IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2021

IN THE MATTER OF:

S.G. VOMBATKERE …PETITIONER

Versus

UNION OF INDIA …RESPONDENTS

With:

I.A. No. __________ of 2021

Application for Exemption from

Filing Duly Attested Affidavit

PAPER – BOOK

(FOR INDEX PLEASE SEE INSIDE)

ADVOCATE FOR THE PETITIONER: PRASANNA S.

INDEX

S.No. Particulars PAGE No. Remarks

Part I (Contents

of the Paper book)

Part II

(Contents of file alone)

(i) (ii) (iii) (iv) (v)

1. Court-fee A A

2. Listing Proforma A1-A2 A1-A2

3. Cover page of Paper Book A3

4. Index of Record of Proceedings

A4

6. Defect List A5

7. Note Sheet NS1 to ___

8. Synopsis & List of Dates

9. W.P.(C) _____ of 2021

Writ Petition along with Affidavits.

10. Appendix – I

Section 124A of the Indian Penal Code, 1860

11. ANNEXURE-P-1

A true copy of the judgment of this Hon’ble Court in Kedar Nath Singh. V. State of Bihar AIR 1962 SC 955

B-UB-U

1 - 19 1-19

20 20

21 - 38 21 - 38

12. ANNEXURE-P-2

A true copy of the Report of the Law Commission Consultation Paper dt. 30.09.2018.

24. I.A. No ______ of 2020

Application for Exemption from filing duly attested Affidavits.

25. Vakalat & Memo of Appearance along with Petitioner's PAN copy

39 - 73 39-73

74 - 75 74 - 75

76 - 77 76 - 77

B

SYNOPSIS

This Writ Petition filed in public interest, challenges the constitutional validity

of Section 124A of the Indian Penal Code, 1860 (hereinafter, “the Impugned

Provision”) as being ultra vires Article 19(1)(a) of the Constitution read with Articles

14 and 21. The Impugned Provision was upheld in Kedar Nath (AIR 1962 SC 955)

subject to a partial reading down. It is the case of the Petitioner that the Impugned

Provision is wholly unconstitutional as the reasoning employed in Kedar Nath to

uphold the Impugned Provision has been overruled by the larger Constitution Bench

Judgments (in R.C Cooper v. Union of India AIR 1970 SC 564 and later reaffirmed

and strengthened in Indira Gandhi v. Raj Narain 1975 SCC (2) 159 (5 Judges),

Maneka Gandhi v. Union of India 1978 SCR (2) 621 (7 Judges), I R Coelho v. State

of Tamil Nadu AIR 2007 SC 861 and more recently in Puttaswamy v. Union of India

(2017) 10 SCC 1 (9 Judges)) which have expanded the scope, extent and the inter-

relationship between Articles 14, 19 and 21 of the Constitution. In the changed legal

and constitutional landscape, the said Provision ought be unequivocally and

unambiguously struck down.

As succinctly put in I R Coelho v. State of Tamil Nadu (2007) 2 SCC 1 “The

Constitution is a living document. All constitutional provisions have to be construed

having regard to the march of time and the development of law”

The Impugned Provision defines ‘Sedition’ and prescribes a maximum

punishment of life imprisonment therefor.

The Impugned Provision reads as follows- 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

C

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 Government with a view to obtain their alteration by lawful means, without exciting or 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 Petitioner is a seventy-nine year old citizen of India and a public spirited person.

He retired after continuous service in the army for thirty five years, and in the rank

of Major-General (Retd.), from the post of Additional- Director General in charge

of Discipline & Vigilance at Army HQ, New Delhi. He had been awarded Vishishta

Seva Medal by the President of India for his distinguished service in Ladakh.

Every citizen is entitled to fundamental rights provided in part III of the constitution.

Article 19(1)(a) of the Constitution guarantees freedom of speech and expression,

subject only to Article 19(2) which saves any law that imposes ‘reasonable

restrictions’ on the limited grounds of interests of the sovereignty and integrity of

India, the security of the State, friendly relations with foreign States, public order,

decency or morality or in relation to contempt of court, defamation etc.

As seen above, the Impugned Provision makes every speech or expression that

“brings or attempts to bring into hatred or contempt, or excites or attempts to excite

disaffection towards the Government established by law in India” is a criminal

offence punishable with a maximum sentence of life imprisonment. The Impugned

Provision also been classified as ‘cognisable’ and non- bailable.

D

The Petitioner contends that a statute criminalising expression based on

unconstitutionally vague definitions of ‘disaffection towards Government’ etc. is an

unreasonable restriction on the fundamental right to free expression guaranteed

under Article 19(1)(a) and causes constitutionally impermissible ‘Chilling Effect’

on speech.

This Court in Kedar Nath upheld the validity of the Impugned Provision

where the court held that the very existence of the State will be in jeopardy if the

Government established by law is subverted. The Impugned Provision however was

read down to mean that only those expressions that either intend to or have the

tendency of causing violence are punishable. Despite the reading down, the

continued employment of the charge of sedition to silence dissent continued

undeterred and has been taken judicial notice of. This prompted the Hon’ble

Supreme Court to reiterate the Kedar Nath law in 2016 in Common Cause v. Union

of India (2016) 15 SCC 269, directing all authorities to scrupulously follow the

Kedarnath dictum.

This Hon’ble Court has however not had a chance to reopen the issue of

constitutionality of the Impugned Provision since 1962. It is submitted that the

march of the times and the development of the law has to be taken into account in

dealing with such a question now, unconstrained by the Kedar Nath holding. It is

submitted that Kedar Nath reasoning has to be understood as the ratio in an era where

the reading of fundamental rights was rather restrictive. There has been a sea change

in understanding the scope, extent and the interrelationship of fundamental rights

since the 11-Judge bench decision in R.C. Cooper AIR 1970 SC 564 that the entire

basis of the Kedar Nath judgment, looking only at the intent of the Impugned

Provision, ought to be read as having been impliedly overruled by the development

E of both domestic fundamental rights jurisprudence, as well as International human

rights jurisprudence.

Briefly stated, the Impugned Provision is assailed, inter alia, on the following

grounds.

Firstly, the jurisprudence of fundamental rights that was established by the 11-judge

bench decision in R.C Cooper v. Union of India AIR 1970 SC 564 and later

reaffirmed and strengthened in Indira Gandhi v. Raj Narain 1975 SCC (2) 159 (5

Judges), Maneka Gandhi v. Union of India 1978 SCR (2) 621 (7 Judges), I R Coelho

v. State of Tamil Nadu AIR 2007 SC 861 and more recently in Puttaswamy v. Union

of India (2017) 10 SCC 1 (9 Judges). Each of these decisions now establish that

fundamental rights in the constitution are not to be read as isolated silos or as water-

tight compartments; but are to be read as if the content of each fundamental right

animates the other. The reasonableness of the restriction of free speech under 19(2)

i.e. in this case the Impugned Provision, will need to considered afresh considering

procedural as well as substantive due process embodied in Articles 14 and 21.

Second, Mere testing of the intent of the Impugned Provision whether being covered

under the exceptions to the freedom of speech under Article 19(2) of the Constitution

is not an adequate test for a legislative provision to pass constitutional muster. The

effect of the Impugned Provision also has to be taken into account. The Petitioner

contends that the Impugned Provision, by employing phrases like disaffection and

contempt toward government, which are incapable of precise definition, causes a

chilling effect on speech, constituting an unconstitutional invasion into the right of

free speech.

F Third, The conjoint reading of Articles 14, 19 and 21 (from Maneka Gandhi v. Union

of India 1978 SCR (2) 621, has now evolved the jurisprudence of testing legislation

curtailing fundamental rights on the anvil of substantive and procedural

reasonableness, necessity and proportionality.

Fourth, The requirement of ‘necessity’ in part comes from India having ratified in

the International Covenant of Civil and Political Rights in 1976, which in its Article

19 requires speech-limiting state action to be backed by a law and to be necessary

on the grounds of respect for rights and reputations of others, national security etc.

the court in 1962 was not and could not have been alive to the consideration of

international law and international conventions in interpreting India’s fundamental

rights – a practice established only since Jolly Varghese v. Bank of Cochin, 1980

AIR 470.

Fifth, all these developments have now led to us understanding ‘necessity’ in the

context of state action limiting fundamental freedoms as the burden being on the

state to establish that such a limiting measure is ‘necessary in a democratic society’

(as approved by Justice A.K. Sikri writing for himself and four others in Modern

Dental College v. State of Madhya Pradesh,(2016)7SCC 353.

