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An analysis of sedition law in India

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 Volume 1, September 2017

AN ANALYSIS OF SEDITION LAW IN INDIA

Jhalak Shah
B.A.LL.B., 4th Year
NLIU, Bhopal

Shantanu Pachauri
B.A.LL.B., 4th Year
NLIU, Bhopal

Abstract
The recent instance of invoking sedition laws in several instances has again raised questions on
the undemocratic nature and validity of these laws in the present constitutional democracy. It is
sad that these laws have survived the demise of colonial rule. The analysis of the application of
the sedition laws by the various courts of India shows how they have become outdated for the
present society and there are various recommendations for its application. In a democratic
country like India, all citizens have the Fundamental Right to Freedom of Speech and
Expression. Although, reasonable restrictions to such right allow law of Sedition, but the extent
of such law is a question of prime importance. In our country where Rule of Law prevails,
arbitrary charging a person for the offence of Sedition is an act, which is not in sync with
constitutionalism.
This paper is an attempt in bringing together all the debates of repealing and amending these
laws. The existence of this law in our statute books and its criminalization seems unjustified in
our democratic society.

Keywords: constitutional, democracy, freedom of speech and expression, fundamental right,

reasonable restrictions, sedition laws etc.

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Introduction
The recent incident of invoking sedition charges against the JNU students has once again given
fuel to the ongoing debate on the validity of the laws relating to sedition. In the era of 21stcentury
India is standing at the door of becoming a developed country having undergone drastic changes
as a country from the time of colonialism. Indian legislature has made immense progress
covering various fields of legislation. For the development of nation, law is not the tool for
development indeed a good law is the tool for development. Almost all the laws that India has
today either belong to the colonial time or have their roots from that period. Out of these laws
many were implemented just for the oppression of the Indian ‘subjects’ but unfortunately they
have found their place in the post-independence period also and have become a matter of great
controversy just like the laws relating to sedition.

The laws relating to sedition has been given various interpretations and implications since
independence so as to make it pass the test of constitutionality but it still acts as a curbing force
against the freedom to make free speeches and has become a weapon for many present day
governments who use it for the oppression of the citizens just like the pre independence rulers.
This law was implemented for a special purpose by the rulers of the colonial regime and they
find no relevance in the present day society. The analysis of the application of the sedition laws
by the various courts of India shows how they have become outdated for the present society. The
objective which is sought by the application of the sedition laws can easily be achieved by other
laws which are enforced in the country and there is no special aim which the law achieves.
Hence, there is a need of scrapping off the laws related to sedition or they need heavy
amendments by the legislature.

This paper focuses on how the laws related to sedition in India have become obsolete for the
contemporary society and India as they are used arguably for more or less the same reasons like
the colonial rulers, i.e., for the oppression of masses. The essay covers how it has been wrongly
and unfairly being applied by the various courts. The law relating to sedition has become vague
for the present day society as there are obstacles in its implication uniformly to all the cases since
the Indian scenario has changed in the 146 years from the time it was enacted.

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 Volume 1, September 2017

Historical background

In India, the offence of Sedition is contained under Section 124A of the Indian Penal Code
(“I.P.C.”). This was framed on the law similar in England with regard to treason. However,
sedition was not a part of the Code when it came into existence in the year 1860 even though it
was a part of the original draft created in the year 1837 by Lord Thomas Babington Macaulay
who is considered as the father of the Indian Penal law.1 There have been many reasons
advanced for such omission by the historians2, the most famous being that of the Sir James
Fitzjames Stephen who is also considered as the father of the Indian Evidence act and was also
the law secretary of India at that time. He termed it as just an honest mistake.3 Various other
reasons have also been advanced. It was only in 1870 that the law was inserted into the Code and
the major reason behind this is attributed to the wahabi activities and the increasing mutiny
activities against the British government.4 At that point, it was a law against “exciting
disaffection.” After enforcement, it has continued to curb the voices against the government even
if they were bona fide for just and fair criticism or raising demands of the masses. The
punishment for the offence is severe in nature and the offence is cognizable, non- bailable and
non- compoundable in nature. The punishment is up to seven years if found guilty and getting
bail is also challenging.5 The court has power to decide on case to case basis as there is no
straight jacket formula for the determination of the offence, great powers lies in the hands of
India which has led to exploitation of the rights of the Individuals.

