The law of respecting the ruler by the ruled without opposing or
questioning the rule still exist in India today
Sedition - the infamous draconian law of Britishers to muzzle the voices of
patriots, still exists today and had rooted deep into the soils of India from
the colonial era.
The word sedition is derived from the Latin word Sedition which means a
going aside.The Indian Penal Code defines sedition (Section 124A) as an offence
committed when "any person 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".
What is sedition?
The law in its wording distinguished between bringing into hatred or contempt,
or exciting or attempting to excite disaffection towards the government
established by law, and what is termed in the explanation as expressing
disapprobation against the state (which is permissible).
Punishment for the offence of seditionSedition is cognizable (not requiring a warrant for an arrest), non-compoundable
(not allowing a compromise between the accused and the victim), and non-bailable
offence. Punishment under the Section 124A ranges from imprisonment up to three
years to a life term, to which fine may be added.
A person charged under this law is barred from a government job. They have to
live without their passport and must produce themselves in the court at all
times as and when required.
Origin of sedition law in modern India
The law was originally drafted in 1837 by Thomas Babington Macaulay, the British
historian-politician, but was inexplicably omitted when the IPC was enacted in
1860. It had figured as Section 113 of Macaulay’s draft penal code of 1837 but
was omitted in the 1860 code.
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.
The British Colonial government introduced section 124-A in Chapter VI of the
Indian Penal Code (Of Offences against the State). The section was said to be
introduced to deal with increasing Wahabi activities between 1863 and 1870.
The section was amended in 1898 to expand the scope of the law by including the
terms hatred and contempt along with disaffection. It was one of the many
draconian laws enacted to stifle any voices of dissent at that time.
The framework of this section was imported from various sources-the Treason
Felony Act (operating in Britain), the common law of seditious libel, and the
English law relating to seditious words.
Justice AP Shah, former Chief Justice of the Delhi High Court (2017) observed:
Sedition laws were enacted around the 17th Century in England in a bid to
protect the Crown and the State from any potential uprising. The premise was
that people could only have a good opinion of the government, and a bad opinion
was detrimental to the functioning of the government and the monarchy. It was
subsequently introduced in the Indian Penal Code in 1870.
The initial cases that invoked the sedition law included numerous prosecutions
against the editors of nationalist newspapers. The first among them was the
trial of Jogendra Chandra Bose in 1891 (Queen Empress v Jogendra Chunder Bose),
who was the editor of the newspaper, Bangobasi, criticizing the Age of Consent
Section 124A had been introduced in the Indian Penal Code by the British to
punish sedition as an offence against the state, and was used to arrest
freedom fighters, notably Bal Gangadhar Tilak(Queen Empress v. Bal Gangadhar
Tilak) and M K Gandhi, Annie Besant. Maulana Mohammad Ali, Maulana Shaukat Ali,
and Shri Shankaracharya were tried jointly in 1921 at Karachi for sedition, at
the height of the Khilafat movement. In 1922, Maulana Abul Kalam Azad’s trial
for sedition became famous for his magnificent statement in which he hurled
defiance at the rulers.
While the British Government was justifying enlarging the ambit of laws on
sedition, the court in Kamal Krishna Sircar v. Emperor, refused to term a speech
that condemned Government legislation declaring the Communist Party of India and
various trade unions and labor organizations illegal, seditious. It was opined
by the court that imputing seditious intent to such kind of speech would
completely suppress freedom of speech and expression in India.
Jawaharlal Nehru, India’s first prime minister after independence from Britain,
was one of the fiercest critics of the law. he said the sedition law is
highly objectionable and obnoxious…the sooner we get rid of it the better,
The issue of sedition was anxiously discussed during Constituent Assembly
debates. On 29 April 1947, when laying out the Rights of Freedom, Vallabhbhai
Patel—who went on to become the home minister of India—made an exception for
seditious, obscene, blasphemous, slanderous, libellous or defamatory
The Communist Party of India leader, Somnath Lahiri opposed the use of the word
seditious. As far as I know, even in England, a speech, however seditious it
may be, is never considered a crime unless an overt act is done, Lahiri
The Constituent Assembly was unanimous in having the word ‘sedition‘ deleted
from Article 13 of the draft Constitution. During the discussions Shri M.
Ananthasayanam Ayyangar said:
If we find that the government, for the time being, has a knack of entrenching
itself, however, bad its administration might be it must be the fundamental
right of every citizen in the country to overthrow that government without
violence, by persuading the people, by exposing its faults in the
administration, its method of working and so on. The word 'sedition' has become
obnoxious in the previous regime.
We had therefore approved of the amendment that the word 'sedition' ought to be
removed, except in cases where the entire state itself is sought to be
overthrown or undermined by force or otherwise, leading to public disorder; but
any attack on the government itself ought not to be made an offence under the
law. We have gained that freedom and we have ensured that no government could
entrench itself unless the speeches lead to an overthrow of the State
The members continued debating, coming back to the question of sedition
intermittently. Finally, an amendment was moved to drop the word and not allow
it to infringe upon the freedom of speech and expression.
