"Section 124....... is perhaps the prince among the political sections of the
Indian Penal Code designed to suppress the liberty of the citizen. Affection
cannot be manufactured or regulated by law. If one has no affection for a person
or system, one should be free to give the fullest expression to his
disaffection, so long as he does not contemplate, promote, or incite to
violence."-- Mahatma Gandhi.
Post-independence, the role of freedom of speech and expression in a democratic
country like India cannot be understated, particularly since, during the British
colonial rule, nearly every form of expression was smothered by the British
Government. One of the chief means of doing so was by penalizing activities
which in a democratic society ought to be considered to be the highest duty of a
citizen. The British Government, in order to maintain the continuity of their
rule in India enacted a number of laws which were used to restrain any member of
the public who dared to rebel against the British rule.
Amongst these laws was the draconian offence of sedition. The offence of
sedition was imported, as section 124A of the I.P.C., from English law into
Indian law during the British colonial rule. The Supreme Court is hearing
petitions challenging the validity of the law on sedition and has asked the
government to refrain from filing any cases under the law until the review is
complete. This article will trace the scope and history of the provision, its
evolution, relevant cases and analyse sedition in India vs sedition in England,
sedition vis-a-vis Right to Freedom of Speech and Expression, and the law as it
Sedition: Meaning, Origin and ScopeDefinition
The offence of sedition is found under Chapter VI of the Indian Penal Code 1860
(IPC), under the heading 'Offences Against the State'. It needs to be noted that
the word 'Sedition' does not turn up anywhere in the Indian constitution.
Section 124A of the I.P.C. defines sedition and prescribes the punishment for
the said offence:
"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 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.
Explanation 1: The expression "disaffection" includes disloyalty and all
feelings of enmity.
Explanation 2: Comments expressing disapprobation of the measures of the
attempting to excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Explanation 3: Comments expressing disapprobation of the administrative or
other action of the Government without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section."
The draft Indian Penal Code 1837 formulated by the first Law Commission under
the chairmanship of Thomas Macaulay consisted of Section 113 that corresponded
to section 124A IPC. However, for more than 20 years the draft penal code was
not enacted and when it was in 1860, the provision for sedition had been
But it was enacted by way of a Special Act (XXVII of 1870). This was mainly due
to the Wahabi Movement and the British government's intention to suppress the
activities. While introducing the bill, Sir James Stephen, who was the architect
of the Code of Criminal Prcedure remarked that the section had been omitted from
the IPC due to "some unaccountable mistake". He further stated that the
adopted clause was "much more compressed, much more distinctly expressed, and
freed from great amount of obscurity and vagueness with which the law of England
Section 124A of the IPC was amended in 1898 by the Indian Penal Code (Amendment)
Act 1898 (Act V of 1898) providing for punishment of transportation for life or
any shorter term. While the former section defined sedition as exciting or
attempting to excite feelings of disaffection to the Government established by
law, the amended section also made bringing or attempting to bring in hatred or
contempt towards the Government established by law, punishable.
Subsequently, after India attained independence, all references to the words
'her Majesty', 'British India', 'or British Burma' and 'Crown
Representative' were deleted. The provision was amended by Act No.26 of 1955,
substituting the punishment as "imprisonment for life and/or with fine or
imprisonment for 3 years and / or with fine". And this is how it exists today.
The offence under the section is cognizable, non-bailable, non- compoundable and
is triable by the Court of Sessions. It is also a statutory requirement that no
court shall take cognizance of the offence of sedition except with the prior
sanction of the central or the state government. Since its inception, the
meaning and scope of the offence has been the subject of judicial
interpretation. The main reason for this was that while defining the offence of
sedition, the section uses a number of terms and phrases the meanings of which
have not been exhaustively explained. It seems it has been deliberately vaguely
For instance, it contains the terms 'hatred', 'contempt' and 'disaffection' and,
at the same time, talks about 'disapprobation' without exciting such hatred,
contempt or disaffection. Similarly, the section contains the phrases 'brings or
attempts to bring into hatred or contempt' and 'excites or attempts to excite
disaffection' but gives no indication as to when or how exactly is a person
supposed to do so. Consequently, these words 'disaffection', 'hatred' and
'contempt' have been subject to varied interpretation by different courts.
With respect to the term 'disaffection', the section explains the meaning of
this term as including 'disloyalty and all feelings of enmity.' Explanation 2
and 3 to section 124A of the I.P.C. elucidate what does not constitute the
offence of sedition. Hence, the Law of Sedition as formulated, firstly vaguely
expresses what is sedition and secondly, states what is not sedition.
