Section 124-A IPC — Where to draw the line

Introduction                                                                                                                                                                                         

A society not well informed is not a society that is truly free. Freedom of speech and expression is vital for the development of public opinion. It entails a collective right to receive any information whatsoever and to have access to thoughts expressed by other. In light of such exemplary constitutional ideals we have in our legal framework a law which penalises dissent and that is rampantly ironical. This provision criminalises words which brings or attempts to bring, “hatred or contempt” or “disaffection” towards the Government established by law.

Brief history of sedition law

The sedition law was introduced under Section 124-A IPC by the British lawmakers fearing the development of an anti-colonial agenda by the Press. The Common Law on the subject was too wide and severe in the initial stages[1]. The changes in the English too was gradual, from a strict interpretation of the law to giving leeway for judicial discretion. Therefore, it is important to note here that the very nation which formulated the law has itself pronounced it to be imperial, moreover there has not been any use of it since 1909.[2] The changes in body politics and constitutional guarantees of freedom of speech and expression has been accorded the primary reasons behind the controversial importance of laws regarding sedition. The law of sedition also found place in Press (Emergency Powers) Act, 1931 and Defence of India Rules, all of which stands repealed now.

Judicial appraisal

The judicial controversy on the scope of Section 124-A begins with the decision of the Calcutta High Court where it held that it is sufficient for the purpose of the section that the words used are calculated to excite feelings of ill-will against the Government and hold it up to the hatred and contempt of the people and that they were used with the intention to create such feeling.[3] The contention that there can be no offence under the section unless rebellion or armed resistance is incited or sought to be incited was rejected vehemently.[4] Public disorder, or the reasonable anticipation, or likelihood of public disorder, is thus the gist of the offence. The act or words complained of must either incite to disorder, or must be such as to satisfy reasonable men that that is their intention or tendency.[5] Later on this interpretation given by the Federal Court was expressly overruled by the Privy Council[6]. It approved the principle laid down by the Bombay High Court in the Tilak case[7] and deprecated the attempt of the Chief Justice Gwyer to import principles of English law in India while interpreting the statutory definition provided in Section 124-A. Their Lordships further laid down that the term “excite disaffection” does not include “excite disorder” and, therefore, the decision of the Federal Court proceeded on a wrong construction of Section 124-A of the Penal Code and the relevant rules of the Defence of India Act.[8]

Weston, C.J. has pronounced a remarkable thing in a judgment which of late the courts of India has failed to take any notice of.

India is now a sovereign democratic State Governments may go and be caused to go without the foundations of the State being impaired. 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 about.[9]

In Ram Nandan v. State[10], the High Court of Allahabad overturned the conviction of Ram Nandan for a speech he made to a group of villagers. Justice Gurtu explained that it was possible for people who legitimately and peaceably criticise the Government to be caught in “the mischief of Section 124-A of the Penal Code”. For this reason he said it should be invalidated.

The dissemination of political ideas that do not confirm to the views of a ruling elite and are not incompatible themselves with the principles of democracy cannot be considered themselves as jeopardising the integrity or national security of a country. The present laws on sedition in the country which are at best a part of the colonial framework of laws shall be subverted in the view that it features as one of the draconian laws posing a threat to democracy.

In 1995, in Balwant Singh v. State of Punjab[11], the Supreme Court overturned a sedition conviction for sloganeers who shouted incendiary slogans shortly after the assassination of Indira Gandhi, on the grounds that the slogans raised did not lead to violence. More recently, in 2011, in Indra Das v. State of Assam[12], the Supreme Court clearly made the case that only such speech that can be considered “incitement to imminent lawless action” can be criminalised. In a 2015 judgment, in Shreya Singhal v. Union of India[13], the Supreme Court stated that one had to differentiate between “advocacy” and “incitement”, and that only “incitement” was punishable. Paragraph 87 of the judgment penned by Justice Rohinton Nariman puts out the red flag to the dangers of overexpansive terms curbing free speech and thought.

