The language of the section at that time was different from the present section 124-A. Thereafter a new section 124-A was inserted in place of the old section by the Indian Penal Code (Amendment) Act, 1898 which was modified by the Adaptation of Laws and Orders of 1937, 1948 and 1950 and the Part Â States (Laws) Act, 1951 resulting into its present form.
The section says that whoever brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India, by spoken or written words, or by signs, or by visible representations, or otherwise, shall be punished with imprisonment for life to which fine may be added, or with imprisonment extending up to three years’ to which fine may be added, or with fine.
There are three explanations attached to the section. The first gives an inclusive definition of the expression ‘disaffection’ and states that this word includes disloyalty and all feelings of enmity. The second explanation excludes something from the purview of this section. It says that 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.
According to the third explanation, which also takes away a few things from the body of this section, comments expressing disapprobation of the administrative or other action of the government, which do not excite or attempt to excite hatred, contempt or disaffection, are not considered punishable under this section as offence.
By its very nature this offence precedes the stage of waging war or attempting to wage war against the state. The crime of sedition is quite comprehensive as is apparent from its definition under the section and it may be in the form of oral utterances or statements in writing or signs or visible representations. The use of the words ‘or otherwise’ shows that it may have any other form as well.
Since at the time of its incorporation in the Code India was under the British rule, the language of the section had to be such as would cover almost any activity that needed to be crushed so that the British empire could remain safe and intact. The necessity to have a law of sedition is based on the premise that every state, whatever its form of government, wishes to be armed adequately to deal with activities prejudicial to the security and stability of the state.
In other words, to promote public order and to protect security of the state, the law regarding sedition has the main object of maintaining tranquillity of the state and not to allow subversion of the government established by the law.
The use of the word ‘whoever’ in the circumstances mentioned in the section include not only the writer of seditious writings but also one who uses the printed matter in such a manner as to excite feelings of disaffection towards the government established by law in India.
By words, either spoken or written
Sedition requires the use of words. The section specifies that the words may be either spoken or written. Therefore, seditious speech and seditious writing both are punishable under this section. Reciting a seditious poem at a meeting was held to be an offence under this section.
Similarly, sending by post a manuscript, seditious in nature, for publication along with a covering letter that the material be circulated was held to be punishable under this section even though the material never reached the addresses as it was intercepted before reaching.
The use of the word ‘sign’ shows that sedition may be in the form of signs also and oral or written statements are not always necessary.
The expression ‘or visible representation’ means any kind of representation that may be seen. The crime of sedition can, therefore, be committed not only by words of mouth or words in writing but also by any other kind which can be seen such as by engraving, woodcutting and may be even by drawing, painting or photography. The only condition to be fulfilled is that the visible representation should be such as establishes the essential elements of the offence under this section.
The expression ‘or otherwise’ has been deliberately used to indicate that the modes of committing sedition are not exhausted merely by use of spoken or written words or by signs or by visible representation. Any other way of committing the offence has been covered within the expression ‘or otherwise’.
Hatred or contempt
A feeling of hatred or contempt must be generated or attempt to generate any such feeling must be made. If the object of a speech is to bring the government and its offers into hatred or contempt or generate hostile feelings against them, the section will come into play. An attack in the course of a speech on the government, money lenders and landlords accusing them of oppressing the peasants and the government protecting such money lenders and landlords generates hatred or contempt against the government and is thus sedition.
Brings or attempts to bring
The section shows that bringing or attempting to bring into hatred or contempt the government established by law in India have both been made punishable. Thus, it is not necessary that the effort of the culprit must always succeed; it is enough if he has attempted. Unsuccessful attempts do not allow the act to go unpunished, However, the prosecution must prove that the stage of the act was the stage of attempt and not merely the stage of preparation.
Excites or attempts to excite disaffection
It is not necessary that disaffection must always be excited. It is sufficient if an attempt is made to excite disaffection. Preparation to excite disaffection is not punishable under this section. The word ‘disaffection’ is the opposite of affection and as such its meaning is also just the reverse of affection. Reverse of affection may mean dislike. Disaffection towards the government established by law in India may be equivalent to hostility or disloyalty towards the government. The concept may have within itself a political tinge of alienation, or it may even be a feeling of enmity.
The first explanation under the section has been added with the object of explaining the meaning of the word in a non-exhaustive sense. The explanation clarifies that the word ‘disaffection’ includes disloyalty and all feelings of enmity.
Explanations 2 and 3
The second explanation explains that disapprobation of the measures of the government through comments with a view to seek their change by lawful means are permissible provided there is no exciting or attempt to excite hatred, contempt or disaffection.
Similarly, the third explanation clarifies that disapprobation of the administrative or other action of the government is also permissible under law provided exciting or attempt to excite hatred, contempt or disaffection are absent. The difference between these two explanations mainly is that while in the former the attack is on the measures of the government, in the latter it is on the administrative or other action of the government.
The word ‘disapprobation’ used in the second and third explanations means disapproval. The courts have held that it is possible to disapprove someone’s conduct, action or sentiment and yet like him. Similarly, there are many things which the government does about which people may have reservations and they may disapprove the same.
That is why the last two explanations under the section say that disapprobation of the measures of the government or its administrative or other action is not an offence if the means are lawful and there is no exciting or attempt to excite hatred, contempt or disaffection.