It is well settled that in interpreting an enactment, the court should have
regard not merely to the literal meaning of the words used, but also take into
consideration the antecedent history of the legislation, its purpose and the
mischief it seeks to suppress. Accordingly, the Supreme Court, in Kedar Nath
Singh v. State of Bihar, restricted the scope of this section to acts
involving intention or tendency to create disorder, or disturbance of law and
order, or incitement to violence.
In this case, the court observed that "the provisions of the sections read as a
whole, along with the explanations, make it reasonably clear that the sections
aim to rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort to
It is worthy to note that to constitute an offence under Section 124-A of the
IPC it is not necessary that one should excite or attempt to excite mutiny or
rebellion or any kind of actual disturbance, it would be sufficient that one
tries to excite feelings of Hatred or Contempt towards the government. Both
successful and unsuccessful attempts to excite disaffection are placed on the
same footing. So even if person had only tried to excite the feelings he could
be convicted. Whether any disturbance or outbreak was actually caused by such
attempt is absolutely immaterial.
Some important characteristics related to offence of sedition are :
- To urge people to rise against the Government, or not to obey the lawful
authority of the Government or to subvert or resist the authority amounts to
'disaffection' is sedition. However, suggesting a different form of
government is not necessarily to bring the present government into hatred or
contempt, thus it does not constitute Sedition.
- Disaffection may be excited in a number of ways: Writings of any kind,
poem, drama, story, novel, may be used for Sedition. But the seditious
writings if it remains in the hands of the author or unpublished does not
constitute Sedition because publication of some kind is necessary. However
this publication may be made in any manner, as for instances, by post. It
can even take from of woodcut or engraving of any kind.
- Not only the author of seditious matter but also whosoever uses in any
way words or printed matter for the purposes of exciting feelings of
disaffection is libel. Thus the printer, the publisher, the editor or the
owner of the press of a seditious publication is also libel like the author
unless he proves that he was absent and was not aware of the contents of the
- It is well settled now that intention of the accused forms an essential
part of the offence of sedition. It is necessary to take into consideration
the state of the country and of the public mind at the date of publication.
Justice Strachey in Queen Empress v. Bal Gangadhar Tilak observed that intention
must be gathered from the language of the articles. The time, the place, the
circumstances, and the occasion of publication are important too.
- Explanation 2 and 3 are more in the nature of exceptions to the section.
The two together balance sedition and bona fide criticism. In Kedar Nath Singh, it
was observed that "criticism of public measures or comments on Government
action, however strongly worded, would be within reasonable limits and would be
consistent with the fundamental right of freedom of speech and expression."
Offence of Sedition in India and the Offence of Sedition in England
The provisions of section 124A of the I.P.C. are essentially based on common
law. Until 1972, the Law of Sedition in England was uncodified. The offences
involving sedition were the common law offences of seditious libel, seditious
conspiracy and seditious words. There was a great deal of insecurity because of
the lack of a statutory definition.
The Fox's Libel Act codified seditious libel
for the first time in 1792. However, there was still no statutory definition for
sedition. Sedition in the common law consists of any act done, or words spoken
or written and published, which has or have a seditious tendency and is done or
are spoken or written and published with a seditious intention.
Over a period, requirement of seditious intention and that the jury was the only
judge to decide such an intention evolved as two safeguards in England. In Ram
Nandan v. State, the Allahabad High Court observed that in England "sidetious
libel consists of speaking words with a sediutious intention" and that in
colonies "...an intention to incite violence is not an ingredient of the offence
of sedition" whereas in England it is. It was only in Kedar Nath Singh that the
intention to incite violence or public disorder was held to be an essential
condition of sedition. The Law of Sedition, as it existed in England, was
abolished in 2010 by section 73 of the Coroners and Justice Act, 2009 under
Gordon Brown's Labour government.
Law of Sedition: Evolution through various cases
The first case in which section 124A of the I.P.C. was attracted was
Queen-Empress v. Jogendra Chandra Bose, also known as the 'Bangobasi' case.
In this case, the proprietor, editor, manager and printer of the said newspaper
were accused of committing the offence of sedition.
At the trial, Sir C. Patheram, C.J. observed that "whenever the prefix 'dis' is
added to a word, the word formed conveys an idea the opposite to that conveyed
by the word without the prefix". Accordingly, he interpreted the word
disaffection to be a feeling contrary to affection; in other words, dislike or
hatred. He distinguished the word 'disaffection' from the word 'disapprobation'.