Information that may be grossly offensive or which causes annoyance or inconvenience, are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing, disseminate information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society … any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

In a recent case, the Single Judge Bench of the Allahabad High Court threw out a charge of sedition against the Finance Minister Mr Arun Jaitley on National Judicial Commission Act case. Quashing the complaint the Court said:

A citizen had a right to say or write whatever he likes about the Government, by way of criticism or comments so long as he did not incite people to resort to violence. The article merely seeks to voice the opinion and the view of the author of the need to strike a balance between the functioning of two important pillars of the country. It is not surely a call to arms.[14]

Whereas if we critically analyse the other side of debate, the restrictions which have been imposed by the impugned provision is in the interest of public order, within the legislative interference. If a certain provision of law is construed to be consistent with the Constitution and another interpretation renders the same unconstitutional, the court would lean towards the former construction.[15] The Explanations provided to the main body of Section 124-A makes it clear that criticism of public measures or a comment on governmental action however strongly worded would be within the ambit of the fundamental right of freedom of speech and expression. It is only when the words, written or spoken have a tendency or intention of disturbing the law and order in the society, the law steps in to prevent such activities in the greater interest of public order. It is contended that this provision strikes the correct balance between individual fundamental rights and the interest of public order.[16]

In interpreting the said provision the court must not merely look into the literal interpretation of words used but also take into consideration the antecedent history of the legislation, its purpose and the mischief which is being suppressed. The provisions of this section should be construed so as to limit their application to acts involving intention or tendency to create public disorder or disturbance of law and order. Sedition, thus embraces all those practices which are calculated to disturb the tranquillity of the State and lead ignorant persons to endeavour in the subversion of the Government and the laws of the country.

The constitutionality of Section 124-A cannot be questioned as it is the fundamental duty of the State to maintain peace and public tranquillity as envisaged by the drafters of the Constitution.[17] The security of the State depends upon the maintenance of law and order and offences against the State need to be punished.[18] The legislation in question has fully protected the freedom of speech and expression which is the sine qua non of a democratic form of Government. However, this freedom needs to be guarded against becoming a warrant for denigration and disparagement of a Government which has been formed by a democratic process and under the untenable duty to protect and maintain public order.

Every citizen of the nation is a subscriber to the State. They are given protection and are assured maintenance by the State and the corresponding duty that arises from the enjoyment of these rights is that the citizens owe their allegiance to the State. The concept of statehood has evolved manifold and has shrunk itself to homogeneous units and the active role often taken by the State to promote nationalism through emphasis on shared symbols and national identity. On this pretext, we can hold the view that is unacceptable to make derogatory remarks made in order to hamper such national identity.

Kedar Nath Singh case — An irresolute judgment

Section 124-A draws its legitimacy from the constitutional Bench decision of Kedar Nath Singh v. State of Bihar[19] which in itself is very irresolute and erroneous, the review of which has become a matter of urgent impendency. In Kedar Nath Singh v. State of Bihar[20], the appellant was charged with having brought or attempted to bring into hatred or contempt or excited or attempted to excite disaffection towards the Government by having delivered certain speeches and was thereupon convicted under Section 124-A of the Penal Code by a Magistrate’s court in the State of Bihar. The appellant’s conviction having been sustained by the Patna High Court, he obtained special leave to appeal to the Supreme Court.

The main argument for the appellant was that Section 124-A of the Penal Code was repugnant to the provisions of Article 19 of the Constitution guaranteeing freedom of speech and expression. The Supreme Court relied upon the narrower of the two interpretations and thereby came to the conclusion that the impugned section imposes restrictions on the fundamental freedom of speech and expression, but these restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference with the fundamental right. The same judgment talks about a dialectical logic that if certain provisions can be construed as consistent with the Constitution and another interpretation renders them unconstitutional, the court favours the former rejecting the latter.

Sedition defined under Section 124-A IPC is a colonial law meant to suppress the voice of Indian people. That is why the Indian law on sedition was different from the English law. Despite the strict construction adopted by the Supreme Court, the law enforcement agencies have always used it against artists, public men, intellectuals, et al for criticising the Governments. In fact the Supreme Court itself did not apply these strict principles to the speech of Kedar Nath and his conviction. The Government and its agencies have, in reality, followed the law enunciated by the Privy Council and not by the Supreme Court in Kedar Nath[21]. The Governments in free India continue to use it for the very purpose for which the Colonial Government used it. Therefore, since the Governments and its agencies have strictly gone by the text of Section 124-A though the Supreme Court itself did not apply these principles.

