ILI Law Review Summer Issue 2020

THE CRIME OF SEDITION IN INDIA: AN ARCHAIC COLONIAL REPRESSION–

IS STRINGENCY ENSLAVING THE RIGHT TO FREE SPEECH?

Aditi Richa Tiwary ∗

Abstract

Freedom of speech and expression forms a significant part of the fundamental rights guaranteed by the
Constitution of India. Considering the massive progress in thought and expression of individuals, and the
resultant manifestation in Indian laws, there is little scope for archaic and repressive British legacies to
persist. However, neither the Parliament, nor the states legislatures ruled by different ideologies, ever
attempted to remove the archaic offence of sedition, manifested in many laws in multiple forms. It is
interesting to note that the constituent assembly did not intend to restrict the freedom of speech and
expression in such stringent forms, though it did not favour absolutism of freedom like those of the United
States. Further, sedition, as an offence has been abolished in 2009in the United Kingdom(UK) itself,
along with a message by the Parliament, for other nations to do so, and embrace freedom of speech and
expression in its true sense, though it is argued that the UK has incorporated far more stringent laws in its
counter terror legislations The present work revisits the constituent assembly debates in relation to freedom
of speech and expression, continued by the judicial trends in relation to the balance between freedom of
speech and reasonable restrictions, thereby narrowing the scope of sedition. Further, statistics reflecting
massive differences between arrests and convictions have been depicted, to represent the minimal utility
of such offences, which only leads to discomfort to citizens, curbing their right to free speech and
expression. The journey of such laws in the UK, from their rise to abolition, has also been explicated. The
work, wholesomely aims to inquire whether sedition such a law should be retained or repealed.

I. Introduction
II. Legislations criminalising sedition in India
III. Revisiting Constituent Assembly Debates - The genesis of Right to Free
Speech and Expression in India
IV. Explicating the Judicial Trends in Relation to the Crime of Sedition
V. Significant Incidents and Statistics in relation to the Crime of Sedition
in India
VI. Fate of Sedition in the United Kingdom
VII. Conclusion

∗
IIIrd year Student, B.A. LL.B. (Hons.), Dharmashastra National Law University, Jabalpur.
The present article has been penned down by the author during the course of her research internship in ILI under
the profound guidance of Anurag Deep, Associate Professor of Law, ILI, New Delhi.
ILI Law Review Summer Issue 2020

I. Introduction

SEDITION IN India is considered as an offence even after the Constitutional provisions

guaranteeing freedom of speech and expression. This law was brought in colonial India by
British to curb those activities of the Indian population that could criticise the misgovernance
by the Crown. One of the dominant purposes of section 124A was to strengthen colonial rule
and to suppress the voice of Indian people. However, in contemporary India, while determining
the fate of a citizen in terms of freedom of speech, the offence of sedition and other related
offences play a crucial role. The balance between the fundamental right to speech and
expression, and the offence of sedition can be contemporarily observed to incline towards the
latter, and consequently, a significant dilution of the right to free speech and expression is
observed. Such dominance by state in the arbitrary use of section 124A against the citizenry is
gradually leading to a defeat of the idea of the constitutional framers.

The Indian state, on the other hand is adamant in this regard, and is reluctant to accept any view
on changing the penal laws of sedition. The state and a substantially large group of experts
claim that sedition type lawis essential for the unity and integrity of India. Such laws exist, as
long as the nation persists. Absence of such laws would make the nation vulnerable, and prone
to anti-national activities, which may later take an unprecedented shape, threatening national
unity.

It is logical to think that colonial India was exceedingly different from contemporary India in
terms of rights, duties and powers of state. Such laws imposing stringent restrictions on
freedom of speech and expression are mere carriers of the dark colonial past, which thwarts the
conscience of free individuals. The developed states, including UK no more recognise such
regressive laws, but India, where individual liberty thrives at the core of the Constitution, has
not yet manifested its intent of revisiting the laws declaring sedition a crime. However, it is
equally true that the UK has repealed the law on sedition only after controlling the seditious
tendencies (like those of Irish Republican Army)1 while India is still struggling in a couple of
regions.

