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8 JILI (1966) 117
Freedom of Speech and The Law of Sedition in India
FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA†

by
R.K. Misra*
THE DECISION OF the Supreme Court in Kedar Nath Singh v. The State of Bihar,1
besides resolving the judicial controversy regarding the validity of section 124-A of the
Penal Code, 1860,2 brings out pointedly one of the basic problems involved in India in
the enforcement of fundamental rights. These rights, guaranteed in the Constitution,
have to be applied within a legal system3 devised originally by an alien government
with an object which is no longer valid in the present-day context. The result,
therefore, is that there often arises a conflict between the rights and the pre-
Constitution laws still in force, and the courts are called upon to decide the validity of
such laws under psychologically different and entirely changed socio-economic urges
and conditions. This was precisely the problem before the Supreme Court in this case.
The law regarding the validity of section 124-A had hitherto been in a state of
uncertainty.4 In the Kedar Nath case the appellant was charged with having “brought
or attempted to bring into hatred or contempt or excited or attempted to excite
disaffection towards the Government”5 by having delivered certain speeches and was
thereupon
Page: 118
convicted under section 124-A of the Penal Code, 18606 by a Magistrate's court in the
State of Bihar. The appellant's conviction having been sustained by the Patna High
Court, he obtained special leave to appeal to the Supreme Court. The main argument
for the appellant was that section 124-A of the Penal Code was repugnant to the
provisions of article 19 of the Constitution guaranteeing freedom of speech and
expression.7 The point at issue, therefore, was whether the restrictions imposed by
section 124-A were within the ambit of permissible legislative power under article 19
(2). The answer to the question depended upon the acceptance of either of the two
divergent interpretations given to section 124-A in the pre-Constitution days.8 In the
Kedar Math case the Supreme Court relied upon the narrower of the two
interpretations and thereby came to the conclusion that the impugned section imposes
“restrictions on the fundamental freedom of speech and expression, but these
restrictions cannot but be said to be in the interest of public order and within the
ambit of permissible legislative interference with the fundamental right.”9 The
judgment has far-reaching implications on the scope of liberty of speech, and deserves
as such a thorough study.
A brief survey of the history, statutory as well as decisional, of the law of sedition in
India, is essential to appraise the Supreme Court's view in correct perspective. The law
on the subject has had a chequered history in India. A section on sedition, though
forming part of Macaulay's Draft Penal Code of 1837-1839,10 was not included by the
Page: 119
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legislature in the 1860 Code. In 1870, however, an amending act11 incorporated in the
code the original draft clause, with certain verbal changes, as section 124-A. And in
1898, an important change12 was made in the contents of the section altering its
language and substance.13 In the section, as originally introduced, the gist of the
offence was “exciting the feeling of disaffection towards the Government.” The
amending act of 1898 added the words “bringing or attempting to bring into hatred or
contempt.” Besides, this act split the original single explanation to the section into
three. By and large, the objects of the statutory changes of 1898 appears to have been
a further elucidation in the light of decided cases,14 of the original intention of section
124-A. But even this amended formula provided no additional aid in deciding the
crucial question involved in the interpretation of the section, viz., whether it penalizes
the act of exciting the said feelings itself or aims at the exciting of these feelings only
when the actual or likely consequence is incitement to public disorder or use of
violence. The entire range of Indian cases on the law of sedition has centred round this
controversy.
The judicial controversy on the scope of section 124-A begins with the decision of
the Calcutta High Court in Queen-Empress v. Jogendra Chandar Bose,15 popularly
known as the Bangobasi case, where Mr. Chief Justice Petheram, in his charge to the
jury, explained the scope of the section thus:
It is sufficient for the purpose of the section that the words used are calculated
to excite feelings of ill-will against the Government and hold it up to the hatred and
contempt of the people and that they were used with the intention to create such
feeling.16
In Queen-Empress v. Bal Gangadhar Tilak,17 Mr. Justice Strachey of the Bombay
High Court, while agreeing generally with the views of Mr. Chief Justice Petheram in
the Bangobasi case, was more categorical in stating the same line of reasoning. Mr.
Justice Strachey rejected the contention that there can be no offence under the section
unless rebellion or armed resistance is incited or sought to be incited. He observed:
In my opinion, that view is absolutely opposed to the express words of the
section itself, which as plainly as possible makes the exciting or attempting to
excite certain feelings and not the inducing or attempting to induce to any course of
action such as rebellion or forcible resistance, the test of guilt.18
Page: 120
The interpretation of section 124-A given in the Tilak case continued to be followed
by the courts in India19 until Mr. Chief Justice Sir Maurice Gwyer sought to mitigate its
rigour in Niharendu Dutt Majumdar v. King Emperor.20 Explaining the scope of the law
of sedition, Sir Gwyer stated that
Public disorder, or the reasonable anticipation, or likelihood of public disorder, is
thus the gist of the offence. The act or words complained of must either incite to
disorder, or must be such as to satisfy reasonable men that that is their intention or
tendency.21
By adopting this liberal approach,22 the Chief Justice made an attempt to bring the
Indian law on the subject in line with the position obtaining in England.23 It seems
that the learned Chief Justice was conscious of the political developments that had
taken place in the country since the enactment of section 124-A and wanted the
courts to play a creative role in this context.
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Page: 121
This interpretation given by the Federal Court was expressly overruled by the Privy
Council in Emperor v. Sadashiva Narayan Bhalerao.24 It approved the principle laid
down by the Bombay High Court in the Tilak case and deprecated the attempt of the
Chief Justice Gwyer to import principles of English law in India while interpreting the
statutory definition provided in section 124-A. Their Lordships further laid down that
the term “excite disaffection” does not include “excite disorder” and, therefore, the
decision of the Federal Court proceeded on a wrong construction of section 124-A of
the Penal Code and the relevant Rules of the Defence of India Act.25
The Indian law of sedition acquired a new perspective with the commencement of
the Constitution. In the draft Constitution one of the grounds mentioned on which
freedom of speech and expression could be restricted by law was “sedition.” But the
Constituent Assembly dropped the word “sedition” and substituted it by the term
“which undermines the security of or tends to overthrow the State.”26 Mr. K.M. Munshi,
speaking for the deletion of the word “sedition,” observed:
[T]he public opinion has changed considerably since and now that we have a
democratic Government a line must be drawn between criticism of the Government
which should be welcome and incitement which would undermine the security or
order on which civilized life is based, or which is calculated to overthrow the State.
Therefore, the word “sedition” has been omitted. As a matter of fact the essence of
democracy is criticism of Government.27
Deletion of the word “sedition” was also necessary, Mr. Munshi added,28 “otherwise an
erroneous impression would be created that we want to perpetuate 124-A of the
I.P.C.” The move was unequivocally welcomed by all the sections of opinion in the
Assembly.29
It is not surprising, under these circumstance, that the validity of section 124-A vis
-a-vis the freedom of speech was challenged in a number of cases soon after the
Constitution came into force. The first in the series was Tara Singh Gopi Chand v. The
State of Punjab,30 in which Mr. Chief Justice Westen, in order to examine the validity of
section 124-A
Page: 122
adopted the interpretation given to it by Mr. Justice Strachey in the Tilak case.
According to Mr. Justice Strachey, the offence consisted in exciting or attempting to
excite in others certain bad feelings towards the government irrespective of the
consequences that may or may not follow. Mr. Chief Justice Westen held section 124-A
to be void on the ground that in some cases at least the unsuccessful attempt will not
undermine or tend to overthrow the state.
Besides this authoritative pronouncement of the Punjab High Court, there was an
oblique reference to the validity of section 124-A in the Supreme Court decision in
Romesh Thapper v. The State of Madras.31 Although the validity of section 124-A was
not in issue in the case,32 Mr. Justice Patanjali Sastri, speaking for the majority of the
Court,33 observed:
Deletion of the word “sedition” from the draft Art. 13(2), shows that criticism of
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Government exciting disaffection or bad feelings towards it is not to be regarded as

