The excitements incident to our present conditions have again brought forward for

consideration the old questions of how far a free government may suppress free and full
expres- sion of disapproval of the government, and should the forces of government move
against a discontented element of the people, whose discontent has perhaps been expressed in
words of dan- gerous import, but who have not as yet made use of any physical force in
carrying their threats and designs into execution. Sedition, as defined by Section 124-A of the
Indian Penal Code, 1860, is the attempt to bring hatred or contempt for the Government into
the minds of people through written or spoken words. The question of the constitutionality of
this provision arises mainly due to its origin and its infringement and curtailment of the Right
to Freedom of Speech.

Looking around the globe, many countries like United Kingdom, Scotland, South Korea and
Indonesia have abolished this law from there statutes and even there are many countries like
U.S.A and others who have given more importance to the freedom of speech than to curb the
freedom. The sections of chapter 6 and 8 of IPC are relevant to this law and can be used as an
alternative to this law of sedition. The Hon’ble Supreme Court has also stated specific
guidelines and has said that for such a serious crime, a proper care should be taken before
charging someone under this law. The unity and integrity of India and the legitimacy of the
Indian state are not as weak as it was in the case of the Colonial regime to be threatened and
shattered by the speeches or the writings of a section of a specific class and India of the 21st
century does not require a law used by the Colonial Government to suppress its democratic
voice.

The origin of sedition, as enumerated upon above, was introduced in India by the British Rule
to mainly control and supress the voice of Indian freedom fighters. Many freedom fighters
were charged under this section such as Bal Gangadhara Tilak and Mohandas Karamchand
Gandhi. In the own words of Mahatma Gandhi, “Section 124-A, 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.” In 1951, India’s PM Jawaharlal Nehru publicly voiced his dislike
of Section 124A, saying, “that particular section is highly objectionable and obnoxious and it
should have no place both for practical and historical reasons.” The sedition law faced a
judicial death in 1958 when the Allahabad High Court proclaimed it ultra vires Article 19(1)
(a), only to be resuscitated and brought back in force in 1962 by the Supreme Court of India,
In Kedarnath Singh vs State Of Bihar. However, the Supreme Court of India greatly reduced
the scope and power of offences to which this law could be applied to. To ensure that Section
124-A did not infringe upon the fundamental right to freedom of speech, the Supreme Court
observed that since sedition was not included in Art. 19(2) and it is implied that a more
liberal understanding was needed in the context of a democracy. The Court even made a
distinction between strong criticism of the Government from those words which excite or
incite to cause public disorder and violence. The Apex Court stated that out of six grounds
listed in Article 19(2) 10, the 'security of the state' should be taken as a possible ground to
support the constitutionality of the Section 124A of the IPC and in this way the Supreme
Court of India narrowed the scope of sedition by stating that 'incitement of violence or public
disorder' should be there to apply sedition.1 Similarly, comments, 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.” Thus, the Supreme Court sided with an effect-based test (based on the effect of
words) rather than content-based test (which is based on the text closely and its
unconstituionality) in deciding sedition cases, very much like in American and British law.
Further, the court went on to say that section 124A could be ultra vires Article 19(1)(a) if it
were applied to the case of “words written or spoken which merely create disaffection or
feelings of enmity against the Government.”

The Right to Freedom of Speech is established through Article 19(1)(a) in the Constitution of
India in which it is stated that, “All citizens shall have the right to freedom of speech and
expression.”2 The powers provided by this Article are restricted by Article 19(2) which states
that these powers are limited subject to certain constraints. Under Section 124-A of the Indian
Penal Code, a person is said to be found guilty when he attempts to bring hatred or
disaffection in the minds of people regarding the Government of India through either written
or spoken words. Thus the conflict between this Fundamental Right and Section is clear and
herein lies the question of constitutionality of Section 124-A of the Indian Penal Code.

1
Kedar Nath v. Union of India, AIR 1962 SC 955
2
Article 19(1)(a) of the Constitution of India.