Consequently, the word ‘sedition’ was dropped from Article 13 of the draft Constitution. The freedom of speech and expression appeared in Article 19 (originally Article 13) in the final Constitution of India as Article 19(1)(a) with 19(2) placing certain restrictions on it.
However, the constitutionality of Section 124A of the IPC was in doubt after the removal of ‘sedition’ from Article 19 as well as because of Article 13, which provides that any law existing as on the date of the commencement of the Constitution, that is, 26 January 1950, would be void to the extent it was inconsistent with fundamental rights under Part III of the Constitution.
Sedition under Section 124A of the IPC continued to be a statutory offence as Article 372 of the Constitution provides that any existing law in force in India as on 26 January 1950 would continue to be in force unless explicitly modified or repealed by the legislature. Now that ‘sedition’ had been dropped as a restriction on the fundamental right to freedom of speech and expression, Section 124A of the IPC should ideally have been declared void by Parliament.
However, that never happened.
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Courting Sedition: Conflict with Freedom of Speech
To recap, the Federal Court of India in the Niharendu Dutt Majumdar 1 case had held that incitement of public disorder, or the reasonable anticipation of that happening, was the gist of the offence of sedition under Section 124A of the IPC. Therefore, it was held that a speech or piece of writing must either actually incite disorder to be seditious, or reasonable people must be satisfied that such speech or piece of writing definitely intended to, or had the tendency to, incite disorder. This judgment was overturned by the Privy Council in the Sadashiv Narayan Bhalerao 2 case and the earlier position of law was restored.
Therefore, as India became a Constitutional Republic, any act which could excite disaffection, hatred or disloyalty against the government of India would be considered seditious under Section 124A of the IPC, irrespective of whether there was any incitement of disorder or not.
Section 124A 3 now read as:
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, 4 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.
No court can take cognizance of any offence under Section 124A of the IPC, or conspiracy to commit sedition, without prior sanction from the central government or the state government, as the case may be, as mandated by Section 196 of the Criminal Procedure Code, 1973. This provision existed even under the previous Criminal Procedure Code of 1898 and was in force till it was superseded by the 1973 Code. The object of requirement of prior sanction is to ensure prosecution only when after due consideration the appropriate sanctioning authority is satisfied that there is a proper case to put an accused on trial, and also to prevent wastage of judicial time as needless prosecutions would never result in convictions.
The first challenge to Section 124A of the IPC was launched in 1950 itself before the High Court of Punjab by one Tara Singh Gopi Chand 5 against whom two prosecutions under Section 124A and Section 153A 6 of the Code had been initiated in Karnal and Ludhiana districts in Punjab. The petitioner challenged the constitutional validity of the two provisions. Ironically, instead of accepting the strict interpretation of Section 124A as laid down in Niharendu Dutt Majumdar, the High Court accepted the position as settled by the Privy Council in Sadashiv Narayan Bhalerao. Therefore, it held that incitement of public disorder was not necessary for the invocation of Section 124A. Having found so, the High Court had no doubt that Section 124A was a restriction on freedom of speech granted under Article 19(1)(a) and tested it to see whether it was protected under Article 19(2) or not.
The Court found:
India is now a sovereign democratic State. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition thought necessary during a period of foreign rule has become inappropriate by the very nature of the change which has come about. It is true that the framers of the Constitution have not adopted the limitations which the Federal Court desired to lay down. It may be they did not consider it proper to go so far. The limitation placed by Clause (2) of Article 19 upon interference with the freedom of Speech, however, is real and substantial. The unsuccessful attempt to excite bad feelings is an offence within the ambit of Section 124A. In some instances at least the unsuccessful attempt will not undermine or tend to overthrow the State. It is enough if one instance appears of the possible application of the section to curtailment of the freedom of speech and expression in a manner not permitted by the constitution. The section then must be held to have become void.
It relied on two full-bench 7 judgments of the Supreme Court in Romesh Thapar v. State of Madras 8 and Brij Bhushan v. State of Delhi, 9 which had observed that Section 124A would be unconstitutional as the Constituent Assembly had deleted ‘sedition’ from Article 13 (which was enacted as Article 19) and therefore the provision would be in violation of the fundamental right to speech and expression. However, the two judgments did not explicitly declare Section 124A as unconstitutional as it was adjudicating on the constitutionality of other statutory provisions. Justice Sayid Fazl Ali dissented in both cases and observed that Section 124A would not be unconstitutional. To reach such a conclusion he relied on the ‘incitement of public disorder’ interpretation in Niharendu Dutt Majumdar and thus felt that the law against sedition would be an exempted restriction under Article 19(2).
The Punjab High Court, therefore, concluded that Section 124A of the IPC had become void as it contravened the freedom of speech and expression guaranteed by Article 19 of the Constitution. As a bonus offering, it also held Section 153A to be unconstitutional.
Parliament did not view these judgments, among others, favourably and deemed it necessary to amend Article 19 to negate the effect of these judgments by way of the Constitution (First Amendment) Act, 1951. According to the statement of objects and reasons of the amending Act, citizens’ right to freedom of speech and expression guaranteed by Article 19(1)(a) had been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. It argued that this was unlike other countries with written constitutions where freedom of speech and press was not regarded as debarring the State from punishing or preventing the abuse of such freedom.
The amending Act modified Article 19(2) to protect the State’s power to provide ‘reasonable’ restrictions on freedom of speech by extending the power to do so in the interest of public order, security of State, friendly relations with foreign States and to prevent incitement of an offence. These restrictions were in addition to the exemptions provided under the original Article 19(2). The freshly amended Article 19 was made effective retrospectively, as if it had been in the Constitution since it came into force.
During the debate on the amending Act, Prime Minister Jawaharlal Nehru referred to the offence of sedition under Section 124A of the IPC and called it highly objectionable and obnoxious. He felt it should not have a place in Indian law for both practical and historical reasons and it would be better to get rid of the provision at the earliest.
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He would know, having gone to prison for being seditious by his own admission. Despite making the right noises, even Nehru’s government never made an attempt to repeal Section 124A.
The first constitutional challenge to Section 124A after the first constitutional amendment occurred before the Patna High Court in the case of Debi Soren & Ors v. State of Bihar. 11
There was an annual conference of the Bhagalpur Adivasi Mahasabha held in Santal Parganas district in Bihar over three days in March 1949. One Debi Soren presided over the conference. He and the other two accused, Hanna Bodra and Yunus Soren, were the principal speakers. The prosecution alleged that on two days the accused made seditious speeches at the conference against the government of Bihar. The accused had made speeches claiming that the government was repressing the tribal population in the state and called for the ouster of non-tribal Biharis from their lands. The three accused were convicted of sedition by the magistrate against which they filed an appeal before the Patna High Court.
The appellants relied upon the judgment of the Punjab High Court in the Tara Chand case to content that Section 124A of the IPC had become void as it contravened the freedom of speech guaranteed under Article 19(1) of the Constitution. The appellants also relied on the judgments of the Supreme Court in Brij Bhushan and Romesh Thapar, which were based on the interpretation of Section 124A by the Privy Council in the Sadashiv Narayan case.
However, the High Court held that the judgments were no longer good law because of the amendment of Article 19(2) to include ‘public order’. It stated, ’If the Section is read as a whole together with the explanations, it seems clear that the mischief which it contemplates has a reference to public order in its widest sense, even though the section does not make it necessary that there should be a direct incitement to violence or disorder. My view is that even accepting the interpretation put upon the section by their Lordships of the Privy Council, the restrictions it imposes on freedom of speech and expression are reasonable restrictions in the interests of public order . . . From this point of view, Clause (2) of Article 19, as it now stands, saves the provisions of Sections 124A and 153A, Penal Code.’
While the Patna High Court upheld the constitutional validity of Section 124A, another post-amendment constitutional challenge to Section 124A arose in the north-eastern state of Manipur. 12
A public meeting was organized at the polo ground in Imphal on 19 April 1953 where the accused published and circulated leaflets against the Indian State. The accused threatened satyagraha for their demand for the creating of an independent ‘buffer state’ of Manipur under the trusteeship of the United Nations. A prosecution under Sections 124A and 153A of the IPC was launched against the accused who were convicted under both provisions by the magistrate.
On an appeal being filed before the High Court of Manipur, it was contended that Sections 124A and 153A had become void on account of being inconsistent with Articles 19(1)(a) and 19(2) of the Constitution. The High Court took note of the judgments in Brij Bhushan, Romesh Thapar and Tara Singh to observe that Section 124A had been declared unconstitutional but the first amendment to the Constitution necessitated a re-look at the question.
The High Court noted that the amended Article 19(2) enabled the State to make laws imposing reasonable restrictions on freedom of speech in the interest of security of the State, to maintain public order and to prevent incitement of an offence. It relied on the ‘public order’ test laid down in the Niharendu Dutt Majumdar case and accepted that mere criticism of the government without inciting an offence would not be punishable in the interest of ‘public order’. In doing so it went with the minority dissent in Brij Bhushan and Romesh Thapar judgments provided by Justice Fazl Ali.
Therefore, the Manipur High Court held that Section 124A of the IPC was partially unconstitutional to the extent it sought to impose restrictions on freedom of speech insofar as a speech merely excites or tends to excite disaffection against the government. However, if such an action results in the incitement of violence or public disorder then punishment for sedition would not be unconstitutional.
What the Patna High Court in Debi Soren saved completely, the Manipur High Court destroyed partially.
For good measure, in 1958 the Allahabad High Court also entered the fray in the interpretation of Section 124A vis-a-vis Article 19 of the Constitution.
One Ram Nandan was convicted of sedition by a sessions judge for delivering a speech to about 200 villagers. He attacked the Congress government which, he alleged, was responsible for poverty, food scarcity, inflation and high taxation. He claimed that the labourers of Uttar Pradesh had now organized themselves and would overthrow the government through armed revolt if it did not concede to their demands. As a parting shot, he termed Jawaharlal Nehru a traitor, blaming him for the partition of India.
In an appeal against his conviction, Ram Nandan challenged the constitutional validity of Section 124A of the IPC. The High Court relied on the line of judgments in Brij Bhushan, Romesh Thapar and Debi Soren and held that danger to public order is not an ingredient of the offence of sedition. Consequently, it held that the restriction imposed on the right to freedom of speech by Section 124A cannot be said to be in the interests of public order. It was of the view that a restriction imposed on certain speeches would be in the interests of public order but not that imposed on other speeches which do not contain a threat to public order. Therefore, it did not find anything in Section 124A to distinguish between the two classes of speeches and thus did not deem it to be a reasonable restriction under Article 19(2) of the Constitution. The High Court disagreed with the Patna High Court’s judgment in Debi Soren, despite relying on it for interpretation of the provision, and held Section 124A to be unconstitutional for being in contravention of Article 19(1) of the Constitution. 13
In summation, the Patna High Court found Section 124A to be constitutional; the Manipur High Court found it to be partly unconstitutional; and the Allahabad High Court found it to be unconstitutional. Thus, at this stage the score stood 1.5 to 1 against Section 124A of the IPC.
This difference of opinion between the three High Courts could now only be settled by the Supreme Court of India, and it did so in the landmark judgment in Kedar Nath Singh v. State of Bihar. 14
Singh, who was a member of the Forward Communist Party, was prosecuted for sedition for delivering a speech in the Munger district of Bihar on 26 May 1953. He was alleged to have said, ‘Today the dogs of the C.I.D. are loitering round Barauni. Many official dogs are sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas . . . The Forward Communist Party does not believe in the doctrine of vote itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.’
His speech was found to be seditious by the trial court which sentenced him to one year’s rigorous imprisonment. His appeal against conviction was also dismissed by the Patna High Court, after which he filed an appeal before the Supreme Court. The appeal was decided by a constitution bench comprising five judges led by Chief Justice Bhuvneshwar Sinha.
The appeal was heard together with other appeals which had the common question of law regarding the constitutionality of Section 124A of the IPC. The first connected case was of Mohammad Ishaq Ilmi who was prosecuted for having delivered a speech at Aligarh as chairman of the Reception Committee of the All India Muslim Convention on 30 October 19
53. His speech on that occasion was prosecuted for being seditious and he was convicted under Section 124A. In the second connected case, one Rama had been convicted of sedition for advocating the use of violence to overthrow the government in a speech delivered on 29 May 1954 at a meeting of the Bolshevik Party in an Uttar Pradesh village.
In the third case, one Parasnath Tripathi was accused of sedition for delivering a speech in the district of Faizabad on 26 September 1955 in which he is said to have exhorted the audience to organize a volunteer army and resist the government and its servants by violent means. When he was arrested for trial, he filed a writ petition challenging his arrest as illegal on the basis that Section 124A was void as being in contravention of his fundamental rights of free speech and expression. This petition was clubbed with appeals filed by Mohammad Ishaq Ilmi and Rama before the Allahabad High Court which took the view that Section 124A of the IPC was unconstitutional. The High Court therefore acquitted Ilmi and Rama and quashed proceedings against Tripathi. The state government duly challenged the judgment before the Supreme Court.
The Supreme Court first carried out the exercise of interpreting Section 124A to establish its actual meaning and application. It went through the history of the provision and compared the judgments in Niharendu Dutt Majumdar and Sadashiv Narayan. It reached the conclusion that any written or spoken words which have implicit in them the idea of subverting the government by violent means, akin to the term ‘revolution’, have been made penal by Section 124A of the IPC. However, it found that the explanations to the section clarify that strong words used to express disapprobation of the measures of the government with a view to reform by lawful means would not be seditious. It also observed that criticism of the government, however harsh, which did not incite public disorder through violence, would not be seditious either.
The Great Repression Page 16