In 1922, while appearing in court in respect of his three articles for Young
India which resulted into his and Shankarlal Banker's imprisonment under the
sedition section, Mahatma Gandhi referred to Section 124-A, Indian Penal Code,
1860 (hereinafter code for brevity) as the prince among the political
sections of the Indian Penal Code designed to suppress the liberty of the
Before going ahead with the purpose for which the offence of sedition was
created, let’s look at the nature of this offence. It is cognizable as well as
non- bailable which means that police can arrest anyone for this offence without
a warrant and also bail in such matters can’t be claimed as a matter of right
respectively. Section 124-A, Code wasn’t the part of original Code when it was
enacted in 1860.
This provision was introduced only in 1870 when after a ‘Fatwa’
was issued by ‘ulemas’
of Deoband for the Muslims of Hindustan to do ‘jihad’
against the British Government for the purpose of gaining independence from the
colonial rule. This is known as ‘Wahabi Revolt’. This provision was famously
used against Bal Gangadhar Tilak and subsequently against other freedom
For an offence under section 124-A, Code, following elements are required to be
- A person must
- By his words, either spoken or written, or,
- By his signs, or,
- By his visible representation, or otherwise,
- Bring or attempt to bring
- into hatred or contempt, or
- excite or attempt to excite disaffection
- Towards, the Government lawfully established by law in India.
Such person is said to commit the offence of sedition. The punishment for this
offence is imprisonment for life, to which fine may be added, or imprisonment
which may extend to three years, to which fine may be added, or fine. As per
appended to this section, the expression disaffection
includes disloyalty and all feelings of enmity. Furthermore, as per
‘Explanation-2’, comments expressing disapprobation of the measures of the
Government for the purpose of making their alterations by lawful means and
without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section.
An example to the situation
covered within Expalantion-2
could be protests against CAA-NRC, Farm laws as
the ‘right to assemble peacefully without arms’ is a Fundamental Right under
Article 19(1)(b), Constitution of India, 1950 and if it is done in a non-violent
manner and if the Government takes back the laws against which such protests are
being held, then, it won’t tantamount to disloyalty, enmity or disaffection.
Moreover, by virtue of Explanation-3
, comments or slogans expressing
disapprobation of the administrative or other action of the Government without
exciting or attempting to excite hatred, contempt or disaffection, also do not
constitute an offence under this section.
It is important to note that the law of sedition is against the State. It has
got nothing to do between any two individuals as such, and nor with a group of
individuals. Matters become seditious in nature only when they are against the
state. When someone challenges the sovereignty and integrity of the State, then
it becomes seditious and hence, for an instance, if someone raises slogans
‘Pakistan Zindabad’ then it may not be seditious since such sloganeering is in
support of a particular country and not against India.
Now, the need to discuss this issue as to whether section 124-A should continue
in the Code or not is due to its rising misuse in the recent times. The Freedom
of speech and expression as provided under Article 19(1)(a) is subjected to the
restraints as provided under Article 19(2) such as 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.
This Fundamental Right cannot be
restricted on the ground of sedition; however, it is being invoked to eventually
curtail it. Some recent incidents in the light of the above statement are as
follows- sedition charge was invoked against the Karnataka school children for
their anti-CAA play, Amulya L. Noronha, a 19-year-old student studying in
Bengaluru, was arrested when she had stood on a stage and enthusiastically
hailed Pakistan in her speech, arrest of Disha Ravi, a 21-year-old green
activist from Bengaluru,
several protesters in anti-CAA and farmer protests were also booked under
sedition law and so on and so forth.
Recently, an organization named ‘Freedom
House’ released its Freedom in the world report 2021 which gave 67 points out of
100 to India wherein 34 out of 40 were given in political rights and 33 out of
60 were given in civil liberties.
Let us analyze as to how our judiciary has interpreted section 124-A, Code
vis-à-vis Freedom of Speech and Expression guaranteed under Article 19(1)(a)
beginning with Tara Singh Gopi Chand v. State
(1951 CriLJ 449) wherein Punjab &
Haryana H.C. had ruled that section 124-A, Code is unconstitutional.
Subsequently, in 1962, the Supreme Court in Kedar Nath Singh v. State of Bihar
(AIR 1962 SC 955) had to decide the issue as to whether the law of sedition
violates the freedom guaranteed under Article 19(1)(a). The court upheld the
constitutionality of sedition, but limited its application to:
involving intention or tendency to create disorder, or disturbance of law and
order, or incitement to violence. It distinguished these from very strong
or the use of vigorous words
strongly critical of the government.