Taking into account the reports of Law Commissions, 39th and 42nd report of the Law
Commission of India aimed at retaining the provision. 39th Law Commission Report aimed at

1
Paul Arthur, Kimberly Cowell-Meyers, “Irish Republican Army”, Britannica, available at
https://www.britannica.com/topic/Irish-Republican-Army (last visited on June 18, 2020).
ILI Law Review Summer Issue 2020

retaining the punishment of life imprisonment for the offence of sedition, 2 whereas the 42nd
Law Commission Report aimed at extending the scope of government to include executive and
judiciary too. 3

However, a positive transformation can be witnessed. The Law Commission of India, in its
267th report,4 and the recent consultation paper published on sedition in the year 2018, 5 sought
to restrict the wide scope of the term section 124A, by including only those cases within the
meaning of sedition, where there is incitement of violence, with a specific intent to disrobe the
government in power. Fact remains that the Law Commission of India, unlike the Law
Commission of England has never suggested the repeal of sedition laws.

Further, contemporary youth can be seen to strongly advocate the right to free speech and
expression. 6 The constitutionality of free speech and expression, superseding unnecessary
curbs of sedition is strongly agreed by many writers of contemporary popularity, especially
among youth.7Further, some authors are of the firm view that there needs to be a
reconsideration of the contemporary executive actions curbing free speech, especially those
that relate to such strong allegations as those of sedition. On a stark comparison with such laws
in developed nations, possessing a liberal and democratic setup, as that of India, the Indian
laws relating to sedition appear to be excessively stringent, and at times unreasonable. 8 Such
authors can be seen to firmly oppose the contemporary use of laws relating to sedition, as this
misuse leads to an inevitable restraint on freedom of speech.

However, the suggestions have not yet been taken into account. This again reflects the
reluctance on the part of the legislature to accept a liberal outlook of the freedom of speech and
expression.

II. Legislations Criminalising Sedition in India

2
Law Commission of India “39th Report on punishment of imprisonment for life under the Indian Penal Code”
(July,1968).
3
Law Commission of India “42nd Report on the Indian Penal Code 1860” (June, 1971).
4
Law Commission of India, “267th Report on Hate Speech” (March, 2017).
5
Law Commission of India, “Consultation Paper on ‘Sedition” (August 30, 2018).
6
Hammurabi Tablet, Freedom of Speech & Expression: Rendezvous with Abhinav Chandrachud, 2017, available
at :https://www.youtube.com/watch?v=LNsgpHrxwig (last visited on May 20, 2020).
7
Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (Oxford Scholarship
Online, Oxford, United Kingdom, 2016).
8
Anushka Singh, Sedition in Liberal Democracies (Oxford University Press, New Delhi, 2018).
ILI Law Review Summer Issue 2020

The primary legislation criminalising sedition in India is the Indian Penal Code, 1860. Section
124A of the Code defines sedition, and mentions the punishment associated with the same. The
core elements of sedition are bringing or attempting to bring contempt, hatred or disaffection
towards the government. Further, the explanations to the section clarify that mere
disapprobation of measures or actions of government, intended to bring a constructive change
by lawful means, without arising feelings of hatred, contempt or dissatisfaction does not
amount to sedition. Following is the language of the section: 9

“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.”

Further, section 95 of the Code of Criminal Procedure, 1974 empowers the government to
forfeit any publication if it is found to be inappropriate. The grounds of forfeiture have been
explicated further, where sedition, as described in section 124A is the first ground of such
forfeiture. Following is the language of the relevant part of the section:

“Where-

(a) any newspaper, or book, or

9
The Indian Penal Code, 1860 (Act 45 of 1860), s. 124A.
ILI Law Review Summer Issue 2020

(b) any document, wherever printed, appears to the State Government to contain
any matter the publication of which is punishable under section 124A of the
Indian Penal Code (45 of 1860 ), the State Government may, by notification,
stating the grounds of its opinion, declare every copy of the issue of the
newspaper containing such matter, and every copy of such book or other
document to be forfeited to Government, and thereupon any police officer may
seize the same wherever found in India and any Magistrate may by warrant
authorise any police officer not below the rank of sub- inspector to enter upon
and search for the same in any premises where any copy of such issue or any
such book or other document may be or may be reasonably suspected to be. 10”

Another Act is the Unlawful Activities (Prevention) Act, 196711 (UAPA), which criminalises
events or actions aimed against the sovereignty, unity and integrity of India. There have been
a series of amendments to the Act, which have added to its stringency, and widened the scope
of state to restrict such activities.