a justifying ground for restricting the freedom of expression and of the press, unless
it is such as to undermine the security or tend to overthrow the state.34
These observations of the Supreme Court, being in the nature of obiter dicta, did
not authoritatively settle the question of the validity of section 124-A. Moreover, as a
result of the decisions of the Supreme Court in Romesh Thapper and Brij Bhushan v.
The State of Delhi,35 article 19(2) was amended in 195136 whereby “public order” was
included as one of the additional grounds on which reasonable restrictions could be
imposed on the freedom of speech and expression. Thus the validity of section 124-A
again became a debatable issue since the Government could, as it latter did, claim
that the restrictions placed by the section on the freedom of speech were in the
interest of public order.
The section was, however, held to be valid by the Patna High Court in Debt Soren v.
The State of Bihar.37 The court held that
The expression in the interest of public order has a wider connotation and should
not be confined to only one aspect of public order, viz., incitement to violence or
tendency to violence. Public order can be affected in other
Page: 123
ways also; and creating disaffection, hatred or contempt towards the government
established by law (not merely comments which express disapprobation of
governmental measures or administrative and other actions of government) may
seriously affect the interests of public order even though there may be no tendency or
incitement to violence.38
After thus defining the scope of public order rather broadly, Das, J., came to the
conclusion that the amended clause (2) of article 19 saves the provisions of section
124-A of the Penal Code.39
In Ram Nandan v. The State of Uttar Pradesh,40 the Allahabad High Court disagreed
with the aforesaid views of the Patna High Court on the validity of section 124-A.
Desai, Gurtu and Beg, JJ., who delivered separate but concurring opinions, proceeded
on the assumption that the Privy Council ruling in the Sadashiva case laid down the
correct interpretation of section 124-A and thereupon held that the restrictions
imposed by the said section on the freedom of speech and expression were not in the
interest of public order.
There is yet a third view on the validity of section 124-A expressed by the Judicial
Commissioner of Manipur in Sagolsem Indramani Singh v. The State of Manipur.41 In
this case the court held that section 124-A was ultra vires only to the extent it
penalizes exciting mere disaffection or attempting to excite disaffection. But the
restrictions imposed by the section on speeches bringing the government into hatred
or contempt as distinct from mere criticism or ridicule are covered by article 19(2) and
hence are intra vires.
This state of judicial uncertainty forms the background in which constitutionality of
section 124-A came to be determined by the Supreme Court. After analyzing the
earlier case-law, Mr. Chief Justice B.P. Sinha, who delivered the unanimous decision of
the Court, came to the conclusion that there was a “direct conflict” between the views
of the Federal Court in the Niharendu Majumdar case and those of the Privy Council in
various cases. He thought that either view could be supported on good reason. The
section, according to the Chief Justice, could not stand the test of constitutionality if
the Privy Council interpretation was to be adopted. It would, however, be within the
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permissible limits of legislative encroachment on the freedom of speech and