In 1995, the Supreme Court, in Balwant Singh v. State of Punjab
1995 [(1) SCR
411], held that mere sloganeering which evoked no public response did not amount
to sedition. In this case, three men were raising slogans after the
assassination of former Prime Minister Indira Gandhi. In Nazeer Khan v. State of
(AIR 2003 SC 4427), it was held that a person has a right to have his
own political theory or a belief therein and in furtherance of his such theory,
if he says let us fight together
, then it won’t tantamount to sedition since he
is just influencing people to incline towards such theory.
In Shreya Singhal and
Ors. v. Union of India
(AIR 2015 SC 1523), giving priority to the Fundamental
Right under Article 19(1)(a), the Supreme Court struck down Section
66-A, Information Technology Act, 2000, relating to restrictions on online
speech, as unconstitutional on grounds of violating the freedom of speech
guaranteed under Article 19(1)(a). The Court further held that the section was
not saved by virtue of being a 'reasonable restriction' on the freedom of speech
under Article 19(2). Later on, in Anuradha Bhasin v. Union of India
( 2019 SCC
OnLine SC 1725), the court ruled that freedom of speech and expression and the
freedom to practice any profession or carry on any trade, business or occupation
over the medium of internet enjoys constitutional protection under Article 19
(1) (a) and Article 19 (1) (g).
Recently, the Supreme Court has agreed to hear a plea challenging the legal
validity of Section 124-A, Code. The sedition law has been challenged by two
journalists -- Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla on the grounds
that the law violates the fundamental right of speech and expression.
After such challenge, the debates as to whether the time has come to repeal
section 124-A, Code have again gained the momentum and below are the arguments
in support as well as against such British-era draconian law
Arguments in support of continuation of the law of sedition:
Arguments in favor of abrogation of the law of sedition:
- On the ground of its misuse, the law can’t be scrapped rather the proper
and effective implementation of the Kedar Nath judgement(supra) is the need of
- In case if it is repealed and thereafter attempts are being made to
overthrow the lawfully established government by means of violence or force
(unlawful), then how the offenders will be tried and punished in absence of
any law making such acts punishable since if an act isn’t a crime, then how
can be the culprits be put to justice.
- Sedition law has the tendency to curtail the right guaranteed under
Article 19(1)(a) without any just and fair cause and hence, it produces a
chilling effect on free speech.
- It tends to create fear in the minds of the (innocent) citizens of
prosecution and being languished away in prisons for unreasonable long durations
if they raise questions, debate, disagree and challenge the government's
- In 2018, the law commission in a ‘report on sedition’ had observed:
While it is essential to protect national integrity, it should not be
misused as a tool to curb free speech. Dissent and criticism are essential
ingredients of a robust public debate on policy issues as part of vibrant
democracy. Therefore, every restriction on free speech and expression must
be carefully scrutinized to avoid unwarranted restrictions.
- According to the National Crime Records Bureau (NCRB), between 2016 and
2019, the number of cases filed under Section 124-A, Code increased by 160%
while the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.
Moreover, out of 96 suspects arrested under the charges of sedition in 2019,
only two men have been convicted, and no woman.
One must understand that criticism of the government doesn’t always tantamount
to the criticism of the nation. Also, one must keep in mind that such slogans
must not hurt anyone, must not be of such nature which may cause unrest or could
be manipulated. However, at the same time, the authorities need to be educated
and aware that only for political gains or personal interests, such provision
mustn’t be invoked as this offence do has the tendency to ruin the lives of
several innocent persons by subjecting them to media trials as well as social
Indian media needs to be much more cautious while reporting such cases of
incidents of sedition as the media trials including debates on futile
issues tend to manipulate society’s mind and its role should be limited to only
provide information to the people to enable them to form their opinions instead
of coming up with its own opinions and decisions. Anyone who disagree or shows
dissent to the policies, schemes, measures taken by the Government or any
administrative action is quite often labelled as anti-national which behavior
has the tendency to strike at the roots of the freedom of speech and expression.
Broadly speaking, there is a need to maintain a balance between the ‘Fundamental
Right’ guaranteed under Article 19(1)(a) and the law of sedition as the very
essence of free democracy is based upon this delicate balance and this
responsibility can be dispensed with by the courts as the higher judiciary
should use its supervisory powers to sensitize the magistracy and police to the
constitutional provisions protecting free speech.
Award Winning Article Is Written By: Mr.Anurag Agarwal
Authentication No: JU34318069560-8-0621