Introduction

In today's democracy, people are being arrested for sharing their views, not much for their
fundamental rights. The fundamental right enshrined in Article 19(1)(a) of the Indian
Constitution grants all its people the right to freedom of speech and expression. The
fundamental rights of the Indian Constitution are at the highest standard, and people are being
arrested for joining the team they want, seeking their rights, sharing their creativity, reserving
their decision not to stand up during the national anthem.1

Section 124A of the Indian Penal Code sets down the rule of sedition. Unfortunately, the
cases of abuse of this statute are common. The misuse of this section by the Government, in
compliance with its own convenience, is frowned upon by the courts of law which, time and
time again, have made clear the true sense of this section in order to avoid such misuse.
While the court guards the constitution, as it is believed, people are already being harassed
because of the lengthy wait for justice and so much for what to do in the exercise of freedom
of speech?
The constitution is a forward-looking document, and the builders of our constitution seek to
move free from the past, from the draconian colonial laws some of which were structured
specifically to suppress the Indians, and yet the continued presence of the sedition law is
counter to the intention of the makers of the constitution.
This paper aims to shed light on the history of this law and discuss various cases in order to
illustrate the abuse of this law by the government. This paper reflects on the difference
between disaffection and disapprobation, which is not subject to sedition. It also discusses the
underlying issue of the need for such a legislation in a country with its own government.

Sedition law in India

- Colonial rule
The act of sedition was first introduced under the colonial rule in 1837 by the Indian Law
Commission led by Thomas Macaulay as Clause 113 of the Indian Penal Code, which made it
an offense to "excite feelings of disaffection against the government." While that section was
present in the Draft Penal Code, it was omitted by the enactment of IPC 1860.
The offense of sedition did not find a place in the IPC until 1870, when an amendment was
made and Clause 113 of Macaulay's draft was added into the Penal Code as Section 124A.

1
http://www.bbc.com/news/world-asia-india-37182206

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124A. Exciting Disaffection:
Whoever by words, either spoken or intended to be read, or by signs, or by visible
representation, otherwise, excites, or attempts to excite, feelings of disaffection to the
government established by law in British India, shall be punished with transportation for life
or for any term, to which fine may be added, or with imprisonment for a term which may
extend to three years, to which fine may be added, or with fine.
Explanation- Such a disapprobation of the measures of the government as is compatible with
a disposition to render obedience to the lawful authority of the government, and to support
the lawful authority of the Government, against unlawful attempts to subvert or resist the
authority of the Government, is not disaffection.
It is therefore not an offense under this provision to make remarks on the methods of the
Government, with the intention of exciting only this form of disapproval.
This section was used as a tool to silence the expressions of dissent and criticism of the
British Government. Mahatma Gandhi, while being tried for sedition in place of his writings
in Young India, stated “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.”2
The law of sedition, as enacted in 1870, remained in effect for a period of 28 years, until an
amendment was made to that provision in 1898, specifically to eliminate the vagueness of the
meaning of the word 'disaffection' used in that section. Accordingly, the section was amended
by the Indian Penal Code (Amendment) 1898. The single explanation for the section was
been substituted by three different explanations as they are now. The section inserted in 1898
differs from the old section as follows:
(a) 'feeling' in the former was limited to one of 'disaffection,' while in the current section it
could be one of 'hatred,' 'contempt' or 'disaffection,'
(b) the object of 'feeling' under the former section was 'government formed by British Indian
law,' to which 'Her Majesty' was applied under the current section, and
(c) the offense was referred to as 'sedition' instead of 'exciting disaffection.'3
-Constitutional assembly debates
During the drafting of the Constitution, the members of the Constituent Assembly felt
uncertainty in the interpretation of 'sedition.' The fundamental right to freedom of speech and
expression was laid down in Article 13 of the Draft Constitution. While the members of the
2
Atul Dev, A History of the Infamous Section 124A, THE CAVARAN, (Dec, 13, 2020, 10.00PM)
https://caravanmagazine.in/vantage/section-124a-sedition-jnu-protests
3
R.A. NELSON, INDIAN PENAL CODE 906 (11th ED., 2015).

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Constituent Assembly supported comprehensive freedom of speech and expression and
freedom of the press, it was thought that such a right should not be absolute. Initially, Article
13(2), which allowed for restrictions on the fundamental right to freedom of expression, reads
as follows:
“Nothing in sub-clause (a) of Clause (1) of this article shall affect the operation of any
existing law or prevent the state from making any law relating to libel, slander, defamation,
offences against decency or morality or sedition or other matters which undermine the
security of the state.”
However, an amendment was introduced by the then Assembly Member, Shri K.M. Munshi,
which proposed that "sedition" be excluded as a ground for restricting freedom of speech and
expression. Consequently, the sedition of Article 13 of the Draft Constitution was excluded
from Article 13(2).
- Post independence
Though ‘sedition’ was omitted from Article 19(2) as a restriction on fundamental right to
freedom of speech and expression, it remained in force as a penal offence under S.124A IPC.
The constitutional validity of the said section was however challenged in various cases.

