The right to freedom of speech and expression is provided under the article
19(1) (a) as fundamental right under part III of the constitution of India,
subject to reasonable restrictions[i]. This article provides free delivery of
ideas and views of the individuals. The essence of this article is to permit the
citizens of India their desire of accomplishing a perception of
The major trait of a liberal democracy is self-governance and
to empower the citizens to exhibit their opinions in all aspects. In a society
like this, a conflict of views between an individual's ideas and the state is
deemed to exist. In order to regulate the same the law of sedition was
incorporated under the Indian penal code. Since its inception in the 1870's
the law has been shrouded in controversy.
Sedition under Indian Law:
The etymology of the word Sedition, comes from the word seditio which means going
aside, hence all separatist tendencies in the state may be defined under
Sedition. Sedition has been described as a crime against the state and is allied
to the barbaric crime of treason, but is much less in intensity to it.
This offence comes under Chapter VI of the Indian Penal Code (Hereinafter, IPC)
under offences against the state. Section 124-A of the IPC defines Sedition as:
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 5[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.
Sedition is a crime against the state, nearly allied to that of Treason,
preceding it in most cases. Explanation to the aforementioned section describes
Disaffection as disloyalty and feelings of enmity. In the Indramani Singh
case[ii], it was held that Sedition is a comprehensive term and includes all
those practices either by word or deed that usurp discontent among the people
regarding the government and that try to disturb the tranquility of the state.
The object of Sedition is to induce Insurrection and rebellion.
History of the Section:
Section 113 of Macaulay's draft of the Indian Penal code, was the section
corresponding to this section in the present act. By some curious omission it
was left out when the IPC finally came into force in 1860. Upon some verbal
alteration it was added to the Code by S 5 of the Act 27 of 1870, ‘as
substantial representation of the law of England of the present day, though much
more compressed and more distinctly expressed'. The Section has been amended
since then from time to time, to bring it in consonance with standards of
The Section played an important role in furtherance of British divide and rule
policy in India, with many nationalist leaders being caught up in the rigmarole
of such litigation. It is also imperative to note that these cases formed the
basis for the interpretation of Section, as we know it today in contemporary
Jurisprudence. The most notable of them are:
Queen-Empress v Jogendra Chunder Bose
[iii] (Bangobasi case)
In this case Sir Comer Petheram CJ, while charging the jury, explained the law
in the following terms, i.e.- Disaffection is a feeling contrary to affection,
in other words dislike or hatred. Disapprobation simply means disapproval. In
this he goes on to explain that the meaning of the two words is completely
different. If the person uses any meansto create in the minds of the person
to whom they are addressed a disposition to not abbey the lawful authority,
or to subvert the lawful authority, if the situation may arise, and if he
does so with the intention of creating such an impression in the minds of his
audience, he will be guilty under the said section.
Queen-Empress v Bal Gangadhar Tilak
In this case, just like the previous one Strachey J while charging the jury,
agreed with the meaning of disaffection, as explained in the Bangobasi case, and
stated that the word disloyalty would best explain the intention behind
adding the word disaffection to the section. It was also explained that the
amount or intensity of disaffection is completely immaterial, except in deciding
punishment. The section also puts on the same footing the successful and
unsuccessful attempt of exciting feelings of disloyalty or enmity towards the
government. For Operation of the said section it is completely immaterial
whether the accused was successful or unsuccessful in being able to excite such
feelings among his audience, only his intention in doing the same plays a part.
Empress vs Ramchandra Narayan Shastri [v]
In this case there was a slight departure from the definition of disaffection,
the full bench held that the word did not just mean contrary to affection or
disloyalty, but rather a positive feeling of aversion, which is akin to ill
will. However, all other interpretations of the section were held to be as
Free speech and constitutional morality Jurisprudence:
In India there are two paths in relation to free speech. One of them being the liberal
autonomous approach[vi] and other being the moral paternalistic. The
former approach being liberal respects individual's ideas and views and has
comparatively less restrictions obtrude on the citizens, the liberal autonomous
approach views individuals as self-sufficient and competent and the approach
relies on Kant's ideology of equality. On the other hand the moral
paternalistic approach restricts freedom of views, opinions and speech and
depicts individuals as violent and corrupted with an urge to draw oneself into
Clause (1) of article 13 of the Constitution provides that any law that is in
derogation with part III (Fundamental Rights), will be held as void till the
extent of that derogation. Furthermore Article 19 (1)(a) provides to every
citizen throughout the territory of India the Fundamental Right of Freedom of
Speech and Expression, hence it may seem as if Sedition Law violates this right.
For this reason, Article 19(2) has been inserted, which provides for reasonable
restriction on these rights.
This article allows the state to make any such law
that curbs People's freedom of Speech and expression in so far as those
restriction arein the interests of Sovereignty and integrity of India,
security of state , friendly relations with foreign states , Public order ,
decency , or in relation to contempt of court, defamation or incitement to an
Hence this article provides for a reasonable restriction, against the right of
freedom of Speech and expression. This was also discussed in the case of Kedar
nath v. State of Bihar (1962)
[vii], wherein the Supreme Court explained that
where a law is capable of two interpretations, the one which makes it
constitutional should be adopted. The Court also made it clear that sedition is
not an offence against Public order, and the gist of the offence is incitement
to disorder, or the tendency or likelihood of Public disorder or the reasonable
Moreover, every citizen has the right to say whatever
he wants about the government as long as it does not incite people to violence.
