HISTORY OF REPRESSIVE LAWS AND TRIALS IN THE INDIAN CONTEXT


Origin of Sedition (Section 124 A, IPC):


The original Indian Penal Code, 1860 drafted by Lord Thomas Babington Macaulay did not have Section 124 A, IPC (Section 113 of the old code). When the matter came up for consideration in 1870, Sir James Fitzjames Stephen, referred to Sir Barnes Peacock, who upon examination of the notes, stated that he believed the part had been missed by mistake but had no positive recall of it. On that occasion, Section 113 of the old code was discussed, and Sir Barnes Peacock proposed a provision that was deemed to be excessively severe, and no comparable section was passed corresponding to it.

Sir James Fitzjames Stephen, while introducing Section 113, explained what the law of England was at the time and stated that he proposed that Section 124-A be enacted because, in the absence of such a provision in the law of India, the offence would fall under the common law of England and would be more severely punishable; and he stated unequivocally that there must be an intention to resist by force or an attempt to excite resistance by force before the offence can be brought under Section 124-A.

Section 124A, IPC uses a peculiar language i.e. attempts to incite disaffection to the government established by law with an exception was acts of disapprobation would not amount to disaffection. The sentences after conviction under Sedition were enormous, it was the transportation of life or anything lower, and if it was to be imprisonment, it was to be 3 years of anything lower. A cursory reading of Section 124A, IPC would reveal that no such provisions can pass the test of constitutionality in a modern liberal democracy anywhere in the World.

Bangobasi Trial:


In 1891, the first real case in the Indian context where the British government invoked sedition was the Bangobasi trial.
Bangobasi, a vernacular for ‘Citizen of Bengal’, was a weekly newspaper with a high distribution in the State of Bengal. The publication published the first of five articles criticising the age of Consent Act that was introduced to curb child marriages as contrary to Hindu traditions and morality on 26 March 1891. The editor, during the trial, tried explaining his position to the judge and jury, that not only, the article was written by another author, but also, the article only pointed out that child marriage was inherent in Indian culture and the British government should not treat Indians like subjects to impose their laws on Indians.

Justice Petheram was not at all convinced, he believed that the article published was not an exception to sedition as defined under the acts of disapprobation. The Judge explained to the jury that the Sedition does not require the editor to have written the offending article; simply printing it constitutes an attempt to encourage disaffection and explained that ‘disorder’ has no role in Sedition. However, there was no verdict announced since the jury was unable to reach a unanimous consensus, and after the editor apologised, the complaint was withdrawn.

First Tilak Trial:


In 1897, Bal Gangadhar Tilak, being a freedom fighter, interacted with the general public through vernacular newspapers i.e. the Kesari and Maratha. He was charged with Sedition for his writings in the publication. The publication pointed out the famine that had caused the plague, it gave British collectors unnecessary powers to interfere with the rights of Indian citizens by entering their homes, without a warrant to check on the spread of the plague in all the localities. After a week the article was printed, an incident took place where a youth shot down the collector and ran away. This killing of the collector was attempted to be linked with the article written by Tilak and he was tried for sedition. Once again, it was held that the publications incited disaffection against the government and he got convicted and sentenced to 18 months in prison, but after the intervention of people regarded highly by the British government, Tilak was released after 51 weeks.

Satara Trial & Muslim daily Trial:


The editor expressed his desire for Swaraj from British rule in a newspaper, and he was charged with Sedition in the Satara trial. Unfortunately, the editor was tried and convicted for inciting disaffection against the government. In Allahabad, a Muslim daily printed another article declaring that independence from British rule is needed, and the editor apologised. Section 124A was invoked, and despite an apology, the editor was sentenced to 18 months in prison.

In 1898, there was an amendment brought into Section 124A wherein definitions were added and it also broaden the definition of ‘disaffection’ to include ‘disloyalty’ towards the government which created more confusion altogether.

Second Tilak Trial and Savarkar’s Trial


Bal Gangadhar Tilak was again tried for sedition in 1909 in respect of certain writings offering justification for the murder of two European women in a bomb blast. He wrote that white class persecution culminated in the development of a hidden society of the youthful generation dedicated to assassinating the whole white ruling class in the United Kingdom, but he characterised this incident as something extremely unlucky. Tilak further wrote that the ruling class blames such unfortunate incidents on the leaders of the subjects, and has attempted to suppress writings, speeches, and other expressions of dissent against the government. Muhammad Ali Jinnah defended Tilak in this trial and the bail was refused by
Justice Mahadev Govind Ranade initially but was granted by Justice Badruddin Tyabi in the second round. Tilak defended himself for more than 20 hours during the trial, and read long speeches. But he was convicted and sentenced to 6 years of transportation by the jury.