Three major judgments on sedition laws were passed in the 1950's. These were Sabir Raza v.
The State4, Tara Singh Gopi Chand v. The State 5, and Ram Nandan v. State6. In the first two
cases, i.e. the Tara Singh Decision and the Sabir Raza Decision, the courts were of the view
that S.124A of the Indian Penal Code on the enforcement of the Constitution of India stands
void.

The first case to deal with the constitutionality of the S.124-A was Ram Nandan v. State of
U.P, where the Allahabad High Court held that: “Section 124-A, Indian Penal Code, is ultra
vires of Article 19(1) of the Constitution, both because it is not in the interests of public order
as well as because the restrictions imposed thereby are not reasonable restrictions. This
Section is, therefore, not saved by the reservations contained in Article 19(2) of the
Constitution, and should be declared to be void.”7

4
Cri App No. 1434 of 1955
5
1951 Cri LJ 449.
6
 AIR 1959 All 101.
7
Ibid.

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However, in the case of Kedarnath Das v. State of Bihar 8, the Hon'ble Supreme Court
overruled this decision of the Hon'ble High Court and held Section 124-A, intra vires. The
judgment declared that "disloyalty to the government established by law is not the same as
strongly commenting on the measures or acts of the government or its agencies in order to
improve the condition of the people or to ensure that those acts or measures are cancelled or
altered by lawful means."
The five-judge decision explained the rule on sedition by specifying explicitly that "a citizen
has the right, through criticism or comment, to say or write anything he likes about the
government or its measures, as long as he does not incite people to violence against the
government established by law or with the intention of creating public disorder."
In the case of Kanhaiya Kumar v. State (NCT of Delhi) 9, the petitioner, who was charged
under section 124A of the IPC, moved the High Court of Delhi seeking for bail. Deciding on
the matter, the Court noted that "while exercising the right to freedom of speech and
expression in accordance with Article 19(1)(a) of the Constitution, it must be borne in mind
that Article 51A of Part IV of the Constitution lays down the fundamental duties of every
citizen on the other side of the coin."
In the light of the above-mentioned judicial pronouncements, it may be asserted that – unless
the words used or the acts in question do not endanger the security of the State or the people;
lead to some kind of grave public disorder, the act does not come under the scope of Section
124-A of the Indian Penal Code. 10

Freedom of speech and Sedition

Giving voice to the value of freedom of speech, John Stuart Mill supported a free flow of
ideas and expressions in society. He contended that for the stability of a society one should
not stifle the voice of the citizens, in what way ever opposite it may be. To draw a
conclusion, and that too at a reasonable conclusion, open public conversations and debates
are inevitable in certain situations. As indicated by Mill, this could be accomplished through
the right to the freedom to speech. The right not just makes it conceivable to highlight the
prevalent opinion of a general public yet additionally gives a stage to the stifled and unheard
individuals who wish to voice against any praised culture. Mill further calls attention to that a
decent government is where the insight of the people is encouraged.
8
AIR 1962 SC 955.
9
(2016) 227 DLT 612.
10
 Law Commission of India, Sedition, Consultation Paper, 30, (August 2018). [online] Available at:
<http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf> [Accessed 14 December 2020].

4|Page
The Apex Court of India, while solidifying the connection between a democratic society and
freedom of speech In Re Harijai Singh11 stated, there must be an active and intelligent
involvement of the people in all fields and affairs of both their community and the state. They
have the right to be kept updated about current political, social, economic and cultural life as
well as the burning issues and important issues of the day, in order to enable them to think
and shape a broad opinion on the same and the manner in which they are handled, addressed
and administered by the Government and its officials. In order to accomplish this goal, people
need to provide a clear and honest account of events, so that they can form their own views
and make their own comments and points of view on these subjects and issues and choose
their upcoming course of action.
Democracy is not another word for Majoritarianism; to the contrary, it is a structure that
encompasses every voice, where every person's opinion is counted, regardless of the amount
of people who endorse the concept. It is common in a democracy that the understanding of a
given account of an occurrence would be different and contradictory. Not only are opinions
which compose a majority to be considered, but at the same time, dissenting and critical
opinions should also be recognized. Free speech is preserved because there is a need to
achieve greater, often supreme, social good. In Charles Bradlaugh's memorable terms,
“Better a thousand times the abuse of freedom of speech than the denial of freedom of
speech. Abuse dies in a day, but denial destroys people's lives and engulfs the hopes of the
race.”12

