08/06/2023, 11:58 Sedition — illogical equation of government with state

Sedition — illogical equation of government with state

P.D.T. Achary

is a former Secretary General, Lok Sabha

In a democratic republic where the people have the freedom to

change a bad government, disaffection towards a government cannot
be an offence

In its 279th Report, the Law Commission of India has recommended the retention of
Section 124A of the Indian Penal Code which contains the Law of Sedition. It has also
recommended enhanced punishment for this offence in the name of national
security. While Section 124A provides for a minimum imprisonment of three years,
the commission recommends a minimum of seven. In 2022, the Supreme Court of
India had ordered a stay on all existing proceedings and also on the registration of
fresh cases (S.G. Vombatkere vs Union of India) under sedition upon the Union
Government assuring the Court of a review of this law at the earliest. The Court’s stay

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08/06/2023, 11:58 Sedition — illogical equation of government with state

order was in consideration of the fact that this law was widely misused by the law
enforcement authorities.

An offence against government, not country

The law of sedition in India has a long and infamous history. Section 124A was
incorporated in the Indian Penal Code in 1870. The purpose was to suppress the
voice of Indians who spoke against the British Raj, as the government did not want
any voice of dissent or protest. The wording of Section 124A clearly reveals the
intention of the colonial government. Sedition is an offence against the government
and not against the country, as many think. The offence is in bringing or attempting
to bring in hatred or contempt or exciting or attempting to excite disaffection
towards the government established by law. The offence is committed by spoken or
written words, by signs or by any other means. Thus, the gist of the offence is
bringing a government into hatred or contempt or causing disaffection towards the
government of the day.

The law of sedition was defined and applied in two different ways during the British
period. The first major case was Queen Empress vs Bal Gangadhar Tilak 1897 in
which the Bombay Court found Bal Gangadhar Tilak guilty of sedition for writing a
couple of articles in Kesari, a Marathi weekly, invoking Shivaji, which was interpreted
as exciting disaffection towards the British government. Judge Stratchy explained the
law as: “The offence (Sedition) consists in exciting or attempting to excite in others
certain bad feelings towards the government. It is not the exciting or attempting to
excite mutiny or rebellion or any sort of actual disturbance great or small.... but even
if he neither excited nor intended to excite any rebellion or outbreak or forcible
resistance to the authority of the government that is sufficient to make him guilty
under the Section.” Later, the Privy Council upheld this exposition of law.
Thus,sedition meant exciting or attempting to excite bad feelings towards the
government. It was a very draconian law.

The second case was Niharendu Dutt Majumdar And Ors. vs Emperor which was
decided by the Federal Court. Acquitting the accused Majumdar, Sir Mauris Gwyer,
Chief Justice, explained the law as: “Public disorder or the reasonable anticipation or
likelihood of public disorder is thus the gist of the offence.”

These two statements of the law of sedition given by two courts in British India differ
from one another. One defines sedition as disaffection, which was interpreted as
‘political hatred of government’ and comes within the mischief of sedition. The other
interprets it to mean that the offence is committed only when there is incitement to
violence or disorder.

It may be noted that the Privy Council, the highest appellate court of that time,
approved the law stated by Justice Stratchy in Tilak’s case. Further, it is said that the
opinion of the Privy Council on sedition was not brought to the notice of the Federal
Court when it decided Majumdar’s case. Otherwise it would have followed the Privy
Council’s decision.

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‘Kedarnath’ and constitutionality of sedition

The brief journey into the British era is necessary to better understand the judgment
in Kedarnath vs State of Bihar (1962) by the Constitution Bench of the Supreme Court
and the Law Commission’s recommendations for incorporating the essence of that
judgment.

Kedarnath decided the constitutionality of sedition. The Court held that it is

constitutionally valid for two reasons. One, sedition, though an offence against the
government, is against the state because the government is a visible symbol of state
and the existence of the state will be in jeopardy if the government is subverted.
Second, Article 19(2) imposes restrictions in the interest of the security of the state
which has wider amplitude and which includes the law on sedition.

Sedition is an offence against the government. Anyone who causes disaffection

towards the government is liable to be prosecuted under this law. Disaffection has
been defined as ‘political hatred’ towards the government by the full Bench of the
Bombay High Court which upheld the punishment of Tilak. So, causing political
hatred towards the government in the minds of the public is the offence of sedition.
In this sense, it clearly violates the fundamental right to freedom of speech and
expression under Article 19(1)(a) of the Constitution. In a democratic republic where
people have the freedom to change a bad government, disaffection towards a
government cannot be an offence. In fact, it is a part of the democratic process and
experience. Therefore, making it an offence directly conflicts with the fundamental
rights of citizens. We cannot expect citizens to have any affection towards a bad
government.

The law declared by the Privy Council was final, according to which even a gesture
which indicates political hatred towards the government comes within the mischief of
sedition. Obviously, sedition contained in Section 124A goes against Article 19(1)(a).

However, the Supreme Court had, in an attempt to declare sedition constitutionally

valid, admittedly adopted the Federal Court’s approach and held that Section 124A is
valid but can be invoked only when the words or gestures have a tendency to incite
violence. The Court was aware that sedition, as it is worded in Section 124A in IPC
and interpreted by the Privy Council, could not have remained in the statute book
after the Constitution came into force in 1950. The Court was also conscious of the
fact that sedition, as a reasonable restriction on the right of speech and expression,
was deleted from the draft Constitution by the Constituent Assembly.

The implication was clear. Sedition was not meant to be a reasonable restriction. But
the Court wanted to retain sedition because it was genuinely worried about an
imminent communist revolution in the country, which Kedarnath, a local communist
in Begu Sarai in Bihar was advocating. But, on a closer scrutiny, we will find that the
position taken by the court in Kedarnath is not radically different from Tilak. As per
Kedarnath, a tendency to incite disorder would amount to sedition, and actual
disorder need not occur. So, in substance there is not much difference between
Kedarnath and Tilak.
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The Law Commission has suggested that the tendency to incite disorder should be
incorporated in Section 124A. The commission defines tendency as a slight
inclination. It is a policeman who will detect the tendency to incite disorder in a
speech or article, and the citizen will be behind bars for seven years or even for life.
In fact, the Kedarnath judgment did not soften the law on sedition. If anything it has
brought it closer to the judgment in Tilak without mitigating the rigour of the law. The
recommendation for the enhancement of punishment defies common sense when
there is a universal demand for the scrapping of this law. The commission could not
see the absurdity of a law which punishes citizens of a democratic country for making
comments which may cause disaffection towards a government which they have the
power to remove.

It is unconstitutional

The real issue is that the law of sedition contained in Section 124A of the IPC is
unconstitutional. The Law Commission failed or did not want to see the fallacy in the
Kedarnath judgment which did not in effect soften this harsh law but declared that it
is constitutionally valid. Kedarnath equates government with state, which is illogical
in the context of a democratic republic. Therefore, its attempt to bring sedition within
the framework of reasonable restriction under Article 19(2) is constitutionally
impermissible.

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