decision by a Constitution Bench of this
Court in Ramji Lal Modi v. The State of U.P. (1). In that case, the validity of
s. 295A of the Indian Penal Code was challenged on the ground that it imposed
restrictions on the fundamental right of freedom of speech and expression
beyond the limits prescribed by cl.(2) of Art. 19 of the Constitution. In this
connection, the Court observed as follows:
"the question for our consideration is
whether the impugned section can be properly said to be a law imposing reasonable
restrictions on the exercise of the fundamental rights to freedom of speech and
expression in the interests of public order.
It will be noticed that language employed in
the amended clause is "in the interests of" and not "for the
maintenance of". As one of us pointed out in Debi Saron v. The State of
Bihar, the expression "in the interests of" makes the ambit of the
protection very wide.
A law may not have 804 been designed to
directly maintain public order and yet it may have been enacted in the interests
of public order." Though the observations quoted above do not directly
bear upon the present controversy, they throw a good deal of light upon the
ambit of the power of the legislature to impose reasonable restrictions on the
exercise of the fundamental right of freedom of speech and expression.
In this case, we are directly concerned with
the question how for the offence, as defined in s.
124A of the Indian Penal Code, is consistent
with the fundamental right guaranteed by Art. 19 (1) (a) of the Constitution,
which is in these terms:
"19. (1) All citizens shall have the
right.
(a) to freedom of speech and
expression..." This guaranteed right is subject to the right of the
legislature to impose reasonable restrictions, the ambit of which is indicated
by cl. (2), which, in its amended form, reads as follows:
"(2) Nothing in sub-clause (a) of clause
(1) shall affect the operation of any existing law or prevent the State from
making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the
security of the State, friendly relations with foreign States, public order,
decency or morality, or in relation to contempt of court, defamation or
incitement to an offence." It has not been questioned before us that the
fundamental right guaranteed by Art. 19(1)(a) of the freedom of speech and
expression is not an absolute right. It is common ground that the right is
subject to such reasonable restrictions as would come within the purview of cl.
(2), which comprises (a) security of the State, (b) friendly relations with
foreign States, (c) public order, (d) decency or morality, etc. With reference
to the constitutionality 805 of s. 124A or s. 505 of the Indian Penal Code, as to
how far they are consistent with the requirements of cl. (2) of Art. 19 with
particular reference to security of the State and public order, the section, it
must be noted, penalises any spoken or written words or signs or visible
representations, etc., which have the effect of bringing, or which attempt to
bring into hatred or contempt or excites or attempts to excite disaffection
towards the Government established by law" has to be distinguished from
the person's 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 s. 124A has been
characterised, comes under Chapter VI relating to offences against the State.
Hence any acts within the meaning of s. 124A which have the effect of
subverting the Government by bringing that Government into contempt or hatred,
or creating disaffection against it, would be within the penal statute because
the feeling of disloyalty to the Government established by law or enmity to it
imports the idea of tendency to public disorder by the use of actual violence
or incitement to violence. In other words, 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. But the section has taken care to indicate clearly
that strong words used to express disapprobation of the measures of Government
with a view to their improvement or alteration by lawful means would not come
within the section.
Similarly, comments, 806 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. In other words, 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.
It has not been contended before us that if a
speech or a writing excites people to violence or have the tendency to create
public disorder, it would not come within the definition of 'sedition'. What
has been contended is that a person who makes a very strong speech or uses very
vigorous words in a writing directed to a very strong criticism of measures of
Government or acts of public officials, might also come within the ambit of the
penal section. But, in our opinion, such words written or spoken would be
outside the scope of the section. In this connection, it is pertinent to
observe that the security of the State, which depends upon the maintenance of
law and order is the very basic consideration upon which legislation, with a
view to punishing offences against the State, is undertaken. Such a legislation
has, on the one hand, fully to protect and guarantee the freedom of speech and
expression, which is the sine quo non of a democratic form of Government that
our Constitution has established. This Court, as the custodian and guarantor of
the fundamental rights of the citizens, has the duty cast upon it of striking
down any law which unduly restricts the freedom of speech and expression with
which we are concerned in this case. But the freedom has to be guarded again
807 becoming a licence for vilification and condemnation of the Government
established by law, in words which incite violence or have the tendency to
create public disorder. A citizen has a right to say or write whatever he likes
about the Government, or its measures, by way of criticism or comment, so long
as he does not incite people to violence against the Government established by
law or with the intention of creating public disorder. The Court, has,
therefore, the duty cast upon it of drawing a clear line of demarcation between
the ambit of a citizen's fundamental right guaranteed under Art.
