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Report No. 42

6.16. Mens rea of sedition to be related expressly to Article 19(2).-

In view of the controversy which has raged round section 124A for all this time, it is clearly necessary to revise the formulation of the offence so as to make it a patently reasonable restriction under Article 19(2). The elements mentioned in this article which are relevant to the offence of sedition are integrity of India, security of the State and public order. The section has been found to be defective because "the pernicious tendency or intention" underlying the seditious utterance has not been expressly related to the interests of integrity or security of India or of public order. We feel that this defect should be removed by expressing the mens rea as "intending or knowing it to be likely to endanger the integrity or security of India or of any State or to cause public disorder.

6.17. Disaffection towards the constitution, legislatures and Judiciary to be included.-

Another defect we have already noticed in the definition of sedition is that it does not take into account disaffection towards (a) the Constitution, (b) the Legislatures, and (c) the administration of justice, all of which would- be as disastrous to the security of the State as disaffection towards the executive Government. These aspects are rightly emphasised in defining sedition in other Codes and we feel that section 124A should be revised to take them in.

6.18. Punishment to be rationalised.-

The punishment provided for the offence is very odd. It could be imprisonment of life, or else, imprisonment upto three years only, but nothing in between. The Legislature should, we think, give a firmer indication to the Courts of the gravity of the offence by fixing the maximum punishment at seven years' rigorous imprisonment and fine.

6.19. Section 124A revised.- We propose that the section be revised as follows.-

"124A. Sedition.-Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, disaffection towards the Constitution, or the Government or Parliament of India, or the Government or Legislature of any State, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the integrity or security of India or of any State, or to cause public disorder, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation 1.-The expression "disaffection" includes feelings of enmity, hatred or contempt.

Explanation 2.-Comments expressing disapprobation of the provisions of the Constitution, or of the actions of the Government, or of the measures of Parliament or a State Legislature, or of the provisions for the administration of justice, with a view to obtain their alteration by lawful means without exciting or attempting to excite disaffection, do not constitute an offence under this section."

6.20. Insult to the Constitution, national flag, emblem or anthem to be punishable.-

The Code should, we think, contain a provision for punishing insults to the book of the Constitution, the national flag, the national emblem and the national anthem. Burning of the copies of the Constitution, desecration of the national flag or national emblem and offering deliberate insults to the national anthem, are not only unpatriotic acts but are also likely to cause a disturbance of public order. As such, they are reprehensible enough to be made offences in the Penal Code.

Legislative competence of Parliament in the matters is derivable from the entry relating to criminal law in the Concurrent List and from the residuary entry in the Union List. It could hardly be said that such a provision curtails the freedom of expression unreasonably, and the restriction would be clearly in the interests of public order.

After a study of the Madras Act1 on the subject and the case-law thereon, and of the laws of a few other countries, we have come to the conclusion that a simple provision on the subject would suffice. It is not necessary that the offensive act should be done in a public place. We recommend that a new section be inserted after section 124A, as follows.-

"1248. Insult to the book of the Constitution, national flag, national emblem or national anthem.- Whoever deliberately insults the book of the Constitution, the national flag, the national emblem or the national anthem, by burning, desecration or otherwise, shall be punished with imprisonment of either description for a term which may extend up to three years, or with fine, or with both."

1. The (Madras) Prevention of Insult to National Honour Act, 1957.

6.21. Section 125 to be amended.-

Section 125 makes it an offence to wage war against the Government of any Asiatic Power in alliance or at peace with the Government of India. The reference to 'Asiatic Power' is now meaningless, and the words "in alliance or" are unnecessary. It would be sufficient to refer to the Government of any foreign State at peace with India. The punishment of life imprisonment for the offence is unduly severe; on the other hand, if ever the offence is committed, the offender ought not to be let off with a fine as now provided in the section. We propose that the punishment should be imprisonment of either description not exceeding ten years, and also fine.

The section may accordingly be revised as follows.-

"125. Waging war against any foreign State at peace with India.- Whoever wages war against the Government of any foreign State at peace with India, or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

6.22. Section 126.-

The only change required in section 126 is to substitute for the words "any Power in alliance or at peace with the Government of India" the words "any foreign State at peace with India."

6.23. Section 127.- Section 127 needs no change.

6.24. Sections 128 to 130.-

(i) The reference to "State prisoners" in section 128 and the two succeeding sections is a relic of the past. Since the State Prisoners Regulations of the three Presidencies made early in the last century have been repealed in 1952, the reference should be omitted from these sections.

(ii) As regards prisoners of war escaping from custody, the punishment of imprisonment for life provided in sections 128 and 130 is unnecessary and may be deleted. Imprisonment upto ten years and fine is adequate for both these offences.

(iii) In section 130, the word "harbours" has to be read in the light of the explanation given in section 52A, with the result that where the harbour is given by the wife or husband of the person harboured, it will not include the supplying that person with shelter, food, drink etc. It is difficult to see what else the harbouring in such a case will mean. If the wife of an escaped prisoner of war may be punished under the section for concealing him, there is no good reason why she need not be punished for "harbouring" him, in whatever sense we understand that term. We do not, therefore, propose any special explanation in section 130 for the word "harbours".

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