Sedition and Freedom of Speech

Let us skip the history of Treason and Sedition (about which I’ll try to post another article) and jump straight to the subject of discussion, which these days seems to have gained quite some popularity amongst “intellectuals” owing to the recent incidents that took place in Jawaharlal Nehru University in New Delhi.

The Offence of Sedition is defined under Section 124A of the Indian Penal Code, which reads as under:

“124A. Sedition:-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.”

   

In simple terms, words or statements that may incite a sentiment of hatred against the elected Government amongst the citizens, constitutes the offence of Sedition. Explanations Number 2 and 3 put constructive and honest criticism of the Government out of the purview of this offence. Political Opposition is also exempt from this offence.

The Constitutional Validity of Section 124A was challenged in Kedar Nath Singh v. State of Bihar, A.I.R 1962 SC 955, on the ground that it violated Article 19 (1) (a) of the Indian Constitution. The Supreme Court, in this case, held that although the provision was constitutionally valid as it stands the test of reasonable restriction, as laid down under clause 2 of Article 19, however, caution must be exercised while prosecuting under this provision. The basic test is to see whether the words in question had the intention to disturb public tranquillity and peace in order to promote disorder in the society.

There were two conflicting judgments of the Federal Court in Niharendu Dutt, 1942 F.C.R. 38, and, Privy Council in Balerao, 74 I.A. 89. While the Federal Court had laid down that one has to essentially use the basic test that whether the words spoken or written had the intention and potential to disturb peace and bring in disorder in the society, the Privy Council had observed that the Law laid down no such conditions. The  Apex Court upheld the decision of the Federal Court.

Reproduced below is the relevant extract from the judgment:

“It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance  of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

A brief analysis of a few recent cases where the Law of Sedition was invoked will follow through a separate Article.