Report No. 42
Section 124A defines the offence of sedition. Despite the umbra of repression which a mention of this section is likely to evoke in one's mind, it is a provision which has to find a place in the Penal Code. As observed by Sinha C.J., in Kedar Nath's case,1 "every State, whatever its form of Government, has to be armed with the power to punish those who by 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".
1. Kedar Nath Singh v. State of Bihar, 1962 (Supp) 2 SCR 769 (792): AIR 1962 SC 955.
6.12. English law.- In England, the crime was described by Fitzerald J. in the following terms: -1
"Sedition is a crime against society nearly allied to that of treason, and it frequently precedes treason by a short interval 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 disturbances, 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.
Stephen defined the offence more closely as follows1.-
"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 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."
1. Address to the Jury in Reg. v. A.M. Sullivan, (1868) 11 Cox's Criminal cases 44 (45).
2. Stephen, Commentaries on the Laws of England, (1950), Vol. IV, pp. 141, 142.
6.13. Indian definition narrower than the English.-
It will be noticed that the definition of sedition in section 124A is much narrower than Stephen's definition. It is limited to exciting disaffection towards the Government established by law, which is only a part of the first item in Stephen's analysis. Exciting disaffection towards the Constitution or Parliament or the administration of justice is not considered a seditious activity in India. On the other hand, while promotion of public disorder in some form or other is considered an essential ingredient of seditious conduct in England, this idea is not brought out in the wording of section 124A.
6.14. Different interpretations of section 124A before the Constitution.-
In the celebrated case of Bal Gangadhar Tilak, 1897 ILR 22 Born 112, Strachey J. of the Bombay High Court said.-
"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 Government. In my opinion, this view is absolutely opposed to the express words of the section itself which, as plainly as possible, makes 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."
But in Niharendu Dutt,1 Gwyer. C.J., of the Federal Court, relying mainly on English authorities, took the view that "public disorder or the reasonable anticipation or likelihood of public disorder is the gist of the offence. The act or words complained of must either incite to disorder or must be such as to satisfy reasonable men that it is their intention or tendency". This interpretation, however, did not hold the field for long. In Sadashiv Narayan,2 the Privy Council expressly overruled it by saying that "it is sufficient for their Lordships to say that they adopt the language of Strachey J. as exactly expressing their own view on the point."
1. Niharendu Dutt v. K.E., 1942 FCR 38.
2. K.E. v. Sadashiv Narayan Bhalerao, 1947 LR 94 IA 89: AIR 1947 PC 82.
6.15. Validity under Article 19(2) of the Constitution.-
After the Constitution came into operation, the more fundamental question, viz, the constitutionality of section 124A vis-a-vis Article 19, was raised in a few cases leading to a conflict of decisions in the High Courts. It was finally resolved by the Supreme Court in Kedar Nath Singh1 in the following manner.-
"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 sections 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.
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 Article 19(1)(a) read with clause (2). 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.
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. x x x 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."
As regards section 505 of the Code the constitutionality of which also was challenged, the Court held in the same judgment.-
"It is manifest that each one of the constituent elements of the offence under section 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 should be mentioned here that when this decision was given, Article 19(2) of the Constitution did not contain a reference to "the sovereignty and integrity of India", a phrase which was subsequently inserted by the Constitution (Sixteenth Amendment) Act of 1963.
1. Kedar Nath Singh v. State of Bihar, SCR 1962 (Supp) 808.