AdvocateKhoj
Login : Advocate | Client
Home Post Your Case My Account Law College Law Library
    

Report No. 156

7.11. Proposed section 123A in the Bill is based on the recommendation of the Law Commission in its 42nd Report. An Explanation is, however, added in the Bill which explains the expressions 'armed forces of India' and 'enemy' in the context of the offence covered by the main section 123A as recommended by the Law Commission. Therefore, there is no harm in having this Explanation.

7.12. The existing 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 for the reason that every State, whatever its form of Government, has to be armed with the power to punish those who by their conduct, jeopardies 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.

7.13. In England, the crime of 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.

7.14. It may 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.

It may be mentioned that the definition of sedition in the existing section 124A is limited to exciting disaffection towards the Government established by law. Exciting disaffection towards the Constitution or Parliament or the administration of justice is not mentioned as a seditious activity. 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.

7.15. 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. The Law Commission in its 42nd report observed that this defect should be removed by expressing "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."

7.16. Another defect 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 section 124A should be revised to take them in.

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 Law Commission observed that there is a need to 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. That is why, the Law Commission in its 42nd report asked that this 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."

7.17. This recommendation found a place in the I.P.C. (Amendment) Bill, 1978 under the heading "sedition". Clause 48 of the Bill is substituting a new section for section 124A as was originally proposed by the Law Commission in its 42nd report.

7.18. For the reasons discussed above, the section 124A may be substituted.

7.19. The then Law Commission had suggested in its 42nd report that the Code should 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.

7.20. The Law Commission had already recommended that a new section be inserted after section 124B, as follows:-

"124B. 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."

The above recommendation was incorporated in clause 48 of the I.P.C. (Amendment) Bill, 1978.

7.21. Under this clause a new section 124B is also sought to be inserted. Under this new section, whoever deliberately insults the Constitution of India or any part thereof, the national flag, the national emblem or the national anthem, by burning the national flag etc., shall be punishable. The Law Commission in its 42nd Report observed that there should be a provision for punishment for insults to the Constitution, national flag, emblem and the national anthem which may include burning of the Constitution and deliberate insults to the national anthem which are unpatriotic.

Therefore, they recommended the insertion of this new section. However, on the basis of those recommendations, Prevention of Insults to National Honour Act, 1971 has been-enacted. Therefore, this new section 124B need not be inserted again in I.P.C. and the same may be deleted from clause 48 of the Bill.

7.22. The existing section 125 reads as under:-

"125. Waging war against any Asiatic Power in alliance with the Government of India.-Whoever wages war against the Government of any Asiatic Power in alliance or at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine."

7.23. 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. The Law Commission had already proposed 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."

7.24. The same recommendation was incorporated in the I.P.C. (Amendment) Bill, 1978. Clause 49 of the Bill runs as under:

"49. In section 125 of the Penal Code, for the words "any Asiatic Power in alliance or at peace with the Government of India", the words any foreign State at peace with India: shall be substituted."

Thus the recommendation for reducing the quantum of the punishment was not accepted. It may be mentioned that in the existing provision the punishment is prescribed "with imprisonment for life to which fine may be added, or with imprisonment of either description for a term which may extend to seven years When there is already a provision for reducing the punishment, then there is no need to reduce expressly the upper limit of the punishment.

7.25. In view of the above, section 125 may be amended as proposed in the I.P.C. (Amendment) Bill, 1978.



The Indian Penal Code Back




Client Area | Advocate Area | Blogs | About Us | User Agreement | Privacy Policy | Advertise | Media Coverage | Contact Us | Site Map
powered and driven by neosys