In 1909, Ganesh Savarkar wrote 4 poems in which he wrote that the British Government has to be thrown out of India, and for writing these articles, he was convicted and sentenced to transportation for life.

Mahatma Gandhi’s Trial:


In 1919, three cataclysmic events took place, the Jallianwala Bagh massacre, the Rowlatt Act, and the famous Khilafat movement, the major civil disobedience movement was initiated by Mahatma Gandhi. Even though Mahatma Gandhi advocated nonviolence, and called off the movement whenever there was violence, he called it off twice, but he was charged with sedition.

During the trial, Mahatma Gandhi said that affection cannot be generated or regulated by legislation. If one has no affection for a person or system, he or she should be free to express his or her disaffection to the fullest extent possible, as long as he or she does not contemplate, promote, or incite violence. But, he was found guilty and sentenced to six years in prison.

Niharendu Dutt Majumdar’s case:


In
Niharendu Dutt Majumdar and ors. vs. Emperor, AIR 1939 Cal 703, Chief Justice Wire speaking for the Federal Court noted that at the heart of the Sedition in England is public disorder, and Sedition has to be read in its English backdrop. Consequently, the Federal Court held that in the absence of public disorder, a person cannot be punished under sedition for expressing dissatisfaction against the government.

This judgment was later on reversed by the Privy Council in King-Emperor vs Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89, it pointed out that the word Sedition was not used in 124 A at all, and it was only used in the marginal note. It is well settled in law that the marginal note cannot control the plain language of the section, and the plain language says nothing about public disorder or violence. It was held that mere incitement of disaffection against the government is enough to convict and sentence an individual under 124A.

EVOLUTION OF SEDITION


Post-Independence –
Constitution springs in:


At this juncture, India got independence and finally broke the shackles of the colonial masters. The constitution of India springs in and guaranteed Article 19(1)A to its citizens, the only way free speech could be curtailed is under 19(2) for example security of the State, etc. After an amendment to the constitution, public order and reasonable restriction, which were balancing acts, got added through an amendment to the 19(2).

Kedar Nath’s case:


In
Kedar Nath Singh vs. State Of Bihar, 1962 AIR 955, the Supreme Court held that the penal provision of sedition would be attracted only if the expression of disaffection to the government of the day is accompanied by an attempted incitement to violence or disorder.

Fault lines in Kedar Nath Singh’s case:

  1. A) The Supreme Court in Kedar Nath Singh vs. State Of Bihar held that while interpreting Article 19(2), what has to be understood is the meaning of ‘in the interest of Public order’. And ‘in the interest of’ is a loose elastic term and it needs no proximate relation with Public order and even some remote relation would be good enough as a balancing act.

The Supreme Court somehow missed The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821, wherein it was held that merely distinguishing an Act that expressly and directly sought to maintain public order and one that did not specifically specify that goal but implied it, and between an Act that directly maintained public order and one that did so indirectly. This disparity does not negate the need for an intimate connection between the Act and the public order it seeks to preserve. While deciding this judgment, the Supreme Court relied upon Virendra vs. The State of Punjab, (1958) S.C.R. 308 and Ramji  Lal Modi v. The State of U.P. (1957) S.C.R.  860 to interpret in the interest of.

  1. B) Kedar Nath Singh vs. State Of Bihar misread Section 124 A, IPC and if it is read as a whole, not only does it attempt to grab people who make speeches that cause disaffection, but it further attempts to grab people who incite others to violence. A bare reading of Section 124 A, IPC will reveal that it has nothing to do with violence. The Privy Council in King-Emperor vs Sadashiv Narayan Bhalerao (1947) L.R. 74 I.A. 89, quite correctly pointed out that mere incitement of disaffection against the government is enough to convict and sentence an individual under Section 124A.
  2. C) Another peculiar reason cited in the Kedar Nath Singh vs. State Of Bihar is the misapplication of Heydon’s case (1584) 76 ER 637. If we apply the Mischief Rule to interpret Section 124 A, IPC, it is a provision that has been expressly set up by our colonial masters to suppress free speech in a colony. The outcome would be that Section 124 A, a colonial law, in all its glory, then grabs Indian citizens for inciting disaffection against the government. After the constitution came into force, with the introduction of Article 19(1) A, Heydon’s Rule had no application on Section 124 A, IPC.
  3. D) Kedar Nath Singh vs. State Of Bihar read down Section 124 A, IPC and the Supreme Court held that it proposed to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