expression if the restricted meaning given to the section by
Page: 124
the Federal Court was to be accepted. In preferring the interpretation of the Federal
Court, the Chief Justice relied on the rule of interpretation that “if certain provisions of
law constructed in one way would make them consistent with the Constitution, and
the other interpretation would render them unconstitutional, the Court would lean in
favour of the former construction.”42 Further, the Chief Justice adopted the rule that in
interpreting an enactment not only the literal meaning of the words used is to be seen
but the antecedent history of the legislation, its purpose and the mischief it seeks to
suppress are to be taken into consideration.43 By applying the two rules of statutory
construction he reached the conclusion that section 124-A in its application was
limited to acts involving intention or tendency to create disorder, or disturbance of law
and order, or incitement to violence. Having thus interpreted the section, the next step
in the judicial syllogism was to hold the section valid, particularly in view, as the Chief
Justice observed, of the wide amplitude of the words “in the interests of… public
order,” which as laid down in a number of earlier cases,44 would sustain the validity
even of a law not directly aimed at maintaining public order. The Chief Justice, after
thus concluding the matter, went ahead to examine the constitutional implications of
the hypothetical position which would arise if the views of the Privy Council on the
interpretation of section 124-A were to be accepted as the correct law. Even here the
Court had no difficulty in holding the section valid by applying the rule of severability
in enforcement of an impugned statute.45 Accordingly, the Chief Justice held that the
section will be valid if it is confined in its application to such speeches as have the
tendency to incite public disorder. But its application to speeches, which excite bad
feelings but have no tendency to incite disorder, will be void. Thus the Federal Court
ruling on the scope of section 124-A has been restored to be the correct statement of
law.
The conclusion arrived at by the Supreme Court cannot be said to be in keeping

with the intentions and the spirit of the statute. A plain reading of the section leaves
one in not the least doubt that the interpretation given to it by the Privy Council was
the correct one and that the section aims at penalizing the incitement to certain
feelings rather than incitement to an action. While bringing the Indian law of sedi-
Page: 125
tion in line with its English counterpart, it is not to be forgotten that this branch of law
as introduced in the colonies was intended to be different from the law of England.
Unlike in England, the intention to excite violence was not meant to be the gist of the
offence in the colonies.46 The judgment in the Niharendu Majumdar case was an
attempt by a liberal Chief Justice to mitigate the rigour of the law of sedition to the
extent it was possible within the legal system then obtaining. With the justiciable
fundamental rights now in force, there are no such limitations on the authority of the
Supreme Court to liberalize those branches of law which do not fit in with the new
democratic setup. It is well-known that the Government was considering an
amendment of this section47 which had been an instrument of oppression in the pre-
independence days and which had acquired a good deal of notoriety on that account.48
The ruling of the Supreme Court comes as a definite setback to these developments. It
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is not known whether the Government still thinks of amending the section.
The judicial logic and the rules of interpretation adopted by the Supreme Court in
deciding the case cannot be said to be unexceptionable. The basic premise adopted by
the Court, that there was a direct conflict between the views of the Federal Court and
those of the Privy Council is far from accurate. There can be a conflict only between
the views of courts of equal status. In the Sadashiva case the Privy Council had
expressly overruled the law laid down in the Niharendu Majumdar case by the Federal
Court. The law in force at the commencement of the Constitution, therefore, was the
one laid down by the Privy Council and there is no basis in any rule of interpretation
for the adoption of the views expressed by the Federal Court.
In holding the impugned provision valid, the Chief Justice mainly relied upon the
rule of construction that as between two possible interpretations of a statute, the
Court should adopt the one that will hold it valid. This rule, which is part of the wider
rule as to the presumption of constitutionality, and was enunciated by the US
Supreme Court,49 has its own limitations. Certainly it cannot be invoked to uphold a
law which is clearly violative of fundamental rights. The US Supreme
Page: 126
Court itself has recognized exceptions to this rule of interpretation. The following
observations of Mr. Justice Stone in U.S. v. Caroline Products Co.50 demonstrate the
inapplicability of the rule in such cases:
There may be narrower scope for operations of the presumption of