The first case was registered for the offence was Queen Empress vs. JogendraChunder Bose
(also known as Bangobasi case) in 1891, when the editor of a newspaper called Bangobasi was
charged for sedition. However, he was released on bail and the charges were dropped as the jury
could not reach a unanimous decision.6 The case which led to amendment on 1898 was Queen

1
ARVIND GANACHARI, NATIONALISM AND SOCIAL REFORM IN A COLONIAL SITUATION54 (2005).
2
It was more likely that the Council was uncertain of its competence to enact a sedition law, on the grounds that it
was more suited to a British jurisdiction to codify laws on Indian Sedition. Whatever the case, the matter was
rectified by its incorporation by amendment into the I.P.C. SeeGOPALAKRISHNA D. SHASTRI, THE LAW OF SEDITION
IN INDIA 11-12 (1964).
3
WALTER RUSSEL DONOGH, A TREATISE ON THE LAW OF SEDITION AND COGNATE OFFENCES IN BRITISH INDIA (1911).
4
See generally, R. SAMMADAR, EMERGENCE OF THE POLITICAL SUBJECT 45 (2010); NARAHARIKAVIRAJ, WAHABI
AND FARAZI REBELS OF BENGAL 72 (1982).
5
SeePSA PILLAI, CRIMINAL LAW 1131 (2009).
6
Queen-Empress v. JogendraChunder Bose, ILR (1892) 19 Cal 35.

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Empress v. Bal GangadharTilak.7 The government claimed that Tilak’s speeches on the killing of
Afzal Khan by Shivaji, had prompted the murder of two British officers in Pune. Tilak was
sentenced to imprisonment and only released a year later “feelings of disaffection” were
interpreted to mean hatred, enmity, dislike, hostility, contempt, and every form of ill will towards
the government, this led to law becoming an unrestrained bull at the hands of the government.
This case was related to ‘Strachey Law’ as referred by the native press.8

Another case which led to the criticism of the law on sedition was Annie Besant vs. Advocate
General of Madras which was dealt with Section 4(1) of the Indian Press Act, 19109. The court
adhered to the earlier interpretations given by the courts and confiscated the alleged seditious
material of Annie Besant’s printing press.10

Next in line, Mahatma Gandhi in 1922 was charged along with others for three articles in a
weekly called Young India. This trial was presided over by Justice Strongman. The Judge
expressed his inability to not hold him guilty of sedition and sentences him 6 years’
imprisonment. Mahatma Gandhi made a very famous remark with regard to law of sedition.

“Section 124A under which I am happily charged is perhaps the prince among the
political sections of the I.P.C. designed to suppress the liberty of the citizen.
Affection cannot be manufactured or regulated by the law. If one has no affection for
a person, one should be free to give the fullest expression to his disaffection, so long
as he does not contemplate, promote or incite to violence.”11

There was a conflict in opinions of Federal Courts in India and the Privy Council in England. In
Niharendu Dutt Majumdar vs. King Emperor, the Federal Court had held that violent words by

