Introduction to Sedition
Sedition can be defined as any conduct or language inciting rebellion against a
lawful government. In India, sedition is defined through Section 124-A of the
IPC, wherein the law penalizes bringing or attempting to bring hatred or
contempt towards the government, and inciting or attempting to incite
disaffection towards the government as established by law. The punishment is
severe and extends from imprisonment for three years to life to which a fine may
India's criminal law works to maintain the security of the society and the
liberties and rights of individuals as they are some of the prime concerns of
the constitution of India. According to Article 19 of the Constitution, citizens
are granted freedom of speech and expression. However, this freedom is
reasonably restricted by the Laws of Sedition which were originally enacted by
the colonial government with the objective to suppress the Indian citizens to
continue their tyranny. Hence, sedition laws have continually been a contentious
issue, owing to the conflict between the rights guaranteed by the constitution
and the pre-constitution laws still in force. This conflict places importance on
the practice of regularly scrutinizing judicial interpretation of such laws due
to the constantly evolving socioeconomic conditions.
It is for this reason that we find sedition law to be draconian in modern times,
wherein true freedom of expression is the hallmark of a successful democracy.
Thus, we contend that the law on sedition must be amended to reflect the same.
This paper emphasizes the aforementioned through a historical analysis of the
law on sedition, evaluating the interpretation and evolution of sedition law by
the judiciary, studying international perspectives, and considering the misuse
of sedition law
The Roots Of Sedition In India
The Law of Sedition was rooted in India as early as 1837 in one of the clauses
of Macaulay's draft of Indian Penal Code. Yet, due to its contentious nature, it
was not adapted into the IPC until 1870,(The Special Act (XXVII of 1870). This
addition was initiated by the colonist regime of the British in an attempt to
curb the nationalist fervour that was stirring in India at the time, as a tool
This can be showcased in the famous case of Queen-Empress v. Bal Gangadhar Tilak
, (1917) 19 BOMLR 211., In this draconian judgment, the scope of
sedition was enhanced: the judge was quoted saying "the intensity of the
disaffection is absolutely immaterial if a man excites or attempts to excite
feelings of disaffection, great or small, he is guilty under the section",
conveying that any disloyalty towards the British was capable of being held
culpable under sedation.
This gives rise to the contention that sedition law in
India finds root in dubious circumstances, largely as a weapon for the
suppressive colonist regime, rather than a bulwark to support the current
democratic structure of India. Additionally, Mahatma Gandhi, on being charged
under sedition, said:
"section 124 A the prince among the political sections of the IPC is designed
to suppress the liberty of the citizens. Affection cannot be manufactured or
regulated by the law. If one has no affection for a person, one should be free
to give the fullest expression to his disaffection."
Yet, even after India gained independence, sedition remained as a crime against
the state. This was not due to a lack of debate on the same. The fundamental
rights sub-committee of the constituent assembly, headed by Sardar Vallabhai
Patel, drafted an interim report on fundamental rights and presented it before
the assembly on April 29, 1947(Constituent Assembly, Interim Report on
Fundamental Rights, 1947). Initially, the drafting committee included 'sedition'
as a limitation to the right to speech entailed in Article 13 of the first draft
of the constitution
Somnath Lahiri, from the Communist Party, raised concerns on how sedition was
used as a restriction on the liberty of the press by an 'alien and autocratic
government'. He brought to light his objections by stating the importance of the
political opposition's freedom to express its views for democracy to develop in
its true spirit. C Rajgopalachari had an opposing view as he favoured an
amendment that would make restrictions on sedition laws more stringent
However, Lahiri's opposition proved to be effective: the word 'seditious' was
deleted from the proviso, granting liberty for the exercise of freedom of
speech. After parliamentary debates, the draft of the constitution was tabled on
February 21, 1948. As decided, Article 13(1)(A) guaranteed citizens the right to
freedom of speech and expression.
However, under the provision of 13(2), the freedom to speech and expression
would not affect any existing law and did not bar the state from making any laws
related to matters like sedition, which offends or undermines the authority or
foundation of the state. To this, KM Munshi advocated for an amendment to
substitute the word 'sedition' with 'undermines the authority or foundation of
He further referred to the judgement of the Niharendu Dutt Majumdar
And Ors. v Emperor AIR 1939 Cal 703, to highlight the importance of criticism of
the government in a democracy. Additionally, Thakur Das Bhargava suggested
adding the word 'reasonable' in Article 13 for the judiciary to interpret and
ascertain the reasonableness of the facts on a case to case basis. This was done
to limit the overreach of powers by the executive and legislative organs of the
government to ensure the ruling government does not abuse sec 124A.
