Use and misuse of Sedition law: Section 124A of IPC

In recent times, there has been an increase in the instances in which sedition charges were
pressed against intellectuals, human rights activists, filmmakers, university teachers, students,
and journalists.
Origin of sedition law in modern India
 The law was originally drafted in 1837 by Thomas Macaulay, the British historian-politician, but
was inexplicably omitted when the IPC was enacted in 1860.
 Section 124A was inserted in 1870 by an amendment introduced by Sir James Stephen when it
felt the need for a specific section to deal with the offence, as a response to the rising Wahabi
movement. It was one of the many draconian laws enacted to stifle any voices of dissent at that
time.

What is sedition?
124ASedition.--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, 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.

Initially, the section only used the term “disaffection", which was interpreted by colonial judges
to refer to acts or speeches that incited people to disobey the government. However, once the
British realized that clever Indian nationalists were taking advantage of the loophole in the law to
frame incendiary speeches that made no mention of disobedience, they added the words “hatred"
and “contempt", more or less turning the offence into one for capturing thought crimes.

Left ambiguous and vague, the law of sedition came to good use for the country‟s rulers as a
method of crowd control, in a way. Open to ambiguous interpretation with an added clause, it
was used to famously smack down the „dissenting‟ Bal Gangadhar Tilak, and later, in
prosecuting Mahatma Gandhi in 1922. “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,” said Mahatma Gandhi, in response to the charges against him, and he couldn‟t have
been more correct.

Sedition and Article 19 of Constitution of India

Article 19 of Constitution of India provides that:-

Art 19(1)All citizens shall have the right (a) to freedom of speech and expression;

(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable restrictions on
the exercise of the right conferred by the said sub clause in the interests of the sovereignty and
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
 Sedition and Art 19 during Constituent Assembly debates
Despite the widespread opprobrium and contempt in which sedition was held, as a tool of the
colonial rulers, in a rather surprising turn of events, the Fundamental Rights Sub-Committee of
the Constituent Assembly expressly included it as grounds for restricting free speech in its first
draft of the fundamental rights. The Assembly objected strongly, with Somnath Lahiri
sarcastically asking Sardar Vallabhbhai Patel whether he needed even more protection from his
own people than the tyrannical British did. The next day, sedition was quietly removed from the
draft, only for it to make another appearance during the second reading of the Constitution. Once
again, the Assembly protested vehemently, with many members recalling their own prosecutions
during the nationalist movement; and once again, it was swiftly withdrawn. When Article
19(1)(a) finally came into being, “sedition" was not among the permissible restrictions under
Article 19(2).

Arguments in support of Section 124A:

 Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist
elements
 It protects the elected government from attempts to overthrow the government with violence and
illegal means. The continued existence of the government established by law is an essential
condition of the stability of the State
 If contempt of court invites penal action, contempt of government should also attract punishment
 Many districts in different states face a Maoist insurgency and rebel groups virtually run a
parallel administration. These groups openly advocate the overthrow of the state government by
revolution
 Against this backdrop, the abolition of Section 124A would be ill-advised merely because it has
been wrongly invoked in some highly publicized cases

Arguments against Section 124A:

 Section 124A is a relic of colonial legacy and unsuited in a democracy. It is a constraint on the
legitimate exercise of constitutionally guaranteed freedom of speech and expression.
 The British, who introduced sedition to oppress Indians, have themselves abolished the law in
their country. There is no reason, why should not India abolish this section.
 The terms used under Section 124A like 'disaffection' are vague and subject to different
interpretation to the whims and fancies of the investigating officers.
IPC and Unlawful Activities Prevention Act have provisions that penalize "disrupting the public
order" or "overthrowing the government with violence and illegal means". These are sufficient
for protecting the national integrity. There is no need for Section 124A.
 Dissent and criticism of the government are essential ingredients of robust public debate in a
vibrant democracy. They should not be constructed as sedition. Right to question, criticize and
change rulers is very fundamental to the idea of democracy.

Development in 1979
India ratified the International Covenant on Civil and Political Rights (ICCPR), which sets forth
internationally recognized standards for the protection of freedom of expression.

What is the viewpoint of the Law Commission of India?

 In its 39th Report (1968), the Law Commission had rejected the idea of repealing the section.
 In its 42nd Report (1971), the panel wanted the scope of the section to be expanded to cover the
Constitution, the legislature and the judiciary, in addition to the government to be established by
law, as institutions against which 'disaffection' should not be tolerated.
 In August 2018, the Law Commission of India published a consultation paper recommending
that it is time to re-think or repeal the Section 124A of the Indian Penal Code that deals with
sedition.
 In the recent consultation paper on the sedition, the Law Commission has suggested
invoking 124A to only criminalize acts committed with the intention to disrupt
public order or to overthrow the Government with violence and illegal means.
People should be at liberty to show their affection towards their country in their own
way. For doing the same, one might indulge in constructive criticism or debates, pointing
out the loopholes in the policy of the Government.