Further, there is Prevention of Insults to National Honours Act, 197112 which curbs the right
to free speech and expression if it violates the dignity of the nation. The Act also mentions
draping of national flag in any form, embroidery on the flag, cushioning of flag, wearing of
tricolour, covering speaker’s desk with tricolour, or even printing of tricolour on handkerchiefs
as a disrespect of national flag.The term flag includes any picture, photograph, or drawing of
national flag. The Act imposes a maximum penalty of three years, or fine, or both. 13
However, even after the presence of multiple legislations criminalising sedition in addition to
the above mentioned laws, the definition, substance and content of section 124A of the Indian
Penal Code remains the primary law penalising the offence of sedition. Further, the
constitutionality of every law curbing free speech and expression under the garb of declaring
it seditious stems from the fact that it is considered to be a reasonable restriction, whenever
questioned in the court of law. Therefore, it is essential to revisit the essence of such restrictions
by resorting to constituent assembly debates.

10
The Code of Criminal Procedure, 1974 (Act 2 of 1974), s. 95.
11
The Unlawful Activities (Prevention) Act, 1967 (Act 37 of 1967).
12
The Prevention of Insults to National Honours Act, 1971 (Act 69 of 1971).
13
Id., s.2.
ILI Law Review Summer Issue 2020

III. Revisiting Constituent Assembly Debates - The genesis of Right to Free Speech and
Expression in India

Whenever it comes to defining the freedom of speech in India, or striking a balance between
restrictions and rights, constituent assembly debates are the best resort. Such an approach is
also called “originalist approach”. This is simply because the founding fathers of the
Constitution, with utmost deliberation have manifested the framework of rights of citizenry
and the state. This manifestation is always relevant, as it reflects the intention of the framers of
the Constitution while conferring these rights to state and citizenry. Further, these debates assist
in drawing logical justifications of any power conferred upon citizens or state.

As far as the freedom of speech and expression in the Indian Constitution is concerned, charting
out the logic behind the conferred powers and restrictions becomes equally pertinent, to
ascertain the scope of curtailment of these rights by the state.

In India, article 19(1) (a) confers the freedom of speech and expression to the citizens, and
clause 2 of the same deals with reasonable restrictions to be imposed on such a right. The
grounds of reasonable restrictions on such freedom are sovereignty and integrity of India,
security of state, friendly relation with foreign states, public order, or decency or morality or
in relation to contempt of court, defamation or incitement of offence.14

However, it is crucially important to note that sedition was one of the grounds in the
earlier version of the article. Before beginning of debate in relation to the
restrictions, the draft in relation to the restrictions read as the following: 15

“Nothing in sub-clause (a) of clause (1) of this article shall affect the
operation of 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.”

Thereafter, significant deliberation was done in relation to the restrictions that could be
imposed to curb freedom of speech and expression. Sedition was removed as a ground to

14
The Constitution of India, art . 19(2).
15
Draft Constitution of India, art. 13(2).
ILI Law Review Summer Issue 2020

restrict free speech and expression after relevant discussion. It, therefore, becomes significant
to revisit the discussion in the constituent assembly.

On December 1, 1948, Shri Damodar S. Seth16 mentioned that if sedition is provided as a

ground to curb free speech and expression, then all the regressive Acts such as the Official
Secrets Act, 1923 will remain intact. He further says that the freedom of speech and expression,
which includes the freedom of press, will become virtually ineffective if sedition is mentioned
as a ground for restriction of freedom of speech and expression.

Further, Shree K.M. Munshi 17 referred many incidents where mere criticism of government, or
holding an ill-will against the government was termed as sedition. He went on to say that in a
democracy, such terms are unwelcome, as criticism of government forms the foundation of a
democratic setup of State.

The arguments of Sardar Hukum Singh18 are very pertinent in this respect. He stated points
which emphasized the role of judiciary. He mentioned that the restrictions on the freedom of
speech and expression that are being proposed in our constitution have been borrowed from
those countries where judiciary works under the principle of ‘due process of law’, and
consequently, it has the power to adjudicate any legislation based on its merits. However, in
India, the principle of ‘procedure established by law’ is followed, and the powers of judiciary
are only restricted to the point of determining whether there is a law relating to sedition or not,
if freedom of speech and expression of an individual is sought to be curbed. If there is a law,
then the hands of the judiciary would be tied enough to be restricted and to adjudicate according
to that law which curbs such freedom. Such a setup was therefore found unsuitable for a
political structure as that of India.