Sixth, ‘reasonableness’ of restrictions in Article 19 also has to be tested on the basis

of whether the impugned state action is ‘proportionate’. The understanding of the

doctrine of proportionality under the Indian Constitution to mean the burden being

on the state to show that the rights-limiting measure to be the least restrictive of all

available alternatives is of recent vintage (2 Judges in Union of India v. Ganayutham,

[1997] 7 SCC 463 and more recently, Modern Dental, (2016)7SCC 353. The most

recent and modern articulation of the doctrine finds place in the judgment of this

G Hon’ble Court in Gujarat Mazdoor Sabha v. The State of Gujarat 2020 SCC OnLine

SC 798 wherein, this Hon’ble Court held that the

“(i) A law interfering with fundamental rights must be in pursuance of a legitimate state aim;

(ii) The justification for rights-infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved;

(iii) The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim;

(iv) Restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and

(v) The State should provide sufficient safeguards against the abuse of such interference.” (emphasis supplied)

Seventh, the doctrine of ‘Chilling effect’ on speech, wherein the probability

of the Impugned Provision causing psychological barriers in the free

exercise of the right and the court having to consider implication of that

probability and the severity of the chilling effect on the validity of such

provision. It is submitted that the doctrine of chilling effect had not

sufficiently developed in 1962. Even in the US, the doctrine gets

established only as late as 1967 starting with Justice Brennan’s dissenting

opinion in Walker v. Birmingham 388 U.S. 307 (1967). The most concrete

pronouncement on a penal statutory provision being unconstitutionally

vague causing a chilling effect on speech is as recent as 2015 in Shreya

Singhal v. Union of India.

Lastly, there is no presumption as to the Constitutionality of the Impugned

Provision. The Impugned Provision was inserted in IPC, 1860 by way of

H

an amendment in 1870, much before the coming into force of the

Constitution. Eventhough there was a post-independence amendment to

the provision, the substance of the Impugned Provision was enacted prior

to the coming into force of the Constitution. The lack of presumption of

constitutionality for pre constitutional legislative provisions was only

articulated as recently as in 2018 (in Navtej Johar v. Union of India (2018)

10 SCC 1. Incidentally, that was the case in which the court re-examined

the constitutionality of Section 377 of the Indian Penal Code, which,

among other things, criminalized consensual same-sex acts; despite an

earlier judgment having examined and upheld the provision.

It is therefore contended that this Hon’ble Court must consider afresh the question

as to the constitutional vires of the Impugned Provision, unconstrained by the

upholding of it in Kedar Nath (supra), considering the reason therein having been

impliedly overruled, and hold that the Impugned Provision is ultra vires Article

19(1)(a) of the Constitution read with Articles 14 and 19.

Hence this Writ Petition.

I

LIST OF DATES & EVENTS

1275 The offence of sedition has been traced to the Statute of

Westminster 1275 when the King was considered the holder

of the Divine right.

However, even then, to prove an offence of sedition, not

only the truth of the speech but also the intent was

considered a relevant ingredient.

It is said that the offence of sedition was initially created to

prevent speeches ‘inimical to a necessary respect to

government’.

14th century It was understood that all the subjects of the rulers owed a

duty of loyalty to the king. Thus, if any person committed

an act detrimental to the interests of the rulers, they would

be guilty of the offence of treason. Initially, the offence

required that an overt act be committed to qualify as treason.

However, by the 14th century, the scope of the offence was

expanded through legislation and judicial pronouncements

to include even speech in its ambit. This modified offence

was known as constructive reason.

1606 The offence of seditious libel has been said to be first

devised in the Star Chamber decision in de Libellis

Famosis.

J

In this case, the defendants had confessed to ridiculing some

clergymen of high status. While drawing from the common

law private offence of libel, the court eschewed the

requirements thereof. Instead, it condemned the criticism of

public officials and the government and stressed that any

criticism directed at them would inculcate disrespect for

public authority. It also evaded the various safeguards of the

offences of Treason and Scandalum Magnatum that it was

modelled on. This judgment cited no precedent even at that

time.

The Impugned Provision is the continuing legacy of this

decision.

1870 The Indian Penal Code, enacted in 1870 did not have an

express provision to punish sedition or sedition Libel.

However the Impugned Provision was enacted by way of the

amendment under the Special Act XVII of 1870. The stated

object of the amendment Act was to subdue the Anti- British

agenda of Indian press.

1898 Section 124A IPC was further 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

K

contempt towards the Government established by law,

punishable.”

The reason for the amendment was stated as follows:

"The law relating to riots and unlawful assemblies is very

full and elaborate, but it is remarkable that the Penal Code

contained no provision at all as to seditious offences not

involving an absolute breach of the peace. It says nothing of

seditious words, seditious libels, seditious conspiracies or

secret societies. The additions made in 1870 provide to a

certain extent for the punishment of such offences."

(Source: The Consultation paper on “Sedition” by Law

Commission of India dated August 30, 2018)

1922 Gandhi’s guilty plea –

The British responded to Mahatma Gandhi’s criticism of

their policy by charging Gandhi with the offence of sedition

as defined in section 124-A of the Indian Penal Code. When

Gandhi was arrested and produced before the court, instead

of entering a plea of “not guilty”, he pleaded guilty. He

stated:

“Section 124-A under which I am happily charged 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

L

as he does not contemplate, promote or incite violence... I

have no personal ill will against any single administrator;

much less can I have any disaffection towards the King’s

person. But I hold it to be a virtue to be disaffected towards

a Government which in its totality had done more harm to

India than any previous system.”

1947 The fundamental rights sub-committee of the constituent

assembly, headed by Sardar Vallabhbhai Patel, placed a

draft interim report on fundamental rights before the

assembly for its consideration on April 29, 1947. Article

8(a) mentioned seditious speech, it said "the right of every

citizen to freedom of speech and expression: Provision may

be made by law to make the publication or utterance of

seditious, obscene, blasphemous, slanderous, libellous or

defamatory matter actionable or punishable.".

However, seditious speech was left out was the final draft of

what is now Article 19(1)(a) of the Constitution.

1950 (July) Case of Romesh Thapar and Brij Bhushan- The scope of

Article 19(2) and the categories defined therein for the

grounds of restriction of free speech under Article 19(1)(a),

came up for consideration for the first time in the case of

Romesh Thapar v. State of Madras 1950 AIR 124 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. In Romesh Thapar the Supreme Court had

invalidated a ban imposed by the Madras government on a

M

communist publication, Cross Roads, which had been

critical of Nehru’s foreign policy. In Brij Bhushan v. State

of Delhi 1950 AIR 129 the court had similarly struck down

a prior restraint imposed by the Delhi government on a

Rashtriya Swayamsevak Sangh publication.

Among other things, this Hon’ble Court drew a distinction

between ‘public order’ and ‘security of the State’ and how

the latter is a ground under Article 19(2) while the former is

not.

1951 Statement of Jawaharlal Nehru on the floor of the

Provisional Parliament-

While introducing the first Constitution of India

(Amendment) Bill 1951, which sought to reverse the effect

of the judgment in Romesh Thapar and introduce, inter alia,

‘public order’ as a ground for restriction under 19(2),

The then Prime Minister Nehru referred to sedition and

stated: “Now so far as I am concerned that particular

Section 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. The sooner

we get rid of it the better. We might deal with that matter in

other ways, in more limited ways, as every other country

does but that particular thing, as it is, should have no place,

because all of us have had enough experience of it in a

variety of ways and apart from the logic of the situation, our

urges are against it.”

N 1951 First Amendment- Article 19(2) of the Constitution

contained very limited exceptions to the right to free speech.

Broadly, these were defamation, obscenity, contempt of

court and the security of state. In June 1951, India’s

provisional unicameral Parliament passed the Constitution

(First Amendment) Act, 1951. Among other things, it

introduced three new exceptions to the right to free speech.

The new restriction grounds included “public order”,

incitement or commission of an offence, or affected

“friendly relations with foreign States”.

1955 1955 Amendment to section 124A –

The provision was amended by Act No.26 of 1955,

substituting the punishment which earlier read as

“transportation for life or for a shorter period” as

imprisonment for life and/or with fine or imprisonment for

3 years and / or with fine.

1962 Kedar Nath v. State of Bihar AIR 1962 SC 955

Kedar Nath was the first case in which this Hon’ble Court

considered the constitutionality of the Impugned Provision.

The appellant in that case had been convicted for sedition

and inciting public mischief because of a speech in which he

had criticized Congress, the ruling national party, for its

capitalist policies, and instead advocated for the Forward

Communist Party. His appeal before the High Court of

Judicature at Patna was struck down. On appeal to the

Supreme Court, the appellant argued that the Indian Penal

Code provisions on sedition violated the right to freedom of

O

expression under Article 19(1)(a) of the Indian Constitution.

Subsequently, the case was transferred to a Constitutional

Bench.

The Constitution Bench upheld the validity of section 124A

subject to a limited reading down. 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‘ observing:

“Government established by law' is the visible symbol of the

State. The very existence of the State will be in jeopardy if

the Government established by law is subverted. Hence, the

continued existence of the Government established by law is

an essential condition of the stability of the State. That is

why 'sedition', as the offence in Section 124-A has been

characterised, comes under Chapter VI relating to offences

against the State. 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”

The Court at that time sought to strike a balance (under what

was the understanding of fundamental rights jurisprudence

at that time) between the right to free speech and expression

P

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

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.”

1967 Walker v. City of Birmingham 388 US 307 1967-

discussed the overriding duty to insulate all individuals from

the "chilling effect" upon exercise of First Amendment

freedoms generated by vagueness, overbreadth and

unbridled discretion to limit their exercise.

It is said that this is the first known instance of the Doctrine

of Chilling Effect having been articulated.