The consultation paper adds expressions used in such thoughts might be harsh and unpleasant to
some, but that does not render the actions to be branded seditious. Section 124A should be
invoked only in cases where the intention behind any act is to disrupt public order or to
overthrow the Government with violence and and illegal means.

Every irresponsible exercise of right to free speech and expression cannot be termed seditious.
For merely expressing a thought that is not in consonance with the policy of the Government of
the day, a person should not be charged under the section.

Landmark judgements
I. The Queen-Empress vs. Bal Gangadhar Tilak (1897)
Bal Gangadhar Tilak, staunch advocate of India‟s freedom was charged with sedition on two
occasions. The first in 1897 for speeches that allegedly incited the violent behaviour of others,
which resulted in the death of two British officers. He was convicted and released on bail in
1898, and in 1909 prosecuted again for seditious writing in his newspaper Kesari. Incitement to
violence and insurrection was immaterial in the eyes of the presiding Privy Council in
regards to the culpability of a person that’s been charged with sedition.

II. Kedar Nath Singh vs. State of Bihar (1962)

This was a landmark case, the first case of sedition tried in the court of Independent India, where
the constitutionality of the very provision was challenged and the Supreme court clearly
differentiated between disloyalty to the country‟s government and commenting on the measures
of the government without inciting public disorder by acts of violence.

The Supreme Court imposed a narrower scope of interpretation, holding only those matters that
had the intention or tendency to incite public disorder or violence as legally seditious.

III. Dr. Binayak Sen vs. State of Chhattisgarh (2007)

Dr. Binayak Sen was charged for sedition, amongst other things, for allegedly aiding naxalites,
and sentenced to life imprisonment at the Session Court in Raipur. He was accused of helping
insurgents, who were very active in the region at the time, by passing notes from a Maoist
prisoner that was his patient to someone outside the jail. Denying all charges against him, Dr.
Sen stated he was under the constant supervision of prison officials during his treatments so such
an action would not be possible. It was his criticism of the killings committed by a vigilante
group that prompted his arrest and subsequent accusations, Dr. Sen stated to The Wall Street
Journal. Salwa Judum, is the group he‟s referring to, designed and supported by the state
government of Chhattisgarh to curb the insurgency in the villages of indigenous tribes where it
thrived, according to them. But Dr. Sen, who‟s a human-rights activist apart from being a
paediatrician, claims that the groups real job‟s to clear village land thats rich in iron ore, bauxite
and diamonds for it to be quarried.

His arrest gained a lot of international attention, and the U.S.-based Global Health Council
awarded Dr. Sen its 2008 Jonathan Mann Award for global health and human rights in
recognition of his services to poor and indigenous communities in India. In May later that year,
22 Nobel laureates sent a letter to the Indian government criticizing the incarceration and asking
that he be released to receive the award in person. “We also wish to express grave concern that
Dr. Sen appears to be incarcerated solely for peacefully exercising his fundamental human
rights…and that he is charged under two internal security laws that do not comport with
international human rights standards,” they said in the letter.

IV. Aseem Trivedi vs. State of Maharashtra (2012)

Controversial political cartoonist and activist, Aseem Trivedi, best known for his anti-corruption
campaign, Cartoons Against Corruption, was arrested on charges of sedition, in 2010. The
complaint, filed by Amit Katarnayea who is a legal advisor for a Mumbai-based NGO,
condemns Trivedi‟s display of „insulting and derogatory‟ sketches, that depicted the Parliament
as a commode and the National Emblem in a negative manner having replaced the lions with
rabid wolves, during an Anna Hazare protest against corruption, as well as posting them on
social networking sites.

As reported by India Today, members of India Against Corruption (IAC) claimed that the cases
were foisted on Trivedi by the government, as the government was angry with their anti-
corruption crusade. Mayank Gandhi of the IAC said, “The case has been registered simply
because Aseem had participated in the BKC protest organized by Anna Hazare and had raised
his voice against corruption. So the government is trying to scuttle his protest in this manner.”
Trivedi‟s case seriously questioned freedom of speech and expression in the country we a young
man got arrested for lampooning evident corruption in the country. It‟s acceptable that some may
find his cartoon offensive and in bad taste, but sentencing a person to life in prison for such an
act is too extreme.