7
Queen-Empress v. Bal GangadharTilak, ILR (1898) 22 Bom 112.
8
This case was presided by Justice James Strachey where he interpreted the decision stating as “the amount of
disaffection was to be absolutely immaterial in the decision, nor was it important whether any actual feelings of
disaffection were created among the audience or not.” He held that the term ‘feelings of disaffection’ meant
‘hatred’, ‘enmity’, ‘dislike’, ‘hostility’, ‘contempt’ and every form of ill will to the government.
9
The Indian Press Act, 1910, § 4(1) reads:
“Any press used for printing or publishing newspapers, books or other documents containing words,
signs or other visible representations that tended to incite scorn or hatred to His Majesty’s
government...or any class of subjects (either directly or indirectly, by way of suggestion, inference,
metaphor, etc.) would be liable to have its deposit forfeited.”
10
Annie Besant v. Advocate- General of Madras, AIR 1919 PC 31.
11
He called it the ‘prince among the political sections of the Indian Penal Code designed to suppress the liberty of
the citizen.’ SeeA.G. NOORANI, INDIAN POLITICAL TRIALS: 1775-1947 235 (2009).

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 Volume 1, September 2017

themselves did not make a speech or written document seditious and that in order to constitute
sedition, “the acts or words complained of must either incite to disorder or must be such as to
satisfy reasonable men that is their intention or tendency.”12However, the Privy Council, in the
King Emperor vs. Sadashiv Narayan, overruled that decision and reaffirmed the view expressed
in Tilak’s case to the effect as, “the offence consisted in exciting or attempting to excite in others
certain bad feelings towards the Government and not in exciting or attempting to excite mutiny
or rebellion, or any sort of actual disturbance, great or small.”13 Thus, according to the Privy
Council, incitement to violence was not a necessary ingredient of the offence of the sedition.

The laws relating to sedition were used against many national leaders and therefore a proposal
was passed in the assembly for an amendment to the provision. The drafters decided to exclude
the word ‘sedition’ from the exceptions to Right to Freedom of Speech and Expression. The
word disappeared from the Constitution when it was adopted on 26 November 1949, but section
124A continued in the I.P.C.

Post-independence its constitutionality was challenged on three occasions. It was held

unconstitutional in RomeshThappar vs. State of Madras in which the Madras government
declared the Communist Party illegal and banned the magazine ‘Crossroads’,14 followed by two
other courts.15 Jawaharlal Nehru went on to say that “Section 124A is ‘objectionable and
obnoxious’ and opined that it did not deserve a place in the I.P.C.”He made this statement in
Parliament in 1951, and yet, here we are, in 2016, saddled with the same rule.

Statutory provisions governing sedition in India

The word sedition has not been defined in the Constitution of India or any statutes. However, the
word ‘Sedition’ has been used as the marginal note of Section 124A of I.P.C. The Section
penalises bringing or attempting to bring into hatred or contempt, or exciting or attempting to
excite disaffection towards the Government established by law in India.16

12
NiharenduDuttMajumdar v. King Emperor, AIR 1942 FC 22.
13
King Emperor v. Sadashiv Narayan, (1947) L.R. 74 I.A. 89.
14
RomeshThappar v. State of Madras, AIR 1950 SC 124.
15
Ram Nandan v. State, AIR 1959 All 101; Tara Singh v. State, AIR 1951 SC 441.
16
The Indian Penal Code, § 124A reads:

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Section 95 of the Criminal Procedure Code, 1973 (“Cr.P.C.”) gives power to the government to
forfeit material punishable under Section 124A of I.P.C. on stating grounds.17 This section has a
twofold requirement. Firstly, the material should be punishable under Section 124-A and
secondly, the government must give reasons for its opinion to forfeit the material so punishable.

The Prevention of Seditious Meetings Act, 1911 was introduced by the British Officials to curb
dissent by criminalizing seditious meetings. Section 5 of the Act empowers a District Magistrate
or Commissioner of Police to prohibit a public meeting in a proclaimed area if, in his/her
opinion, such meeting is likely to promote sedition or disaffection or to cause a disturbance of
the public tranquility.18 Considering this legislation was brought to limit the meetings being held
by the nationalists to oppose the British government, the further application of this Act seems
unjustified and unnecessary.