After much opposition and deliberation, while the word ‘sedition’ was dropped
from Article 13 of the draft Constitution, Sedition under section 124 A of the
IPC continued to be a statutory offence as Article 372 of the Constitution
provides that any existing law in force in India as on 26 January 1950 would
continue to be in force in India unless explicitly modified or repealed by the
Then, in 1950, two Supreme Court judgments led the government to introduce the
much-maligned first amendment. The first case involved objectionable material in
Organiser, a magazine run by the Rashtriya Swayamsevak Sangh; the second was
against a magazine called Cross Roads, for criticizing the government.
After independence, section 124A IPC came up for consideration for the first
time in the case of Romesh Thapar v. The State of Madras. The Supreme
Court declared that unless the freedom of speech and expression threaten the
'security of or tend to overthrow the State', any law restricting the same would
not fall within the purview of Article 19(2) of the Constitution.
In 1950, The Punjab High Court in Tara Singh Gopi Chand v. The State declared
section 124A IPC unconstitutional as it violates the right of freedom of speech
and expression guaranteed under Article 19(1) (a) of the Constitution observing
that ― a law of sedition thought necessary during a period of foreign rule has
become inappropriate by the very nature of the change which has come about.
The constitutional validity of section 124A IPC came to be challenged in the
case of Kedar Nath Singh v. The State of Bihar. The Constitution Bench
upheld the validity of section 124A and kept it at a different pedestal. The
Court drew a line between the terms, 'the Government established by law' and
'the persons for the time being engaged in carrying on the administration'
In another progressive judgment, the Supreme Court in 1995 in the Balwant
Singh v State of Punjab case set aside the charge of sedition concerning
anti-India slogans raised—Khalistan Zindabad…Hindustan Murdabad. The
verdict opined that mere casual slogans did not affect public order in terms of
provocation to violence does not constitute sedition.
Supreme Court’s role in defining seditionThe Supreme Court, in its interpretation of Section 124A, clearly says that it
has to be against the state, not against the government. This means it’s not
wrong to criticize a political party. When one criticizes the constitutional
state of India, that is when he invites the charge of sedition and even there
the Supreme Court clearly says that there has to be a direct incitement to
Even though chances of conviction in such cases are a rarity, it has served
as an effective tool of harassment and intimidation, wielded to silent
dissentersThe Supreme Court of India, in a landmark judgment of Kedar Nath Singh v. State
of Bihar (1962) upheld the constitutionality of the law., but had ruled 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. In other words, the Court upheld the
constitutionality of the sedition law, but at the same time was curtailing its
meaning and limiting its application to acts involving intention or tendency to
create disorder, or disturbance of law and order, or incitement to violence.
Justice A P Shah (2017), while delivering the M N Roy Memorial Lecture,
explained the Kedar Nath judgment further:The Court upheld the constitutionality of sedition, but limited its application
to acts involving intention or tendency to create disorder, or disturbance of
law and order, or incitement to violence. It distinguished these acts from very
strong speech or the use of vigorous words which were strongly critical of the
Sedition law in other countriesMany countries like Australia, Canada, Hong Kong, Scotland, Spain, Mexico, US,
etc. too had sedition laws but were either repealed or amended but yet brought
the criticism of the common citizens, many leading to mob violence. In the UK
sedition and seditious libel (as common law offences) were abolished by section
73 of the Coroners and Justice Act 2009 (with effect on 12 January 2010).
How is the sedition charged?So then why does the police pursue sedition cases almost willy-nilly? The answer
lies in the now-familiar refrain: in India, the process is the punishment.
The offence of sedition, under law, is cognizable (a policeman can investigate
and arrest without the oversight of a magistrate) and non-bailable (you are not
entitled to bail as a matter of right). So if a case is filed against you, the
police have the power to arrest you. Under the law, you are to be produced
before a magistrate within 24 hours. The police inevitably blow the offence out
of proportion and seek custody of the accused so that they can be investigated,
and the magistrate inevitably grants such custody. The police now have 90 days
to file a charge sheet. While the accused is entitled to apply for bail, given
the magnitude of the allegations and the police’s claims that evidence is still
being unearthed, often bail is denied.
If a charge sheet is not filed within 90 days, the accused is entitled to bail
by default. If it is filed, the magistrate then scrutinizes whether a case is
made out under law. This three-month period of imprisonment would be enough to
drain the accused of financial resources (cost of engaging lawyers as well as
professional revenue foregone), not to mention their spirit. Carrying a maximum
sentence of imprisonment for life, the charge of sedition is one of the gravest.
At best, the charge is quashed, and the accused is acquitted. Else, there is a
long-drawn trial that might drag on for years. On the other hand, the police are
seldom made accountable for their actions.
Constitutionality of Sedition in IndiaThe first case that tackled the constitutionality of Section 124-A was Ram
Nandan v. The State of U.P. The Allahabad High court held that S.124-A of
the IPC is ultra vires as it violates Article 19(1) (a) of the Constitution.