V. Shreya Singhal vs. Union of India (2012-15)

This case is monumental in India‟s jurisprudence as its judgement took down Section 66A of the
IT Act, sought to be in violation of Article 19 (1) of the Constitution of India that guarantees the
right to freedom of speech and expression to all citizens. A student of law at the time, Shreya
Singhal filed a petition in 2012 seeking an amendment in the section 66A, triggered by the arrest
of two young girls in Mumbai, for a post on Facebook that was critical of the shutdown of the
city after the death of Shiv Sena leader, Bal Thackeray; one of them posted the comment, the
other merely „liked‟ it.
What‟s critical about this judgement is the court‟s ruling that a person could not be tried for
sedition unless their speech, however “unpopular,” offensive or inappropriate, had an established
connection with any provokation to violence or disruption in public order. The Supreme Court
distinguished between “advocacy” and “incitement”, stating that only the latter is punishable by
law. The Supreme Court judgement came after three years of the petition‟s filing in 2015, but
Shreya did not deter. “I did feel saddened in between but never lost hope. I was also hurt to see
that despite the matter pending before the SC, police continued to arrest people under section
66A of the IT act. What was heartening was that the arrests did not deter people from posting
comments,” Shreya told Hindustan Times.

Common Cause & Another V. Union of India

Writ Petition (Civil) No. 683 Of 2016. 05-09-2016
Heard Mr. Prashant Bhushan, learned counsel for the petitioners.

2. In this Public Interest Litigation, the petitioners have prayed for the following reliefs :

“a. Issue an appropriate writ making it mandatory for the concerned authority to produce a
reasoned order from the Director General of Police (DGP) or the Commissioner of Police, as the
case may be, certifying that the 'seditious act' either lead to the incitement of violence or had the
tendency or the intention to create public disorder, before any FIR is filed or any arrest is made
on the charges of sedition against any individual.
b. Issue an appropriate writ directing the Ld. Magistrate to state in the order taking cognizance
certifying that the “seditious act” either lead to the incitement of violence or had the tendency or
the intention to create public disorder in cases where a private complaint alleging sedition is
made before the Ld. Magistrate.

c. Issue an appropriate writ directing for a review of pending cases of sedition in various courts
to produce an order from the DG or Commissioner of Police, as the case may be, certifying that
the “seditious act” either lead to the incitement of violence or had the tendency or the intention to
create public disorder in cases.

d. Issue an appropriate writ directing that investigations and prosecutions must be dropped in
cases where such a reasoned order as prayed for in Prayers (a), (b) and (c) is not provided and
the act in question involved peaceful expression or assembly.”

3. Having heard Mr. Prashant Bhushan, learned counsel for the petitioners, we are of the
considered opinion that the authorities while dealing with the offences under Section 124A of the
Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in
Kedar Nath Singh v. State of Bihar [1962 (Suppl.) 3 SCR 769].

4. Except saying so, we do not intend to deal with any other issue as we are of the considered
opinion that it is not necessary to do so.

5. The writ petition is accordingly disposed of.

Sedition case against Shaheen Bagh protest mastermind Sharjeel Imam for 'cut Assam
from India' remark
UP and Assam police on Saturday booked JNU student Sharjeel Imam for sedition, days after the
the purported video of a speech he had delivered at Aligarh Muslim University on January 16
against the Citizenship Amendment Act and NRC went viral on social media

Delhi government has given its sanction for chargesheet against Kanhaiya Kumar in JNU
sedition case.

Kapil Mishra BJP leaders speech

Acase was filed on Thursday against BJP leader Kapil Mishra in a Muzaffarpur court in Bihar
for allegedly making inflammatory speeches that led to riots and arson in Delhi which claimed
38 lives and left over 200 dead.
Chief Judicial Magistrate Mukesh Kumar posted the matter for hearing on March 12, two days
after Holi.
In his petition, M Raju Nayyar, who claims to be a social worker and a resident of the
Muzaffarpur town, said the BJP leader had allegedly made an inflammatory speech at a public
meeting on February 23 in Jafarabad area of Delhi in which he asked policemen to vacate a road
blocked by anti-CAA protesters.
The petitioner claimed that the BJP leader had told the policemen that if they could not get the
road cleared, he would get it done with the help of his supporters.
The complaint has been filed under various sections of the Indian Penal Code (IPC) dealing with
sedition, murder, attempt to murder, cheating, criminal conspiracy and assault or criminal force
to deter public servant from the discharge of his duty.
The Kerala Police has filed an FIR against Zee News Editor-in-Chief Sudhir Chaudhary
after a complaint which accused him of offending religious beliefs.
The FIR, filed under the non-bailable section 295A of the Indian Penal Code, says, “On March
11, 2020, the accused aired content on his show DNA on Zee TV, which insulted the Muslim
community.”

Disha Ravi v State 2021

Ravi, 22, was arrested on February 15 for editing a „toolkit‟ document which contained resources
on how to gather attention for the farmers‟ protests on Delhi‟s borders.
Ravi was given bail on condition of furnishing two sureties of Rs 1 lakh each. Advocate Abhinav
Sekhri, who represented Ravi requested the judge to consider making the amount Rs 50,000.
The court, however, refused.
LiveLaw has reported that in its order, the court said, “Considering the scanty and sketchy
evidence available on record, I do not find any palpable reasons to breach the general rule of
„Bail‟ against a 22 years old young lady, with absolutely blemish free criminal antecedents and
having firm roots in the society, and send her to jail.”