The Inherent Conflict Between 124-A And Article 19(2)
Mr. Justice P.N Bhagwati emphasized the significance of freedom of speech and
expression in the landmark judgement of Maneka Gandhi v. Union of India 1978 AIR
597., by claiming 'Democracy is based on free debate and open discussion, for
that, is the only corrective of government action in a democratic set up'. Such
judgements and concepts gave rise to the conflict between sec 124-A and
This is showcased in Romesh Thappar v. State of Madras
, 1950 AIR
124. where the scope of the reasonable restrictions to freedom of expression
laid out by Article-19(2) was challenged. The unclear wording of the reasonable
restrictions left many wondering if sedition, under 124-A, can hold culpable
people trying to express views and disaffection towards the state. This was
finally resolved by the First Amendment to the Constitution in 1951, which
amended Article-19(2) to clarify the scope of the reasonable restrictions. In
this regard, six grounds were listed in Article-19(2) as 'reasonable
restrictions' in contrast to the two grounds that existed pre-amendment.
Recent Judicial Interpretation Of Sedition Law
Section 124A falls under Chapter VI of the IPC. Initially, the court's
interpretation of sedition was such that its implementation exceeded the
reasonable restrictions laid out in 19(2). This can be said through the earlier
mentioned case of Bal Gangadhar Tilak, However, the Supreme Court has now laid
out certain caveats to safeguard us against the abuse of sedition law, discussed
in the following cases.
Article 19(2) authorizes restrictions for the wider purpose of securing public
safety or maintenance of public order. In the Lohia case acknowledged that the
scope of 'public order' is categorized under different parts. Public order was
defined as an 'aggravated form of disturbance which affects the day-today life
of the general public, The Superintendent, Central v Ram Manohar Lohia
AIR 633.', a very ambiguous and open-ended interpretation. Most importantly, it
laid down a strict test of proximity between speech and consequence, stating
that 'The restrictions imposed by the Legislature must have a proximate
connection and nexus with public order and should not be far-fetched and remote
in the chain of its relation with public order'.
Along similar lines, the landmark judgement in the Kedarnath upheld the
constitutionality of 124-A. However, and more importantly, it curtailed the
earlier meaning of sedition and added safeguards to its application by making
'intention or tendency to create disorder, or disturbance of law and order, or
incitement to violence' a requisite to constitute sedition. Thereby, the court
upheld the law on the grounds of it being a requirement of the state to protect
itself while limiting the application of sedition. Justice B. P. Sinha also said
that 'if the sedition law were to be given a wider interpretation, it would not
survive the test of constitutionality.' This statement holds to be crucial in
the current day where sedition is maliciously misused to violate the principle
of Article 19(1-A), covered later in this essay.
Other judgements have also worked to limit the scope of sedition law and ensure
it does not become violative of Article 19. An apt example of this is the
Sanskar Marathe v The State Of Maharashtra And Anr
(1998) 4 LLN 205. Trivedi
faced the wrath of sedition for allegedly insulting the constitution and the
national symbol by his drawings satirising corruption among India's politicians.
The Bombay High Court rightly held that the cartoons were in the nature of mere
satire: there was no incitement to violence, tendency or intention to create
public disorder. The court also held that 'Comments expressing disapproval or
criticism of the government with a view to obtaining a change by any lawful
means, is not seditious under Section 124A.'
Through this, the court reaffirmed the safeguards laid down in Kedarnath. More
importantly, the court issued guidelines to police personnel in the form of
preconditions for prosecutions under sec 124A as 'Words, signs, or
representations that bring the government into hatred or contempt, or must
cause, or attempt to cause disaffection, enmity or disloyalty to the
This highlights that the motive of the court was to stop the abuse
of sedition and to stop its abuse as a tool of terror to suppress freedom of
speech in India. Somnath Lahiri, in the Constituent Assembly debates, predicted
the events, as seen in the Trivedi case, by stating 'if at any time in the
future if a member of the Socialist party criticized the government, the ruling
government would be able to put members of the socialist party behind bars,
thereby making the government despicable.
International Perspectives On Sedition:
When deciding on the matter of defining freedom of speech, India should also
look at other countries. While these examples, not wholly legally binding, hold
persuasive value and can guide India in dealing with its own sedition law. For
example, England - the country that first introduced the concept of sedition
into the Indian legal sphere - in 2009 decided to repeal its sedition law. This
was established by The Coroners and Justice Act 2009.