Consequently, the term ‘‘sedition’’ and ‘‘public order’’ were removed from the grounds
mentioned to restrict free speech in the Constitution. Further, to increase the ambit of the
judiciary in matters of restriction of rights to freedom enshrined in the constitution, the term
‘reasonable restrictions’ was added, as proposed by Shri Das Bhargava. 19 This ensured a wide

16
Constituent Assembly Debates on Dec. 1, 1948 available at
:https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-01 (last visited on May
8, 2020).
17
Id. at 7.64.167-7.64.168 .
18
Id. at 7.64.176-7.64.180 .
19
Id. at 7.64.228 .
ILI Law Review Summer Issue 2020

ambition to the judiciary, which was otherwise not possible because of the limited reach of the
principle of ‘procedure established by law’, as against ‘due process of law’.

Therefore, the reasonability was now to be decided by the judiciary. If a law was found to be
unreasonably restricting freedom of individuals, it could be declared unconstitutional.
Therefore, even the legislature agreed that the power to restrict such a crucial right as that of
freedom of speech and expression should rest with judiciary, not with legislature,20 to ensure
the rule of law.

IV. Explicating the Judicial Trends in Relation to the Crime of Sedition

The constitutionality of laws relating to sedition have been challenged in the apex court
multiple times, however, the same series of precedents are relied upon, and there has been no
attempt to view the term ‘sedition’ from the dynamic perspective of social change. There are
some cases that form the series of determination of the constitutionality of legislations relating
to sedition. These cases reflect the judicial trend in relation to the freedom of speech and
expression, and the ‘reasonable restrictions’ associated. These are also helpful in determining
when ‘reasonable restrictions’ can be used as a ground to restrict free speech and expression.

The first case is that of Brij Bhushan v. State of Delhi. 21In the present case, constitutionality of
section 7(1)(c) of the East Punjab Public Safety Act, 1949 was challenged. The Supreme Court
held (5:1) that the provision was unconstitutional, because “sedition” and affecting public
tranquillity are different terms, and the disturbance of public order and tranquillity does not
necessarily mean that it is seditious, hence, a prior restraint cannot be imposed on the
publications. Those days “public order” was not one of the restrictions under article 19(2).
Therefore, the apex court for the want of restriction like “public order” considered the
protection of right to free speech to occupy greater importance over restrictions imposed by the
State to curb the same.

Second case is the case of Romesh Thappar v. State of Madras. 22 Constitutionality of section
9(1-A) of the Madras Maintenance of Public Order Act, 1949 was challenged, and the provision
was declared unconstitutional, where the court held (5:1) that unless a law restricting freedom

20
Ibid.
21
1950 SCR 605. In the present case, the petitioners were printers and publishers of an English weekly newspaper
in Delhi, and they prayed for removal of unnecessary restraints which the mentioned sections of the mentioned
Act imposed. The cases mentioned subsequent to this case also have similar facts, where there is a tussle between
the right to freedom of speech and expression of individuals, and the authority of the state to restrict the same.
22
1950 SCR 594.
ILI Law Review Summer Issue 2020

of speech and expression is directed solely against the undermining of the security of State
under article 19(2) of the Indian Constitution, such law cannot be declared to be seditious.
Restrictions on free speech based on disturbance of public order could not be sustained because
“public order” was not a part of article 19(2). Hence, the impugned provision was declared
unconstitutional. The Supreme Court gave greater importance to free expression than to
restrictions which the legislation aimed at imposing, under the garb of sedition.