constitutionality when legislation appears on its face to be within a specific
prohibition of the Constitution, such as those of the first ten amendments.51
The application of this rule of construction raises a more basic question in the
immediate context. The real basis of the rule is that the laws enacted by the elected
representatives of the people are manifestations of collective wisdom and hence
entitled to a benefit of doubt in marginal cases. As such, to apply the rule in order to
uphold the validity of a law enacted by an alien government with a view to stifling
public criticism is quite anomalous. In any case, a rule of construction, howsoever
important, cannot be pressed into service in favour of a strained interpretation of a
statute, whose language otherwise is plain and unequivocal.
It is not clear from the judgment precisely how the conclusion arrived at by the
Chief Justice could be justified by taking into consideration “the antecedent history of
legislation, its purpose and the mischief it seeks to suppress.” The history of the
legislation, on the other hand, shows that section 124-A was drafted at a time when
even harbouring of certain adverse feelings against the government amounted to
sedition. This concept of sedition, though rejected in the English law nearly a hundred
years back,52 continued to remain in force in India and other colonies. There would be
some basis for this view if it is taken today on a grammatical interpretation of section
124-A. But in that case there is no doubt that the section would be declared
unconstitutional. In its anxiety to salvage the impugned section, the Court in the
Kedar Nath case refused to interpret it literally and instead adopted the interpretation
that was an outcome of the legal and political conditions of 1942, when the Federal
Court decided the Niharendu Majumdar case. This judgment of Sir Maurice Gwyer,
when delivered, was indeed a bold and progressive step. But progressive ideas of 1942
ceased to be so in course of the following two decades, which have witnessed vital
social and political changes in the society. The original purpose of section 124-A is no
longer valid in this context nor is the communication of ideas to be treated as a source
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of danger by an elected government. The need for continued vigilance by the public
opinion exercised on the government is exceedingly important in a democracy. Section
124-A, in view of the wide amplitude of its language, does more harm than serve any
useful purpose in this context.
Page: 127
Also open to objection is the view of the Supreme Court that the validity of the
section, if it is interpreted literally, can be upheld by limiting its operation to activities
involving incitement or tendency to public disorder. This line of reasoning concedes
that the section goes beyond constitutionally permissible limits in restricting the
freedom of speech. It might still have been possible to uphold the constitutionality of
the valid part of the section by applying the rule of severability if it was not
inextricably mixed up with the invalid part. But the language of section 124-A does
not permit the adoption of this course since it permits restrictions both within and
without constitutionally permissible limits. The Supreme Court, in one of the earliest
cases before it,53 laid down the principle that the impugned provision as a whole is to
be struck down in such a situation. Mr. Justice Patanjali Sastri, delivering the majority
judgment in Romesh Thapper v. The State of Madras,54 stated that
Where a law purports to authorise the imposition of restrictions on a fundamental
right in language wide enough to cover restrictions both within and without the
limits of constitutionally permissible legislative action affecting such a right, it is
not possible to uphold it even so far as it may be applied within the constitutional
limits, as it is not severable.55
The rule of severability in the enforcement of a statute, impugned for violation of
fundamental rights, was again rejected by the Supreme Court in Chintaman Rao v.
The State of Madhya Pradesh.56 This rule has been applied in the past by the courts
while deciding upon the validity of taxation laws,57 and those assailed for want of
legislative competence,58 and the general words used in such laws were given a
narrower meaning so as to bring them within the limits of constitutionally permissible
power. In R.M.D. Chamarbaugawla v. The Union of India,59 however, this rule of
interpretation was applied to sustain the validity of a law impugned for violation of the
fundamental rights. But the principle enunciated in this case cannot be regarded as a
safe precedent, not only because the observations made therein are obiter dicta60 but
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also in view of the observations later made on the point by the Supreme Court in
Superintendent, Central Prison v. Dr. Ram Manohar Lohia61 Mr. Justice Subba Rao,
while delivering the judgment of the unanimous Court in the Lohia case, referred to all
the aforesaid cases but adopted the view taken in the Romesh Thapper and Chintaman
Rao cases. However desirable the RMDC rule of interpretation may otherwise be, its
application in judging the constitutionality of laws impugned for violation of
fundamental rights will not have happy consequences on civil liberties in the country.62
As such, one cannot agree with the Court in relying on the obiter dicta in RMDC case in
disregard of a sound principle laid down in a series of decisions. In fact, it was not
necessary for the Court to approve and apply this wide rule after it had adopted the
views of the Federal Court on the interpretation of section 124-A.
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The Supreme Court, after expressing its preference for the views of the Federal
Court on the interpretation of section 124-A, seems to have assumed, without an
adequate analysis, that the restrictions imposed by the section on the freedom of
speech and expression fall within the permissible limits of article 19(2). The only
reason given by Mr. Chief Justice Sinha on the point was that the words “in the
interest of… public order” used in clause (2) are words of great amplitude and are
much more comprehensive than the expression “for the maintenance of.” This is, no
doubt, true but it does not mean that every restriction placed on the freedom of
speech and expression will be valid, if some connection with the public order can be
established. There has to be, as pointed out by Mr. Justice Subba Rao, in the Lohia
case “an intimate connection between the Act and the public order sought to be
maintained by the Act.”63 To quote him again, the restriction, in order to be held
reasonable restriction, should be one “which has a proximate connection or nexus with
public order but not one far-fetched, hypothetical or problematic or too remote in the
chain of its relation with the public order.”64 The decision in the Kedar Math case fails
at establishing any such relationship even if it is assumed that the impugned section
124-A aims only at speeches which have a tendency to incite disorder or violence.
Besides the requirement of proximity to public order, it is necessary in order to
sustain its validity, that restriction imposed by section 124-A on the freedom of
speech and expression are reasonable. Unfortunately the judgment does not elaborate
the reasons which led the Court to the conclusion that restrictions contained in the
impugned
Page: 129
sections are reasonable. The application of the judicially determined standards of