The parliament's notable
response, through Justice Minister Claire Ward was as follows:
"Sedition and seditious and defamatory libel are arcane offences The existence
of these obsolete offences in this country has been used by other countries as
justification for the retention of similar laws which have been 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
Other countries such as South Korea, Scotland, New Zealand, Kenya and Indonesia
have also abolished this law from their statutes, chiefly owing to the abuse of
the law of sedition, through the judiciary or a legislative change. For example,
a commission was constituted in New Zealand to examine the constitutionality of
the law on sedition. The commission, while recommending the abolition, also
expressed concern over retaining the law as it gave the executive an opportunity
to abuse it no matter the safeguards placed.
Furthermore, India has also ratified the ICCPR, which sets forth internationally
recognized standards for the protection of freedom of expression. Yet, in India,
the arbitrary slapping of sedition charges are wholly inconsistent with this
commitment. Hence, this is in contravention of Article-51(c) of the Constitution
obligating the State to 'foster respect for international law and treaty
obligations.'39 Highlighting yet another reason for doing away with 124-A.
On the other hand, countries that have chosen to retain their laws have worked
to limit the scope of sedition to uphold the fundamental right of freedom of
expression. To illustrate, the USA has adopted the rigorous test directed
towards sedition as being constituted when inciting or producing imminent
lawless action as evolved by the United States Supreme Court in these decisions
are unequivocal in their fierce endorsement of the right of freedom of speech
and provide a bulwark against executive abuse of powers.
It highlights to India
that it is possible to interpret 124-A in a manner where abuse is restricted.
The USA does this through narrowly defined restrictions and a strong regime of
accountability for the political executive.
The cases of Arup Bhuyan v State of
, 41 (2011) 3 SCC 377. and Shreya Singhal v Union of India, (1982) 2 SCR
272. progress towards establishing a similar test for deciding protectable
Yet, as the recent cases of Bidar and Kanhaiya show, these tests do not prevent
the misuse of sec 124-A. Perhaps, after looking at the persuasive aspect of
England's view on sedition and the failings of India to follow the USA in using
the judiciary to impose restrictions on the law of sedition, India should follow
other common law countries in abolishing this draconian law of the colonial
regime through legislative change.
Bringing Out Legislative Change
The constitution must be understood as a transformative document, as seen in
several post-colonial constitutions. The main concept of transformative
constitutionalism lies in its emancipatory pursuit in the convection that large
scale social change within a political system is possible through the process
and instrumentality of the law.
This theory would entail that the bare text of
the constitution must be interpreted with pure positivism that acknowledges the
reality of the hierarchical structures and power relationships within the
While decriminalising homosexuality in Navtej Singh Johar v Union Of India
(2018) 10 SCC 1, the transformative value was invoked by acknowledging the
wrongs to correct the course for the future. The court found that
pre-constitutional legislation has no legal presumption of constitutionality. In
light of the recent social and legal development, it is imperative that the
courts adjust the old legal system to adopt the needs of this new society. What
we had earlier held to be constitutional with safeguards and riders is no longer
At the present stage of our social and political development, it is an
obligation of the courts to adopt the needs of the new society. The doctrines
and institutions will have to be modified and some laws will have to be set
aside. Section 124A neglects the central principle in a constitutional
democracy: of every state action to be measured against reasonable limiting
principles laid down by the founding document.
In regards to the contextual
origin of the law, and political development ever since, it is imperative for
the legislature to examine the applicability of the law. As seen in other
post-colonial countries like South Africa, where the law of sedition has been
abolished, the Indian legislature must repeal the law as it violates the
sanctity of democracy.
After a careful analysis of all the aforementioned facts of Sedition Law, it is
not surprising that the judgment in the Kedarnath case
does not live up to the
expectations of many. One may even contend the court lapsed in its duty as
sentinel qui vive of dissent in a democracy, as it had the opportunity to do
away with this draconian law, but chose to retain it.
As considered earlier, the
broad scope of section 124A gives the State the power to terrorize individuals
challenging its power and the mere pressing of sedition charges ends up acting
as a deterrent against any voice of dissent or criticism. Hence, perhaps a
re-examination of this law is necessary to truly enjoy the fundamental hallmark
of our constitution: freedom of speech.
After all, the law must adequately ensure the liberty of thought and expression
so that the executive power may not encroach upon an individual's field of
opinion. In view of the controversy, an appeal to wholly do away with section
124-A, is the need of the hour. A law on sedition with such a wide scope is
unnecessary and is being abused. The specific offences under Chapter VI of the
IPC, such as Section 121, are sufficient to protect the state.
As Nehru said,
'Now so far as I am concerned [Section 124A] is highly objectionable and
obnoxious and it should have no place both for practical and historical reasons,
if you like, in any body of laws that we might pass.'
Supreme Court Decision on Sedition Law is Pragmatic but Many Questions Remain
In a pragmatic decision, the Supreme Court has directed that all proceedings on
charges u/s 124 A of the IPC be kept in abeyance until the government completes
the re-examination of the sedition law. By this interim order, the apex court
has given the message that civil liberties are to be balanced with the security
of the state. Earlier, the Solicitor General placed draft guidelines before the
court, signed by the Union Home Secretary, which said that an FIR involving
sedition would be registered only if an officer of at least SP rank recorded in
writing his satisfaction, in the light of Supreme Court's 2021 judgment in Vinod
There are, however, a few important points emerging:
- The Kedar Nath Singh judgment of 1962 was delivered by a five-judge bench.
As per constitutional norms, it can only be reviewed or reversed by a larger
bench of seven judges. Instead of forming a larger bench to decide the matter,
the passing of an interim order by a three-judge bench may be against
- There is a big difference between sedition and treason. Criticising any
government cannot be a crime against the nation. In Indian Republic, why should
sedition exist in the law books when it has already been repealed in its country
of origin, the United Kingdom?
- In 1973, a 13-judge bench in the Kesavananda Bharati case upheld the
constitutional norms of separation of powers. Chief Justice of India N.V. Ramana
and Union Law Minister Kiren Rijiju are routinely talking about lakshman
rekha for different organs of parliamentary democracy. The government has
brought many laws with the speed of light, why cannot the sedition law be
repealed by the government through an ordinance or a law passed by Parliament?
It will bring glory to Parliament and stop unnecessary judicial activism in
- As and when the sedition law is repealed, it will have a prospective
impact. In matters which are already registered, how can the judiciary or
the government intervene in a retrospective manner?
- Not too long ago, it was brought to the Supreme Court's notice that the
state police continued to arrest people under Section 66 A of the
Information Technology Act despite the top court striking it down in March
2015. As per Article 141 of the Constitution, Supreme Court judgments are
supposed to be the 'law of the land'. The guidelines in the Kedar Nath Singh case put the onus on
the police to distinguish between legitimate and seditious speech. However, the
same needs to be incorporated in the respective law books. There are many other
judgments of the Supreme Court wherein needful changes in the statute books have
not been done. This is a big cause of confusion, coercion and corruption.
- When Section 66 A was struck down, police started registering FIR under
rigorous provisions of the IPC. In the wake of the the Supreme Court's interim
order on Section 124 A, police may straight away invoke stringent provisions of
UAPA where it is tough to get bail.
- In the Kedar Nath Singh judgment, the Supreme Court had issued seven
guidelines underlining when critical speech cannot be qualified as sedition. In
the current matter of sedition, the Attorney General has suggested issuance of
guidelines. There are several Supreme Court judgments and guidelines against
frivolous FIRs and arrests. For instance, there are guidelines against hate
speech but these are not enforced in letter and spirit. One reason for lack of
enforcement is that there is no compilation or a statutory backup for all such
guidelines. This is the root cause for police harassment and for which the much
talked about police informs are needed.
- In July 2021, Chief Justice of India N.V. Ramana aptly remarked Section
124 (A): "Use of sedition is like giving a saw to the carpenter to cut a piece
of wood and he uses it to cut the entire forest itself."
- In a society where no distinction is made between sedition and treason,
scrapping of law may not be enough to check false cases. If 124 A is
scrapped, authorities may use some other draconian law to harass political
opponents. Remedy lies in legal, police and judicial reforms - where bad laws are scrapped
by the Union, laws are not misused by state police, and the judicial system
keeps a smart vigil on false cases by way of early relief and punishment to
those who misuse the law.
- The Centre has not indicated any timeline for the review of sedition
law. This would be an opportune time for the government to review all
draconian laws. Besides being good for civil rights, this will encourage
ease of doing business in India. Section 124 A has been challenged in the
Supreme Court on the ground that it violates Articles 14, 19 and 21 of the
Indian Constitution. If the government fails to repeal sedition, a larger
bench of the Supreme Court ought to scrap section 124 A to make way for a