19(1)(a) of the Constitution and the power of
the legislature to impose reasonable restrictions on that guaranteed right in
the interest of, inter alia, security of the State and public order. We have,
therefore, to determine how far the ss. 124A and 505 of the Indian Penal Code
could be said to be within the justifiable limits of legislation.
If it is held, in consonance with the views
expressed by the Federal Court in the case of Niharendu Dutt majumdar v. The
King Emperor(1) that the gist of the offence of 'sedition' is incitement to
violence or the tendency or the intention to create public disorder by words
spoken or written, which have the tendency or the effect of bringing the Government
established by law into hatred or contempt or creating disaffection in the
sense of disloyalty to the State in other words bringing the law into line with
the law of sedition in England, as was the intention of the legislators when
they introduced s. 124A into the Indian Penal Code in 1870 as aforesaid, the
law will be within the permissible limits laid down in cl. (2) of Art. 19 of
the Constitution, if on the other hand we give a literal meaning to the words
of the section, divorced from all the antecedent background in which the law of
sedition has grown, as laid down in the several decisions of the Judicial
Committee of the Privy Council, it will be true to 808 say that the section is
not only within but also very much beyond the limits laid down in cl. (2)
aforesaid.
In view of the conflicting decisions of the
Federal Court and of the Privy Council, referred to above, we have to determine
whether and how far the provisions of ss. 124A and 505 of the Indian Penal Code
have to be struck down as unconstitutional. If we accept the interpretation of
the Federal Court as to the gist of criminality in an alleged crime of
sedition, namely, incitement to disorder or tendency or likelihood of public
disorder or reasonable apprehension thereof, the section may lie within the
ambit of permissible legislative restrictions on the fundamental right of
freedom of speech and expression. There can be no doubt that apart from the
provisions of (2) of Art. 19, ss. 124A and 505 are clearly violative of Art.
19(1)(a) of the Constitution. But then we have to see how far the saving
clause, namely, cl.(2) of Art. 19 protects the sections aforesaid. Now, as
already pointed out, in terms of the amended cl. (2), quoted above, the
expression "in the interest of...public order" are words of great
amplitude and are much more comprehensive than the expression "for the
maintenance of", as observed by this Court in the case of Virendra v. The
State of Punjab (1). Any law which is enacted in the interest of public order
may be saved from the vice of constitutional invalidity. If, on the other hand,
we were to hold that even without any tendency to disorder or intention to
create disturbance of law and order, by the use of words written or spoken
which merely create disaffection or feelings of enmity against the Government,
the offence of sedition is complete, then such an interpretation of the
sections would make them unconstitutional in view of Art. 19(1)(a) read with
cl. (2). It is well settled that if certain provisions of law construed in one
way would make 809 them consistent with the Constitution, and another
interpretation would render them unconstitutional, the Court would lean in
favour of the former construction. The provisions of the sections read as a
whole, along with the explanations, make it reasonably clear that the sections
aim at rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort to
violence. As already pointed out, the explanations appended to the main body of
the section make it clear that criticism of public measures or comment on
Government action, however strongly worded, would be within reasonable limits
and would be consistent with the fundamental right of freedom of speech and expression.
It is only when the words, written or spoken, etc. which have the pernicious
tendency or intention of creating public disorder or disturbance of law and
order that the law steps in to prevent such activities in the interest of
public order. So construed, the section, in our opinion, strikes the correct
balance between individual fundamental rights and the interest of public order.