124-A was said to restrict freedom of speech and struck at the very roots of the
However, this was overruled in the case of Kedarnath Das v. The State of
Bihar. The court, in this case, held that this section should limit acts
involving intention or tendency to create disorder or disturbance of law and
order or incitement of violence. However, if this section is used arbitrarily,
it violates Article 19.
It should also be noted that in 1951 there was an amendment made in Article
19(2) which included the expression in the interest of and public order. This
amendment included the legislative restriction on freedom of speech and
In Kedarnath Das v. the State of Bihar, the court was of the view that,
the expression in the interest of public order has a wider connotation, and not
only includes acts that are likely to disturb public order but, can also be
interpreted to include Section 124 – A. It was further held that any act which
is enacted in the interest of public order can be saved from constitutional
The court also held that the right guaranteed under Article 19 (1) (a) is
subject to the restriction under 19 (2) which comprises – First, security of the
state. Second, friendly relations with foreign states. Third, public order.
Fourth, decency or morality. Article 124 – A of the IPC is covered under the
security of the state and public order since, the section penalizes any spoken
or written words or visible representation which, have the effect of bringing or
which attempt to bring in hatred or contempt or excite or attempt to excite
disaffection towards the government established by law.
Previous Reports Of The Commission
The issue of revisiting ‘sedition’ has been taken up by the Law Commission
previously as well. The Commission, in its 39th Report (1968) titled ―
The Punishment of Imprisonment for Life under the Indian Penal Code
recommended that there are certain extremely anomalous situations where certain
offences have been made punishable with severe punishment and it was suggested
that ― offences like sedition should be punishable either with imprisonment
for life or with rigorous or simple imprisonment which may extend to three
years, but not more.
Further, in its 42nd Report (1971) titled ― Indian Penal Code, the
Commission made three crucial suggestions to be incorporated in section 124A,
IPC. They were:
Incorporation of mens rea in the section:
The scope of the section be widened, incorporating Constitution of India,
Legislatures and the administration of justice (Judiciary), along with the
executive Government, against whom disaffection would not be tolerated, and
bridging the ‘odd’ gap between ‘imprisonment for life’ and ‘imprisonment which
may extend to three years, or fine, by fixing the maximum punishment for
sedition at ‘seven years rigorous imprisonment and fine’.
However, the Government did not accept the revision proposed by the Commission.
The 43rd Report of the Law Commission on ― Offences Against the National
Security, (1971), also dealt with the ‘sedition’ as part of the National
Security Bill, 1971. Section 39 of this Bill dealt with ‘sedition’, which was
merely a reiteration of the revised section proposed by the 42nd Report (1971).
The 267th Report of the Commission on ― 'Hate Speech',(2017), distinguished
between ‘sedition’ and ‘hate speech', providing that the offence of hate speech
affects the State indirectly by disturbing public tranquillity, while the
sedition is directly an offence against the State. The Report adds, that to
qualify as sedition, the impugned expression must threaten the sovereignty and
integrity of India and the security of the State.
Further, it is required to be noted that we have certain sets of established
tests for understanding what speech amounts to sedition and what would be merely
an expression of dissatisfaction or disaffection which may even be productive
criticism or a necessary indication of problems in the state and society. Laws
governing both hate speech and sedition must preserve the right to ‘offend’.
Is Being ‘Anti-national’ Sedition?
In today’s media discourse, the term sedition is often translated as desh-droh
or opposition to the nation. This has led to a conflation of the terms seditious
and anti-national in the popular imagination. Yet, there is a key difference
between anti-national sentiment and actionable sedition—incitement to violence.
According to Justice Shah (2017):
The law … is quite clear on the distinction between strong criticism of the
government and the incitement of violence, with only the latter being related to
sedition. Thus, regardless of whether the JNU students’ slogans were
anti-national, hateful, or an expression of contempt and disdain against the
government, as long as they did not incite violence, it does not get covered
So the real problem lies in how the law of sedition is used. The government many
times uses sedition charges to crush the voices raised against them, and since
it is the political face of the government which is suppressing the voices of
the common citizens which violates the fundamental right of freedom of speech
and expression, the sedition law becomes a handy tool for harassing people
arbitrarily and rob of their basic fundamental rights granted by the
constitution itself which regulates the government. Police and magistrates
across the country use it on a whim without actually using the guidelines given
by the Supreme Court of circumstances under which the sedition is to be charged.
This may be happening since there are no strict rules made in to use the given
guidelines by police and government, making sedition a useless law curtailing
the rights under article 19. Enraged by knowing that our basic rights are being
snatched under the nose, there have been several instances of a mob - violence
demanding justice from the government. In this, many hidden violence agitators
can fill up the ears of citizens by giving provoking speeches like making the
crowd take hand in physical violence, and making things worse.
Despite this, India continues to carry the colonial baggage of misery and
oppression to its citizens. Unless India finds a way to put an end to this
instrument of abuse, its citizens' fundamental right remains in a state of
Freedom of speech and expression, a cornerstone of the Indian democracy, has
been put to a constant and continuous threat with the use of an archaic colonial
If a law is unjust, a man is not only right to disobey it, he is obligated to
do so. - Thomas jefferson
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