reasonableness65 leads us to an opposite conclusion. It can hardly be said that section
124-A strikes a proper balance between the freedom of speech and the social control;
it also does not fulfil the requirement of a rational relation with the object which the
legislature seeks to achieve and not being in excess of that object. A reference to only
some of the aspects of the definition of the offence in the section would suffice to
prove the unreasonableness of the restrictions contained therein. The section makes
penal not only the incitement of certain feelings but also an attempt (even though
with no chances of success) to do so. The impugned words, signs or representation
would attract the provision of the section even though addressed to one from whom no
danger to public order can be expected. Further, the section seeks to punish a person
for his state of mind when it defines the offence by the use of the words disaffection,
disloyalty, enmity. Explanations 2 and 3 by permitting the expression of
disapprobation of the measures and action of the government seek to draw an
unreasonable distinction between the criticism of the measures of the government on
the one hand and criticism of the government on the other—a line which may be
impossible to maintain in concrete cases.
The problem involved in the case, in fact, represents that eternal conflict between
the two concepts of liberty and security, which has eluded final solution in all the
democratic societies. In the United States, an attempt has been made to resolve the
conflict, so far as the freedom of speech is concerned, by the application of the “clear
and present danger” test enunciated by Mr. Justice Holmes in the famous case of
Schenck v. United States66 and further refined and applied in a number of subsequent
cases.67 The Supreme Court of India refused to
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import the doctrine of clear and present danger, when urged to do so in the case of
Babulal Parnate v. The State of Maharashtra.68 The Supreme Court thought—and
maybe rightly—that the doctrine will not be in keeping with our constitutional scheme.
It is time that the judiciary evolved some formula towards reconciliation of the
freedom of speech with the need of social control. The principle laid down by Mr.
Justice Subba Rao in the Lohia case was a definite advance in this direction. But the
gain made in the Lohia case was lost, when that line of reasoning was not only not
adopted in the Kedar Math case but no alternative principle was enunciated. It is to be
hoped that by a few judicious decisions, the Supreme Court will soon be able to set
the law on correct lines. In this context it may be suggested that the Supreme Court
evolved in India the doctrine of “Preferred Freedoms”69 which has been mooted in
some of the American decisions. In a developing country where the democratic
traditions have yet to be established, the right of freedom of speech has to be given a
pride of place. In an attempt to search and establish the values of our democratic life70
if some priorities and preferences are evolved it is not desirable that the liberty of
speech be classed in the same category with rights like the right to property. The
principle laid down in the Kedar Nath case makes no contribution towards the
promotion of democratic values in the country.
A clear-cut and precise delineation of the scope of freedom of speech and

expression is necessary in order to avert the dangerous consequences that may follow
if the logic of the Kedar Nath case is carried one step further. The Supreme Court has
upheld the constitutionality of the law of sedition without addressing itself to the need
of laying down a clear-cut principle to maintain a distinction between an incitement to
action and an incitement to ideas. Every idea communicated
Page: 131
has potentialities of incitement to action. In some cases the likelihood of incitement to