According to section 13 of Act XXVII of 1870, Chapters IV and V of the Indian Penal Code relating to general exceptions and abetment respectively are applicable to the crime of sedition under this section.
Decided cases in pre-independent India
It is natural that most of the cases decided by the courts were in pre-independent India in which eminent persons who were actively fighting against the British imperialism for the freedom and independence of India were involved, it is easy to perceive that in most of these cases these freedom fighters were convicted for obvious reasons. With the establishment of a democracy in India after independence the section has not been of much use and only a very few cases have come up before the courts.
The essence of the crime of sedition lies in the intention of the person charged and it must be judged primarily from the language of the speaker or writer, as the case may be. Seditious writing does not make one liable till it remains in his hands; publication of some kind is necessary.
Incitement to the public in course of a public meeting to work towards the goal of attaining ‘swaraj’ does not amount to an offence under this section because ‘swaraj’ means home-rule which does not necessarily mean Government of the country to the exclusion of the existing government at the time.
The Calcutta High Court has held that the editor of a newspaper is liable under the section for unsigned seditious letters appearing in his newspaper.
The Allahabad High Court has held that some already separately published material when compiled in book form may have a cumulative seditious effect of bringing the government into hatred and contempt and, therefore, the book could be prescribed even though the material compiled had already been published in the form of separate articles for which no action of sedition was ever initiated.
The Lahore High Court held that the proprietor and keeper of a press where a seditious material is printed is not liable to be punished under this section if the court is satisfied that he was away at the time of its printing and was not aware of the contents of the matter.
The Federal Court of India was of the opinion that the main thing about the offence of sedition under section 124-A of the Code is to cause public disorder or reasonable anticipation or likelihood of causing public disorder. But this view was subsequently overruled by the Privy Council which ruled that the language of the section nowhere suggests this viewpoint.
Decided cases in independent India
One of the main questions before the courts after India became a free country has been to judge as to whether section 124-A of the Code is violative of the Constitution. In Tara Singh Gopi Chand v. State,1 the Punjab High Court held the section ultra vires the Constitution on the ground that it violates the fundamental right of freedom of speech and expression guaranteed by Article 19 (l),(a) and that India being a democratic country it is now inappropriate to have a law of sedition. The court also ruled that this law is not saved by Article 19 (2) of the Constitution as imposing reasonable restriction in the interest of public order.
On the other hand, the Supreme Court in the famous case of Kedar Nath v. State held that section 124-A of the Indian Penal Code does not violate Article 19 (1) (a) of the Constitution as it is a reasonable restriction on the freedom of speech and expression in the interest of public order.
The Court observed that the section and the explanations attached thereto read as a whole made it reasonably clear that the section aims at rendering penal only such activities as would be intended, or have tendency, to create disorder or disturbance of public peace by resorting to violence. Criticism of public measures or comment on government action, however, strongly worded, would be within reasonable limits and consistent with freedom of speech and expression.
It is only when the words, written or spoken, etc., which have the pernicious tendency of 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. In view of the above, there should not be any doubt that the section correctly balances the freedom of speech and expression and the interest of public order.
In Naurang Singh v. State, the propaganda secretary of a gurdwara in course of a speech gave very high casualty figures following army action in Punjab. It was held by the Punjab and Haryana High Court that even though he had not directly incited anyone to commit violence, the tendency of his speech was to bring the Government into contempt, and there was a likelihood of violence and public disorder to take place as a result of the speech.
To take care of the various deficiencies in the law of sedition, the Law Commission has suggested that section 124-A of the Code be reconstituted as under:
Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, disaffection towards the Constitution or the government or the Parliament of India, or the government or legislature of any state, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the integrity or security of India, or of any state, or to cause public disorder, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
The expression ‘disaffection’ includes feelings of enmity, hatred or contempt.
Comments expressing disapprobation of the provisions of the Constitution, or of the action of the government, or of the measures of Parliament or a state legislature, or of the provisions for the administration of justice, with a view to obtain their alteration by lawful means without exciting or attempting to excite disaffection, do not constitute an offence under this section’.
The Law Commission of India also suggested the insertion of another section 124-B worded as under:
‘124-B. Insult to the book of the Constitution, national flag, national emblem or national anthem:
Whoever deliberately insults the book of the Constitution, the national flag, the national emblem or the national anthem, by burning, desecration or otherwise, shall be punished with imprisonment of either description for a term which may extend up to three years, or with fine, or with both.’
The Law Commission deserves credit for its farsightedness while recommending the insertion of the above provision because similar problems started coming up before the courts later on which could be effectively dealt with by already suggested above remedy of the incorporation of the above law in the Indian Penal Code.
One such instance was the case of Bijoe Emmanuel v. State, wherein the Supreme Court had ruled that not joining in the singing of the national anthem does not mean disrespect to the national flag and the children belonging to Jehova’s community could not be expelled from their school for not joining in the singing of the national anthem when they in fact used to stand respectfully at the time of prayer in their school. The court felt that Articles 19 (1) (a) and 25 (1) of the Constitution protect such right of an individual to consciously hold his religious faith and no one could be compelled to sing the national anthem.
The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session, metropolitan magistrate, district magistrate or magistrate of the first class specially empowered.