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise,

brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection
towards the Government established by law in India, shall be punished with imprisonment for life, to
which fine may be added, or with imprisonment which may extend to three years, to which fine may be
added or with fine.
Explanation 1 - The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2 - Comments expressing disapprobation of the measures of the Government with a view
to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.
Explanation 3 - Comments expressing disapprobation of the administrative or other action of the
Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute
an offence under this section.”
17
The Criminal Procedure Code, 1973, § 95 reads:
“(1) Where- (a) any newspaper, or book, or (b) any document, wherever printed, appears to the State
Government to contain any matter the publication of which is punishable under Section 124-A or
Section 153-A or Section 153-B or Section 292 or Section 293 or Section 295-A of the Indian Penal
Code, the State Government may, by notification, stating the grounds of its opinion, declare every
copy of the issue of the newspaper containing such matter, and every copy of such book or other
document to be forfeited to Government, and thereupon any police officer may seize the same
wherever in found in India and any Magistrate may by warrant authorize any police officer not below
the rank of sub-inspector to enter upon and search for the same in any premises where any copy of
such issue or any book or other document may be or may be reasonably suspected to be.”
18
ThePrevention of Seditious Meetings Act, 1911, § 5 reads:
“The District Magistrate or the Commissioner of Police, as the case may be, may at any time, by
order in writing, of which public notice shall forthwith be given, prohibit any public meeting in a
proclaimed area if, in his opinion, such meeting is likely to promote sedition or disaffection or to
cause a disturbance of the public tranquility.”

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The modern definition of sedition

The constitutionality of Section 124A was again challenged before the Supreme Court which
gave it the interpretation which is followed even today also. The court interpreted it following
the lines of the case Niharendu Dutt Majumdar vs. King Emperor and laid down that incitement
to violence is to be considered as an essential element for an act to be seditious. Thus, sedition
was to be seen as a crime against public tranquility and not a crime which was directed against
the very existence of the state.19

There are six grounds in Article 19(2) and court was of the opinion that ‘security of the state’
could be the possible ground which could save the constitutionality of Section 124A. While
interpreting the provision, the Supreme Court applied the principle that when more than one
interpretation may be given to a legal provision, it must uphold that interpretation which makes
the provision constitutional. Any interpretation that renders the provision unconstitutional must
be rejected.20 Thus, court laid down that even though the section does not suggest such a
requirement on the face of it, it was held to be mandatory that any seditious act must be
accompanied by an attempt to incite violence and disorder. The Court favoured the application of
laws relating to sedition for the purpose of public peace and security of the state.21

Initially when the law was introduced, crown was the supreme powers and all the authority was
rooted to the crown and the ‘subjects’ were under an obligation to owe personal allegiance to the
crown but things have changed post-independence. Now, the authority is derived from the
constitution. Here, the government established by the law is different from the elected
representatives and sedition is considered to be an offence which undermines or threatens the
existence of this ‘state’.

Lastly, the courts have continuously emphasized on the point that words and acts that would
endanger society differ from time to time.22 In S. Rangarajanvs. P. Jagjivan Ram the Court held
that “the effect of the words must be judged from the standards of reasonable, strong-minded,
firm and courageous men, and not those of weak and vacillating minds, nor of those who scent

19
Ram Nandan, supra note15.
20
R.M.D. Chamarbaugwallav. Union of India, AIR 1957 SC 628.
21
R.M.D. Chamarbaugwallav. Union of India, AIR 1957 SC 628.
22
H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 718 (4th ed. 2010).

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danger in every hostile point of view.”23 Thus, it is indicative of the view that audience is also
considered to be an important factor for labeling the act as seditious or not. As the society
changes and emerges at a continuous pace, the mindset of people also changes and hence it
should be according to the mentality of the people and not just the words of the speech and plain
reading of the bare act regarding the provision.