In the case of S. Khusboo v. Kanniamal & Anr. 13 ,Observing that morality and crime do not
coexist, the Supreme Court stated that the free exchange of information in society keeps its
people well informed, which results in good governance. In the same way, it is important for
people not to be in continuous fear of facing up to the dire consequences of expressing their
ideas, not to be consistent with the current celebrated view. In the case of Tata Press Ltd. v.
Mahanagar Telephone Nigam Ltd. and Ors.14 , highlighting the value of the freedom of
speech and expression of the Supreme Court opined:

11
AIR 1997 SC 73
12
Jewish Supremacism, Freedom of Speech and My Book Jewish Supermacism , available at
http://davidduke.com/freedom-of-speech/
13
AIR 2010 SC 3196
14
AIR 1995 SC 2438, see also LIC of India v. Prof. Manubhai D. Shah & Cinemart Foundation, AIR 1993 SC
171

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Freedom of speech goes to the heart of the natural right of an organised freedom-loving
society to impart and acquire information about that common interest.

In the case of Shreya Singhal v. Union of India15, Section 66A of the Information and
Technology Act, 2000, was struck down as unconstitutional on the basis that the fundamental
right to freedom of speech and expression was in direct conflict with it. The Supreme Court
ruled that, under the constitutional system, freedom of speech and expression is a core right
and of utmost importance for democracy to survive.

Freedom of speech not only adds to a democratic society's equilibrium and prosperity, but
also provides a feeling of self-attainment16. In the case of Indian Express Newspaper
(Bombay)(P) Ltd. v. Union of India17, four main purposes of free speech and expression were
set out:
(i)it enables a person to achieve self-fulfilment,
(ii) it helps to uncover the truth,
(iii) enhances an individual's ability to participate in decision-making, and
(iv) create a system by which a fair equilibrium could be formed between stability and social
change.

In various cases, distrust has been communicated about the likely abuse of the sedition law.
In one of his articles18, Justice A P Shah warns of the very basis for the rationale of a sedition
law. He contrasts the definition of sedition to a nationalist parochial view that sometimes
endangers the diversity of viewpoints rather than defending against rebellion.

In the case of Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte & Ors. 19,Under
section 123 of the Representation of the People Act,1951, the use of religion in election
campaigns was questioned. Under section 123 of the Representation of the People Act, 1951,
the use of religion in election campaigns was questioned. It was argued that it was possible to
view the frequent use of open challenges to India's constitutional pledge to secularism as
disloyalty, and that the danger of public nuisance that this would create was also palpable.
15
AIR 2015 SC 1523
16
Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236
17
AIR 1986 SC 515
18
(1989) 2 SCC 574; see also The Superintendent, central prison, Fatehgarh v. Dr. Ram Manohar Lohia, AIR
1960 SC 633
19
AIR 1988 SC 775

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The Court did not accept it, however, and held that the candidate conveyed at best the
expectation that a monolithic rashtra would be established, rather than simply working on the
elimination of minorities, thus attempting to exclude all faiths. Significantly, the use of such
speech in elections is protected by Section 123 of the Act, 1951, and there is also no question
of invoking the provisions of 124A IPC.

- Expression not amounting to sedition

The court has been categorical in saying that all critiques do not amount to sedition, and
before imputing seditious intent to an act, the true intent of the speech must be considered. In
the case of Balwant Singh v. State of Punjab,20 the Court declined to penalize the
casual raising of slogans by two people several times against the State (Khalistan Zindabad,
Raj Karega Khalsa, and Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya
Hai Raj Kayam Karan Da). It was argued that the raising of certain slogans only, a few times
by two people, without anything else, did not pose a danger to the Government of India as
defined by law, nor could it give rise to feelings of resentment or hatred among different
communities or religious or other classes.

Similarly, it was held in Javed Habib v. State of Delhi, 21 : It cannot be treated as sedition
under Section 124A of the IPC to express an opinion against the Prime Minister or his acts or
criticism of government actions or to draw inferences from the speeches and actions of the
leader of the government that the leader was against a certain community and was in league
with some other political leaders. The government's critique is the cornerstone of democracy.
The core of democracy, as a matter of fact, is government criticism. The democratic method,
which inevitably entails advocating the replacing of one government with another, grants the
people the freedom to criticize the government. In our country, leaders are more acquainted
with the parties. In fact, some of the political parties are like the leader's own personal
political organisations. Of such parties, the leader is an embodiment of the party and the party
is known by the leader alone. Therefore, all critique of the party is bound to be that of the
party leader's criticism.