1970 R.C. Cooper v. Union of India 1970 1 SCC 248:

Q

Inter alia, the 11-Judge Bench judgment of this Court in

R.C. Cooper has been heralded as the watershed moment in

the understanding of the chapter on fundamental rights in

the Indian Constitution. Later, Maneka Gandhi, IR Coelho

and Puttaswamy cases exposit on how the judgment in

Cooper overturned the AK Gopalan era theory that the

fundamental rights are watertight compartments .

The impact of the decision in Cooper is to establish a link

between the fundamental rights guaranteed by Part III of the

Constitution. the fundamental rights are inter-

related, Article 21 is no longer to be construed as a residue

of rights which are not specifically enumerated in Article

19. Both sets of rights overlap and hence a law which affects

one of the personal freedoms under Article 19 would, in

addition to the requirement of meeting the permissible

restrictions contemplated in clauses 2 to 6, have to meet the

parameters of a valid ‘procedure established by law’

under Article 21 where it impacts on life or personal liberty.

The law would be assessed not with reference to its object

or intent but on the basis of its effect and impact on the

fundamental rights.

It is important to note that Kedar Nath reasoning proceeded

only on the object and intent of retaining the Impugned

Provision and sophisticated due process test on the effect of

the Impugned Provision has not been known.

R 1976 India ratified the International Covenant on Civil and

Political Rights (ICCPR), which under Article 19 thereof

allowed restriction measures on free speech only the ground

inter alia, of “necessity for the maintenance of public order”.

It is submitted that this is a much higher standard than a

measure which is merely “in the interest of maintenance of

public order”.

1982 AK Roy v. UOI, 1982 1 SCC 271: this Court highlighted

the requirement of crimes being defined with appropriate

definiteness as it held “it is regarded as a fundamental

concept in criminal law. Vague expressions like ‘bring into

hatred or contempt’, or ‘maintenance of harmony between

different religious groups’, or ‘likely to cause disharmony or

... hatred or ill will’, or ‘annoyance to the public’ [ Sections

124-A, 153-A(1)(b), 153-B(1)(c), and 268 of the Penal

Code]. These expressions, though they are difficult to

define, do not elude a just application to practical

situations.”

It is submitted that the five judge constitution bench of this

Court has already noted that the Impugned Section 124A is

indeed vaguely defined. What remains in issue in this

Petition is a determination of whether it is unconstitutionally

vague causing a chilling effect on speech.

2007 I.R. Coelho v. State of T.N., (2007) 2 SCC 1

S

Among other things, this Court in Coelho held that the

Constitution is a living document and that the constitutional

provisions have to be construed having regard to the march

of time and the development of law. It is, therefore,

necessary that while construing the doctrine of basic

structure due regard be had to various decisions which led

to expansion and development of the law.

2009 The crime of seditious libel was abolished through the

enactment of the Coroners and Justice Act, 2009 in the

United Kingdom.

2015 Shreya Singhal v. Union of India, (2015) 5 SCC 1 - The

court held that Section 66-A suffers from the vice of

vagueness because unlike the offence created by Section 66

of the same Act, none of the aforesaid terms are even

attempted to be defined and cannot be defined, the result

being that innocent persons are roped in as well as those who

are not. Such persons are not told clearly on which side of

the line they fall; and it would be open to the authorities to

be as arbitrary and whimsical as they like in booking such

persons under the said section.

The court further recognised the chilling effect of free

speech. In point of fact, Section 66-A is cast so widely that

virtually any opinion on any subject would be covered by it,

as 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.

T 2016

Modern Dental College & Research Centre v. State of

M.P., (2016) 7 SCC 353 court observed that the exercise

which is to be taken is to find out as to whether the

limitation of constitutional rights is for a purpose that is

reasonable and necessary in a democratic society and such

an exercise involves the weighing up of competitive values,

and ultimately an assessment based on proportionality i.e.

balancing of different interests.

2017

K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017)

10 SCC 1 The coalescence of Articles 14, 19 and 21 has

brought into being a jurisprudence which recognises the

interrelationship between rights. That is how the

requirements of fairness and non-discrimination animate

both the substantive and procedural aspects of Article 21.

2018 Navtej Johar v. UOI 2018 10 SCC 1 held that Parliament

is deemed to be aware of the constitutional limitations and

hence there is a presumption of constitutionality. Where,

however, a pre-constitution law is made by either a foreign

legislature or body, none of these parameters are obtained.

It is therefore clear that no such presumption attaches to a

pre-constitutional statute like the Penal Code.

30.08.2018 A counsultation paper was issued on the law of sedition by

the Law Commission, which traced the history of sedition

law and also drew upon comparisons with the UK, US and

Australia and suggested several questions for further

Udeliberation – including the wisdom of retaining the

Impugned Provision as a criminal offence.

2019 “Crime in India. statistics,Vol 1 NCRB 2019”, a report by

the National Crime Records Bureau was released which

showed that Between 2016 and 2019, the number of cases

filed under Section 124-A (sedition) of the Indian Penal

Code (IPC) increased by 160% while the rate of conviction

dropped to 3.3% in 2019 from 33.3% in 2016.

IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2021

…Petitioner

S.G. Vombatkere,

Versus

Union of India

Through

Home Secretary,

Ministry of Home Affairs

North Block

New Delhi - 110001 India

…Respondent No.1

1

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

TO,

THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS OTHER COMPANIONJUSTICES OF THE HON’BLE THE SUPREME COURT OF INDIA.

THE HUMBLE PETITION OF THE PETITIONERS ABOVENAMED

MOST RESPECTFULLY SHOWETH:

1. This Writ Petition filed in public interest, challenges the constitutional

validity of Section 124A of the Indian Penal Code, 1860 (hereinafter, “the

Impugned Provision”) as being ultra vires Article 19(1)(a) of the

Constitution read with Articles 14 and 21. The Impugned Provision was

upheld in Kedar Nath Singh v. State of Bihar (AIR 1962 SC 955) subject to a

partial reading down. It is the case of the Petitioner that the Impugned

Provision is wholly unconstitutional as the reasoning employed in Kedar

Nath to uphold the Impugned Provision has been overruled by the larger

Constitution Bench Judgments (in R.C Cooper v. Union of India AIR 1970

SC 564 and later reaffirmed and strengthened in Indira Gandhi v. Raj

Narain 1975 SCC (2) 159 (5 Judges), Maneka Gandhi v. Union of India 1978

SCR (2) 621 (7 Judges), I R Coelho v. State of Tamil Nadu AIR 2007 SC 861

and more recently in Puttaswamy v. Union of India (2017) 10 SCC 1 (9

Judges)) which have expanded the scope, extent and the inter-relationship

2

between Articles 14, 19 and 21 of the Constitution. In the changed legal

and constitutional landscape, the said Provision ought to be

unequivocally and unambiguously struck down. A true copy of the Kedar

Nath Singh judgment is annexed herewith and marked as ANNEXURE-

P-1 (From Pg 21 to 38).

1A. The Petitioner herein a seventy-nine year old citizen of India and a public

spirited person. He retired after continuous service in the army for thirty five

years, and in the rank of Major-General (Retd.), from the post of Additional-

Director-General in charge of Discipline & Vigilance at Army HQ, New

Delhi. He had been awarded Vishishta Seva Medal by the President of India

for his distinguished service in Ladakh. He was also a Petitioner in the batch

of matters challenging the Constitutionality of the Aadhaar Act, the National

Population Register (vide WP No. 829/2013 and WP(C) No. 220/2015 and

WP(C) 797/2016) . He is also a Petitioner in the challenge against the Aadhaar

amendment ordinance and the Act. (WP(C) 679/2019 and WP(C)

1077/2019). Following are his personal details.

Mobile No: _____________ Annual Income: _____________ E-mail Id: __________________PAN : ____________________

In the event that this Hon’ble Court so directs, the Petitioner undertakes

to disclose the same to the Hon’ble Court and to the Respondents. The

Petitioner has not approached any authority with any representation relating

to the reliefs sought for herein.

2. As succinctly put in I R Coelho v. State of Tamil Nadu (2007) 2 SCC 1 “The

Constitution is a living document. All constitutional provisions have to

be construed having regard to the march of time and the development of

law”

3. A brief history of the Sedition law is given in the List of Dates and is not

repeated herein for the sake of brevity. However, the same may be taken

3

to have been reiterated herein. The same is also traced in some detail in

the consultation paper released by the Law Commission on 30.08.2021.

A true copy of the same is annexed herewith and marked as

ANNEXURE-P-2 (from Pg 39 to 73).

4. Every citizen is entitled to fundamental rights provided in part III of the

constitution. Article 19(1)(a) of the Constitution guarantees freedom of

speech and expression, subject only to Article 19(2) which saves any law

that imposes ‘reasonable restrictions’ on the limited grounds of interests

of the sovereignty and integrity of India, the security of the State, friendly

relations with foreign States, public order, decency or morality or in

relation to contempt of court, defamation etc.

5. As seen above, the Impugned Provision makes every speech or

expression that “brings or attempts to bring into hatred or contempt, or excites or

attempts to excite disaffection towards the Government established by law in India” is

a criminal offence punishable with a maximum sentence of life

imprisonment. The Impugned Provision also been classified as

‘cognisable’ and non- bailable.