Recent application of the law of sedition

The attitude of the court has been varied with regard to the application of the law. Whereas no
proper guidelines have been laid down till date with regard to the application of the law, the
cases have been of variety. Some of the cases in the recent times for which people have been
charged with sedition and often sentenced to imprisonment include liking a Facebook page,24
criticizing a popular yoga expert of the country,25 supporting the Pakistani cricket team in a
match,26 a question regarding the militants in Jammu in an examination,27 etc.

Sedition became a major controversy in the case where a cartoon artist Asim Trivedi of Bengal
was charged with sedition for publishing some comic cartoons in the newspaper which had
reference to the then chief minister of the state.28 This raised serious doubts regarding the
application of the law. Another controversy which sedition attracted was when Dr. Binayak Sen
from Chhattisgarh was charged with sedition and evidence being books in support of the Maoists
at his home.29 Arundhati Roy was charged with sedition for criticizing the atrocities of the armed
forces in the north east. There has been a lot of hue and cry over sedition being arbitrary when it

23
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
24
MahirHaneef,Facebook 'like' case: No evidence of sedition, govt tells HC,THE TIMES OF INDIA(Jan. 30, 2004),
http://timesofindia.indiatimes.com/city/kochi/Facebook-like-case-No-evidence-of-sedition-govt-tells-
HC/articleshow/18254753.cms?from=mdr.
25
Sedition charge against Digvijay over remark against Ramdev, THE INDIAN EXPRESS(June 06,
2011),http://www.indianexpress.com/news/sedition-charge-against-digvijay-overremark-against-ramdev/799912.
26
Samira Shaikh, Outrage over Sedition Charges against Students who cheered Pakistan, NDTV,(Mar. 06, 2014),
http://www.ndtv.com/article/india/outrage-over-sedition-charges-againststudents-who-cheered-pakistan-492250.
27
NaseerGanai, Kashmir University lecturer released, INDIA TODAY, (Jan. 02,
2011),http://indiatoday.intoday.in/story/kashmir-university-lecturer-released/1/125303.html.
28
Anti-corruption cartoonist Aseem Trivedi arrested on sedition charges, INDIA TODAY, (Sep. 09, 2012),
http://indiatoday.intoday.in/story/anti-corruption-cartoonistaseem-trivedi-arrested-on-seditioncharges/1/216643.html
29
JyotiPunwani, The Trial of Binayak Sen,45(52) EPW (2010);Priscilla Jebaraj, Binayak Sen Among Six People
Charged with Sedition in 2010,THE HINDU,(Jan. 01, 2011), http://www.thehindu.com/todays-paper/tp-
national/Binayak-Sen-among-six-people-charged-with-sedition-in-2010/article15501441.ece.

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was applied to a Gujrat community leader Hardik patel when the entire community was on
streets asking for reservation for the patidar community.

The case which led to immediately striking off the law was that of Kanhaiya Kumar where a
JNU student community leader was charged with sedition for his slogans in reference to Afzal
Guru inside the campus. It was highly criticized by the media and the masses. A person charged
with sedition has to live without their passport, they are barred from government jobs, and they
have to produce themselves in the court on a loop along with the legal fee. The charges have
rarely been proved in most of the cases, but the process itself becomes the punishment.

Justifications for amending the present law

The crime of sedition has become vague for India now. An introspection of I.P.C. provides that
the offence which sedition intents to cover can very well be covered under the other provisions
also and thus it renders S. 124A as obsolete.

