By: Prabhat Singh
(This post is the first of a two-part series on the topic – ‘A CASE IN SUPPORT OF RETAINING SECTION 124A ’)
The Supreme Court of India has fixed a date for conducting final hearings in the matters challenging the constitutional validity of Section 124A of the Indian Penal Code (hereinafter referred to as “IPC”). The deliberations qua utility of having Section 124A on the statute book are as old as the provisions themselves. Interestingly, a recent statement by the Hon’ble Chief Justice of India –
The use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself” has once again catalyzed the debate.
There are two schools of thought, namely, the one which prays for annulment of the said Section on the ground that it has outlived its utility, and does not pass the muster of law given ‘Freedom of Speech and Expression,’ as guaranteed in the Constitution. Per contra, another School argues that there is no right in an absolute sense, every right is subject to certain reasonable restrictions and freedom of speech is no exception to it. The fulcrum of the matter lies in the fact that Section 124A which is ‘Sedition’ is at loggerheads with Article 19[a] of the Constitution, which guarantees freedom of speech and expression. Notably, in Kedar Nath Singh, a Constitutional Bench of the Supreme Court had declared Section 124A intra-vires.
The Indian Penal Code, 1860 got enforced in 1860, but section 124A did not make it into the IPC until 1870 (although a section corresponding to it was present in Thomas Macaulay’s Draft Penal Code in 1835). It was brought in ten years after the IPC was introduced, possibly, to counter the surging Wahabi uprising in the subcontinent. At that point, it was a law against “Exciting Disaffection.” It is, however, to be noted that section 124A has been changed significantly through an amendment to Act 4 of 1898 to incorporate judicial interpretations developed until then.
The Sedition as known today developed only towards the end of the sixteenth century and the secondary or more modern meaning of the word ‘sedition’ began to the emerge-the notion of inciting by words or writings disaffection from that century onwards.
THE AMENDMENT OF 1898 (ACT V OF 1898)
By this amendment, the word ‘sedition’ was introduced for the very first time in the marginal heading, not in the content of the provisions. This particular amendment was the culmination of various judgments delivered from 1870 to 1898. This amendment was twofold – Firstly, apart from exciting disaffection ‘feeling of hatred or contempt’ was inserted and disaffection was made to include ‘disloyalty’ as well. Secondly, the single explanation is split into three explanations to define the scope of permissible ‘disapprobation’ of a political/legislative measure.
Disapprobation was allowed, if it is made to obtain alteration by lawful means in any of the measures of the government without exciting or attempting to excite disaffection, hatred, or contempt towards the government of the day. Further, if any comment was made expressing disapprobation against any administrative action of the government without exciting or attempting to excite disaffection, hatred, or contempt that would not be penalized. Thereafter, few amendments have been made, but none was to tinker with the nature and scope of the provisions, hence is of no relevance for the current purposes.
JUDICIAL INTERPRETATIONS OF SECTION 124A – PRE-CONSTITUTIONAL ERA
In this section landmark cases of the pre-constitution era have been discussed. There are several cases regarding Section 124A, but for the purposes current discussion, the following cases would be enough to convey the intended idea:
Queen Empress v. Jogendra Chander Bose, popularly known as the Bangobasi case was the first case in India regarding Section 124A. The accused was charged with sedition for criticizing the Age of Consent Bill and the negative economic impact of British colonialism. While directing the jury on the case, the Court distinguished sedition as was understood under the Law of England at that time, from section 124A IPC. It was observed that the offense stipulated under Section 124A IPC was milder, as in England any overt act in consequence of a seditious feeling was penalized, however, in India only those acts that were done to resist by force or an attempt to excite resistance by force‘ fell under this section.
Queen-Empress v. Bal Gangadhar Tilak – Mr. Justice Strachery held that to attract Section 124A, there is no need for the disorder to result. It is sufficient that you have said something against the government of the day and therefore excited disaffection. The scope of section 124A got expanded by equating “disaffection” to “disloyalty.” The Court interpreted the term “feelings of disaffection” meant hatred, enmity, dislike, hostility, contempt, and every form of ill will towards the government.
Niharendu Dutt Majumdar v. King Emperor – The interpretation given in Tilak’s case was the law until the decision of this case when Chief Justice Gwyer adopted a sort of liberal approach, Justice stated as follows – We need to read sedition in its English backdrop. He further said that at the heart of sedition in England is that this kind of thing must ultimately lead not merely to disaffection from the government but also the ‘public disorder’. Only if it also leads to public disorder one person can be booked under the sedition.
The above interpretation given by the Federal Court was overruled by the Privy Council in Sadashiva Narayan Bhalerao. It was pointed out that the term ‘sedition’ was not used in section 124A at all. It was only the marginal note which contained it and it is well settled in law that a marginal note cannot control the plain language of the section. The plain language of the section nowhere says ‘public order’ and ‘violence’. Therefore mere ‘disaffection toward the government of the day was good enough.
POST CONSTITUTIONAL CASES
After the enactment of the Constitution, Section 124A came to challenge many High Courts. The Punjab High Court in Tara Singh Gopi Chand v. The State declared section 124A IPC unconstitutional as it contravenes the right of freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. There were various conflicting judgments among High Courts.
The constitutional validity of section 124A IPC came to be challenged in the case of Kedar Nath Singh v. the State of Bihar. The Constitution Bench upheld the validity of section 124A and kept it on a different pedestal. The Court drew a line between the terms, ‘the Government established by law’ and ‘the persons for the time being engaged in carrying on the administration’. The court after considering an entire gamut of laws and judgments, ultimately, said if we read a particular provision in a particular way as the Federal Court read it, namely, so long as the disaffection to the government is accompanied by an attempted incitement to violence or to create public disorder, it would be attracted. In this judgment, the court recognizes the right of self-preservation of ‘State’, by making a distinction between the Government and the State. So, by suggesting revocation we essentially mean denying the right of self-preservation to the State or India.
The Kedar Nath case has restricted the scope and application of Section 124A only to such act or attempt which has bearing on public order or enough to trigger violence. This means that the requirement of proof to establish crime under Section 124A is higher. Analysis of later cases shows that while following Kedar Nath, courts were very particular in convicting the accused under Section 124A.
The scope of the original provision in 1870 was limited to penalizing only ‘exciting disaffection.’ The provision was given a different texture and color by the 1898 amendment. The Supreme Court has finally fixed the contours of the provisions keeping given freedom of speech and expression under the Constitution. Part – II shall analyze various claims /arguments, made in favor of revocation of the provisions.
 The Indian Penal Code (Amendment) Act, 1870 (Act 27 of 1870).
 Indian Penal Code (Amendment) Act, 1898.
 AIR 1947 P.C. 82.
 (1897) I.L.R. 22.
 AIR 19422 F.C. 22.
 AIR 1947 P.C. 82.
(Prabhat is a law undergraduate from Tamil Nadu National Law University, Trichy[2016-2021]. The author may be contacted via mail at email@example.com)
Cite as: Prabhat Singh, ‘A CASE IN SUPPORT OF RETAINING SECTION 124A(Part-1)’ (The RMLNLU Law Review Blog, 24 July 2022) <https://rmlnlulawreview.com/2022/07/24/needforseditionlaw/ > date of access