However, when a person does incite people to commit violence or use means that
usurp disaffection, enmity and disloyalty towards the established government, he
loses his right to Freedom and is to be held liable. The Court has also said thisto be in the interest of Public order and within the ambit of permissible
For critically analyzing the section, it is imperative to break down its various
There are three main essentials of Sedition:
- (Whoever) Bringing or attempting to bring disaffection or hatred towards
the government established by law
- The person does this through
- Words- Spoken or written
- Visible Representations or
- Otherwise (portraying universality of the act)
- The act must be intentional ( Mens rea )
Under explanation 1 to the section disaffection includes
disloyalty and feelings of enmity. The word, as such, has not been defined
anywhere in the IPC, and has been subject to years of judicial interpretation.
For the purposes of this section it is imperative to construe the dichotomy
between Disaffection and Disapprobation (explanation 2 and 3).
means disapproval which may consist of severe condemnation, even though
unreasonably, perversely, or unfairly expressed, and the distinction between
this and disaffection is the essence of the section, the object of the second
and third explanations being to protect honest journalism and bona fide
criticism of public measures and institutions with a view to their improvement,
and to the remedying of grievances and abuses, and to distinguish this from
attempts, whether open or disguised, to make the people hate their rulers,
and to impair the confidence imposed by the public in the government.
Whether a particular representation will be regarded as disaffection or
disapprobation, is a question of fact and will have to be seen by the
magistrate, in light of the surrounding circumstances. In the Manmohan Gose
case, it was held that even innuendos will be held to be seditious as long as
the cause incitement in the audience and have been made intentionally. Hence it
falls upon the magistrate to construe whether the act of the accused was
intentional and was it done with the intent of inciting the public and arousing
feelings of enmity.
The Section starts with the word whoever, this the supreme court in
various judgements has held that this would include writer, editor, printer,
publisher and composer, for whatever purposes they may use the writing for.
Government Established by law
Section 17 of IPC defines the term government, as the central or the state
government, this is in contrast to what the definition was before the amendment
in 1951. In this sense the meaning of government has to be distinguished from
the people that are running the administration. Government established by
law, is the visible symbol of the state and its continued existence is
essential for the stability of the state.
Bringing or attempting to bring
This portrays that the Section pays emphasis on the intention of the accused,
and not whether his attempt is successful or not. In one such case, a packet
containing seditious material was sent to the addressee, however it was
intercepted before that, it was held that this would still amount to Sedition.
Hence it is immaterial under this section, whether the attempt has affected its
purpose or not, because it is the attempt that is made punishable. This was
explained in the case of R v. Burns and Ors[viii] , wherein the court explained
that a person would not be exonerated just because his audience was too wise to
pay any heed to his incitement.
By words, signs or visible representations
In deciding whether a speech is seditious or not, regard must be paid to the
speech as a whole. Anyone has the right to say anything that he wants, unless he
does that with disregard to the law. In the Naurang Singh[ix] case
propaganda secretary of a Gurdwara addressed a gathering of Sikhs. In his speech
without any direct incitement, he exaggerated the figures of casualties
following army action in Punjab. It was held by the court that if we take the
Speech as a whole and the tenor with which it was made, it was undoubtedly made
with the intent to bring the Government into contempt.
Scope for improvement
Sedition is an offence which works almost both ways, it curbs the freedom of
people to ensure peace and tranquility in the state, the offence is an oil
between the state machinery and the people and allows for proper working of a
representative government in a democracy. The section in its present form has
gone through various amendments i.e.- 1898,1937,1948,1950,1951 and 1955, and as
such the law makers have tried their best to reconcile freedom of people and
honor of the state against contempt, while maintaining judicial intervention
through various interpretations by the court.
Scope for improvement so to say,
might only lie, in identifying and disposing, frivolous suits filed by people
for fulfillment of their personal feuds. A perfect example of this would be a
suit filed against a news reporter / journalist who is constructively
criticizing the government on any bad policy decision that they have made and
politicians or the respective party workers filing a suit against them in
pursuance of this.
This not only creates an extra burden on the already
overburdened judicial mechanism but also promotes misandry against
anti-incumbent journalism, which is not to say that it incites violence in any
manner whatsoever. Hence the duty falls upon the court to judge the facts of the
case and the circumstances under which the alleged seditious statement was made,
and only allow the case to be argued further.
Sedition is one of the most important sections in the entire IPC, in the sense
that it ensures the proper working of the state and maintains peace and
tranquility throughout. It works as an essential tool to safeguard the right to
freedom of speech and expression.
Through judicial decisions spanning across
centuries, the judiciary has tried its best to strike a balance between
individual rights and legislative interference, in a way that the citizens are
able to express their criticism constructively, and also disparaging them from
abusing this power, so as to maintain the stability of the state.
has sufficient safeguards i.e. - explanation 2&3 to the section, allowing
people, especially journalists from expressing their bona fide views about
government policies. Hence seen from the prism of the common man and how it
affects them, Sedition seems to have been successful till quite an extent in
striking the balance between rights and responsibilities.
- INDIA CONST. art.19, cl.2
- Sagolsem Indramani Singh And Ors. vs State Of Manipur,1955 CriLJ 184
- Queen-Empress vs Jogendra Chunder Bose And Ors (1892) ILR 19 Cal 35
- Queen-Empress v. Bal Gangadhar Tilak (1897) I.L.R. 22 Bom.
- Emperor vs Ramchandra Narayan Shastri,(1931) 33 BOMLR 1169
- Bhatia Gautam,Offend, Shock, or Disturb:Free Speech under the Indian
Constitution, 1st edn,2016
- Kedarnath Singh v. State of Bihar, AIR 1962 SC 955
- R v. Burns and Ors, 1 SCR 656
- Naurang Singh v/s Union Territory, Chandigarh, Cr LJ 846 (P&H)