20
AIR 1995 SC 1785.
21
(2007) 96 DRJ 693.

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In the case of Pankaj Butalia v. Central Board of Film Certification & Ors. 22, the Delhi High
Court held that when judging sedition, intention is highly significant, the need to look into the
context of the speech was reiterated. It is important to assess an offence under section 124A
IPC by assessing the act holistically and fairly without assigning isolated passages excessive
weight.23

The Allahabad High Court held, in the case of Arun Jaitley v. State of U.P. 24, that a criticism
of a Supreme Court decision on the National Judicial Selection Commission would not
amount to sedition. It was clearly a rational critique. While interpreting section 124A, IPC the
court observed: Hence any actions in the context of s. 124A that have the effect of subverting
or causing disaffection towards the Government through putting the Government into
contempt or hatred will be part of the penal legislation because the feeling of disloyalty to the
Government constituted by law or enmity to it imports the notion of a tendency to public
disturbance by the use of actual violence or incitement to it.
Thus, for the simple reason that no institution or symbol alone embodies the whole country in
its entirety, the speech of strong condemnation against the state or state institutions will never
amount to sedition. In certain situations, the criticism of a failed law conveyed, for example,
through burning the Constitution or expressing dissatisfaction with members of Parliament by
a visually disparaging cartoon or a photo of Parliament cannot amount to sedition because the
demonstrations can always be routed in an idea of India that has been frustrated by its elected
representatives or a law that has demeaned or dissatisfied citizens of India

- Restrictions imposed is arbitrary and unreasonable

In the case of Charan Lal Sahu v. UOI25, the SC observed, that “In judging the Constitutional
validity of the Act, the subsequent events, namely, how the Act has worked out, have to be
looked into.” There is no question that there is a major difference in the enforcement of
Section 124A between the Supreme Court, the lower courts, and the police authorities.
According to the NCRB Report 201526, 30 cases were reported under sedition during 2015,
out of 147 such cases. During 2015, a total of 73 male individuals were investigated for
sedition charges though no arrests were made.

22
(2015) 221 DLT 29.
23
Ibid.
24
2 2016 (1) ADJ 76
25
Charan Lal Sahu v. Union of India, (1990) 1 S.C.C. 613.
26
NCRB, Crimes in India 2015, NATIONAL INFORMATION CENTRE – GOVERNMENT OF INDIA (2015)

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Furthermore, it is specifically specified in the guidance set out in Papnasam 27 that the
constraint enforced under Article 19(2) is unconstitutional if it is arbitrary or excessive in
nature. IPC §124A is so poorly framed that it takes within its allowable garb speech and has a
chilling effect 222 on it, putting it beyond the scope of protection provided for in Article 19
(2).

- Sedition is against the ' Effect doctrine"

In Bennett Coleman & Co. & Ors v. Union Of India &Ors 28, the effect doctrine has been
clarified by the Apex Court:
“The true test is whether the effect of the impugned action is to take away or abridge
fundamental rights if it be assumed that the direct object of the law or action has to be direct
abridgment of the right of free speech by the impugned law or action it is to be, related to the
directness of effect and not to the directness of the subject matter of the impeached law or
action.”
On a straightforward reading of Section 124A, it becomes clear that the subject matter of the
section is barring any opinion that aims at bringing hate or excite disaffection against the
government established by the law in India. The effect of this provision, on the other hand, is
to limit the fundamental right of citizens to freedom of speech and expression, as provided for
in Article 19(1)(a) of the Constitution.

Why does India need to scrape off sedition law?

The sedition law in India can be contested for the following reasons:

1. Colonial Rule: The British Government has used this law to censor the rebellious criticism,
speech and viewpoint of the British Government. But this colonial rule is still being enforced
in independent India, despite having specialized laws to deal with external and internal
attempts to undermine the government. Thus, in a democratic republic, where sovereignty
lies with people, such a rule has no meaning.

2. In Parliament, the then Prime Minister, Jawaharlal Nehru, when proposing the Constitution
(First Amendment) Act, 1951, described the sedition crime as fundamentally unconstitutional
and observed that:

27
Footnote yet to be put
28
Bennett Coleman& Co. &Ors v. Union Of India &Ors, (1973) 2 S.C.R. 757

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 “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. We might deal with that matter in other ways, in more limited ways, as
every other country does but that particular thing, as it is, should have no place,
because all of us have had enough experience of it in variety of ways and apart
from the logic of the situation, our urges are against it.”29

3. Law of sedition: the law of sedition is most likely to be the only resort of the political
groups that they use for their own purposes. The ruling party abuses its power against dissent
opposing the functioning of the government or challenging its policies. This is said because
the law has not yet been changed or repealed; considering the fact that the highest court in
India has opposed the law in a number of instances.