6. The Petitioner contends that a statute criminalising expression based on

unconstitutionally vague definitions of ‘disaffection towards

Government’, ‘Hatered’, ‘Contempt’, ‘Feelings of Enmity’ etc. is an

unreasonable restriction on the fundamental right to free expression

guaranteed under Article 19(1)(a) and causes constitutionally

impermissible ‘Chilling Effect’ on speech.

7. This Court in Kedar Nath upheld the validity of the Impugned Provision

where the court held that the very existence of the State will be in jeopardy

if the Government established by law is subverted. The Impugned

Provision however was read down to mean that only those expressions

that either intend to or have the tendency of causing violence are

punishable. Despite the reading down, the continued employment of the

4

charge of sedition to silence dissent continued undeterred and has been

taken judicial notice of. This prompted the Hon’ble Supreme Court to

reiterate the Kedar Nath law in 2016 in Common Cause v. Union of India

(2016) 15 SCC 269, directing all authorities to scrupulously follow the

Kedar Nath dictum.

8. This Hon’ble Court has however not had a chance to reopen the issue of

constitutionality of the Impugned Provision since 1962. It is submitted

that the march of the times and the development of the law has to be

taken into account in dealing with such a question now, unconstrained by

the Kedar Nath holding. It is submitted that Kedar Nath reasoning has to

be understood as the ratio in an era where the reading of fundamental

rights was rather restrictive. There has been a sea change in

understanding the scope, extent and the interrelationship of fundamental

rights since the 11-Judge bench decision in R.C. Cooper AIR 1970 SC 564

that the entire basis of the Kedar Nath judgment, looking only at the intent

of the Impugned Provision, ought to be read as having been impliedly

overruled by the development of both domestic fundamental rights

jurisprudence, as well as International human rights jurisprudence.

9. It is submitted that even in the United Kingdom, where the idea of

criminalising sedition and seditious libel began, sedition has ceased to be

an offence. The seditious libel was deleted by section 73 of the Coroners

and Justice Act, 2009. The reasons for the abolition of sedition as an

offence were stated as follows – Firstly, it may have a chilling effect on

freedom of speech and sends the wrong signal to other countries which

maintain and actually use sedition offences as a means of limiting political

debate; Second, having an overbroad common law offence of sedition,

when the same matters are dealt with under other legislation (the United

Kingdom Terrorism Act, 2000), was felt unnecessary. It can be observed

that in the past twelve since the repeal of criminal sedition, there have not

5

been any military coups or attempts to destabilize the Government of the

UK. Similarly, it is submitted that India’s democracy is also stable enough

to sustain despite doing away with the offence of sedition – whether

legislatively or vide a judicial order as sought for in this Petition.

GROUNDS

10. The Impugned Provision is challenged on the following grounds which

are taken alternatively and cumulatively, without prejudice to one another.

The Petitioners crave liberty to urge additional grounds at a later stage in

these proceedings.

I. MARCH OF THE LAW & THE READING OF THEFUNDAMENTAL RIGHTS

A. BECAUSE the basis reasoning employed in Kedar Nath v. State of Bihar

AIR 1962 SC 955 has been taken away by the development of

fundamental rights jurisprudence and international human rights

jurisprudence over the past fifty years. Particularly, the this Court has

significantly expanded and exposited on the scope, extent and inter-

relationship of fundamental rights – with the first radical shift and

articulation finding place in the 11-judge bench decision in R.C Cooper

v. Union of India (1969), later reaffirmed and strengthened in Indira

Gandhi v. Raj Narain (5 Judges, 1975), Maneka Gandhi v. Union of India (7

Judges, 1978), I.R. Coelho v. State of Tamil Nadu (9J, 2007) and more

recently in Puttaswamy v. Union of India (9J, 2017).

B. BECAUSE the constitutionality of the Impugned Provision will have

to be considered based on the development of the fundamental rights

and human rights jurisprudence over the past fifty years. The

Constitution is a living document and each generation pours its

wisdom on the understanding of fundamental rights. It is submitted

6

that the time is ripe for considering the constitutionality of the

Impugned Provision in light of such development.

C. BECAUSE it has been held by a unanimous nine-judge bench of this

Hon’ble Court in I.R. Coelho v. State of T.N., (2007) 2 SCC 1 at page 79

that:

“42. The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.”

D. BECAUSE the entire philosophy and jurisprudence of the

fundamental rights chapter of the Constitution had undergone a radical

change since R.C Cooper (11 J) and Maneka (7J) and more recently

reinforced by Puttaswamy (9J). Each of these decisions now establish

that fundamental rights in the constitution are not to be read as isolated

silos or as water-tight compartments; but are to be read as if the content

of each fundamental right animates the other. When the Impugned

Provisions were last examined for its constitutional validity, the reading

of the fundamental rights chapter was based on the understanding as

advanced by the Supreme Court in A.K. Gopalan (AIR 1951 SC 1) i.e.

each fundamental right in effect excluding the other and the content

of each of them being isolated silos.

E. BECAUSE it is also clear that the court in Kedar Nath merely tested

the intent of the provision whether being covered under the exceptions

to the freedom of speech under Article 19(2) of the Constitution; it did

not for instance take into consideration the effect of the right to

equality (Article 14) or due process (Article 21).

7

F. BECAUSE the conjoint reading of Articles 14, 19 and 21 (from

Maneka Gandhi), has now evolved the jurisprudence of testing

legislation curtailing fundamental rights on the anvil of substantive and

procedural reasonableness, necessity and proportionality.

II. INTERNATIONAL COVENANT ON CIVIL & POLITICALRIGHTS

G. BECAUSE the requirement of ‘necessity’ in part comes from India

having ratified in the International Covenant of Civil and Political

Rights in 1976, which in its Article 19 requires speech-limiting state

action to be backed by a law and to be necessary on the grounds of

respect for rights and reputations of others, national security etc.

Article 19 of the ICCPR reads as follows:

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shallinclude freedom to seek, receive and impart information and ideas of allkinds, regardless of frontiers, either orally, in writing or in print, in theform of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this articlecarries with it special duties and responsibilities. It may therefore besubject to certain restrictions, but these shall only be such as are providedby law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordrepublic), or of public health or morals. (emphasis supplied)

It is therefore submitted that the measure i.e. the penal statute needs to be shown to be “necessary” for maintaining public order and not merely “in the interest of public order” as held in Kedarnath.

8

H. BECAUSE the court in Kedar Nath was not and could not have been

alive to the consideration of international law and international

conventions in interpreting India’s fundamental rights – a practice

established only since Jolly Varghese v. Bank of Cochin, in 1980)

III. PROPORTIONALITY & NECESSITY

I. BECAUSE the understanding ‘necessity’ in the context of state action

limiting fundamental freedoms as the burden being on the state to

establish that such a limiting measure is ‘necessary in a democratic

society’, as approved by Justice A.K. Sikri writing for himself and four

others in Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC

353), as follows:63. In this direction, the next question that arises is as to what criteria is to beadopted for a proper balance between the two facets viz. the rights and limitationsimposed upon it by a statute. Here comes the concept of “proportionality”, whichis a proper criterion. To put it pithily, when a law limits a constitutional right, sucha limitation is constitutional if it is proportional. The law imposing restrictionswill be treated as proportional if it is meant to achieve a proper purpose, and ifthe measures taken to achieve such a purpose are rationally connected to thepurpose, and such measures are necessary. This essence of doctrine ofproportionality is beautifully captured by Dickson, C.J. of Canadain R. v. Oakes [R. v. Oakes, (1986) 1 SCR 103 (Can SC)] , in the following words(at p. 138):“To establish that a limit is reasonable and demonstrably justified in a free anddemocratic society, two central criteria must be satisfied. First, the objective,which the measures, responsible for a limit on a Charter right or freedom aredesigned to serve, must be “of” sufficient importance to warrant overriding aconstitutional protected right or freedom … Second … the party invoking Section1 must show that the means chosen are reasonable and demonstrably justified.This involves “a form of proportionality test…” Although the nature of theproportionality test will vary depending on the circumstances, in each case courtswill be required to balance the interests of society with those of individuals andgroups. There are, in my view, three important components of a proportionalitytest. First, the measures adopted must be … rationally connected to the objective.Second, the means … should impair “as little as possible” the right or freedom inquestion … Third, there must be a proportionality between the effects of themeasures which are responsible for limiting the Charter right or freedom, and theobjective which has been identified as of “sufficient importance”. The moresevere the deleterious effects of a measure, the more important theobjective must be if the measure is to be reasonable and demonstrablyjustified in a free and democratic society.” (emphasis supplied)

9

J. BECAUSE the Impugned Provision fails the test of proportionality.

The most recent and modern articulation of the doctrine of

proportionality finds place in the recent decision of this Court in

Gujarat Mazdoor Sabha v. The State of Gujarat 2020 SCC OnLine SC 798,

wherein it was summarised as follows:

“(i) A law interfering with fundamental rights must be in pursuance of a legitimate state aim;

(ii) The justification for rights-infringing measures that interfere with orlimit the exercise of fundamental rights and liberties must be based on theexistence of a rational connection between those measures, the situation infact and the object sought to be achieved;

(iii) The measures must be necessary to achieve the object and must notinfringe rights to an extent greater than is necessary to fulfil the aim;

(iv) Restrictions must not only serve legitimate purposes; they must also benecessary to protect them; and

(v) The State should provide sufficient safeguards against the abuseof such interference.” (emphasis supplied)

It is submitted that penalising speech with criminal consequences,

coupled with the classification of the offence as cognizable and non-

bailable manifestly fails the test of proportionality as the measure is

neither least restrictive, nor can be stated as being necessary in a

democratic society.