It is also well settled that in interpreting an enactment the Court should have
regard not merely to the literal meaning of the words used, but also take into
consideration the antecedent history of the legislation, its purpose and the
mischief it seeks to suppress (vide (1)). The Bengal Immunity Company Limited
v. The State of Bihar (1) and (2) R.M.D. Chamarbaugwalla v. The Union of India
(2).
Viewed in that light, we have no hesitation
in so construing the provisions of the sections impugned in these cases as to
limit their application to acts involving intention or tendency to create
disorder, or disturbance of law and order, or incitement to violence.
We may also consider the legal position, as
it should emerge, assuming that the main s. 124A is 810 capable of being
construed in the literal sense in which the Judicial Committee of the Privy
Council has construed it in the cases referred to above.
On that assumption, it is not open to this
Court to construe the section is such a way as to avoid the alleged
unconstitutionality by limiting the application of the section in the way in
which the Federal Court intended to apply it ? In our opinion, there are
decisions of this Court which amply justify our taking that view of the legal
position. This Court, in the case of R.M.D.
Chamarbaugwalla v. The Union of India (1) has
examined in detail the several decisions of this Court, as also of the Courts
in America and Australia. After examining those decisions, this Court came to
the conclusion that if the impugned provisions of a law come within the
constitutional powers of the legislature by adopting one view of the words of the
impugned section or Act, the Court will take that view of the matter and limit
its application accordingly, in preference to the view which would make it
unconstitutional on another view of the interpretation of the words in
question. In that case, the Court had to choose between a definition of the
expression 'Prize Competitions" as limited to those competitions which
were of a gambling character and those which were not. The Court chose the
former interpretation which made the rest of the provisions of the Act, Prize
Competitions Act (XLII of 1955), with particular reference to ss. 4 and 5 of
the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the
penalty attached only to those competitions which involved the element of
gambling and those competitions in which success depended to a substantial
degree on skill were held to be out of the purview of the Act. The ratio
decidendi in that case, in our opinion, applied to the case in hand in so far
as we propose to limit its operation only to such activities as come within the
ambit of 811 the observations of the Federal Court, that is to say, activities
involving incitement to violence or intention or tendency to create public
disorder or cause disturbance of public peace.
We do not think it necessary to discuss or to
refer in detail to the authorities cited and discussed in the reported case
R.M.D. Chamarbaugwalla v. The Union of India (1) at pages 940 to 952. We may
add that the provisions of the impugned sections, impose restrictions on the
fundamental freedom of speech and expression, but those restrictions cannot but
be said to be in the interest of public order and within the ambit of
permissible legislative interference with that fundamental right.
It is only necessary to add a few
observations with respect to the constitutionality of s. 505 of the Indian
Penal Code. With reference to each of the three clauses of the section, it will
be found that the gravamen of the offence is making, publishing or circulating
any statement, rumour or report (a) with intent to cause or which is likely to
cause any member of the Army, Navy or Air Force to mutiny or otherwise
disregard or fail in his duty as such; or (b) to cause fear or alarm to the
public or a section of the public which may induce the commission of an offence
against the State or against public tranquillity; or (c) to incite or which is
likely to incite one class or community of persons to commit an offence against
any other class or community. It is manifest that each one of the constituent
elements of the offence under s. 505 has reference to, and a direct effect on,
the security of the State or public order. Hence, these provisions would not
exceed the bounds of reasonable restrictions on the right of freedom of speech
and expression. It is clear, 812 therefore, that cl. (2) of Art. 19 clearly
save the section from the vice of unconstitutionality.
It has not been contended before us on behalf
of the appellant in C.A. 169 of 1957 or on behalf of the respondents in the
other appeals (No. 124- 126 of 1958) that the words used by them did not come
within the purview of the definition of sedition as interpreted by us. No
arguments were advanced before us to show that even on the interpretation given
by us their cases did not come within the mischief of the one or the other
section, as the case may be. It follows, therefore, that the Criminal Appeal
169 of 1957 has to be dismissed. Criminal Appeals 124-126 of 1958 will be
remanded to the High Court to pass such order as it thinks fit and proper in
the light of the interpretation given by us.
Appeal No. 169 of 1957 dismissed.
Appeals Nos. 124 to 126 of 1958 allowed.
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