Why the top court upheld the validity of the section 124A?

In a landmark verdict, a Constitution Bench of the top court upheld the validity of section 124A (sedition) of the IPC, but also attempted to restrict the colonial-era law’s scope for misuse by trying to demarcate the difference between which acts amounted to sedition and which ones did not.

The five-judge Bench comprised Chief Justice BP Sinha and Justices AK Sarkar, JR Mudholkar, N Rajagopala Ayyangar and SK Das.

It said that any act that had the “effect of subverting the Government” by violent means or creating public disorder would come within the definition of sedition. It also upheld Section 505 (statements conducive to public mischief) as constitutionally valid.

“Acts within the meaning of s. 124A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question,” ruled the top court.

The court added that “commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence”, is not sedition.

“A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder,” it further maintained.

While the court did read down S.124A, Kedar Nath’s appeal was rejected, after the Bench held that his words did not fall within the purview of the definition of sedition as had been interpreted in the verdict.

However, the court ruled that disapproval of the measures of government with a view to their improvement or alteration by lawful means is not sedition. It held that “comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” would not attract the penal offence.

When Kedar Nath judgement was given?

In 1953, Kedar Nath Singh, a member of the Forward Communist Party from Bihar, got into trouble after he took on the ruling Congress during a rally at Begusarai, where he said, “Today, the dogs of CBI are loitering around Barauni [in Begusarai]. Many official dogs are sitting even in this meeting. The people of India drove out the British from the country and elected these Congress goondas to the gaddi. As we drove out the British, we shall strike and drive out these Congress goondas as well. They have today established a rule of lathis, bullets in the country. We believe in revolution which will come, and in the flame of which, capitalists, zamindars and Congress leaders will be reduced to ashes, and on their ashes will be established a government of the poor and the downtrodden people of India.”

The fiery speech led to his conviction and imprisonment by a first class magistrate on sedition charges, and an appeal to the Patna High Court was struck down. Then 1962, an appeal by Singh came before the Supreme Court, in which he questioned the constitutional validity of Section 124A, contending it stifled his right to free speech under Article 19 of the Constitution.

The top court had its task cut out, since it had to lay down the law in the face of two directly conflicting interpretations of Section 124A by British era courts. The two previous judgments, one from 1942 and the other from 1947, expressed contradictory views on whether the incitement to violence or a tendency to disturb public order was a necessary ingredient of the offence under Section 124A.

Where charge of Sedition cannot apply?

Seven principles in the Kedar Nath Singh ruling specify situations in which the charge of sedition cannot be applied.

* The expression “ ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”

* “Any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.”

* “Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”

* “A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”

* “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.”

* “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.”

* “We propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.”

Who had designed this sedition law?

Section 124A of the Indian Penal Code (IPC), which deals with sedition, was drafted by Thomas Babington Macaulay and included in the IPC in 1870. Section 124A of the IPC, which deals with sedition, states, "Whoever, 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."

Mahatma Gandhi called Section 124A “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”. Jawaharlal Nehru said that the provision was “obnoxious” and “highly objectionable”, and “the sooner we get rid of it the better”. But in July 2019 Nityanand Rai, minister of state for home affairs, told the Rajya Sabha that “there is no proposal to scrap the provision under the IPC dealing with the offence of sedition. There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements.” In July 2019, Minister of State for home affairs, Nityanand Rai, in a written reply to the Rajya Sabha, said: "There is no proposal to scrap the provision under the IPC dealing with the offence of sedition. There is a need to retain the provision to effectively combat anti-national, secessionist and terrorist elements."

How sedition law had changed over the years?

In recent times, the resort to this section is seen as disturbingly frequent. Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics. Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities. Jawaharlal Nehru University students and activists, Assamese scholar Hiren Gohain and Manipur journalist Kishorchandra Wangkhem are prominent among those booked in recent days. Wangkhem has also been detained under the National Security Act.

Liberals and rights activists have been demanding the scrapping of Section 124A from the statute books, arguing that it has no place in a democracy and that it is being invoked even in cases where there is no incitement to violence or tendency to create public disorder. It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens. The Law Commission released a consultation paper last year calling for a reconsideration of the section. It has pointed out that Britain abolished it more than a decade ago and raised the question whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.

Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression. The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law. Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity. At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence. Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.