The law of sedition as it was applied in modern England was much wider then it is applied in
India now. After the recommendation of the law commission for scrapping it off as only a few
were charged with it in the entire century.30 The commission based its report broadly on the point
that the offences which the law aimed at covering, were very well covered under the different
laws provided under various statutory provisions. The British parliamentary debates on repealing
the law referred to the inconsistent effect of such laws on political freedom in colonial India
and pointed out in particular the case of Tilak. The British repealed their sedition laws because
they had become obsolete; the government rarely used the heavy arm of the criminal law against
trenchant critics of the state. Thus, the crime of seditious libel was abolished through the
enactment of the Coroners and Justice Act, 2009.31

If we look into the sections contained in Chapter VII of the I.P.C. which deals with offences
related to public tranquility, we see that it covers offences which disturb the public order, peace
of the society and other related offences which are prejudicial to the maintenance of public order
and harmony. So, the present interpretation of the offence of sedition which basically has its

30
Clare Feikert-Ahalt, Sedition in England: The Abolition of a Law from a Bygone Era, (Oct. 02,
2012),http://blogs.loc.gov/law/2012/10/sedition-in-england-the-abolition-of-alaw-from-a-bygone-era/.
31
Criminal libel and sedition offences abolished,PRESS GAZETTE,(Jan. 13, 2010),
http://www.pressgazette.co.uk/node/44884.

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essentials as incitement to violence and disturbing public order are very well covered under the
different provision of I.P.C. Also, in the present scenario the state governments have also come
up with legislations for maintenance of public order. Consequently, in the light of various
provisions of the states and that of the I.P.C., there seems no need for a central law for covering
the same offence which has no uniform application in the society. The other laws are less
stringent and serve the same purpose in a better way as they can be applied uniformly. The
biggest advantage of this would be that the offenders who are charged with the offence would
not be termed as ‘traitors’ even before their guilt is proved and also gives them a chance to lead a
normal life like the ‘other criminals’ after their imprisonment is over or they are acquitted.32 The
present law of sedition is thus against the distributive system of justice and rather more towards
the punitive theory of law.

Conclusion
“The sedition law needs reconsideration”- Dr. Justice (Retd.) Balbir Singh Chouhan33

Ever since from the time the law of sedition originated in England, there have always been
discrepancies in its application with the application being uncertain and non uniform in all the
cases. Initially, its application was kept vague and uncertain in light of the fact that it was used
for the oppression of masses as and when it suited their interests and undermined their authority.
It was used as a weapon for the fulfillment of political motives by curbing speeches which
threatened the authority of the state.

The courts have also failed to give a clear and unambiguous interpretation of the offence. In the
recent years, the application of the law of sedition so arbitrary that it has become a matter of
great controversy. Although the position which we have about sedition was settled back in 1960
but still it has continued to be used as a tool of harassment. Indian society has developed at a
high rate in the last 50 years and people have showed ‘tolerance’ towards what could be termed
as ‘incitement to violence’. The nature of government has also changed and the government is
understood different from its representative. The justification that it is applied for the

32
Ben Saul, Speaking of Terror: Criminalizing Incitement to Violence, 28 UNSW LJ 874 (2005).
33
Sedition law needs relook: Balbir Singh Chauhan, Law Commission chief, THE ECONOMIC TIMES, (Mar. 22, 2016),
http://economictimes.indiatimes.com/news/politics-and-nation/sedition-law-needs-relook-balbir-singh-chauhan-law-
commission-chief/articleshow/51511513.cms.

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maintenance of public also does not strong valid as in the present day sedition is used to meet the
local problems and the problems that broadly can be termed as defamation of the elected
representative.

The example of England should also be taken where it was abolished seeing it had become
obsolete. Various other provisions address the offences related to public tranquility and can very
well be applied. India today as a democratic state needs to overthrow this narrow approach of not
tolerating healthy criticism also and it is high time that legislature and judiciary come up with
newer reforms that either scrap off the laws relating to sedition or amend it in such a way that it
is no more arbitrary and can be applied uniformly. This rule of colonial regime should no more
be used to curb the rights of the citizens in its present form. Every individual has a right to
criticize the government in a democratic state and hence doing so should not be regarded as “anti
national” and he should not be termed as a “traitor” as criticism is definitely not seditious as
involves no incitement to violence. Criticism is the basis of democracy and hence sedition laws
needs to be changed for the smooth functioning of the democracy.

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