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INDEX OF AUTHORITIES

CASES:
PSA Pill ai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
Rex v. Aldred (1909) 22 Cox CC 1.
Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35.
Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.
Queen Empress v. Ramchandra Narayan, ILR (1898) 22 Bom 152.
Niharendu Dutt Majumdar v. King Emperor AIR 1942 FC 22
Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997).
Paramanand v. Emperor, AIR 1941 All 156, 1941 All LJ 26, 42 Cr LJ 46
Ramchandra v. Emperor, 29 Cr LJ 381 (Lah)
Niharendra Dutt Majumdar, (1942) FCR 38
Vishambhar Dayal v. Emperor; AIR 1941 Oudh 33
Nazir Khan And Others vs. State Of Delhi
Kedar Nath v. State of Bihar
Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554.
Gopalan v. State of Madras, (1950) S.C.R. 88 (253-4)
State of Andhra v. McDowell & Co., A.I.R. 1996 S.C. 1628.
Charanjit Lal Chowdhary v. Union of India, A.I.R. 1951 S.C. 41.
Janath Mosque v. Vakhon Joseph, A.I.R. 1955 T.C. 227 (F.B.).

Municipal Committee v. State of Punjab, (1969) 1 S.C.C. 475.


Mohd. Khalids 1995] 1 SCC 684
Pastor P. Rajus (2006) 6 SCC 728
Articles and Books
Arvind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and
the Nationalist Response in Engaging Terror: A Critical And Interdiscipl inary Approach
(2008)
Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a
colonial situation
Siddharth Narrain, Disaffection and the Law: The Chilling Effect of Sedition Laws in
India, XLVI (8) EPW 34 (2011)
Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M.
Business laws, Imperial Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5,
2016, ISSN: 2454-1362
Websites
http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr
Ram Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
http://legalsutra.com/1025/sedition/; last visited on 30 July, 2016.
http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr
Ram Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.

Arguments Advanced

1) Whether the death sentence as sought by the government of Erehwon is an


appropriate Punishment for the offence of Sedition as made by the facts of the
present case?
Meaning of Sedition:
The decision of the Supreme Court in Kedar Nath laid down the interpretation of the law of
sedition as it is understood today. In this decision, five appeals to the Apex Court were clubbed
together to decide the issue of the constitutionality of 124A of the IPC in light of Article 19(1)
(a) of the Constitution. In the Courts interpretation the incitement to violence was considered
an essential ingredient of the offence of sedition.1
Here, the court followed the interpretation given by the Federal Court in Niharendu Majumdar.
Thus, the crime of sedition was established as a crime against public tranquility 2 as opposed to a
political crime affecting the very basis of the State.
The Court, in Queen Empress v. Jogendra Chunder Bose3

its much debated judgment, laid

down the distinction between disaffection and disapprobation. Disaffection was defined as
the use of spoken or written words to create a disposition in the minds of those to whom the
words were addressed, not to obey the lawful authority of the government, or to resist that
authority.4 It was also observed that:
It is sufficient for the purposes of the section that the words used are calculated to excite
feelings of ill-will against the Government, and to hold it up to the hatred and contempt of the
people, and that they were used with an intention to create such feeling.5
1 PSA Pill ai, Criminal Law 1131 (K.I. Vibhute eds., 2009).
2 Rex v. Aldred, (1909) 22 Cox CC 1.
3 Queen Empress v. Jogendra Chunder Bose, ILR (1892) 19 Cal 35.
4 Id., Arvind Ganachari, Combating Terror of Law in Colonial India: The Law of Sedition and the
Nationalist Response in Engaging Terror: A Critical And Interdiscipl inary Approach (2008)

The Supreme Court in Kedar Naths case, wherein SINHA, C.J. observed comments, however
strongly worded expressing, disapprobation of actions of Govt., without exciting those feelings
which generate the inclination to cause public disorder by acts of violence, would not be penal.
In other words, disloyalty to Govt. established by law is not the same thing as commenting in
strong terms upon the measures or acts of Govt. 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 or disloyalty which imply
excitement to public disorder or the use of violence.
Another significant case which had a direct bearing on the 1898 amendment was that of Queen
Empress v. Bal Gangadhar Tilak6 (Tilak). Allegations of sedition against Bal Gangadhar Tilak
were first forwarded when the magazine Kesari published detailed reports of the proceedings
that had taken place at the Shivaji Coronation Festival, during the celebration of which several
patriotic lectures and speeches were delivered. It was alleged that these speeches made
references to Shivajis call for Swarajya (independence) and alluded to the trials of the people
under the British rule.7 In perhaps one of the most comprehensive expositions of the law in
colonial India, the Court, transcending the arguments from both sides, interpreted 124A mainly
as exciting feelings of disaffection towards the government, which covered within its ambit
sentiments such as hatred, enmity, dislike, hostility, contempt, and all forms of ill-will.
The meaning of disaffection and disapprobation was further clarified by the court in Queen
Empress v. Ramchandra Narayan8 in which accusations against the editor and proprietor of the
5 Id., Janaki Bakhle, Savarkar (1983-1966), Sedition and Surveillance: the rule of law in a colonial
situation, February 12, 2010, available at http://www.scribd.com/doc/94493285/Bakhle- Sedition-andSavarkar (Last visited on July 25, 2016). (This expression is an example of how the law was a direct
import from the English case law of the time and is noteworthy insofar as it became the basis for the 1898
amendment to the legislation. Eventually, the accused himself tendered an apology and all proceedings
against him were dropped).
6 Queen Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.
7 Siddharth Narrain, Disaffection and the Law: The Chilling Effect of Sedition Laws in India, XLVI (8)
EPW 34 (2011)
8 Queen Empress v. Ramchandra Narayan, ILR (1898) 22 Bom 152.

Pratod newspaper for publishing an article entitled Preparation for Becoming Independent.
The Court did not agree with the notion that disaffection was necessarily the opposite of
affection, but it advocated that an attempt to excite disaffection amongst the masses was to be
construed as an attempt to excite political discontent and alienation from their allegiance to a
foreign sovereign.9
In Niharendu Dutt Majumdar v. King Emperor 10. Charges of sedition had first been pressed
against Majumdar on account of him allegedly delivering violent and speeches in the Bengal
legislative assembly highlighting the inefficiency of the State Government to maintain law and
order in the aftermath of the Dacca riots.11 Sir Maurice Gwyer, Chief Justice of the Federal
Court at the time held that the mere presence of violent words does not make a speech or
publication seditious. Instead, he was of the belief that in order to be brought under the ambit of
sedition, the acts or words complained of must either incite to disorder or must be such as to
satisfy reasonable men that that is their intention or tendency.12
In a charge under section 124-A of the penal code, the prosecution must prove to the hilt that the
intention of the writer or the speaker, whoever he may be, is to bring into hatred or contempt or
excite or attempt to excite disaffection towards the Government established by law in British
India. The essence of the crime of sedition, therefore, consists in the intention with which the
language is used and what is rendered punishable by section 124-A of the penal code is the
intentional attempt, successful or otherwise, the rouse as against Government the feelings
enumerated in the section, a mere tendency in an Article to promote such feelings is not
sufficient to justify a conviction.
In the matter of Romesh Thappar, a Constitution Bench of the Apex Court held by a majority of
4:1 that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violated the
9 Id., Ganachari, supra note 3
10 Niharendu Dutt Majumdar v. King Emperor, AIR 1942 FC 22
11 Id.
12 Id.

freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The
Apex Court also held in these cases that the offence of 'sedition' is an offence against public
tranquility and order also although Section 124A is to be found in the Chapter on Offences
against the State and sits in the category of other offences such as 'treason' and 'waging war
against the State'.
In response to these two judgments the Central Government proceeded to amend Article 19(2) to
insert "public order, decency and morality" as grounds for restricting the exercise of free speech
and expression through the very first amendment to the Constitution. The amendment which
contained several other grounds for restricting free speech and expression was made applicable
retrospectively. 13
The offence of sedition under section 124A is the doing of certain acts which would bring the
Government established by law in India into hatred or contempt, or create disaffection against
it.14 A speech suggesting generally that the Govt. established by law in India was thoroughly
dishonest and unfair and those steps should be taken either by violence or by threat of violence to
abolish it, comes within the provisions of section 124- A15.
The gist of the offence under section 124-A lies in the intention of the writer to bring into hatred
and contempt the Government and is not to be gathered from isolated or stray passages here and
there but from a fair and generous reading of the article as a whole. Further, in gathering the
intention allowance must be made for a certain amount of latitude for writers in the public
press16.

13 Autonomy Is As Autonomy Does- Law of Sedition in India, Hetal Chavda, LL.M. Business laws, Imperial
Journal of Interdisciplinary Research (IJIR), Vol-2, Issue-5, 2016, ISSN: 2454-1362

14 Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997).


15 Paramanand v. Emperor, AIR 1941 All 156, 1941 All LJ 26, 42 Cr LJ 46
16 Ramchandra v. Emperor, 29 Cr LJ 381 (Lah)

The Federal Court of India had, however, held that the gist of the offence of sedition is
incitement to violence; mere abusive words are not enough. 17. In cases under Section 124-A,
I.P.C., the Courts have not to see the effect on the mind of the people and they are concerned
with the construction of the speech, and the speech has to be taken as a whole and not just in
pieces. A man may criticize or comment upon any measure or act of the Govt. and freely express
his opinion upon it. He may express condemnation but so long as he confines himself to that he
will be protected, but if he goes beyond that he must pay the penalty for it. The question of
intention is always an important factor in such cases.18
The Supreme Court in Kedar Nath clarified that the crime of sedition was a crime against the
State and was intended to protect the very existence of the State. The purpose of the crime of
sedition was to prevent the Government established by law from being subverted because the
continued existence of the Government established by law is an essential condition of the
stability of the State. It clarified 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.
The Supreme Court clarified that 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. As a result, the Supreme Court expressly sided with the interpretation of
sedition by the Federal Court in Niharendu Dutt and stressed that incitement to violence or the
tendency or the intention to create public disorder was also an essential ingredient of the offence
of sedition. The Supreme Court expressly rejected a literal interpretation of Section 124A. In
order to leave no doubt as to its ruling, the Supreme Court further stated that section 124A hits

17 Niharendra Dutt Majumdar, (1942) FCR 38


18 Vishambhar Dayal v. Emperor; AIR 1941 Oudh 33

only those activities as would be intended, or have a tendency, to create disorder or disturbance
of public peace by resort to violence.
The Apex Court in the case of Nazir Khan And Others vs. State Of Delhi19 has held as under:
Section 124-A deals with Sedition is a crime against society nearly allied to that of treason, and
it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and
it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb
the tranquility of the State, and lead ignorant persons to endeavor to subvert the Government and
laws of the country.
Section 124A is the only section in the chapter whose primary focus is on speech. It is keeping
this aspect in mind that the Supreme Court read down this provision in 1962 in Kedar Naths
case to read it in a manner consistent with the provisions of the Constitution which guarantee
freedom of speech. That freedom is subject to reasonable restrictions under Article 19(2). But
those restrictions can only be in the interests of sovereignty and the integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or
in relation to contempt of court, defamation or incitement to an offence. Since sedition was not
a ground on which freedom of speech could be restricted, the offence of sedition itself had to be
revisited in the light of the permissible restrictions under Article 19(2). And so, the Supreme
Court said in Kedar Naths case that mere speech would not be sedition if Section 124A was to
be sustained. There has to be an element of incitement to violence. If that was established, it
would lead to public disorder and would therefore not enjoy constitutional protection.20
In other words, disloyalty to Government established by law is not the same thing as
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 the those acts
or measure by lawful means that is to say, without exciting those feelings of enmity and
disloyalty which imply excitation to public disorder or the use of violence. This section requires
two essentials:19 (2003)8 SCC 461 at para 37
20 Id.

1. Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite


disaffection towards, the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written, or (ii) by signs, (iii) by
visible representation.21

Constitutionality of the Section 124-A:


The Court looked at the pre-legislative history and the opposition in the Constituent Assembly
debates around Article 19 of the Constitution. The new constitution of India envisaged a
parliamentary system of government. Criticism of the government by members of the opposition,
public and the press was to be an important part of the system22.
In such a situation it was felt to be appropriate that sedition be left out of Article 19(2), which
laid down the restrictions on the right to freedom and expression guaranteed in Article 19(1) (a).
However, this did not mean that seditious speech was within the ambit of the free speech right.
Due to the ambiguity in the meaning of sedition in the Code, the word itself was omitted from
the draft articles. Instead, certain terms such as security of the state, public order, and
incitement to offence were used to cover the same subject matter without the actual use of the
word sedition.23
Here, it noted that sedition had specifically been excluded as a valid ground to limit the freedom
of speech and expression even though it was included in the draft Constitution. 24 This was
indicative of a legislative intent that sedition not be considered a valid exception to this
21 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram
Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.
22 AIR 1942 FC 22
23 http://legalsutra.com/1025/sedition/; last visited on 30 July, 2016.

freedom.25As a consequence, sedition could only fall within the purview of constitutional validity
if it could be read into any of the six grounds listed in Article 19(2) of the Constitution. 26 Out of
the six grounds in Article 19(2), the Court considered the security of the state as a possible
ground to support the constitutionality of 124A of the IPC. 27 The Court made use of the
principle that when more than one interpretation may be given to a legal provision, it must
uphold that interpretation which makes the provision constitutional.28
The Constitution therefore attempts to strike a balance between individual rights and social
control. Article 19 of the Constitution gives various individual liberties to the individuals and
places restraints upon them in various clauses by law so that they do not interfere with the public
welfare and general morality.29 It is humbly submitted that where there arises a need to maintain
and preserve freedom of speech and expression, there also arises a responsibility on the part of
the state to place some curbs on the freedom for the maintenance of social order.
The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words of widest import,
wiz. In the interest of public order. Thereby including the legislative restrictions on freedom
of speech and expression. The court had further observed in the Kedar Naths case that the right
guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the
24 Kedar Nath v. State of Bihar, AIR 1962 SC 955, 30; See also Romesh Thappar v. Madras, AIR1950 SC 124
(per Sastri, J.: Deletion of the word sedition from draft Art. 13(2), therefore, shows that criticism of Government
exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom
of expression and of the press, unless it is such as to undermine the security or tend to overthrow the State. Further,
the court also observed that the Irish formula of undermining the public order or the authority of the State as a
standard to impose limits on the freedom of speech and expression had not found favour with the drafters of the
Constitution).

25 Kedar Nath v. Union of India, AIR 1962 SC 955, 29.


26 Id., 38.
27 Id.
28 Id., 39 (citing R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628).
29 51 Gopalan v. State of Madras, (1950) S.C.R. 88 (253-4)

purview of clause (2), to Art 19 which comprises (a) security of the State, (b) friendly relations
with foreign states, (c) public order, (d) decency or morality, etc.
In the case of State of Andhra v. McDowell & Co., 30 the Court held that a Court cannot sit in
judgment over the wisdom of the Legislature. Therefore usually the presumption is in the favor
of the Constitutionality of the statute and the onus to prove that it is unconstitutional lies upon
the person challenging it.31
When a law is impugned as having imposed a restriction upon a Fundamental Right, what the
Court has to examine is the substance of the legislation without being beguiled by the mere
appearance of the legislation.32 If the legislation indirectly or incidentally affects a citizens right
under Article 19(1) it will not introduce any infirmity to the validity of the legislation.33

Under Article 19(2), a restriction can be imposed in the interests of public order, etc. The
expression in the interests of gives a greater leeway to the legislature to curtail freedom of
speech and expression, for a law penalising activities having a tendency to cause, and not
actually causing public disorder, may be valid as being in the interests of public order.
However, the restrictions imposed must have a reasonable and rational relation with the public
order, security of state, etc.The word reasonable implies intelligent care and deliberation, that
is, the choice of a course which reason directs.34

30 State of Andhra v. McDowell & Co., A.I.R. 1996 S.C. 1628.


31 Charanjit Lal Chowdhary v. Union of India, A.I.R. 1951 S.C. 41.
32 Express Newspapers v. Union of India, A.I.R. 1958 S.C. 578; Bennett Coleman & Co. Ltd. v. Union of
India,A.I.R. 1973 S.C. 106.

33 Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554.


34 Janath Mosque v. Vakhon Joseph, A.I.R. 1955 T.C. 227 (F.B.).

In Municipal Committee v. State of Punjab, it was held that a law cannot be struck down as in
violation of a Fundamental Right merely on the ground that it is vague.35

Meaning of Criminal Conspiracy


The essence of the offence of conspiracy is the fact of combination by agreement. The agreement
may be express or implied, or in part express and in part implied. The conspiracy arises and the
offence is committed as soon as the agreement is made; and the offence continues to be
committed so long as the combination persists, that is until the conspiratorial agreement is
terminated by completion of its performance or by abandonment or frustration or however, it
may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more persons pursued the same unlawful object at the
same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect
an unlawful purpose. It is not, however, necessary that each conspirator should have been in
communication with every other.
Section 196 Cr.P.C
In view of section 196, Cr.P.C., 1973 no Court shall take cognizance of any offence punishable
under chapter VI or a criminal conspiracy to commit such offence except with the previous
sanction of the Central Government or of the State Govt. Section 196, Cr.P.C. reserves to the
State Govt. the power of determining whether cognizance shall be taken by the Court of any of
the offences enumerated in that Section.
When the question is only of the machinery for the institution of the proceedings and not of the
mischief which Section 196 is designed to prevent, it is a mere irregularity not an illegality
which would vitiate the proceedings.36

35 Municipal Committee v. State of Punjab, (1969) 1 S.C.C. 475.


36 http://www.rmlnlu.ac.in/webj/sedition.pdf; Ankur Gupta, B.A.LL.B (Hons.) III Year, Dr Ram
Manohar Lohiya National Law University, Lucknow; last visited on 25 July, 2016.

In Pastor P. Rajus37 case, this Court referred to the provisions of Chapter XIV and Sections 190
and 196 (1-A) of the CrPC and observed : There is no bar against registration of a criminal case
or investigation by the police agency or submission of a report by the police on completion of
investigation, as contemplated by Section 173 CrPC. If a criminal case is registered,
investigation of the offence is done and the police submits a report as a result of such
investigation before a Magistrate without the previous sanction of the Central Government or of
the State Government or of the District Magistrate, there will be no violation of Section 196(1-A)
CrPC and no illegality of any kind would be committed.
The Court then referred to some of the precedents including the judgment in Mohd. Khalids38
case and observed: It is necessary to mention here that taking cognizance of an offence is not
the same thing as issuance of process. Cognizance is taken at the initial stage when the
Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or
upon information received from any other person that an offence has been committed. The
issuance of process is at a subsequent stage when after considering the material placed before it
the court decides to proceed against the offenders against whom a prima facie case is made out.

37 (2006) 6 SCC 728


38 [1995] 1 SCC 684