Third case in the series of cases is the most significant one, the case of Kedar Nath v. State of
Bihar. 23 It forms the primary precedent which is relied not only to adjudicate events of sedition,
but also to define the essence of section 124A of the Indian Penal Code, 1860. The
constitutionality of sections 124-A of IPC and section 505 of IPC was challenged, as it was
contended by petitioners that these sections were against article 19(1) (a) of the Indian
constitution.The constitution bench of Supreme Court unanimously held that it is the security
of the State, which depends upon the maintenance of law and order and is the very basic
consideration upon which legislation, with a view to punishing offences against the State, is
undertaken. Such legislation has to fully protect and guarantee the freedom of speech and
expression, which is the sine qua non of a democratic form of Government that our Constitution
has established. It was also held that such a restriction is necessary for the safety and integrity
of the State. Accordingly, the Supreme held that sections 124-A and 505 of the Indian Penal
Code were within constitutional limitations considering article 19(1) (a) read with article 19(2),
only if it is suitably read into with “tendency test”

It was, therefore, held that the offence of ‘sedition’ under section 124A does need incitement
to violence or tendency or intention to create public disorders by words spoken or written,
which have the effect of bringing the government established by law into hatred or contempt
or creating disaffection in the sense of disloyalty to the state. In other words, actual violence
or disorder is not required for attracting section 124A.

Next significant case is the case of Balwant Singh v. State of Punjab. 24 In this case, applicability
of sections 124A and 153A was discussed. The Supreme Court held that raising casual slogans
by two individuals a couple of times without any other overt act and without intention to create
disorder or to incite people to violence, does not attract sections 124A and 153A. However, if
public disorder with an intent to incite violence is given way, then such slogans are

23
1962 Supp 2 SCR 769.
24
(1995)3 SCC 214.
ILI Law Review Summer Issue 2020

unconstitutional. Moreover, if the slogans are not casual but serious in nature, and are not
spoken a couple of times but many times, the precedent of Balwant Singh will have little
persuasive force. Balwant Singh case does not legitimize all types of slogans against the
country.

Further, in the case of Common Cause v. Union of India,25 it was held that authorities, while
dealing with the offences under section 124A of the Indian Penal Code, will be bound by the
principles laid down in the Kedar Nath Singh v. State of Bihar 26 case, and sedition charges
cannot be invoked merely for criticising the government.

It is, therefore, important to consider that once an overwhelming material on record is available
to establish the fact that there has been an attempt to create disaffection for the established
government, coupled with an intention or tendency of creating public disorder or violence, only
then can the charges of sedition stand in the court of law. In all other cases, however, strong
disapprobation towards government is expressed; it does not amount to sedition if it does not
intentionally incite contempt, dissatisfaction or hatred towards the government, along with a
tendency to arise violence.

However, the executives are reluctant to accept the true definition and scope of the term
sedition. Many cases reflect a misuse of the section, and there can be seen a rise in registration
of cases relating to sedition under section 124A, regardless of the specific definition and scope
decided by the judiciary.

V. Significant Incidents and Statistics in relation to the Crime of Sedition in India

As far as the crime of sedition is concerned, there is a rise in statistics of arrest across the years,
as reported by the National Crime Records Bureau.Before getting into the statistical
elucidation, it is significant to remember, that there have been cases registered against Indian
freedom fighters like Bal Gangadhar Tilak, Mahatma Gandhi, Annie Besant, Hedgewar27under
section 124A IPC, or under other laws for their actions against the British government.
However, as far as the contemporary arrests are concerned, writers of repute, famous

25
(2016) 15 SCC 269.
26
Supra note 23.
27
Rajiv Tuli, “RSS imprint on India is deep, yet its founder Hedgewar is unknown to most Indians”, The Indian
Express, March 25, 2020, available athttps://indianexpress.com/article/opinion/columns/rss-founder-keshav-
baliram-hedgewar-swayam-sevaks-6330087/( last visited on June 18,2020).
ILI Law Review Summer Issue 2020

cartoonists, public spirited social workers, political leaders, media reporters, and even
students 28 can be easily observed to be restricted by the extravagant scope of this law.

To explicate recent instances, on October 2019, an FIR was lodged on the order of the
subordinate court against 49 celebrities in India, including celebrities, writers and social
workers of immense repute such as Mani Ratnam, Shyam Benegal, Ramchandra Guha etc, for
writing to the Prime Minister against the mob-lynching incidents that were being observed
frequently throughout the nation.29 The reasons mentioned sedition as the primary offence
committed by them. This was completely disregardful of the Supreme Court stance that
sedition charges could only be framed when there is presence of specific intention to overthrow
the government violently.30 As there is no evidence found to provide basis for sedition against
those 49 celebrities, a closure report post investigation was filed. 31 This meant that all the
complaints were false, and were an unnecessary effort to pester those celebrities, suffocating
their right to speak. Similarly section 124A was imposed on Arun Jaitley in 2016 when he was
Union Minister in the central government. He wrote a very strong criticism of the Supreme
Court pronouncement on NJAC, 32 where Arun Jaitley referred to the judgement as “tyranny of
the unelected.” However, it was quashed by the High Court of Allahabad. 33 Such instances are
well enough to reflect the fact that the offence of sedition is only leading to an extravagant and
unnecessary irksome atmosphere, especially to muzzle those, who criticize the government, or
even reflect upon the wrongs taking place nationwide or even criticising the judiciary.