IV. CHILLING EFFECT & OVERBREADTH

K. BECAUSE the Impugned Provision is ultra vires Article 19(1)(a) for

having a chilling effect on political speech and expression. ‘Chilling

effect’ on speech, i.e. the likely effect of state action creating

psychological barriers in the free exercise of the right. The probability

and severity of the chilling effect has a bearing on the validity of the

vires of any provision.

10

L. BECAUSE the doctrine of chilling effect was first articulated inWalker v. City of Birmingham, 388 U.S. 307 (1967) thus:

In the present case we are confronted with a collision between Alabama's interest in requiring adherence to orders of its courts and the constitutional prohibition against abridgment of freedom of speech, more particularly "the right of the people peaceably to assemble," and the right "to petition the Government for a redress of grievances." See, e. g., Stromberg v. California, 283 U.S. 359 ; De Jonge v. Oregon, 299 U.S. 353 ; Thornhill v. Alabama, 310 U.S. 88 ; Edwards v. SouthCarolina, 372 U.S. 229 ; Cox v. Louisiana, 379 U.S. 536 . Special considerationshave time and again been deemed by us to attend protection of these freedoms inthe face of state interests the vindication of which results in prior restraints upontheir exercise, 4 or their regulation in a vague or overbroad manner, 5 or in a waywhich gives unbridled discretion to limit their exercise to an individual or groupof individuals. 6 To give these freedoms the necessary "breathing space tosurvive," NAACP v. Button, 371 U.S. 415, 433 , the Court has modifiedtraditional rules of standing and prematurity. See Dombrowski v. [388 U.S. 307,345] Pfister, 380 U.S. 479 . We have molded both substantive rights andprocedural remedies in the face of varied conflicting interests to conformto our overriding duty to insulate all individuals from the "chilling effect"upon exercise of First Amendment freedoms generated by vagueness,overbreadth and unbridled discretion to limit their exercise. (Emphasissupplied)

M. BECAUSE this doctrine of chilling effect has received recognition

under Indian jurisprudence in Shreya Singhal (2015) 5 SCC 1, where this

Court while striking down Section 66A of the Information Technology

Act, 2021 exposited on the chilling effect and overbreadth thus:

Chilling Effect And Overbreadth 87. 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 disseminated over the internet 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. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views”—such as the emancipation of women or the abolition of the caste system or whether certain members of a non-proselytizing religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66-A. In point of fact, Section 66-A is cast so widely that virtually any opinion on any subject would becovered by it, as any serious opinion dissenting with the mores of the daywould be caught within its net. Such is the reach of the section and if itis to withstand the test of constitutionality, the chilling effect on freespeech would be total.

11

88. Incidentally, some of our judgments have recognised this chillingeffect of free speech. In R. Rajagopal v. State of T.N. [(1994) 6 SCC 632] , this Court held : (SCC pp. 646-47, para 19)

“19. The principle of Sullivan [New York Times Co. v. Sullivan, 376 US 254 : 11 L Ed 2d 686 (1964)] was carried forward—and this is relevant to the second question arising in this case—in Derbyshire County Council v. Times Newspapers Ltd. [1993 AC 534 : (1993) 2 WLR 449 : (1993) 1 All ER 1011 (HL)] , a decision rendered by the House of Lords. The plaintiff, a local authority brought an action for damages for libel against the defendants in respect of two articles published in Sunday Times questioning the propriety of investments made for its superannuation fund. The articles were headed ‘Revealed : Socialist tycoon deals with Labour Chief’ and ‘Bizarre deals of a council leader and the media tycoon’. A preliminary issue was raised whether the plaintiff has a cause of action against the defendant. The trial Judge held that such an action was maintainable but on appeal the Court of Appeal held to the contrary. When the matter reached the House of Lords, it affirmed the decision of the Court of Appeal but on a different ground. Lord Keith delivered the judgment agreed to by all other learned Law Lords. In his opinion, Lord Keith recalled that in Attorney General v. Guardian Newspapers Ltd. (No. 2) [(1990) 1 AC 109 : (1988) 3 WLR 776 : (1988) 3 All ER 545 (HL)] popularly known as ‘Spycatcher case’, the House of Lords had opined that ‘there are rights available to private citizens which institutions of … Government are not in a position to exercise unless they can show that it is in the public interest to do so’. It was also held therein that not only was there no public interest in allowing governmental institutions to sue for libel, it was ‘contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech’ and further that action for defamation or threat of such action ‘inevitably have an inhibiting effect on freedom of speech’. The learned Law Lord referred to the decision of the United States Supreme Court in New York Times Co. v. Sullivan [New York Times Co. v. Sullivan, 376 US 254 : 11 L Ed 2d 686 (1964)] and certain other decisions of American Courts and observed—and this is significant for our purposes—

‘while these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available.’

Accordingly, it was held that the action was not maintainable in law.”

(emphasis in original)

89. Also in S. Khushboo v. Kanniammal [(2010) 5 SCC 600 : (2010) 2SCC (Cri) 1299] , this Court said : (SCC p. 620, para 47)

“47. In the present case, the substance of the controversy does not really touch on whether premarital sex is socially acceptable. Instead, the real issue of concern is the disproportionate response to the appellant's remarks. If the complainants vehemently disagreed with the appellant's views, then they should have contested her views through the news media or any other public platform. The law

12

should not be used in a manner that has chilling effects on the ‘freedom of speech and expression’.” 94. These two Constitution Bench decisions bind us and would apply

directly on Section 66-A. We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.

5. The petitioners' various counsel raised a large number of points as to the constitutionality of Section 66-A. According to them, first and foremost Section 66-A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2). According to them, the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will are all outside the purview of Article 19(2). Further, in creating an offence, Section 66-A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said section. In fact, a large number of innocent persons have been booked and many instances have been given in the form of a note to the Court. The enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said section has a chilling effect on the freedom of speech and expression. Also, the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet. The petitioners also contend that their rights under Articles 14 and 21 are breached inasmuch as there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself a discriminatory object and would fall foul of Article 14 in any case.

V. PRESUMPTION OF CONSTITUTIONALITY

N. BECAUSE the court in Kedarnath also could not have examined

Section 124A shedding the presumption as to its constitutionality. It is

only as recently as in 2018 (in Navtej Singh Johar v. Union of India, (2018) 10

SCC 1), that the court found that pre-constitutional legislations have no

legal presumption of constitutionality. Incidentally, that was the case in

which the court re-examined the constitutionality of Section 377 of the

Indian Penal Code, which, among other things, criminalized

13

consensual same-sex acts; despite an earlier judgment having examined

and upheld the provision. The Court in Navtej at Pg. 81 held held:

360. Given the aforesaid, it has now to be decided as to whether the judgmentin Suresh Kumar Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] is correct. Suresh Kumar Koushal [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 : (2013) 4 SCC (Cri) 1] judgment first begins with the presumption of constitutionality attaching to pre-constitutional laws, such as the Penal Code. The judgment goes on to state that pre-constitutional laws, which have been adopted by Parliament and used with or without amendment, being manifestations of the will of the people of India through Parliament, are presumed to be constitutional. We are afraid that we cannot agree.

361. Article 372 of the Constitution of India continues laws in force in theterritory of India immediately before the commencement of the Constitution. That the Penal Code is a law in force in the territory of India immediately before the commencement of this Constitution is beyond cavil. Under Article 372(2), the President may, by order, make such adaptations and modifications of an existing law as may be necessary or expedient to bring such law in accord with the provisions of the Constitution. The fact that the President has not made any adaptation or modification as mentioned in Article 372(2) does not take the matter very much further. The presumption of constitutionality of a statute is premised on the fact that Parliament understands the needs of the people, and that, as per the separation of powers doctrine, Parliament is aware of its limitations in enacting laws — it can only enact laws which do not fall within List II of Schedule VII to the Constitution of India, and cannot transgress the fundamental rights of the citizens and other constitutional provisions in doing so. Parliament is therefore deemed to be aware of the aforesaid constitutional limitations. Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like the Penal Code.

**** 363. It is a little difficult to subscribe to the view of the Division Bench that the

presumption of constitutionality of Section 377 would therefore attach.

O. BECAUSE a five judge bench of the Constitution Bench in A.K. Roy

v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 at page 318

recognised the inherent vagueness and overbreadth in the Impugned

Provision thus:

The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248 : AIR 1978 SC 597] . The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither

14

the criminal law nor the Constitution requires the application of impossible standards and therefore, what is expected is that the language of the law must contain an adequate warning of the conduct which may fall within the proscribed area, when measured by common understanding. In criminal law, the legislature frequently uses vague expressions like ‘bring into hatred or contempt’, or ‘maintenance of harmony between different religious groups’, or ‘likely to cause disharmony or ... hatred or ill will’, or ‘annoyance to the public’ [see Sections 124-A, 153-A(1)(b), 153-B(1)(c), and 268 of the Penal Code]. These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language. (Emphasis supplied)

It is therefore submitted that the Impugned Provision is

unquestionably, unconstitutionally vague and has an impermissible

chilling effect on free speech and ought to be struck down.

VI. THE NEED TO STRIKE DOWN THE IMPUGNEDPROVISION

P. BECAUSE for all the reasons noted above, the judgment in Kedar

Nath ought to be considered as a judgment that has been impliedly

overruled vide the development of the law from R.C. Cooper onwards.

Q. BECAUSE it is therefore imperative that this Hon’ble Court considers

the issue of the constitutionality of Section 124A of the Constitution

of India afresh unconstrained by the judgment of Kedar Nath that

merely read down the provision in light of the understanding of the

fundamental rights jurisprudence in the A.K. Gopalan era.

R. BECAUSE reading down of the provision has not served the purpose

and as the recent surge in the filing of sedition cases indicates, to ensure

that the criminal process is not used to chill the free expression of

citizens – particularly political expression critical of or against the

government that is for the time being in power, it is imperative that a

more effective judicial tool is employed i.e. the unambiguous striking

down of the provision and to declare that all pending proceedings in

respect of sedition stand closed.

11. The Petitioner has not filed any other similar petition on the same cause

of action before this court or any other court. There is no pending civil,

15

criminal or revenue litigation filed by the Petitioner seeking similar reliefs.

The Writ Petition is bona fide. The Petitioner has no personal interest,

motive, gain or oblique reasons in the filing of the accompanying Petition

and the same is being filed purely in general public interest

PRAYERS

It is therefore most respectfully prayed that this Hon’ble Court may graciously

be pleased to:

1. Issue a writ of mandamus or any other appropriate writ, order, or

direction declaring Section 124A of the Indian Penal Code, 1860 as

void and inoperative for being ultra vires Article 19(1)(a) of the

Constitution of India read with Articles 14 and 21 thereof;

2. Issue a writ of mandamus or any other appropriate writ, order, or

direction declaring that all subsisting criminal proceedings before any

court to the extent of such proceedings in anyway relate to a charge

under Section 124A of the Indian Penal Code, 1860 stand closed to

such extent;

3. Issue a writ of mandamus or any other appropriate writ, order, or

direction declaring that all complaints and reports under Section 154(1)

of the Code of Criminal Procedure, 1973 i.e. first information reports,

to the extent that such report/s accuse/s anyone of an offence under

Section 124A of the Indian Penal Code, 1860 stand quashed to such

extent;

4. Issue a writ of mandamus or any other appropriate writ, order, or

direction directing that no authority including any state or central

police shall take any step in furtherance of investigation or prosecution

of any cases in respect of and to the extent that the accusation is of an

offence under Section 124A of the Indian Penal Code, 1860;

16

5. Pass such or other or further orders as this Hon’ble Court may deem

fit and proper in the facts and circumstances of this case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

DRAWN & FILED BY:

PRASANNA S, Advocate for the Petitioner

CC: 2919 New Delhi 23.06.2021

17

IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2021

IN THE MATTER OF:

S.G. VOMBATKERE …PETITIONER

Versus

UNION OF INDIA …RESPONDENTS

AFFIDAVIT

I, S.G. Vombatkere, Major General (Retd), s/o Late. V.G. Row, aged

about 79 years, resident of

________________________________________Karnataka, India

solemnly declare and affirm as under that :-

1. I am the Petitioner in the accompanying Petition and as such

conversant with the facts and circumstances of this case and am fully

competent to swear this Affidavit.

2. The contents of the Petition, the accompanying Applications and this

Affidavit, which have all been drawn by my counsel under my

instruction, have been perused by me. I say that the said contents,

including the Synopsis and the List of Dates from Pg B to U, the

Petition from Para 1 to 9 and the accompanying Applications are

true and correct to the best of my knowledge and belief.

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3. I say that I have no personal interest, motive, gain or oblique reasons

in the filing of the accompanying Petition and the same is being filed

purely in general public interest.

4. The documents annexed to the accompanying Petition and marked

as ANNEXURE-P-1 through ANNEXURE-P-2 are true copies of

their respective originals.

DEPONENT

VERIFICATION

Verified at Mysore, Karnataka, on 23rd day of June, 2021 that the contents

of this affidavit are true and correct to the best of my knowledge and belief.

No part of it is false and nothing material has been concealed here from.

DEPONENT

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APPENDIX

Section 124A of Indian Penal Code, 1860

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 Government with a view to obtain their alteration by lawful means, without exciting or 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.]

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1962 Supp (2) SCR 769 : AIR 1962 SC 955 : (1962) 2 Cri LJ 103

In the Supreme Court of India(BEFORE B.P. SINHA, C.J. AND S.K. DAS, A.K. SARKAR, N. RAJAGOPALA AYYANGAR AND J.R.

MUDHOLKAR, JJ.)

Criminal Appeal No. 169 of 1957KEDAR NATH SINGH … Appellant;

VersusSTATE OF BIHAR … Respondent.

WithCriminal Appeals Nos. 124 to 126 of 1958

STATE OF UTTAR PRADESH (IN ALL THE APPEALS) … Appellant;Versus

1. MOHD. ISHQ ILMI (IN Cr. A. NO. 124 OF 58)2. RAM NANDAN (IN Cr. A. NO. 125 OF 58) AND3. PARAS NATH TRIPATHI (IN Cr. A. NO. 126 OF 58) …

Respondents.The Attorney-General for India (On notice by the Court) (In all the four Appeals)Criminal Appeal Nos. 169 of 1957 and 124 to 126 of 1958 , decided on January

24, 1962 Advocates who appeared in this case :In Criminal Appeal No. 169 of 1957

Janardan Sharma, Advocate, for the Appellant;R.C. Prasad, Advocate, for the Respondent;

In Criminal Appeals Nos. 124 to 126 of 1958C.B. Agarwala, Senior Advocate (G.C. Mathur and C.P. Lal, Advocates, with him), for

the Appellant (In all the Appeals); S.P. Sinha, Senior Advocate (Gopal Behari and S. Shaukat Hussain, Advocates, with

him), for the Respondent (In Cr. A. No. 124 of 58); C.K. Daphtary, Solicitor-General of India (S.P. Varma and T.M. Sen, Advocates, with

him), for the Attorney-General (In all the four Appeals). The Judgment of the Court was delivered by

B.P. SINHA, C.J.— In these appeals the main question in controversy is whether Sections 124-A and 505 of the Indian Penal Code have become void in view of the provisions of Article 19(1)(a) of the Constitution. The constitutionality of the provisions of Section 124-A, which was mainly canvassed before us, is common to all the appeals, the facts of which may shortly be stated separately.

2. In Criminal Appeal, 169 of 1957, the appellant is one Kedar Nath Singh, who wasprosecuted before a Magistrate, 1st Class, at Begusarai, in the district of Monghyr, in Bihar. He framed the following charges against the accused person, which are set out in extenso in order to bring out the gravamen of the charge against him:

“First.—That you on the 26th day of May, 1953 at Village Barauni, P.S. Teghra (Monghyr) by speaking the words, to wit.

(a) Today the dogs of the CID are loitering round Barauni. Many official dogsare sitting even in this meeting. The people of India drove out the Britishers from this country and elected these Congress goondas to the gaddi and seated them

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on it. Today these Congress goondas are sitting on the gaddi due to mistake of the people. When we drove out the Britishers, we shall strike and turn out these Congress goondas as well. These official dogs will also be liquidated along with these Congress goondas. These Congress goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers — mazdoors and Kisans — is being sucked. The capitalists and the zamindars of this country help these Congress goondas. These zamindars and capitalists will also have to be brought before the people's court along with these Congress goondas.

(b) On the strength of the organisation and unity of Kisans and mazdoors theForward Communists Party will expose the black deeds of the Congress goondas, who are just like the Britishers. Only the colour of the body has changed. They have today established a rule of lathis and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs and other weapons with them.

(c) The Forward Communist Party does not believe in the doctrine of voteitself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes and on their ashes will be established a Government of the poor and the downtrodden people of India.

(d) It will be a mistake to expect anything from the Congress rulers. They(Congress rulers) have set up V. Bhava in the midst of the people by causing him to wear a langoti in order to divert the people's attention from their mistakes. Today Vinova is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, ‘you should understand it that the people cannot be deceived by this Yajna, illusion and fraud of Vinova’. I shall advise Vinova not to become a puppet in the hands of the Congressmen. Those persons, who understand the Yajna of Vinova, realise that Vinova is an agent of the Congress Government.

(e) I tell you that this Congress Government will do no good to you.(f) I want to tell the last word even to the Congress Tyrants, ‘You play with

the people and ruin them by entangling them in the mesh of bribery, black marketing and corruption. Today the children of the poor are hankering for food and you Congressmen are assuming the attitude of Nawabs sitting on the chairs’…. brought or attempted to bring into hatred or contempt or excited or attempted to

excite disaffection towards the Government established by law in the Indian Union and thereby committed an offence punishable under Section 124-A of the Indian Penal Code and within my cognizance.

Secondly.—That you on 26th day of May, 1953 at Village Barauni, P.S. Tegra (Monghyr) made the statement, to wit.

(a) Today the dogs of the CID are loitering round Barauni. Many official dogsare sitting even in this meeting. The people of India drove out the Britishers from this country, and elected these Congress Goondas to the gaddi and seated them on it. Today these Congress Goondas are sitting on the gaddi due to the mistake of the people. When we have driven out the Britishers, we shall strike and turn out these Congress Goondas as well. These official dogs will also be liquidated along with these Congress Goondas. These Congress Goondas are banking upon the American dollars and imposing various kinds of taxes on the people today. The blood of our brothers Mazdoors and Kisans is being sucked. The capitalists

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and the zamindars of this country help these Congress Goondas. These zamindars and capitalists will also have to be brought before the people's court along with these Congress Goondas.

(b) On the strength of the organisation and unity of kisans and mazdoors the Forward Communist Party will expose the black-deeds of the Congress Goondas, who are just like the Britishers. Only the colour of the body has changed. They have, today, established a rule of lathis and bullets in the country. The Britishers had to go away from this land. They had aeroplanes, guns, bombs, and other weapons with them.

(c) The Forward Communist Party does not believe in the doctrine of votes itself. The party had always been believing in revolution and does so even at present. We believe in that revolution, which will come and in the flames of which the capitalists, zamindars and the Congress leaders of India, who have made it their profession to loot the country, will be reduced to ashes, and on their ashes will be established a Government of the poor and the downtrodden people of India.

(d) It will be a mistake to expect anything from the Congress rulers. They (Congress rulers) have set up V. Bhave in the midst of the people by causing him to wear a langoti in order to divert the attention of the people from their mistakes. Today Vinoba is playing a drama on the stage of Indian politics. Confusion is being created among the people. I want to tell Vinova and advise his agents, “You should understand it that the people cannot be deceived by this Yajna, illusion and fraud of Vinova. I shall advise Vinova not to become a puppet in the hands of the Congressmen. Those persons who understand the Yajna of Vinova, realise that Vinova is an agent of the Congress Government.

(e) I tell you that no good will be done to you by this Congress Government. (f) I want to tell the last word even to Congress tyrants ‘you play with the

people and ruin them by entangling them in the mesh of bribery, black-marketing and corruption. Today the children of the poor are hankering for food and you (Congressmen) are assuming the attitude of Nawabs sitting on the chairs’.… with intent to cause or which was likely to cause fear or alarm to the public

whereby any person might be induced to commit an offence against the State of Bihar and against the public tranquillity, and thereby committed an offence punishable under Section 505(b) of the Indian Penal Code and within my cognizance.” 3. After recording a substantial Vol. of oral evidence, the learned trial Magistrate

convicted the accused person both under Sections 124-A and 505(b) of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for one year. No separate sentence was passed in respect of the conviction under the latter section.

4. The convicted person preferred an appeal to the High Court of Judicature at Patna, which was heard by the late Mr Justice Naqui Imam, sitting singly. By his judgment and order dated 9-4-1956, he upheld the convictions and the sentence and dismissed the appeal. In the course of his judgment, the learned Judge observed that the subject-matter of the charge against the appellant was nothing but a vilification of the Government; that it was full of incitements to revolution and that the speech taken as a whole was certainly seditious. It is not a speech criticising any particular policy of the Government or criticising any of its measures. He held that the offences both under Sections 124-A and 505(b) of the Indian Penal Code had been made out.

5. The convicted person moved this Court and obtained special leave to appeal. It will be noticed that the constitutionality of the provisions of the sections under which the appellant was convicted had not been canvassed before the High Court. But in the

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petition for special leave, to this Court, the ground was taken that Sections 124-A and 505 of the Indian Penal Code “are inconsistent with Article 19(1)(a) of the Constitution”. The appeal was heard in this Court, in the first instance, by a Division Bench on 5-5-1959. The Bench, finding that the learned counsel for the appellant had raised the constitutional issue as to the validity of Sections 124-A and 505 of the Indian Penal Code, directed that the appeal be placed for hearing by a Constitution Bench. The case was then placed before a Constitution Bench on 4-11-1960, when that Bench directed notice to issue to the Attorney-General of India under Rule 1 Order 41 of the Supreme Court Rules. The matter was once again placed before a Constitution Bench on 9-2-1961, when it was adjourned for two months in order to enable the State Governments concerned with this appeal, as also with the connected Criminal Appeals Nos. 124-26 of 1958 (in which the Government of Uttar Pradesh is the appellant) to make up their minds in respect of the prosecutions, as also in view of the report that the Law Commission was considering the question of amending the law of sedition in view of the new set-up. As the States concerned have instructed their counsel to press the appeals, the matter has finally come before us.

6. In Criminal Appeals 124-26 of 1958, the State of Uttar Pradesh is the appellant,though the respondents are different. In Criminal Appeal 124 of 1958, the accused person is one Mohd. Ishaq Ilmi. He was prosecuted for having delivered a speech at Aligarh as Chairman of the Reception Committee of the All India Muslim Convention on 30-10-1953. His speech on that occasion was thought to be seditious. After thenecessary sanction, the Magistrate held an enquiry, and finding a prima facie casemade out against the accused, committed him to the Court of Session. The learnedSessions Judge, by his judgment dated 8-1-1955, acquitted him of the charge underSection 153-A, but convicted him of the other charge under Section 124-A of theIndian Penal Code, and sentenced him to rigorous imprisonment for one year. Theconvicted person preferred an appeal to the High Court. In the High Court theconstitutionality of Section 124-A of the Indian Penal Code was challenged.

7. In Criminal Appeal No. 125 of 1958, the facts are that on 29-5-1954, a meetingof the Bolshevik Party was organised in Village Hanumanganj, in the district of Basti, in Uttar Pradesh. On that occasion, the respondent Rama Nand was found to have delivered an objectionable speech insofar as he advocated the use of violence for overthrowing the Government established by law. After the sanction of the Government to the prosecution had been obtained, the learned Magistrate held an enquiry and ultimately committed him to take his trial before the Court of Sessions. In due course, the learned Sessions Judge convicted the accused person under Section 124-A of the Indian Penal Code and sentenced him to rigorous imprisonment for threeyears. He held that the accused person had committed the offence by inciting theaudience to an open violent rebellion against the Government established by law, bythe use of arms. Against the aforesaid order of conviction and sentence, the accusedperson preferred an appeal to the High Court of Allahabad.

8. In Criminal Appeal No. 126 of 1958, the respondent is one Parasnath Tripathi. Heis alleged to have delivered a speech in Village Mansapur, P.S. Akbarpur, in the district of Faizabad, on 26-9-1955, in which he is said to have exhorted the audience to organise a volunteer army and resist the Government and its servants by violent means. He is also said to have excited the audience with intent to create feelings of hatred and enmity against the Government. When he was placed on trial for an offence under Section 124-A of the Indian Penal Code, the accused person applied for a writ of Habeas Corpus in the High Court of Judicature at Allahabad on the ground that his detention was illegal inasmuch as the provisions of Section 124-A of the Indian Penal Code were void as being in contravention of his fundamental rights of free speech and expression under Article 19(1)(a) of the Constitution. This matter, along with the appeals which have given rise to Appeals Nos. 124 and 125, as aforesaid, were

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ultimately placed before a Full Bench, consisting of Desai, Gurtu and Beg, JJ. The learned Judges, in separate but concurring judgments, took the view that Section 124-A of the Indian Penal Code was ultra vires Article 19(1)(a) of the Constitution. In that view of the matter, they acquitted the accused persons, convicted as aforesaid in the two Appeals Nos. 124 and 125, and granted the writ petition of the accused in Criminal Appeal No. 126. In all these cases the High Court granted the necessary certificate that the case involved important questions of law relating to the interpretation of the Constitution. That is how these appeals are before us on a certificate of fitness granted by the High Court.

9. Shri C.B. Agarwala, who appeared on behalf of the State of Uttar Pradesh insupport of the appeals against the orders of acquittal passed by the High Court, contended that the judgment of the High Court (now reported in Ram Nandan v. State in which it was laid down by the Full Bench that Section 124-A of the Indian Penal Code was ultra vires Article 19(1)(a) of the Constitution and, therefore, void for the reason that it was not in the interest of public order and that the restrictions imposed thereby were not reasonable restrictions on the freedom of speech and expression, was erroneous. He further contended that the section impugned came within the saving clause (2) of Article 19, and that the reasons given by the High Court to the contrary were erroneous. He relied upon the observations of the Federal Court in Niharendu Dutt Majumdar v. King Emperor . He also relied on Stephen's Commentaries on the Laws of England, Vol. IV, 21st Edn., p. 141, and the Statement of the Law in Halsbury's Laws of England, 3rd Edn., Vol. 10, p. 569, and the cases referred to in those volumes. Mr Gopal Behari, appearing on behalf of the respondents in the Allahabad cases has entirely relied upon the Full Bench decision of the Allahabad High Court in his favour. Shri Sharma appearing on behalf of the appellant in the appeal from the Patna High Court has similarly relied upon the decision aforesaid of the Allahabad High Court.

10. Before dealing with the contentions raised on behalf of the parties, it isconvenient to set out the history of the law, the amendments it has undergone and the interpretations placed upon the provisions of Section 124-A by the Courts in India, and by Their Lordships of the Judicial Committee of the Privy Council. The section corresponding to Section 124-A was originally Section 113 of Macaulay's Draft Penal Code of 1837-39, but the section was omitted from the Indian Penal Code as it was enacted in 1860. The reason for the omission from the Code as enacted is not clear, but perhaps the legislative body did not feel sure about its authority to enact such a provision in the Code. Be that as it may, Section 124-A was not placed on the Statute Book until 1870, by Act 27 of 1870. There was a considerable amount of discussion at the time the amendment was introduced by Sir James Stephen, but what he said while introducing the bill in the legislature may not be relevant for our present purposes. The section as then enacted ran as follows:

“124-A. Exciting Disaffection.— Whoever by words, either spoken or intended to be read, or by signs, or by visible representation, or otherwise, excites, or attempts to excite, feelings of disaffection to the Government established by law in British India, shall be punished with transportation for life or for any term, to which fine may be added, or with imprisonment for a term which may extend to three years, to which fine may be added, or with fine.

Explanation.—Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the methods of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.”

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11. The first case in India that arose under the section is what is known as theBangobasi case (Queen-Empress v. Jogendra Chunder Bose ) which was tried by a Jury before Sir Comer Petheram, C.J. While charging the jury, the learned Chief Justice explained the law to the jury in these terms:

“Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man's sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his hearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section, though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are 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.” 12. The next case is the celebrated case of Queen-Empress v. Balgangadhar Tilak

which came before the Bombay High Court. The case was tried by a jury before Strachey, J. The learned Judge, in the course of his charge to the jury, explained the law to them in these terms:

“The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are ‘feelings of disaffection’? I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection. It means 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. You will observe that the amount or intensity of the disaffection is absolutely immaterial except perhaps in dealing with the question of punishment: if a man excites or attempts to excite feelings of disaffection, great or small, he is guilty under the section. In the next place, it is absolutely immaterial whether any feelings of disaffection have been excited or not by the publication in question. It is true that there is before you a charge against each prisoner that he has actually excited feelings of disaffection to the Government. If you are satisfied that he has done so, you will, of course, find him guilty. But if you should hold that that charge is not made out, and that no one is proved to have been excited to entertain feelings of disaffection to the Government by reading these articles, still that alone would not justify you in acquitting the prisoners. For each of them is charged not only with exciting feelings of disaffection, but also with attempting to excite such feelings. You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feelings in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feelings towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to

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excite rebellion or disturbance, his act would doubtless fall within Section 124-A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope.”

The long quotation has become necessary in view of what followed later, namely, that this statement of the law by the learned Judge came in for a great deal of comment and judicial notice. We have omitted the charge to the jury relating to the explanation to Section 124-A because that explanation has now yielded place to three separate explanations in view of judicial opinions expressed later. The Jury, by a majority of six to three, found Shri Balgangadhar Tilak guilty. Subsequently, he, on conviction, applied under clause 41 of the Letters Patent for leave to appeal to the Privy Council. The application was heard by a Full Bench consisting of Farran, C.J., Candy and Strachey, JJ. It was contended before the High Court at the leave stage, inter alia, that the sanction given by the Government was not sufficient in law in that it had not set out the particulars of the offending articles, and, secondly, that the Judge misdirected the jury as to the meaning of the word “disaffection” insofar as he said that it might be equivalent to “absence of affection”. With regard to the second point, which is the only relevant point before us, the Full Bench expressed itself to the following effect:

“The other ground upon which Mr Russell has asked us to certify that this is a fit case to be sent to Her Majesty in Council, is that there has been a misdirection, and he based his argument on one major and two minor grounds. The major ground was that the section cannot be said to have been contravened unless there is a direct incitement to stir up disorder or rebellion. That appears to us to be going much beyond the words of the section, and we need not say more upon that ground. The first of the minor points is that Mr Justice Strachey in summing up the case to the jury stated that disaffection meant the ‘absence of affection’. But although if that phrase had stood alone it might have misled the jury, yet taken in connection with the context we think it is impossible that the jury could have been misled by it. That expression was used in connection with the law as laid down by Sir Comer Petheram in Calcutta in the Bangaboshi case. There the Chief Justice instead of using the words absence of affection used the words ‘contrary to affection’. If the words ‘contrary to affection’ had been used instead of ‘absence of affection’ in this case there can be no doubt that the summing up would have been absolutely correct in this particular. But taken in connection with the context it is clear that by the words ‘absence of affection’ the learned Judge did not mean the negation of affection, but some active sentiment on the other side. Therefore on that point we consider that we cannot certify that this is a fit case for appeal.

In this connection it must be remembered that it is not alleged that there has been a miscarriage of justice.”

After making those observations, the Full Bench refused the application for leave. The case was then taken to Her Majesty in Council, by way of application for special leave to appeal to the Judicial Committee. Before Their Lordships of the Privy Council, Asquith, Q.C., assisted by counsel of great experience and eminence like Mayne, W.C.

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Bannerjee and others, contended that there was a misdirection as to the meaning of Section 124-A of the Penal Code in that the offence had been defined in terms too wide to the effect that “disaffection” meant simply “absence of affection”, and that it comprehended every possible form of bad feeling to the Government. In this connection reference was made to the observations of Petheram, C.J. in Queen-Empress v. Jogendra Chander Bose . It was also contended that the appellant's comments had not exceeded what in England would be considered within the functions of a public journalist, and that the misdirection complained of was of the greatest importance not merely to the affected person but to the whole of the Indian press and also to all Her Majesty's subjects; and that it injuriously affected the liberty of the press and the right to free speech in public meetings. But in spite of the strong appeal made on behalf of the petitioner for special leave, the Lord Chancellor, delivering the opinion of the Judicial Committee, while dismissing the application, observed that taking a view of the whole of the summing up they did not see any reason to dissent from it, and that keeping in view the Rules which Their Lordships observed in the matter of granting leave to appeal in criminal cases, they did not think that the case raised questions which deserve further consideration by the Privy Council, (vide Gangadhar Tilak v. Queen-Empress ).

13. Before noticing the further changes in the Statute, it is necessary to refer to theFull Bench decision of the Allahabad High Court in Queen-Empress v. Amba Prasad . In that case, Edge, C.J., who delivered the judgment of the Court, made copious quotations from the judgments of the Calcutta and the Bombay High Courts in the cases above referred to. While generally adopting the reasons for the decisions in the aforesaid two cases, the learned Chief Justice observed that a man may be guilty of the offence defined in Section 124-A of attempting to excite feelings of disaffection against the Government established by law in British India, although in a particular article or speech he may insist upon the desirability or expediency of obeying and supporting the Government. He also made reference to the decision of the Bombay High Court in the Satara case . In that case a Full Bench, consisting of Farran, C.J., and Parsons and Ranade, JJ., had laid it down that the word “disaffection” in the section is used in a special sense as meaning political alienation or discontent or disloyalty to the Government or existing authority. They also held that the meaning of the word “disaffection” in the main portion of the section was not varied by the explanation. Parsons, J., held that the word “disaffection” could not be construed as meaning “absence of or contrary of affection or love”. Ranade, J., interpreted the word “disaffection” not as meaning mere absence or negation of love or goodwill but a positive feeling of aversion, which is akin to illwill, a definite insubordination of authority or seeking to alienate the people and weaken the bond of allegiance, a feeling which tends to bring the Government into hatred and discontent, by imputing base and corrupt motives to it. The learned Chief Justice of the Allahabad High Court observed that if these remarks were meant to be in any sense different from the construction placed upon the section by Strachey, J., which was approved, as aforesaid, by the Judicial Committee of the Privy Council, the later observations of the Bombay High Court could not be treated as authoritative. As the accused in the Allahabad case had pleaded guilty and the appeal was more or less on the question of sentence, it was not necessary for Their Lordships to examine in detail the implications of the section, though they expressed their general agreement with the view of the Calcutta and the Bombay High Courts in the first two cases, referred to above.

14. The section was amended by the Indian Penal Code Amendment Act (4 of1898). As a result of the amendment, the single explanation to the section was replaced by three separate explanations as they stand now. The section, as it now stands in its present form, is the result of the several AOs of 1937, 1948 and 1950, as a result of the constitutional changes, by the Government of India Act, 1935, by the

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Independence Act of 1947 and by the Indian Constitution of 1950. Section 124-A, as it has emerged after successive amendments by way of adaptations as aforesaid, reads as follows:

“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 transportation for life or any shorter term 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 Government with a view to obtain their alteration by lawful means, without exciting or 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.” 15. This offence, which is generally known as the offence of Sedition, occurs in

Chapter VI of the Indian Penal Code, headed “Of Offences against the State”. This species of offence against the State was not an invention of the British Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder. In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England, 21st Edn., Vol. IV, at pp. 141-42, in these words:

“Section IX. Sedition and Inciting to Disaffection.—We are now concerned with conduct which, on the one hand, falls short of treason, and, on the other does not involve the use of force or violence. The law has here to reconcile the right of private criticism with the necessity of securing the safety and stability of the State. Sedition may be defined as conduct which has, either as its object or as its natural consequence, the unlawful display of dissatisfaction with the Government or with the existing order of society.

The seditious conduct may be by words, by deed, or by writing. