Another aspect of Section 124A is that seditious activity must be directed against the ‘government established by law’ for it to be an offence. As noted above in the Kamal Krishna Sircar case, merely an attack on a particular form of government over the prevailing form would not amount to sedition. The Calcutta High Court in 1932 held that a government established by law would refer to persons authorized by law to administer executive government in any part of British India, collectively as a body and not as individuals. 6 Since the government established by law would be distinct from individuals who may be administering the government, even strong criticism of ministers accusing them of inefficiency, corruption or personal animosity would not tend to excite hatred, contempt or disaffection towards the government as a whole. 7 However, it is not necessary to constitute an offence of sedition that the target of such activity be the structure or framework of the government. It was sufficient to show that the target of seditious activities was a body of persons carrying out executive functions for the government, like a provincial or local government. 8 Even if seditious activity was not directed against the government in explicit language but the inference was necessary by implication, it amounted to sedition under Section 124A.
The position of the law regarding sedition was consistent until 1942 during the Second World War. The viceroy had issued a proclamation of emergency as the government feared that the security of India was threatened, both externally and internally. The Defence of India Act was in place since 1939 granting emergency powers to the government, similar to what existed during the First World War, as discussed earlier. According to the Rules promulgated under the Act, every person was prohibited from bringing into hatred or contempt, or to excite disaffection towards ‘His Majesty or the Crown representative or the Government established by law in British India or in any other part of His Majesty’s dominions’. 9
In Niharendu Dutt Majumdar v. The King Emperor, 10 a three-judge bench led by Chief Justice Maurice Gwyer of the Federal Court, the predecessor of the Supreme Court of India, noted that the above-mentioned prohibition contained language identical to Section 124A of the IPC. Even though the Rule did not contain explanations as provided in Section 124A, the Court felt that doing so was unnecessary. It was of the view that the explanations should be read into the Rule while interpreting the relevant rule under the Defence of India Rules. Having done so, the Federal Court held:
The time is long past when mere criticism of governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community than a weakness. Criticism of an existing system of government is not excluded, nor even the expression for desire for a different system altogether. The language of section 124A of the Penal Code, if read literally even with the explanations attached to it, would suffice to make a surprising number of persons in this country guilty of sedition; but no one supposes that it is to be read in this literal sense.
The Federal Court pointed out that the language of Section 124A is derived from English law but the system of trial in England was different from that in India. In England, such cases were tried by a jury, which acted as a check on the extravagant interpretations given by judges or the legislature. Therefore, it was of the opinion that in India judges must place themselves in the position of a jury and look at every sedition trial with a broad view in order to apply general principles of the law of sedition on a case-to-case basis. In order to arrive at the general principles, the Federal Court relied upon Justice Fitzgerald’s findings in Reg v. Sullivan 11 wherein he enunciated that, ‘Sedition . . . embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State and lead ignorant persons to subvert the Government. The objects of sedition generally are to induce discontent and insurrection, to 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.’
He further said that, ‘Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or disaffection, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the sovereign or Government, the laws or the constitution of the realm and generally all endeavours to promote public disorder.’
The Federal Court was of the view that the above findings accurately stated the law of sedition, as they were based on the study of a large number of judicial pronouncements under English law. It stated that sedition was not made an offence merely to tend to the injured vanity of the government. It was made an offence to take care of situations where its citizens stop respecting or obeying the law, thus leading to anarchy.
In the words of the Federal Court, the broad principles of sedition as an offence against the State were, ‘Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts or words complained of must either incite disorder or must be such as to satisfy reasonable men that that is their intention or tendency.’ It felt that the judiciary’s duty was to maintain a balance between the government and the rights of its citizens to have freedom of speech.
The position of law as enunciated by the Federal Court was short-lived. It was called into question before the Privy Council in England in 1947 in the case of King Emperor v. Sadashiv Narayan Bhalerao 12 before a bench of five councillors led by Lord William Thankerton.
The Privy Council refused to accept the principle and test of sedition laid down by the Federal Court of India in the Niharendu Dutt case. It found that the word ‘sedition’ did not occur in Section 124A of the IPC but was only found in the marginal note of the legislation. Consequently, it held that the marginal note just lent its name to the provision and was not in itself an operative part of Section 124A. Therefore, the Federal Court’s restriction of the provisions of Section 124A was not justified by the marginal note. English common law and judgments were held to be inapplicable to Section 124A as sedition was explicitly defined in the provision, as opposed to being undefined under the common law.