There are a lot of cases that can be contemporarily observed to be filed against students. Despite
many cases of misuse of the law of sedition, there are a few instances where students, activists
etc have crossed the boundary of free speech. Recently, in January 2020, Sharjeel Imam, a
doctorate scholar at JNU, was arrested for his allegedly seditious speech, which he delivered

28
India TV, “Top 8 high-profile sedition cases in the history of Independent India”, India TV News Desk, February
18, 2016, available at https://www.indiatvnews.com/news/india/8-high-profile-sedition-cases-in-history-of-
independent-india-57728.html ( last visited on May 27,2020).
29
Scroll Staff, “Bihar: FIR filed against 49 writers and filmmakers who appealed to PM Modi to stop mob
lynchings”, Oct. 4, 2019, available at :https://scroll.in/latest/939416/bihar-fir-filed-against-49-writers-and-
filmmakers-who-appealed-to-pm-modi-to-stop-mob-lynchings (last visited on June 18,2020).
30
Dipak Mishra, “Bihar lawyer behind FIR against 49 celebrities for Modi letter had targeted Bachchan, Lalu”,
The Print, October 5,2019, available at: https://theprint.in/india/bihar-lawyer-behind-fir-against-49-celebrities-
for-modi-letter-had-targeted-bachchan-lalu/301494/ (last visited on June 5,2020).
31
Debashish Karmakar, “Sedition case against celebrities for writing to PM found false”, The Times Of India,
October 10,2019, available at: https://timesofindia.indiatimes.com/india/sedition-case-against-celebrities-for-
writing-to-pm-found-false-muzaffarpur-police/articleshow/71509933.cms (last visited on June 5,2020).
32
SCORA v. Union of India ,2015 SCC OnLine SC 1322.
33
Arun Jaitley v. State of UP, 2015 SCC Online All 6013.
ILI Law Review Summer Issue 2020

as a criticism to governmental actions including CAA and NRC. However, his speech contains
certain sentences which indicate he is suggesting to people that “'Aim is to cut Assam and
Northeast from India'.” His speech was not only inappropriate but his remarks created much
hue and cry. The “tendency” test of section 124A seems to be justified here. He was also
booked under Unlawful Activities (Prevention) Act, 1967, because his intention prima facie
seems to be to challenge the territorial integrity of India and comments are about those regions
which are deeply affected by insurgency.There are statistics which show a significant rise in
the figures relating to sedition. Following is the graph depicting the number of cases in relation
to sedition registered by police throughout the nation, as per the National Crime Records
Bureau:

Graph 1: Statistics depicting rise in cases relating to sedition registered as per the National Crime Records Bureau.
Source- https://ncrb.gov.in/crime-india-2018. The graph is available at:
https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html

Further, it can be observed that investigation in cases relating to sedition takes years to reach a
conclusion, and usually, either there is no ground of conviction found after investigation, or
investigation is delayed for long years, resulting in unnecessary discomfort and trouble to the
persons against whom such charges are framed. The massive difference between the rates of
cases sent for investigation and those actually resulting in conviction, is well enough to depict
the same. The following graph depicts those rates-
ILI Law Review Summer Issue 2020

Graph 2: Statistics depicting the difference of cases sent for investigation, and the total number of convictions, as
per the National Crime Records Bureau. Source- https://ncrb.gov.in/crime-india-2018. The graph can be found at:
https://www.livemint.com/news/india/sedition-cases-in-india-what-data-says-11582557299440.html

Taking into account the above statistics and events of arrest, it becomes pertinent to reconsider
such laws curbing free speech and expression, especially in relation to developed nations, to
ascertain the correctness of imposing such restrictions on free speech.