It is not mandatory that some disturbance or disaffection be produced as a
result of his words and it is sufficient that such words were "calculated to
excite feelings of ill-will against the Government and to hold it up to the
hatred and contempt of the people, and that they were used with the intention to
create such feeling". However, no verdict was announced as the jury did not
reach a unanimous decision. Later the case was withdrawn after Bose had tendered
In 1897, the infamous trial of Bal Gangadhar Tilak took place, more commonly
referred to as the 'First Tilak Trial'. The defendant was accused of sedition
for publishing an article in newspaper- Kesari invoking the example of the
Maratha warrior Shivaji to incite overthrow of British rule. The trial had taken
place before Justice Strachey, who elaborately expounded the law and his
observations were, for a long time, regarded as an authority on the Law of
During the course of the trial, Justice Strachey, addressing the jury pointed
out that the section consists of two parts namely, the general clause and the
explanation. The court then explained what constitutes 'feelings of
disaffection'. He observed that "I agree with Sir Comer Petheram in the
Bangobasi case that disaffection means simply the absence of affection.
hatred, enmity, dislike, hostility, contempt and every form of ill-will to the
Government. "Disloyalty" is perhaps the best general term, comprehending every
possible form of bad feeling to the Government. That is what the law means by
the disaffection which a man must not excite or attempt to excite; he must not
make or try to make others feel enmity of any kind towards the Government".
The second case was the case of Queen-Empress v. Ramchandra Narayan, in
which the first accused was the editor and the second accused was the
proprietor, printer and publisher of a weekly newspaper called 'Pratod', which
was printed and published in the Satara District at Islampur. In Ramchandra
Narayan, attempt to excite feelings of disaffection to the Government was
defined as, equivalent to an attempt to produce hatred towards the Government as
established by law, to excite political discontent, and alienate the people from
However, it was clarified that every act of disapprobation of
Government did not amount to disaffection under section 124A IPC, provided the
person accused under this section is loyal at heart and is 'ready to obey and
Thus, it can be seen that, as early as in 1897, the section had been influenced
to a great extent by judicial pronouncements. The controversial nature of the
term 'disaffection' is evident considering the extent to which the meaning of
the same had been deliberated upon in these trials and the definitions offered
were not identical. In-fact it was because of this confusion in the meaning of
the word 'disaffection' that the Legislature decided to repeal and substitute
the section, as it stood then, with a new section 124A in 1898.
After these cases, in Niharendu Dutt Majumdar v. the King Emperor
Federal Court digressed from the literal interpretation given to section in 124A
IPC in Bal Gangadhar Tilak. The court held that the offence of sedition was
linked to disruption of public order and prevention of anarchy and until and
unless the speech leads to public disorder or a reasonable anticipation or
likelihood of it, it cannot be termed seditious. Thus, the crux of the
defence argument in Bal Gangadhar Tilak was affirmed. The appellant was
consequently acquitted by the Federal Court opining that all unpleasant words
cannot be regarded 'actionable'
Later on, this definition was overruled in the case of by the Privy Council
which was the highest court of appeal at that time. The reading of 'public
order' in Section 124A IPC in Niharendu, was not accepted and the literal
interpretation in Bal Gangadhar Tilak, and later in Ramchandra Narayan, and Amba
Prasad, was upheld.
Post- Independence Interpretation
Sedition was not acceptable to the framers of the Constitution as a restriction
on the freedom of speech and expression, but it remained as it is in the penal
statute post-independence. After independence, section 124A IPC came up for
consideration for the first time in the case of Romesh Thapar v. 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
imposing restriction upon the same would not fall within the purview of Article
19(2) of the Constitution.
The Punjab High Court in Tara Singh Gopi Chand v. The State
section 124A IPC unconstitutional as it contravenes 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
By the first Constitutional Amendment two additional restrictions: namely,
'friendly relations with foreign State' and 'public order' were added to Article
19(2), for the reason that the court in Romesh Thapar, had held that freedom of
speech and expression could be restricted on the grounds of threat to national
security and for 'serious aggravated forms of public disorder that endanger
national security' and not 'relatively minor breaches of peace of a purely local
After this amendment, there were three different views expressed by three
different high courts. First was that of the High Court of Patna wherein the
court had held that section 124A of the IPC is not violative of Article 19(1)(a)
as guaranteed by the Constitution on the ground that the expression 'in the
interests of public disorder' has a wide connotation.
Second was the view given by High Court of Manipur wherein it was held that part
which imposes a restriction on the right to freedom of speech and expression is
void and ultra vires the constitution but the part which relates to exciting
hatred or contempt against the Government established by law in India to be
valid. The third view was given by the Allahabad High Court wherein the
section 124A of IPC had been held to be Ultra Vires the Constitution on the
ground that it infringes the fundamental right to freedom of speech and
expression and is not saved by the provisions of article 19(2).