action may be remote while in others it may be immediate. The judiciary, as the
guardian of the fundamental rights, has to perform the delicate task of drawing a line
between the two. The Supreme Court in the Kedar Nath case has not met the task
squarely. On the contrary it has upheld a provision of law which penalizes advocacy of
certain types of ideas without defining precisely the extent of proximity to the
likelihood of consequential action. There is certainly a large area in between the
advocacy of abstract ideas and the speeches directly inciting to action. The Supreme
Court decision might provide a convenient precedent to an intolerant government to
suppress freedom of speech in this area on the pretext of likelihood or possibility (even
though remote) of disturbance to public order. The need for security in the society
cannot be carried so far as to completely overshadow the liberty of speech in a
democratic society, where the government draws its strength from the criticism by the
people.
Besides the legal arguments against the decision of the Supreme Court, the fact
remains that the continuation of section 124-A in our legal system is an anachronism
in view of the democratic system ushered in by the Constitution. The section smacks
of an authoritarian rule and, as is well-known, was used extensively to muzzle the
nationalist movement in India. Opinion in the country has been unanimous71 that
section 124-A should be amended if not repealed. The decision upholding the validity
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of the section runs counter to the popular sentiments by having given to a notorious
provision of law a new lease of life.
At the present stage of our social and legal development, it is an obligation of the
law courts to adopt and adjust the old legal system to the needs of the new society. In
the process some of the outdated rules, doctrines and institutions will have to be
modified and some will have to be set aside. The task is difficult and it is not
surprising that the judgment in the Kedar Nath case does not come up to the
expectations of many. It may be hoped that the Supreme Court will re-examine at an
early opportunity the scope of the freedom of speech and expression and will evolve a
sound principle, adequately ensuring the liberty of thought and expression so that the
civil power may not encroach upon the individual's field of opinion unless such an
opinion and its expression have proximate tendency to affect by overt acts the peace
and order in the society.
———
†
Kedar Nath Singh v. The State of Bihar, AIR 1962 SC 255.
* Associate Research Professor, The Indian Law Institute, “New” Delhi.
1 AIR 1962 SC 955.
2
The Penal Code, 1860, § 124-A:
Whoever by words, either spoken or written or by signs or 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.—The comments expressing disapprobation of the measures of 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.
3 The laws in force in India at the commencement of the Constitution in 1950 are sanctioned continuance by
articles 225 and 372. Under article 13(1) such laws would become void, if found inconsistent with the
fundamental rights.
4
The Punjab (Tara Singh Gopi Chand v. The State of Punjab, AIR 1951 Punj 27) and Allahabad (Ram Nandan v.
The State of Uttar Pradesh, AIR 1959 All 101) High Courts had taken the view that with the commencement of
the Constitution section 124-A had become void, whereas the Patna High Court (Debi Soren v. The State of
Bihar, AIR 1954 Pat 254) had upheld its validity.
5 AIR 1962 SC 955, 957.
6
The appellant, who was charged and convicted under sections 124-A and 505 of the Penal Code, challenged
the constitutionality of both these sections. The present comment is, however, confined to section 124-A only.
7
The relevant provision in article 19, as it then stood, was as follows:
19(1) All citizens shall have the rights—
(a) to freedom of speech and expression;….
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the
State from making any law, in so far such law imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests of the security of the State, friendly relations
with foreign States, public order, decency or morality, or in relation to contempt of court, defamation
or incitement to an offence.
8
The Privy Council in Emperor v. Sadashiva Bhalerao, AIR 1947 PC 82, held that section 124-A penalizes the
attempted or actual excitement of certain feelings adverse to the Government irrespective of their effect on
-----------------------------------------------------------------------------------------------------------------------------------------------------------
public order. The Federal Court, on the other hand, in Niharendu Dutta Majumdar v. King Emperor, AIR 1942 FC
22, laid down that the provisions of section 124-A are attracted only when the excitement of the feelings
actually leads to or is likely to lead to public disorder.
9
AIR 1962 SC 955, 969.
10 Section 113 of the Draft Code was as follows:
Whoever by words either spoken on intended to be read, or by signs or by visible representations,

attempts to excite feelings of disaffection to the Government established by law in the territories of the East
India Company among any class of people who live under that Government, shall be punished with
banishment for life or for any term, from the territories of the East India Company, to which fine may be
added, or with simple 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 against unlawful attempts to subvert or resist
that authority is not disaffection. Therefore, the making of comments on the measures of the Government,
with the intention of exciting only this species of disapprobation is not an offence within this clause.
11 The Penal Code, 1860 (Amendment) Act, 1870.
12
The Penal Code, 1860 (Amendment) Act, 1898.
13
See supra note 2. Since then only certain formal changes have been made in the section in order to reflect
the changing political set-up in the country. See the Adoption of Laws Orders issued under the Government of
India Act, 1935; the Indian Independence Act, 1947, and the Constitution of India.
14
As pointed out by the Privy Council in King Emperor v. Sadashiva Narayan Bhalerao, AIR 1947 PC 82, the
amendment of section 124-A did not affect or alter the interpretation given to the unamended section in Queen-
Empress v. Bal Gangadhar Tilak, ILR (1897) 22 Bom 112.
15 ILR 19 Cal 35.

16 Id. at 44.
17 Queen-Empress v. Bal Gangadhar Tilak, ILR (1897) 22 Bom 112.
18 Id. at 135.
19 In Queen Empress v. Amba Prasad, ILR 20 All 55, the Allahabad High Court ruled that a person may be guilty
of the offence of attempting to excite feelings of disaffection against the Government although in a particular
article or speech he may insist upon the desirability or expediency of obeying and supporting the Government.
See also Mrs. Annie Besant v. Emperor, ILR (1916) 39 Mad 1085; In re Mylapore Krishnaswami, 2 I.C. 33.
20AIR 1942 FC 22. The appellant in this case had been convicted under rule 34(b)(c) of the Defence of India
Rules (made under the Defence of India Act, 1939) for doing prejudicial act. Under the rules prejudicial act was
defined as an act intended or likely “to bring into hatred or contempt, or to excite disaffection towards His
Majesty…………. or the Government.” The language used in the definition, it is to be noted, is materially the same
as in section 124-A of the Penal Code, 1860.
21 Id. at 26.
22
This view on the interpretation of section 124-A was adopted for the first time by Ranade, J., in his judgment
in Queen Empress v. Ram Chandra Narayan, ILR (1897) 22 Bom 152. Explaining the words, used in the section,
he observed:
Disaffection… is a positive feeling of aversion which is akin to disloyalty, a defiant insubordination of the
authority, or when it is not defiant… makes men indisposed to obey or support the laws of the realm and
promote discontent and public disorder.
Id. at 162.
23 Sir Maurice Gwyer referred at page 26 in this connection to the leading English case on the subject Reg v.
Alexander Martin Sullivan, 11 Cox C.C. 51, quoting Fitzerld, J., in the following terms:
The objects of sedition generally arc to induce discontent and insurrection, and stir up opposition to the
Government, and to bring the administration of justice into contempt; and the very tendency of sedition is to
incite the people to insurrection and rebellion.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
To the same effect are the observations of Coleridge, J., in Rex. v. Aldred, 22 Cox C.C. 1, 3:
The word “sedition” in its ordinary natural signification denotes a tumult, an insurrection, a popular
commotion or an uproar; it implies violence or lawlessness in some form…….
Under the English law, it is now well-settled that, the necessary ingredient of the offence of sedition is
the tendency of the speech to lead to tumult or disorder.
Sec 2 Stephen, A History of the Criminal Law of England 299 (1883).

24 AIR 1947 PC 82.
25 The same view was adopted by the Judicial Committee in Wallace Johnson v. The King, [1940] A.C. 231, while
interpreting similar words used in section 328(8) of the Criminal Code of Gold Coast to define seditious intention.
In this case it was held that incitement to violence was not a necessary ingredient of the offence of seditious
intention.
26The other grounds provided in article 19(2) on which the right to freedom of speech and expression could be
restricted were libel, slander, defamation, contempt of court, and decency or morality.
27 7 C.A.D. 731 (1948).
28 Id. at 731-32.
29 See, for example, the speeches of Mr. Govinda Das (id. at 750) and Mr. T.T. Krishnamachari (id. at 773).
30 AIR 1951 Punj 27.
31 AIR 1950 SC 124.
32The Supreme Court, by a majority decision, declared that the Madras Maintenance of Public Order Act, 1949,
was violative of article 19(1)(a).
33Mr. Justice Fazl Ali, in his dissenting judgment, however, expressed the view that “matters which undermine
the security of the State” have the same meaning as “law of sedition.” According to this view, the restrictions
imposed by section 124-A of the Penal Code would come within the permissible limits of article 19(2).
34 Supra note 31, at 128.
35 AIR 1950 SC 129.
36 The Constitution (First Amendment) Act, 1951.
37 AIR 1954 Pat 254.
38 Id. at 259.
39It may be pointed out that in determining the scope of section 124-A, Das, J., did not follow the law laid down
by the Privy Council in the Sadashiva case. Instead, Das, J., criticized the interpretation put upon it by the Privy
Council to be “unduly literal and verbal.” In view of articles 225 and 372 of the Constitution of India, read with
section 212 of the Government of India Act, 1935, the High Courts are bound by the law declared by the Privy
Council. As such it is not open to a High Court to differ from the law which had been laid down by the Privy
Council.
40
AIR 1959 All 101.
41 AIR 1955 Man 9.
42 AIR 1962 SC 955, 969.
43 Ibid.
44 Ramji Lal Modi v. The State of U.P., AIR 1957 SC 62. Virendra v. The State of Punjab, AIR 1958 SC 896.
45 In applying this rule the Chief Justice relied on R.M.D. Chamarbaugwalla v. The Union of India, AIR 1957 SC
628. The Supreme Court in this case laid down the rule that the courts will give a narrower meaning to the
impugned provisions of a law, if thereby the law can be brought within the permissible limits of legislative power.
Thus the words used in the act, which otherwise authorize imposition of restrictions in a language wide enough
to cover restrictions both with and without the constitutionally permissible limits, are to be upheld to the extent
they permit restrictions within the permissible limits.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
46 Holland, “Equality Before the Law,” 9 Current Legal Problems 74 (1955).

47The judgment of the Court in the Kedar Math case refers to “the report that the Law Commission was
considering the question of amending the law of sedition in view of the new set-up.” AIR 1962 SC 955, 968.
48 As an example of the popular sentiment against section 124-A may be cited the following excerpts from a
speech of the Prime Minister Nehru. Speaking on the Constitution (First Amendment) Bill in Parliament, the late
Prime Minister said:
Now. so far as I am concerned, that particular section is highly objectionable and obnoxious and it should
have no place both for historical and practical reasons, if you like, in any body of laws that we might pass.
The sooner we get rid of it the better.
12 Parliamentary Debates 9621.

49 See, for example, Motional Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 US 1 (1937).
50 304 US 144 (1938).
51
Id. at 152 n. 4.
52 The principle has been definitely accepted in English law, since the decision in Reg. v. Sullivan, (1869) 11 Cox
C.C. 51, that the gist of the offence of seditious libel consists in the attempt or tendency of the speech to
incite public disorder.
53
Romesh Thapper v. The State of Madras, AIR 1950 SC 124.
54
Ibid.
55
Id. at 129.
56
AIR 1954 SC 118.
57
See, for example, The State of Bombay v. United Motors India Ltd., AIR 1953 SC 252, 263. In this case Sastri,
C.J., following the decision of the US Supreme Court in Bowman v. Continental Co., 256 US 642 (1921), held:
It is a sound rule to extend severability in enforcement to include separability in such cases, and we are
of the opinion that the principle should be applied in dealing with taxing statutes in this country.
58 See. for example, In re Hindu Women's Right to Property Act, 1937, AIR 1941 FC 72.
59
AIR 1957 SC 628.
60 Ibid. The Supreme Court in this case upheld the validity of the Prize Competitions Act, 1955, on the ground
that the competitions sought to be controlled were those in which success did not depend to any substantial
degree on skill and hence the restrictions placed by the impugned law on freedom of trade fell within the
constitutionally permissible limits. Having thus disposed of the matter, the Court applied the rule of severability
to uphold the validity of the impugned law on the assumption that the prize competitions defined in the act also
include those in which success depended to a substantial degree on skill.
61 (1960) SCJ. 567.
62
For the rule of severability in enforcement and its criticism, see Misra, “The Doctrine of Severability Under the
Constitution of India,” (1961) II SCJ. 47 (Jour.).
63 Supra note 61.
64In laying down this principle, Subba Rao, J., relied upon the judgment of the Federal Court in Rex v. Basudeo,
AIR 1950 FC 67.
65
The word “reasonable,” according to the Supreme Court in Chintaman Rao v. The State of Madhya Pradesh,
AIR 1951 SC 118, implies intelligent care and deliberation, i.e., the choice of course which reason dictates. The
supreme test of reasonableness is that the limitation imposed on a person in the enjoyment of the right should
not be arbitrary or of an excessive character, beyond what is required in the interest of the public. Legislation
which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness. For
other judicial tests of reasonableness see The State of Madras v. V.G. Row, AIR 1952 SC 196; Cooverji v. Excise
Commissioner, AIR 1954 SC 220; Arunachala Nadar v. The State of Madras, AIR 1959 SC 300; Express
Newspaper Ltd. v. The Union of India, AIR 1958 SC 578; M.H. Quraishi v. State of Bihar, AIR 1958 SC 731;
Superintendent v. Dr. Ram Manohar Lohia, (1960) SCJ. 567.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
66In Schenck v. United States, 249 US 47 (1919) he stated that “The question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that the Congress has a right to present. It is a question of
proximity and degree.”
67 See, for example, Whitney v. California, 274 US 357 (1927); Abrams v. United States, 250 US 616 (1919). The
test sought to draw a balance between the freedom of speech of the individual and police power of the state
and provided a handy guide to the courts for deciding cases involving restrictions on freedom of speech. Full
reliance on the test was, however, given up by the Supreme Court in the case of Dennis v. United States, 341
US 494 (1951), to be retrieved, partially at least, in the Tesent decision, in Yales v. United States, 354 US 298
(1957).
68
AIR 1961 SC 884.
69
According to this doctrine certain freedoms, i.e., those guaranteeing the basic personal liberties, are more
fundamental than those concerned with changing processes of economic and social organization. The doctrine
was laid down by Stone, C.J., in United States v. Carotene Products Co., 304 US 144 (1938), but has been
criticized in certain cases and by certain writers. See also Friedmann, Law in a Changing Society 46-47 (1965).
70
In some of the earliest Indian cases the paramount importance of freedom of speech had been recognized by
the Court. The following observations of Sastri, J., in Romesh Thapper v. The State of Madras, AIR 1950 SC 124,
may be cited as an example:
[F]reedom of speech and of the press lay at the foundation of all democratic organisations, for without
free political discussion no public education so essential for the functioning of the processes of popular
Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the
Constitution may well have reflected with Madison who was the leading spirit in the preparation of the First
Amendment of the Federal Constitution that “it is better to leave a few of its noxious branches to their
luxuriant growth than pruning them away to injure the vigor of those, yielding the proper fruits (quoted in
Near v. Minnesotta).”
71
The Press Commission has recommended the repeal of the section in its present form. See the Report of the
Press Commission 403 (1954). The Press Laws Enquiry Committee also recommended that the Indian Law on the
subject be brought in line with its English counterpart. See the Report of the Press Laws Enquiry Committee 39
(1948). A similar suggestion has been made by Beg, J., in Ram Nandan v. The State of U.P., AIR 1959 All 101. A
recent study made under the auspices of the Indian Law Institute has also suggested an amendment of section
124-A. See Tiwari, “Law of Sedition in India,” in Essays on the Penal Code, 1860 (1962).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
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8 JILI (1966) 117

Freedom of Speech and The Law of Sedition in India

FREEDOM OF SPEECH AND THE LAW OF SEDITION IN INDIA†

Government exciting disaffection or bad feelings towards it is not to be regarded as

permissible limits of legislative encroachment on the freedom of speech and

The conclusion arrived at by the Supreme Court cannot be said to be in keeping

There may be narrower scope for operations of the presumption of

sections are reasonable. The application of the judicially determined standards of

A clear-cut and precise delineation of the scope of freedom of speech and

has potentialities of incitement to action. In some cases the likelihood of incitement to

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the

19(1) All citizens shall have the rights—

(a) to freedom of speech and expression;….

Whoever by words either spoken on intended to be read, or by signs or by visible representations,

15 ILR 19 Cal 35.

Sec 2 Stephen, A History of the Criminal Law of England 299 (1883).

46 Holland, “Equality Before the Law,” 9 Current Legal Problems 74 (1955).

12 Parliamentary Debates 9621.

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