VI. Fate of Sedition in the United Kingdom

England, during the colonial rule in India, imposed many restrictions on the freedom of speech
and expression, including restraints on publication, writings, acts, artistic works, literature and
even education. There have been many restraints that were removed during the colonial rule
itself, and further restrictions that were removed much later. However, the laws relating to
sedition, even after much debate and deliberation still find room in the Indian civilization,
regardless of them being abolished in the UK in the year 2009, which is the source of such a
legacy. Today’s India, which is liberal enough to accommodate freedom of speech and
expression in the fullest sense possible, does not validate such regressive laws. In order to
further understand the source of such stringency, it is significant to understand the journey of
such laws in the UK.

In the UK, there were majorly two ways to restrict freedom of speech and expression. First one
was treason, second being seditious libel. These were in addition to Scandalum Magnatum of
1275, which covered all the offences against the authority of government or that of the crown.
Further, The Treasons Act was enacted in 1351. 34 This statute penalised all the offences
directed against the authority of the king. Even prediction of the death of the king was

34
The Treasons Act, 1351.
ILI Law Review Summer Issue 2020

considered an offence.35 Later, the Treasons Trial Act 36 provided certain relaxations to the
accused, including ‘due process of law’. This was a considerable progress towards liberty.

However, later, there came the offence of seditious libel, which was declared by the Court of
Star Chamber in the case of DeLibellisFamosis v. State. 37 The offence was declared by the UK
Court through this case, therefore, this offence was a result of the common law system. It was
held that for seditious libel, it was essential for the material to be published, so that it is brought
to the knowledge of at-least one person. 38 Further, if it was directed towards an officer, it should
have been indirectly linked to derogation of the king. 39 Truth was no defence for the same.40
The intention of sedition was required to prove the offence. 41 The perpetrators were
consequently convicted.However, as far as the application of the case was concerned, whoever
expressed sentiments against the ruling government was put behind bars. Even constructive
criticism was a crime.42

Such a situation continued till Milton’s Areopagitica 43 enlightened masses and towards the
freedom of speech and expression which they were rightly entitled to. He gives examples of
Greeks and Romans in his text, indicating his plea for the readers to decide what suits to their
inner will. He argues not for an entirely ungoverned press, but for a press that is allowed to
print materials that may be adjudicated post, rather than prior to publication. He also switches
the focus of the audience to the Bible, discussing how parliamentarians could use the text of
the Bible to present to the Catholic Church because some verses in the Bible are evil as well.
This could be done only when the Bible was made available to the public. One of his most
intriguing arguments occurs when he says that good and evil grow together. He calls them
twins; adding that when Adam ate the forbidden fruit, it was only then when he realised the
good that lay ahead of him. Therefore, good has no gravity without evil. To gain good,

35
John Barrell, Imagining the King’s Death: Figurative Treason, Fantasies of Regicide 754 (Oxford University
Press, Oxford, United Kingdom, 2000).
36
The Treason Trial Act, 1696.
37
De Libellis Famosis v. State (1606)5 Co. Rep. 125a, 77 ER 250.
38
Ibid.
39
William Blackstone, 152 Commentaries on Laws of England, (Clarendon Press, Oxford, 1769).
40
Irving Brant, “Seditious Libel : Myth and Reality” 39 New York University Law Review, 18-19 (1964).
41
Ibid.
42
William Mayton, “Seditious Libel and the Lost Guarantee of Freedom of Expression” 84 Columbia Law Review,
104 (1984).
43
John Milton, Milton’s Areopagitica (Clarendon Press, Oxford, 1644).
ILI Law Review Summer Issue 2020

knowledge of evil is crucially imperative, therefore, he indicates that the growth of government
cannot take place unless it confronts the evil of criticism. He concludes by quoting: . 44

“If liberty of printing bereduc’t into the power of a few; but to redresse willingly
and speedily what hath bin err’d and in highest authority to esteem a plain
advertisement more then others have done as sumptuous bribe, is a virtue
answerable to your highest actions, and whereof none can participate but
greatest and wisest men.”

This indicates a humble plea before the English parliament; with a purpose to emphatically
state that the parliament should not be blind and ignorant to adapt perspectives that humans
may have. The speech still exists as eloquent and articulate as it was at Milton’s era, exalting
and lauding the freedom of speech and expression to augment a tactile comprehension of
liberty.

However, the legislations criminalising sedition in the United Kingdom continued to be in

place in some form or another. The Law Commission of England proposed repeal of sedition
law in 1977. After 32 years of the recommendations, the Coroners and Justice Act, 2009
abolished sedition as an offence.The Act removed sedition and seditious libel as crimes.
Presently, the UK has no law which declares sedition or seditious libels as crimes. However,
in order to prevent the state from any terrorist activity, the United Kingdom Terrorism Act,
2000 has provided for stringent penal laws in relation to possession of any document or material
directed against the security of the state. Further, the Act restricts accessing any information
that could prove to be in violation of the state security.45

In regard to abolishing the archaic offence, the Parliamentary Under Secretary of State at the
Ministry of Justice, Claire Ward was quoted:46

“Sedition and seditious and defamatory libel are arcane offences – from a
bygone era when freedom of expression wasn’t seen as the right it is today…
The existence of these obsolete offences in this country had been used by other
countries as justification for the retention of similar laws which have been

44
Ibid.
45
The U.K. Terrorism Act, 2000, s. 56,57,58.
46
Clare Feikert Ahalt, “Sedition in England: The Abolition of a Law From a Bygone Era”, Library of Congress,
October 2, 2012, available at https://blogs.loc.gov/law/2012/10/sedition-in-england-the-abolition-of-a-law-from-
a-bygone-era/ (last visited on May 20, 2020).
ILI Law Review Summer Issue 2020

actively used to suppress political dissent and restrict press freedom…

Abolishing these offences will allow the UK to take a lead in challenging similar
laws in other countries, where they are used to suppress free speech.”

Such a statement is enough to reflect that contemporary polity does not require such stringency
to restrict citizens from their freedom of speech and expression. 47 The statement also aims to
set an example for other countries to abolish the same, so that such repressive laws find no
space in the national progress. This statement also sufficiently reflects that such age old
repressions that have been abolished from the source itself, find no utility in continuation.
Therefore, it seems logical that these laws should also be reconsidered in contemporary India.
Should it be repealed, retained or reformed is the moot question.

VII. Conclusion

The UK is not comparable to India because of different levels of threats. The legislative
intention in India is to retain it because the Parliament has never attempted to repeal it. Indeed
five private member Bills were presented in the Parliament. Four of them suggest reform but
do not suggest repeal.48 Even State legislatures, who are empowered to repeal section 124A
have not yet done anything.49 Law commission of India, an expert independent body desires
to retain it in a different form. The views of experts and distinguished scholars are divided.
The judiciary has already declared it constitutional with the “tendency” test. Experienced
lawyers and jurists Soli Soli Sorabjee and Advocate J. Sai Deepak are of the view that there
is a need of awareness among citizens, as well as executives, to realise the true nature of laws
relating to sedition, to reduce the number of cases being registered unnecessarily, under the
garb of sedition. Professor Subhash C. Raina, Former Dean, Faculty of Law, Delhi University
also believes that the law enforcement agencies have a considerable role to play, when it
comes to realisation of the true meaning of sedition, as defined by the judiciary. Professor
Rajiv Sharma, a renowned political analyst believes that there is a need for such laws to be
retained, however, there is a strong need of law enforcement agencies to materialise the true
definition of sedition, before putting citizens behind bars, so abruptly as is happening

47
Ibid.
48
Manoj K Sinha and Anurag Deep, Law of Sedition in India and Freedom of Expression, 227-235 (The Indian
Law Institute, New Delhi, 2018).
49
The Constitution of India, 1950, art. 254(2).
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contemporarily. 50It is necessary to reform it in such a fashion that the misuse is checked. It
has been rightly suggested that section 108 of CrPC 1973 is a good answer to the issue of
misuse of section 124A. The State governments should issue a direction to all Police stations
to consider section 108 of CrPC 1973 before registering an FIR under section 124A of IPC
and arresting a person. 51 Section 124A may also be suitably amended to make it non
cognizable and bailable, if the case is registered by one individual complaint. This will also
check misuse of the law, thereby preventing unnecessary arrests and other infringements of
individual dignity and freedom of speech and expression.

50
Rajya Sabha TV, The Big Picture, Sedition Law and Debate, February 12, 2019,
https://www.youtube.com/watch?v=xa19FBoLb3E&feature=youtu.be ( last visited on June 18, 2020).
51
Supra note 48 at 167-169.