The constitutional validity of section 124A IPC came to be challenged in the
case of Kedar Nath Singh. 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'. At the same time, the Court struck a
balance between the right to free speech and expression and the power of the
legislature to restrict such right observing thus:
"The security of the State, which depends upon the maintenance of law and order
is the very basic consideration upon which legislation, with view to punishing
offences against the State, is undertaken. Such a legislation has, on the one
hand, fully to protect and guarantee the freedom of speech and expression, which
is the sine quo non of a democratic form of Government that our Constitution has
established. But the freedom has to be guarded against becoming a licence for
vilification and condemnation of the Government established by law, in words,
which incite violence or have the tendency to create public disorder. 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."
Law of Sedition and Right to Freedom of Speech and Expression
Whether or not the Law of Sedition, as it stands, is violative of the right to
freedom of speech and expression enshrined under article 19(1)(a) of the
Constitution has been a debatable issue ever since the Constitution came into
force. Article 19(1) of the Constitution guarantees six fundamental rights, the
first of which is the right to freedom of speech and expression. It implies a
free exchange of ideas, dissemination of information and knowledge and freedom
of expression of opinion. Freedom of expression includes the right to express
one's convictions, ideas and opinions and also includes the right to publish,
circulate and distribute and communicate one's expression in any manner and
through any medium.
The right to be informed, right to silence, the freedom of discussion, certain
forms of demonstrations, the right to criticize the Government and the right to
discuss political affairs are part of the right to freedom of speech and
expression. The right to free political discussion is not merely a civil
right guaranteed by way of right to freedom of speech and expression but is a
political duty of every citizen. Everyone in the land should be free to think
his own thoughts, to have his own opinions and to give voice to them, in public
and in private, so long as he does not speak ill of his neighbor and free also
to criticize the Government or any party or group of people, so long as he does
not incite anyone to violence.
However, it is important to note that there can be no absolute right and no
person can be said to be absolutely free from restraint. Enjoyment of one's own
rights is always subject too certain restrictions including the enjoyment of the
rights of others. Complete absence of restraint would lead to disorder and
anarchy. The reasonable restriction to the six fundamental rights can be found
under clauses (2) to (6) of Article 19. Restrictions upon right to freedom of
speech and expression can be found clause (2) of Article 19.
In Kedar Nath Singh the Supreme Court construed Section 124A of IPC in a manner
to avoid the section being declared as void or unconstitutional, by reason of
contravention with Article 19(1)(a) of the Constitution. But it has narrowed
down the meaning, application and scope of the section to cover only those
activities which intend or tend to create disorder or disturb public peace by
resorting to violence.
Law of Sedition in India in the Present context
In spite of the limited construction adopted by the Supreme Court, section 124A
of the IPC has continued to be misused by successive governments to stifle
legitimate criticism which have, thereby, encroached upon the right to freedom
of speech and expression of citizens. Even the subordinate courts have, on
certain occasions, ignored the limitation placed upon section 124A of the IPC
and have erroneously interpreted the words of the section literally contrary to
the ratio of Kedar Nath Singh. It is still seen that the lower judiciary and
executive have, on many occasions, appeared to have turned a blind eye towards
the principle laid down by the Supreme Court in Kedar Nath Singh.
Both Central and state government continue to charge anyone who dares to
criticize them. According to data compiled by the National Crime Records Bureau
(NCRB) from 2014 to 2016- the only period for which figures are available for
sedition cases on its database- a total of 179 people were arrested on this
charge. However, by the end of 2016, police had not filed a chargesheet in
over 80 per cent of cases. In courts, over 90 per cent of sedition cases are
pending trial. Consider the following instances of the 21st century:
In September 2001, cartoonist Aseem Trivedi was arrested after a complaint that
his cartoons mocked the constitution and national emblem. The charges were
dropped a month later following widespread criticism and public protests. Doctor
and activists Binayak Sen was convicted of Sedition by a trial court in 2010 and
sentenced to life imprisonment but was granted bail in 2011.
In March 2014, 60 Kashmiri students in Uttar Pradesh were charged with sedition
for cheering for Pakistan in a cricket match against India. Authorities dropped
the charges following legal advice from the law ministry. In August 2014,
authorities in Kerala charged seven young men, including students, with sedition
after a complaint that they had refused to stand up during the national anthem
in a cinema. In October 2015, folk singer S Kovan was held in Tamil Nadu for two
songs criticising the state government for allegedly profiting from state-owned
liquor shops at the expense of the poor.
In February 2016, student leader Kanhaiya Kumar was arrested and charged with
sedition for allegedly shouting anti-India slogans. He was later freed on bail.