Therefore, the Privy Council held that the element of incitement of disorder read into Section 124A by the Federal Court was incorrect, just like the test that reasonable men must be satisfied of such intention or tendency. It reinstated the principle laid down by Justice Strachey in Tilak’s first sedition trial, which was subsequently approved by the Privy Council. Justice Strachey had given a very wide meaning to the word ‘disaffection’ contained in Section 124A to include a mere lack of affection and a feeling which did not translate into an overt act of hatred, enmity, dislike, hostility, contempt or any other form of ill-will against the government. He held that ‘disloyalty’ was the best term to describe ‘disaffection’ as it comprehended every possible form of bad feeling against the Government. He explicitly held that causing mutiny or the likelihood of causing mutiny, rebellion or any kind of disturbance was irrelevant for the purpose of interpretation of the provision. 13
Basically, the Privy Council set aside the decision of the Federal Court in the Niharendu Dutt case and reinstated the principle that incitement to violence was not a necessary ingredient for the offence of sedition as defined in Section 124A of the IPC.
This decision was pronounced on 18 February 1947. India became independent in just under six months thereafter.
One would think that the Indian masses, and its political class, repressed by the law of sedition and other similar laws, would burn them at the stake upon having rid themselves of the British.
Unfortunately, this was not to be.
India became independent on 15 August 1947 after the creation of the separate state of Pakistan one day prior. The partition was preceded, and succeeded, by bloodshed and communal conflict. While political manoeuvres between the Congress, Muslim League and the British government were ongoing, the c
ountry went through major communal strife, especially in Bengal, Assam and Punjab. Prior to Partition, elections were held for the establishment of an interim government in India to facilitate the transition to independence, as well as for the creation of the Constituent Assembly for the drafting of the Constitution of India. 14
Though the Muslim League participated in the interim government, they desisted from participation in the Constituent Assembly which met for the first time on 9 December 1946. The British government’s earlier plan was to transfer power in (undivided) India by June 1948, but it had to be accelerated in view of the breakdown of relations and negotiations between the Congress and the Muslim League which made Partition an inevitability. A separate Constituent Assembly for Pakistan was elected in June 1947 by the regions which were slated to become Pakistan, and the members of the Constituent Assembly of India from such regions ceased to be so.
On 18 July 1947, the British Parliament enacted the Indian Independence Act for the creation of two separate dominions of India and Pakistan (including East Pakistan) and to provide for other consequential matters. The Act fixed 15 August 1947 as the ‘appointed day’ for setting up the two countries. East Bengal and West Punjab were carved out and included in Pakistan, with Baluchistan, the North-West Frontier Province and Sind going to Pakistan in their entirety. However, the Act did not prevent the accession of Indian states to either India or Pakistan. This would lead to a lot of strife within India later.
The legislatures of both new dominions were given full power to frame laws for their respective countries and the Constituent Assemblies empowered to draft the new constitutions. The Constituent Assemblies were tasked with the role of being the first legislatures of the two countries.
The Fundamental Rights Sub-Committee of the Constituent Assembly, headed by Sardar Vallabhbhai Patel, placed a draft interim report on fundamental rights before the Assembly for its consideration on 29 April 1947. 15 In response to the interim report, Somnath Lahiri, who was the sole representative of the Communist Party of India, remarked that the fundamental rights had been framed from the point of view of a police constable. The reason for such consternation was that almost all such rights had been subjected to provisos (clauses which restrict the main clause) which took away the right completely in ‘grave emergency’. 16
He pointed out that Indians had suffered in the past due to denial of rights by an ‘alien and autocratic government’ which restricted the liberty of the press. Therefore, he felt it necessary that the press in free India should be free of restrictions and protected by the Constitution. He remarked that the provisions sought to be brought in would leave Indians worse off than earlier. He made a special mention of restriction of seditious speech by contending, ‘Here according to Patel a seditious speech is a punishable crime. If I say at any time in the future, or the Socialist Party says, that the Government in power is despicable, Sardar Patel if he is in power at that time, will be able to put the Socialist Party people and myself in jail, though as far as I know, even in England a speech, however seditious it may be, is never considered a crime unless an overt act is done.’
Lahiri was not done yet. He attacked an amendment proposed by C. Rajagopalachari which wanted to make the restriction more stringent. He said, ‘These are the fundamental bases of the fundamental rights of a free country, but here a seditious speech is going to be an offence; and Shri Rajagopalachari wants to go further. Sardar Patel would punish us if we make a speech, but Rajaji would punish us even before we have made the speech. He wants to prevent the making of the speech itself if in his great wisdom he thinks that the fellow is going to make a seditious speech.’
He concluded his objection by asserting that the political opposition must have full freedom to express its views for democracy to develop.
The severe opposition mounted by Somnath Lahiri proved to be effective as Sardar Patel deleted the word ‘seditious’ from the proviso to Clause 8, which granted liberty for the exercise of freedom of speech. 17
After much debate, the draft Constitution of India was tabled before the Assembly on 21 February 1948. Fundamental rights were enumerated under Chapter III of the draft Constitution with Article 13 providing for ‘protection of certain rights including freedom of speech, etc.’. Article 13(1)(a) guaranteed all citizens the right to freedom of speech and expression. However, Article 13(2) provided that such freedom of speech and expression would not affect any existing law or prevent the State from making any law relating to ‘libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the authority or foundation of the State’. Sedition found its way back as a restriction of freedom of speech and, as Gautam Bhatia 18 points out, restrictions on the right to freedom of speech and expression were not qualified by the word ‘reasonable’, thereby potentially empowering the government to draft sweeping legislations to curb free speech.
The debate on Article 13 commenced on 1 December 1948 with Damodar Swarup Seth 19 suggesting an amendment which proposed absolute freedom of speech with no riders and added the freedom of press as a right distinct from freedom of speech and expression. He was of the view that Article 13 in its original form cancelled out the rights guaranteed under it by placing onerous restrictions. He pointed out that the restrictions to freedom of speech and expression were couched in very broad terms, which would ensure that the Indian press would not have any greater freedom than what existed under British rule. He was of the view that even citizens would have no means of getting the law against sedition invalidated despite the same having the potential to violate their civil rights. 20
Thereafter, K.M. Munshi 21 proposed an amendment to Article 13 whereby he sought to remove the word ‘sedition’ from the list of restrictions to free speech while retaining restrictions on libel, slander and defamation. He also proposed to substitute the words ‘undermines the authority or foundation of the State’ with the words ‘undermines the security of, or tends to overthrow the State’. He said, ‘The importance of this amendment is that it seeks to delete the word “sedition” and uses much better phraseology . . . The object is to remove the word “sedition” which is of doubtful and varying import and to introduce words which are now considered to be the gist of an offence against the State’.
He quoted the judgment of the Federal Court in the Niharendu Dutt Majumdar case to underline that criticism of the government is the essence of democracy. He demanded that a distinction be drawn between criticism of the government and incitement of which would undermine the security or order on which civilized life is based. He advocated that Justice Gwyer’s interpretation of Section 124A of the IPC better reflected the evolution of Indian society and anything contrary to that would be bad law.
Sardar Hukum Singh, a representative from East Punjab, went one step ahead and proposed that all the restrictive clauses of Article 13 should be done away with. He felt that the fundamental freedoms granted under Article 13 would be left at the mercy of the State machinery if the restrictions were not removed. He was followed by Thakur Das Bhargava, another representative from that region, who proposed that restrictions on free speech should be preceded by the word ‘reasonable’, and the word ‘sedition’ be deleted altogether. By suggesting the insertion of the word ‘reasonable’, Bhargava was trying to put a soul in the lifeless Article 13. He was of the view that if the word ‘reasonable’ was inserted, then it would leave the door open for courts to see whether the restrictions imposed were reasonable and necessary or not. It would act as a safeguard against executive and legislative overreach and prevent the infringement of freedoms by the government of the day.
When the debate on Article 13 continued the next day, Seth Govind Das 22 mounted an opposition to ‘sedition’ as a restriction on free speech. It will be worthwhile to reproduce what he had to say about the desirability of ‘sedition’ in Article 13.
He said:
I find that the first sub-clause refers to freedom of speech and exp
ression. The restriction imposed later on in respect of the extent of this right, contains the word ‘sedition’. An amendment has been moved here in regard to that. It is a matter of great pleasure that it seeks the deletion of the word ‘sedition’. I would like to recall to the mind of honourable Members of the first occasion when section 124 A was included in the Indian Penal Code. I believe they remember that this section was specially framed for securing the conviction of Lokamanya Bal Gangadhar Tilak. Since then, many of us have been convicted under this section. In this connection many things that happened to me come to my mind. I belong to a family which was renowned in the Central Provinces for its loyalty. We had a tradition of being granted titles. My grandfather held the title of Raja and my uncle that of Diwan Bahadur and my father too that of Diwan Bahadur. I am very glad that titles will no more be granted in this country. In spite of belonging to such a family I was prosecuted under section 124A and that also for an interesting thing. My great grandfather had been awarded a gold waist-band inlaid with diamonds. The British Government awarded it to him for helping it in 1857 and the words ‘In recognition of his services during the Mutiny in 1857’ were engraved on it. In the course of my speech during the Satyagraha movement of 1930, I said that my great-grandfather got this waist-band for helping the alien government and that he had committed a sin by doing so and that I wanted to have engraved on it that the sin committed by my great-grandfather in helping to keep such a government in existence had been expiated by the great-grandson by seeking to uproot it. For this I was prosecuted under section 124 A and sentenced to two years’ rigorous imprisonment. I mean to say that there must be many Members of this House who must have been sentenced under this article to undergo long periods of imprisonment. It is a matter of pleasure that we will now have freedom of speech and expression under this sub-clause and the word ‘sedition’ is also going to disappear. 23
The Great Repression Page 15