Section 124A

On 12 February 2016, two policemen in plain clothes arrested the president of the
student union of the Jawaharlal Nehru University (JNU), Kanhaiya Kumar. On 9
February, students from JNU had allegedly shouted slogans at an event marking the
death anniversary of Mohammad Afzal, who was convicted in the 2001 terror attack on
the parliament. On Tuesday, 23 February, Umar Khalid and Anirban Bhattacharya, two
of the alleged organisers of the event, surrendered themselves to police custody
following an eleven-day-long manhunt. Kumar, Khalid and Bhattacharya have been
charged under the Indian Penal Code (IPC) Section 120B, which deals with criminal
conspiracy against the state, and 124A, which contentiously attends to sedition.

Though few have ever been convicted by the Supreme Court for sedition, many have
been booked under Section 124A. Most recently, before Kumar, Khalid and
Bhattacharya, section 124A was invoked against Hardik Patel from Gujarat, who has
been asking for reservations for the Patidar community. Sedition in India is a cognizable
(not requiring a warrant for an arrest), non-compoundable (not allowing a compromise
between the accused and the victim), and non-bailable offence. The penalty can range
from a fine to three years or life imprisonment. But these penalties would be awarded
after the judgement, which can take a long while to come. Meanwhile, a person charged
with sedition must live without their passport, barred from government jobs, and must
produce themselves in the court on a loop. All this, while bearing the legal fee. The
charges have rarely stuck in most of the cases, but the process itself becomes the
punishment.

Section 124A did not make it into the IPC until 1870 (although a section corresponding
to it was present in Thomas Macaulay’s Draft Penal Code in 1835). It was brought in 10
years after the IPC was introduced, possibly, to counter the surging Wahabi activities in
the subcontinent. At that point, it was a law against “exciting disaffection.” The first case
was registered, in 1891, when the editor of a newspaper called Bangobasi was
booked for publishing an article criticising an “Age of Consent Bill.” The jury could not
reach a unanimous verdict and the judge, in that case, refused to accept any verdict that
was not unanimous. The editor was released on bail, and, after he issued an apology,
charges against him were dropped.

The trial that changed the effect of section 124A was that of Bal Gangadhar Tilak in
1897. The British government claimed, according to an article in the Economic and
Political Weekly, that Tilak’s speeches on the killing of Afzal Khan by Shivaji, had
prompted the murder of two British officers in Pune. Newly promoted Justice James
Strachey presided over this trial, and broadened the scope of section 124A in the
proceedings by equating “disaffection” to “disloyalty.”He interpreted that the term
“feelings of disaffection” meant hatred, enmity, dislike, hostility, contempt, and every
form of ill will towards the government. Tilak was charged with sedition. He was
released a year later, following German economist and jurist, Max Weber’s intervention.
But on the basis of Strachey’s interpretation, the section was used repeatedly against
nationalist leaders by the colonial government. Tilak himself went on to face the same
charge again, twice, and ended up spending six years in prison for an editorial published
in his newspaper, Keasari.

In 1922, Mohandas Karamchand Gandhi was brought to court for his articles in Young
India magazine. Gandhi famously denounced the law against sedition in the court:
“Section 124A under which I am happily charged, is perhaps the prince among the
political sections of the IPC designed to suppress the liberty of the citizen.”

The issue of sedition was anxiously discussed during constituent assembly debates. On
29 April 1947, when laying out the Rights of Freedom, Vallabhbhai Patel—who went on
to become the home minister of India—made an exception for “seditious, obscene,
blasphemous, slanderous, libellous or defamatory” language. The Communist Party of
India leader, Somnath Lahiri opposed the use of the word seditious. “As far as I know,
even in England, a speech, however seditious it may be, is never considered a crime
unless an overt act is done,” Lahiri said. The members continued debating, coming back
to the question of sedition intermittently. Finally, an amendment was moved to drop the
word and not allow it to infringe upon the freedom of speech and expression. On 2
December 1948, senior Congress leader, Seth Govind Das spoke jubilantly in the house:

The restriction imposed later on in respect of the extent of this right, contains the word
'sedition.' An amendment has been moved here in regard to that. It is a matter of great
pleasure that it seeks the deletion of the word 'sedition.' I believe they remember that
this section was specially framed for securing the conviction of Lokamanya Bal
Gangadhar Tilak. Since then, many of us have been convicted under this section. In
this connection many things that happened to me come to my mind… I mean to say
that there must be many Members of this House who must have been sentenced under
this article to undergo long periods of imprisonment. It is a matter of pleasure that we
will now have freedom of speech and expression under this sub-clause and the word
'sedition' is also going to disappear.

The word did indeed disappear from the constitution when it was adopted on 26
November 1949, but section 124A stayed in the Indian Penal Code. Then, in 1950, two
Supreme Court judgements led the government to introduce the much-maligned first
amendment. The first case involved objectionable material in Organiser, a magazine
run by the Rashtriya Swayamsevak Sangh; the second was against a magazine
called Cross Roads, for criticising the government. In both the cases, the Supreme Court
sided with the government. It asked the editor of Organiser to clear provocative content
with a regulating authority, and banned Cross Roads. In light of these judgements,
Jawaharlal Nehru brought in the first amendment.

Later, speaking in the parliament, Nehru specified that the amendment does not
validate laws such as sedition. “Take again Section 124-A of the Indian Penal Code. Now
so far as I am concerned that particular section is highly objectionable and obnoxious
and it should have no place both for practical and historical reasons, if you like, in any
body of laws that we might pass. The sooner we get rid of it the better,” he said. Even as
the section stayed in the IPC, these words of Nehru guided the courts. Three judgements
regarding section 124A were passed in the 1950s in high courts, and all of them
acquitted the accused.

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In post-independence India, however, the judgement with the most impact came in
January 1962. In the case of Kedarnath versus the State of Bihar, the constitutional
bench of the Supreme Court defined the scope of sedition for the first time and this
definition has been taken as precedent for all matters pertaining to Section 124A since.
Until Independence, there were broadly two views on Section 124A: that of the
judgements given by the Federal Court, and that of the judgements passed by the Privy
Council (the highest court of appeal for commonwealth countries, they were abolished
in India following the passing of abolition of privy council jurisdiction act, in 1949). The
former asserted that public disorder or the reasonable anticipation or likelihood of
public disorder is the gist of the offence; the latter said that the speech itself, irrespective
of whether or not it leads to an incident, could be an offence. Taking in account
Article 19A (the freedom of speech and expression) of the constitution, the bench
observed in the judgement’s headnote, “If the view taken by the Federal Court was
accepted, Section 124A would be constitutional but if the view of the Privy Council was
accepted it would be unconstitutional.” Later, it states that it stands with the Federal
Court, and the constitution.
Kedarnath Singh was convicted by the high court for his speech that lampooned the
Crime Investigation Department and the Congress party. “To-day the dogs of CID are
loitering around 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.” He accused the Congress of corruption, black-marketing and tyranny and
talked about a revolution that would overthrow capitalists, zamindars and Congress
leaders. The constitutional bench upheld the punishment given to Kedarnath by the
high court but at the same time limited the section’s scope. Towards the end, the
judgement states that the section penalises words that reveal an intent or tendency to
disturb law and order or that seem to incite violence. And then, it draws a line: “It has
been contended 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.”

With this case, the court upheld the constitutionality of the sedition law, but also
curtailed its scope in its application. The “anti-nationalism” that the three JNU students
are accused of may be perceived as such, but as Fali Nariman, the constitutional jurist
and senior advocate to the Supreme Court, points out, “mere expressions of hate, and
even contempt for one’s government, are not sedition.”