The Supreme Court, after 1962, pronounced numerous judgments on an important principle of Interpretation of Statutes i.e. reading down cannot be reading in. While interpreting Section 124A, the words like violence etc. cannot be read in it, if correct principles of Statutory Interpretation are to be applied.

Law Commission Report on Sedition, 1971 and Amendment to CrPC 1973:


The question of re-examining ‘
sedition’ had already been raised by the Law Commission. The Commission recommended in its 39th Report (1968), titled The Punishment of Imprisonment for Life under the Indian Penal Code, that there are certain extremely anomalous situations in which certain offences have been made punishable by severe punishment, and that offences such as sedition should be punishable by either life imprisonment or rigorous or simple imprisonment for up to three years.

The Commission then made three critical recommendations for inclusion in section 124A of the IPC in its 42nd Report (1971), titled Indian Penal Code. They were as follows:

  • Mens Rea should be incorporated into the section;
  • The scope of the section should be expanded to include the Constitution of India, legislatures, and the administration of justice (Judiciary), as well as the executive government, against whom disaffection would not be tolerated; and 
  • Bridging the ‘odd’ gap between ‘life imprisonment’ and ‘imprisonment which may extend to three years, or a fine, by setting the maximum penalty for sedition to be 7 years.

However, the Government rejected the Commission’s amendment proposal. The 43rd Report of the Law Commission on Offenses Against National Security (1971) included a section on ‘sedition’ as part of 1971, National Security Bill. Section 39 of this Bill dealt with ‘sedition’, which was just a repetition of the 42nd Report’s altered section. The panel requested in its Report that the section’s scope be enlarged to include the Constitution, the legislature, and the judiciary, as well as any government created by law, as institutions against which ‘disaffection’ should not be tolerated.

Read the latest order dated 11.05.2022 passed by the Hon’ble Supreme Court on the misuse of Sedition

As a result, sedition became a cognizable offence for the first time in the 1973 Code of Criminal Procedure (CrPC), which succeeded the 1898 CrPC. In 1973, India made sedition a cognizable offence for the first time in its history, allowing for arrest without a warrant. Thus, sedition is currently a cognizable, non-bailable, and non-compoundable offence under the law, carrying a maximum sentence of life imprisonment, with or without a fine.

The Law Commission has proposed invoking Section 124A to penalise only acts done to disrupt public order or overthrow the government through violence and illegal methods. Additionally, it stated in its August 2018 consultation document on sedition that while the charge of sedition is necessary to maintain national integrity, it should not be used to stifle free speech.

Baggage and Background Information:


Sedition has been used against cartoonists, students, journalists, historians, authors, actors, and directors frequently in recent years, although sedition applies only when there is a clear and immediate incitement to violence. This has transformed every profession that professes fee speech into a high-risk endeavour and every institution into a checkpoint. There is no distinction between what should be done and what can be abstained from, and both categories have amounted to sedition in and of themselves.

Also Read:
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 1
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 3
SEDITION & UAPA – Are These Provisions License to Abuse Power? – Part 4
SEDITION & UAPA – Are These Provisions License to Abuse Power?- Complete Article

Between 2014 and 2019, India filed 326 sedition cases, 141 of which resulted in only six convictions. According to data published on the website of the National Crime Records Bureau (NCRB), cases of sedition and violations of the draconian Unlawful Activities (Prevention) Act increased in 2019, yet just 3% of sedition cases resulted in convictions. In 2019, the number of sedition cases increased by 25% and arrests increased by 41% over the previous year. In 2019, a total of 93 sedition instances were reported, with 96 arrests and 76 charge sheets filed, up from 70 cases, 56 arrests, and 27 charge sheets the previous year.

Authors:

Lalima Gupta
Intern
The Law Codes

Dr. Rohit Samhotra
Advocate
Supreme Court of India