4. The crime of sedition is diminishing in relevance. The study of the Indian Penal Code
reveals that its other clauses are adequate to resolve both challenges of violence and public
order, leaving S.124(A) obsolete.

Chapter VIII of the Indian Penal Code includes crimes against public tranquillity. These
include rioting30, assaulting or obstructing a public servant attempting to suppress a riot31,
provoking a riot32, and promoting enmity between different groups on the grounds of religion,
race, place of birth, residency, language, etc.33 It also provides a provision for penalizing
actions that were harmful to national integration.34 It also involves being a member of,
joining, hiring people to participate, or continuing an unconstitutional assembly. Minor
skirmishes are the subject of an offense of ‘affray’,35 which punishes two or more people who
disrupt public peace by fighting in a public place.36 Thus, any act of this sort that was
‘prejudicial to the maintenance of peace and harmony’ would be punishable.

Conclusions

29
Tara Singh Gopi Chand v. The State 1951 Cri LJ 449.
30
Section 146 of The Indian Penal Code, 1872.
31
Section 152 of The Indian Penal Code, 1872.
32
Section 153 of The Indian Penal Code, 1872.
33
Section 153 A of The Indian Penal Code, 1872.
34
Section 153 B of The Indian Penal Code, 1872.
35
Section 141 of The Indian Penal Code, 1872.
36
Section 159 of The Indian Penal Code, 1872.

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Against this backdrop, there is no question that the law on sedition must be scrapped out37. It
has become a tool to harass someone who speaks his mind or challenges the government, and
India it has no role in the 21st century. A twitter post, or a Facebook post, or engaging in a
protest, or a contrary view, is not sedition and should not be seen as either.

Attempts to stifle dissension and free speech are not new. Activists and artists have been
booked under the same legislation in the past. As the historian Romila Thapar states, "We
have inherited a large number of colonial rules that are meant for a different culture. We're
not a colony today. These regulations need to be reconsidered now."38 Two attempts have
been made in India during the past decade, by private member bills, to repeal them – however
both measures have been thwarted by governments. In 2018, the 21st Law Commission
issued a consultation paper seeking opinions on the abolition of sedition, but its term expired
before the Commission could make its recommendations.39

Given the persistent demand that it be stripped from the law and the mounting evidence of its
abuse over the years, none of the government has shown any desire to repeal it. Thus, in a
world wherein freedom from fear is sanctioned as an international human right, it must be
asked why India should have such a regressive and obviously unconstitutional law in 2020 as
sedition that threatens to send shivers down the spines of people. But, by invoking this law
over time and again, in recent times, the government has given us an answer. They do not
seem to be troubled, and any recommendations, though, would possibly have dropped on deaf
ears that, in a participatory democracy like India, where the slogan – yelling is oxygen and
dissension is blood, law like sedition has no place. In Parliament, when asked by Minister of
State for Home Affairs Nityanand Rai whether sedition law is likely to be revoked, he was
crisp but consistent in his response, "There is no plan to scrap sedition. It is important to
maintain arrangements for the successful war against anti-national, secessionist and terrorist
elements."40

37
Sibbal, K., 2020. Does Sedition Law Apply To JNU & Assam Cases Or Is It Being Used As Tool To Stifle
Dissent?. [online] The Print. Available at: <https://theprint.in/talk-point/does-sedition-law-apply-to-jnu-assam-
cases-or-is-it-being-used-as-tool-to-stifle-dissent/179360/> [Accessed 15 December 2020].
38
The Wire. 2020. Abolishing Sedition Would Be A Befitting Tribute To Gandhi’s 150Th Birth Anniversary.
[online] Available at: <https://thewire.in/rights/abolishing-sedition-law-would-be-a-befitting-tribute-to-gandhis-
150th-birth-anniversary> [Accessed 15 December 2020].
39
Livemint.com
40
A., 2020. Sedition Law Needed To Combat Anti-National Elements, No Proposal To Scrap It: Centre. [online]
ANI News. Available at: <https://www.aninews.in/news/national/politics/sedition-law-needed-to-combat-anti-
national-elements-no-proposal-to-scrap-it-centre20190703134507/> [Accessed 15 December 2020].

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