Thus, in Kedar Nath Singh v. State of Bihar[22], the Court made a contextual and contingent decision even while accepting that this law will soon take form of a gargantuan unconstitutional measure to supress the liberties of individuals. The following excerpt of the judgment stands testimony to the fact:

If it is held … that the gist of offence of sedition is incitement to violence, then the law will be within permissible limits laid down in clause (2) of Article 19 of the Constitution. If, on the other hand, we give a literal meaning to the section … it will be true to say that the impugned section is not only within but also very much beyond the limits laid down in clause (2).

On the other hand if we go by the presumption of constitutionality in favour of the impugned provision, the Supreme Court in Kedar Nath Singh v. State of Bihar,[23] distinguished clearly between disloyalty to the Government and commenting upon the measures of the Government without inciting public disorder by acts of violence and held that:

24. … Hence any acts within the meaning of Section 124-A which have the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term “revolution”, have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.

The Court in various cases has accepted the same interpretation.[24] And recently in Common Cause v. Union of India,[25] the Supreme Court held that authorities while dealing with offence under Section 124-A IPC, shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh,[26] and it has been also held that using “fighting words” against another at a public gathering, cannot be considered as “freedom of speech”.[27] A theoretical advocacy of the abstract doctrine of the violent overthrow of Government cannot be punished, but action towards that end can be suppressed.[28]

It would be perilous to abolish this section[29] as an anachronistic colonial provision.[30] We cannot forget that dozens of districts in different States face a Maoist insurgency[31] and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the State Government by revolution. Against the backdrop of this stark reality, the abolition of Section 124-A would be ill-advised merely because it has been wrongly invoked in some highly publicised cases.[32] The Kedar Nath judgment[33] defines why exactly there is a need for the provision in question here:

… the freedom of speech and expression 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.

Section 124-A IPC — a colourable piece of legislation

The Supreme Court summarised[34] certain well-settled principles to determine the constitutional validity of the provisions of any statute with reference to earlier cases. A legislation can be declared to be illegal and unconstitutional only when it fails to clear the test of arbitrariness and discrimination which would render it violative of Article 14 of the Constitution. A law which has the effect of taking away or substantially abridging the fundamental right will not be saved merely because it doesn’t say so but produces that effect indirectly. The court has to examine with some strictness the substance of the legislation to find what actually and really the legislature has done. In considering the effects of an impugned law, the Court has to distinguish between its “direct and inevitable consequences” and remote consequences or incidental effects. The Court will strike down a legislation which directly affects a fundamental right.[35]

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or free from the constitutional prohibition. Such a law is “colourable” legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law as a prohibited field. It was held that if a legislature with a limited or qualified jurisdiction transgresses its powers, such transgression may be open, direct, overt, or disguised, indirect and covert. The latter kind of trespass is figuratively referred to as “colourable legislation”, connoting that although apparently the legislature purports to act within limits of its own powers, yet, in substance and in reality, it encroaches upon the field prohibited to it, requiring an examination with some strictness, the substance of the legislation for the purpose of determining what it is that the legislature is recalling doing.[36] The legislature cannot violate the constitutional prohibition by employing indirect method.[37] The true principle is that “it is not permissible to do indirectly what is prohibited directly”.[38]

The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise.[39] It was held by the court that any legislation which provided for confiscation or the payment of something which amounted to no compensation was a fraud on the above legislative power and was bound to be struck down as a colourable legislation.[40] The nature of enquiry must always be to the true nature and character of the challenged legislation. For the purpose of such investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or design.[41]

The object behind the legislation was to curb sowing feelings of enmity or hatred against the Government. But in the meanwhile the provisions of the impugned section provided a very handy tool in the hands of ruling elite to supress the individual liberties ultimately violating the provisions of the Constitution as envisaged in Article 19. It is to be noted that in the veil of upholding the sovereignty, integrity and security of the State the impugned section is transgressing the limits of constitutional prohibition in the form of posing serious threat to freedom of speech and expression of individuals voicing their concerns vide criticising of policies of the Government.