The latest addition to this list is Sharjeel Imam, a former scholar of
Jawaharlal Nehru University- where Kanhaiya Kumar was also a research scholar.
Thus, it can be said that sedition has been used by the Government to muzzle
dissent and haras journalists, activists and others, who protest against
Government or its policies. In many cases, the courts have had to remedy the
injustice done to the accused. The Supreme Court also once pointed out the
casual manner in which trial courts award sentences on charge of sedition. This
is not to say that sedition is always misused but it has been increasingly
misused to fulfil the political agenda of the party in power.
Due to its rampant misuse, the desirability of section 124A of IPC has
repeatedly been questioned. This has largely been due to its regular collision
with Right to Freedom of Speech and Expression. In a democracy, people should be
free to express their views, opinions, criticisms and beliefs. This is the
fundamental requirement of democracy i.e. the participation of people and it
will not be possible if people are punished so severely even for criticising
government policies. Protection has been provided by the court through the
precedent setting Kedar Nath Singh case but still we see cases of sedition
because of ignorance of the lower judiciary and the police regarding the
essential ingredients required for sedition.
The abolition of sedition by the U.K. has also raised the question whether
Section 124A of the IPC should be repealed. In any case, its constitutionality
in India has been upheld by the apex court though with severe restrictions on
its meaning and scope.
The Law Commision of India in 1971 made some crucial recommendations to consider
while revising the law. In its consultation paper on sedition in 2018, the
Law Commission again suggested the revision of the law. After over a century of
criticism, the law may finally be revealed as the Supreme Court is currently
hearing petitions against its validity.
- Biswas S, 'Why India Needs To Get Rid Of Its Sedition Law' (BBC News,
2019) accessed 10 June 2022
- Donogh W R, A Treatise On The Law Of Sedition And Cognate Offences In
British India, Penal And Preventive, Primary Sources, Historical Collections
(Thacker, Spink 1911) accessed 8 October 2019
- Gupta D, 'Justice Deepak Gupta: Law Of Sedition Needs To Be Toned Down
If Not Abolished' (The Wire, 2019) accessed 8 October 2019
- Kumar A, 'Law Of Sedition A Comparative Study' (Shodhganga, 2019)
accessed 10 October 2019
- Law Commission, Consultation Paper on Sedition, (2018)
- Lohiya S, Law Of Sedition (Universal Law Publishing 2014)
- Aneesha Mathur, 'SC Puts Sedition Law On Hold Till Review Complete, Says
No New Cases To Be Filed For Now' (India Today, 2022) accessed 25 June 2022
- The Indian Penal Code 1860, s 124A.
- William Russel Donogh, A Treatise On The Law Of Sedition And Cognate
Offences In British India, Penal And Preventive, Primary Sources, Historical
Collections (Thacker, Spink 1911), p. 2, accessed 8 October 2019.
- Ibid, p. 60.
- Omitted by Adaptation Order, 1950.
- The words 'British India' were substituted by the Adaptation Order,
1948, the Adaptation Order, 1950 and now reads 'India'
- The words 'or British Burma' were inserted by the Adaptation Order, 1937
and omitted by the Adaptation Order, 1948.
- The words 'or the Crown Representative' were inserted after the word
'Majesty' by the Adaptation Order, 1937 and were omitted by the Adaptation
- The Code of Criminal Procedure, 1898 s 196(1)(a).
- AIR 1962 SC 955.
- Queen Empress v. Bal Gangadhar Tilak, (1897) 22 BOM 112.
- Shivani Lohiya, Law Of Sedition (Universal Law Publishing 2014).
- Bal Gangadhar Tilak n 11.
- AIR 1959 All 101.
- ILR 1891 Cal 35.
- Bal Gangadhar Tilak n 11.
- ILR (1898) 22 Bom 152.
- AIR 1942 FC 22.
- AIR 1950 SC 124.
- AIR 1951 Punj 27.
- Kedar Nath Singh n 14.
- M P Jain, Jasti Chelameswar and Dama Seshadri Naidu, Indian
Constitutional Law (8th edn, LexisNexis 2018) 1219.
- Ministry of Home Affairs, 'Crime In India - Statistics' (National Crime
Records Bureau 2016) accessed 10 May 2022.
- Deeptiman Tiwary, 'Sedition Case Reality Check: Only Two Convictions In
Three Years' (The Indian Express, 2019) accessed 15 May 2022.
- 'Sharjeel Imam Denied Interim Bail In Sedition Case' (Thehindu.com,
2022) accessed 25 July 2022.
- Law Commission, Indian Penal Code (Law Com 42, 1971) para 25.1.
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