IS IT TIME FOR INDIA TO REVIEW SECTION 124 -A OF INDIAN PENAL CODE?

ABSTRACT:

Free speech is an inseparable element of democracy, and any legislation which restricts free
speech beyond reasonable restrictions is working against the principle of democracy. Therefore,
law of sedition always triggers debates around the nation. Sedition is nowhere defined in any
law but finds its mention in the marginal note of Section 124-A of Indian Penal Code. The
sedition charges leveled against JNUSU President Kanhaiya Kumar, former Delhi University
professor SAR Geelani, actress turned politician Ramya and others has sparked off debate on
this very Section 124(A) of IPC that deals with Sedition. It has been observed that this section
has been often misused by both Central and State Governments to tackle opposition. Thus it is
high time for India to review this Colonial Section, which was once referred by Gandhiji as a
prince among the political sections of IPC, designed to suppress the liberty of the citizens. This
paper aims to analyze the defects in the implementation of sedition laws in India, study the
violation of freedom of speech in this context, compare the laws relating to sedition in other
common law countries, and suggest possible changes in the present law.

1. INTRODUCTION:

In law, sedition is defined as an overt conduct, such as speech and organization that tends toward
insurrection against the established order.1 Halsbury lays down that the essence of the offence of
treason lies in the violation of the allegiance owed to the sovereign.

In Indian Penal Code, Sedition is defined under Section 124-A. However Section 124-A was not
a part of the original IPC drafted in 1860. It was in year 1870 when Section 124-A was
introduced in IPC through an amendment.

Section 124- A reads as follows:

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

1
Sedition, available at: http://www.merriam-webster.com/dictionary/sedition (Visited on January 28, 2017).
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.2

The law of sedition as codified in India represents in substance. Other laws which deal with
sedition in India are as follows:

1. Criminal Procedure Code (CrPC), 1973: Section 95 of this Code gives government the right to
forfeit material punishable under Section 124-A.3

2. Unlawful Activities (Prevention) Act, 1967: It is an Indian law aimed at effective prevention
of unlawful activities associations in India. Its main objective is to make powers available for
dealing with activities directed against the integrity and sovereignty of India.4

3. Prevention of Seditious Meetings Act, 1911: This act criminalizes meetings likely to promote
sedition or disaffection.5

2. HISTORY OF SEDITION IN INDIA: FROM TILAK TO RAMYA

Section 124-A was incorporated in IPC in 1870. However, the significance of Section 124-A was
truly realized in the case of Bal Gangadhar Tilak. Justice James Strachey was asked by the
British government to preside over the sedition case filed against Bal Gangadhar Tilak, who
although was convicted in 1897, but was released in 1898. Tilaks counsel argued that the so-
called seditious articles written by Tilak were consistent with loyalty to the State. Justice
Strachey held that the term feelings of disaffection as used in Section 124-A meant hatred,
enmity, dislike, hostility, contempt and every form of ill-will to the government. The
Judicial Committee of the Privy Council upheld his interpretation.6

In 1898, Section 124-A was amended to reflect Justice Stracheys interpretation. The terms
hatred and contempt were included along with disaffection. Disaffection was also stated to
include disloyalty and all feelings of enmity. Tilak was again tried for sedition in 1908. Despite a

2
The Indian Penal Code, 1860 (Act 45 of 1860), s. 124-A.
3
Criminal Procedure Code, 1973 (Act 13 of 2013 [Amended]), s. 95.
4
Unlawful Activities (Prevention) Act, 1967 (Act 35 0f 2008 [Amended]).
5
Prevention of Seditious Meetings Act, 1911 (Act 10 of 1911).
6
V. Venkatesan, Sedition v. Free Speech Frontline, March 18, 2016.
spirited defense from Mohammad Ali Jinnah, his counsel then, the amended Section 124-A
helped the British judges to sentence Tilak to six years rigorous imprisonment with
transportation.7

In 1922, Mohandas Karamchand Gandhi was brought to court on charges of sedition. During the
trial Gandhi famously denounced the law against sedition in the court: Section 124-A under
which I am happily charged is perhaps the prince among the political sections of the IPC
designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by
the law. If one has no affection for a person, one should be free to give the fullest expression to
his disaffection, so long as he does not contemplate, promote or incite to violenceI hold it a
virtue to be disaffected towards a government, which in its totality has done more harm to India
than previous system. Judge Strangman acknowledged Gandhis stature and his commitment to
non-violence but still sentenced him to six years imprisonment under the law.8

The issue of sedition was anxiously discussed during the constituent assembly debates. On 29th
of April 1947, while laying out the Rights to Freedom of speech and expression, Sardar
Vallabhbhai Patel made an exception for seditious, obscene, blasphemous, slanderous, libelous
or defamatory language. The Communist Party of India leader, Somnath Lahiri opposed the use
of word seditious. However due to the efforts of K.M. Munshi, the word sedition was deleted
from the exceptions to the right to freedom of speech and expression under Article 19(2). The
word did indeed disappear from the Constitution, but Section 124-A stayed in the Indian Penal
Code.9

It can be termed as an upset because this very section of sedition should have died a natural death
in view of Article 13 of the Constitution of India, which states that all laws in force in the
territory of India immediately before the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this Part [Part 3], shall, to the extent of such
inconsistency, be void.10

7
Ibid.
8
Ibid.
9
Atul Dev, A History Of The Infamous Section 124A Caravan Magazine, February 25, 2016
10
The Constitution of India, art. 13.
However in the case of Tara Singh v. State of Punjab,11 section 124-A, of Indian Penal Code was
struck down as unconstitutional being contrary to freedom of speech and Expression guaranteed
under Art 19(1) (a). Further in the case of Ram Nandan v. State of U.P.,12 the Honorable High
Court held that Section 124-A imposed restriction on the freedom of speech which is not in the
interest of the general public and hence declared 124-A as ultra-vires. But this decision of the
Honorable High Court was overruled by the Honorable Supreme Court in the case of Kedarnath
Das v. State of Bihar,13 and held Section 124-A, intra vires. Apart from this, the constitutional
bench of Supreme Court defined the scope of sedition for the very first time in this case. Since
then this definition has been taken as precedent for all matters pertaining to Section 124-A. The
Court made a distinction between strong criticism of the Government from those words which
excite or incite to cause public disorder and violence. The Apex Court stated that out of six
grounds listed in Article 19(2), the 'security of the state' should be taken as a possible ground to
support the constitutionality of the Section 124A of the IPC and in this way the Supreme Court
of India narrowed the scope of sedition by stating that 'incitement of violence or public disorder'
should be there to apply sedition.14

While upholding the sedition law, Supreme Court said that it should be applied in cases where
accused person has intended to create public disorder. However, in carrying out arrests and
slapping charges, the police and their political masters have rarely, if ever, respected this
restriction. In the wake of the ruling against Binayak Sen, Veerappa Moily, then Law Minister,
had announced there was a need to review the sedition law. With the continuing misuse of the
law, there is only one reasonable course left and that is scrap it at once, and quickly.15

In recent years, those arrested on sedition charges include an actress, a cartoonist, an author, a
Gujarati caste-group leader, a Kerala man for a Facebook post and students cheering Pakistan in
a cricket match. Most of those charged were not violent or had not incited violence, a legal pre-
requisite for a sedition charge.

11
AIR 1950 SC 124.
12
AIR 1959 Alld. 101.
13
AIR 1962 SC 955.
14
Ibid.
15
Editorial, Sedition? Seriously? The Hindu, June 28, 2016 (Updated).
3. LAW OF SEDITION IN OTHER COUNTRIES:

Indias 146-year-old, colonial era sedition law which was once referred by Gandhiji as a prince
among the political sections of IPC, designed to suppress the liberty of the citizens has been
discarded by United Kingdom. However sedition by an alien (Resident but not a national of the
country) is an offence in United Kingdom.16

In Scotland, section 51 of the Criminal Justice and Licensing (Scotland) Act 2010 abolished the
common law offences of sedition and leasing-making with effect from 28 March 2011.17 South
Korea did away with its sedition laws during legal and democratic reforms in 1988. Whereas in
2007, Indonesia declared its sedition law as unconstitutional.

The US has a sedition law, promulgated 218 years ago but with many parts struck down over two
centuries. Germany keeps a sedition law on its books largely because of post-Nazi sensitivities.
Apart from that the countries which still holds on to sedition as a criminal act are Iran,
Uzbekistan, Malaysia, Saudi Arabia Sudan, Senegal and Turkey.18

4. CONCLUSION:

Section 124-A of the Indian Penal code, which is invoked even today in India to register cases of
sedition, was promulgated by an alien rule to suppress any possible revolt to its rule and regime
by dismissing any disaffection as sedition. It is retrogressive in nature and hence does not find
a reference in the Indian constitution- a document that provides its citizen equality, liberty
fraternity and establishes India as a welfare State. Sedition was dismissed as anachronistic by
the members of the Constituent Assembly. Hence, Section 124-A of the IPC needs to be
discarded.

In acknowledging the need for discarding the obnoxious laws of the British Empire still in force,
including the sedition law, the Government referred the issue for review by the 20th Law
Commission headed by Justice A. P. Shah in 2012. The Commission was mandated to review the

16
Coroners and Justice Act 2009, s. 73.
17
Criminal Justice and Licensing (Scotland) Act 2010, s. 51.
18
IANS, India shares sedition law with Saudi Arabia, Sudan, Iran, The Economic Times, Feb. 18, 2016.
criminal justice system, including Article 124-A. But the previous Commission could not submit
a report on the issue.

Sedition law has once again come under focus after the JNU row. This particular Section of the
IPC has been invoked with greater regularity in recent times leading to a debate on its possible
misuse to thwart genuine democratic protests and debates. It needs reconsideration, said the
newly-appointed 21st Law Commission Chairman Justice Balbir Singh Chauhan but asserted
that the panel will not jump to any conclusion before hearing out stakeholders.

While we need to keep our fingers crossed till the recommendations of the 21st Law
Commission is out, there can be no dispute to the fact that Section 124-A of the IPC has outlived
its utility. It was an effective tool of control and repression during the colonial era and can never
be regarded as a progressive law in a welfare State. It therefore needs a silent burial in the
democratic India of 21st century.