Section 124-A IPC and Article 19 — A strained relationship

The Constitution of India guarantees freedom of speech and expression, which means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. The fundamental rights contained in Article 19(1) are those great and basic rights which are recognised as the natural rights inherent in every citizen.[42] The basic requisite of validity of law with reference to Article 19 is that it should not be arbitrary[43] and the restrictions or limitations imposed on the rights under Article 19(1)(a) must comply with the reasonable restrictions mentioned in Article 19(2).

The essential requirement of any restriction on the freedoms contained in Article 19(1) is that they must be reasonable. The expression “reasonable restrictions” signifies that the limitation imposed on a person in the enjoyment of a right should not be arbitrary or excessive in nature beyond what is required in the interest of the public. It is not enough that the restrictions are for the benefit of the public; they must be reasonable as well and the reasonableness could be decided only on a conspectus of all the relevant facts and circumstances.[44] Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract considerations. There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. The court has to see whether the restrictions imposed really fulfil or frustrate the object of the statute.

Freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. The Supreme Court has struck down even indirect attempts to curb this fundamental right. The right to freedom of speech could not be curtailed in the interest of the general public like the right to carry on business.[45] Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self-fulfilment; (ii) it assists in the discovery of truth; (iii) it strengthens the capacity of an individual in participation in decision-making; and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.[46] All members of society should be able to form their own beliefs and communicate them freely to others.[47]

As far as maintenance of public order is concerned it is an expression of wide connotations and includes public safety or interest and signifies that the state of tranquillity prevailing among the members of a political society, as a result of the internal regulations enforced by the Government which they have instituted. In short, public order implies an orderly state of affairs in which citizens can peacefully pursue their normal avocations of life.[48] Even though the legislature has the right to curb tendencies to create a breach of public order in cases where the breach of peace has actually taken place[49], this would not enable the legislature to provide for situations which have only a problematic relationship with public order. Whether in a particular case an utterance would have tendency to create a breach of public order is to be determined objectively from the circumstances in which the utterance is made, the nature of audience and the like.[50] Where the relation between advocacy or incitement and the threat to public peace and tranquillity is not proximate but problematic, it cannot be restricted on the so-called ground of “public order”. The restriction can only be imposed in cases where there exists incitement of enmity or hatred feelings between different sections of the society[51] or insulting the religious feelings of any class of citizens, with a deliberate and malicious intention not in cases of mere criticism of a Government or any of its policies.[52]

It is the fundamental right of every citizen to have their own political theories and ideas and to propagate them #and work for their establishment so Then where the pledge# of a society amounted only to an undertaking to propagate the political faith that capitalism and private ownership are dangerous to the advancement of society and work to bring about the end of capitalism and private ownership and establishment of a socialist State for which others are already working under the lead of working classes, it was held that it was open to members of the society to achieve these objects by all peaceful means.[53] Ceaselessly fighting public opinion that might be against them and opposing those who desired continuance of the existing order of the society and the present Government that it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy that the mere use of words “fight” and “war” in their pledge did not necessarily mean that the society planned to achieve its object by force and violence.[54]

The authors are of the view that a democratic right that needs to be cherished and protected must not be allowed to be misused in the name of freedom. There is a line that divides right to have academic debate and support to terrorism or the idea of terrorism, that should not be violated or allowed to be. If it is, then the law must come into play. Sedition is a serious crime against the State — threat to the stability and challenge to the authority of the State — not merely opposition, however strong or resistance to the policy of the Government. It is true that it is difficult to decide where to draw the line. But is also true that the line has to be drawn, as far as possible.


* 2nd year students at National University of Study and Research in Law, Ranchi.

[1] Seven Bishops case, 1688, 12 St T 183.

[2] R. v. Aldred, (1909) 22 Cox CC 1.

[3] Queen-Empress v. Jogendra Chandar Bose, ILR (1892) 19 Cal 35.

[4] Queen-Empress v. Bal Gangadhar Tilak, ILR (1898) 22 Bom 112.

[5] Niharendu Dutt Majumdar v. King Emperor, 1942 SCC OnLine FC 5 : AIR 1942 FC 22.

[6] King Emperor v. Sadashiv Narayan Bhalerao, 1947 SCC OnLine PC 9 : AIR 1947 PC 82.

[7] ILR (1898) 22 Bom 112.

[8] Wallace-Johnson v. R., 1940 AC 231.

[9] Tara Singh v. State, 1950 SCC OnLine P&H 113 : 1951 Cri LJ 449, 451.

[10] 1958 SCC OnLine All 117 : AIR 1959 All 101 (FB).

[11] (1995) 3 SCC 214.

[12] (2011) 3 SCC 380.

[13] (2015) 5 SCC 1.

[14] Arun Jaitley v. State of U.P., 2015 SCC Online All 6013.

[15] Indra Das v. State of Assam, (2011) 3 SCC 380.

[16] Sanskar Marathe v. State of Maharashtra, 2015 SCC OnLine Bom 587.

[17] Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

[18] Subramanian Swamy v. Union of India, (2016) 7 SCC 221.

[19] AIR 1962 SC 955.

[20] AIR 1962 SC 955.

[21] AIR 1962 SC 955.

[22] AIR 1962 SC 955.

[23] AIR 1962 SC 955, 967.

[24] Indra Das v. State of Assam, (2011) 3 SCC 380; Arup Bhuyan v. State of Assam, (2011) 3 SCC 377.

[25] (2016) 15 SCC 269.

[26] AIR 1962 SC 955.

[27] Roth v. United States, 1 L Ed 2d 1498 : 354 US 476 (1957).

[28] Schenck v. United States, 63 L Ed 470 : 249 US 47, 52 (1919).

[29] Romesh Thappar v. State of Madras, AIR 1950 SC 124.

[30]Arvind P. Datar, Section 124-A should stay, The Indian Express, <http://indianexpress.com/article/opinion/columns/section-124a-should-stay-2> (last seen on 13-2-2017).

[31] Asad Ismi, Maoist Insurgency Spreads to Over 40% of India, Mass Poverty and Delhi’s Embrace of Corporate Neoliberalism Fuels Social Uprising, <http://www.globalresearch.ca/maoist-insurgency-spreads-to-over-40-of-india-mass-poverty-and-delhis-embrace-of-corporate—neolliberalism-fuels-uprising/5362276>  (last seen on 15-2-2017).

[32] Asad Ismi, Maoist Insurgency Spreads to Over 40% of India. Mass Poverty and Delhi’s Embrace of Corporate Neoliberalism Fuels Social Uprising, (last seen on 12-2-2017).

[33] Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.

[34] State of W.B. v. EITA India Ltd., (2003) 5 SCC 239, 244.

[35] A.K. Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR 88.

[36] Federation of Hotel & Restaurant Assn. of India v. Union of India, (1989) 3 SCC 634 : AIR 1990 SC 1637.

[37] Anil Kumar Bhattacharjee v. Commr., AIR 1959 Gau 147; Collector of Customs v. G. Dass & Co., AIR 1966 SC 1577.

[38] Pacific Coal Pty. Ltd., ex p Construction, Forestry, Mining and Energy Union, (2000) 74 ALJR p.1040.

[39] Guy v. Baltimore, 25 L Ed 743 : 100 US 434, 442 (1879).

[40] State of Bihar v. Kamehswar Singh, AIR 1952 SC 252, 292.

[41] K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375, 379 : 1954 SCR 1.

[42] State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92.

[43] Dwarka Prasad Laxmi Narain v. State of U.P., AIR 1954 SC 224; Chintaman Rao v. State of M.P., 1950 SCR 759.

[44] Saghir Ahmad v. State of U.P., AIR 1954 SC 728.

[45] Sakal Papers (P) Ltd. v. Union of India, AIR 1962 SC 305, 313.

[46] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : AIR 1986 SC 515.

[47] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294, Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : AIR 1986 SC 515.

[48] Supt., Central Prison  v. Ram Manohar Lohia, AIR 1960 SC 633.

[49] Ramji Lal Modi v. State of U.P., AIR 1957 SC 620.

[50] State of Bihar v. Shailabala Devi, AIR 1952 SC 329.

[51] Virendra v. State of Punjab, AIR 1957 SC 896.

[52] V.K. Jawali v. State of Mysore, AIR 1966 SC 1387.

[53] V.K. Jawali v. State of Mysore, AIR 1966 SC 1387.

[54] Nazir Khan v. State of Delhi, (2003) 8 SCC 461 : AIR 2003 SC 4427.

 

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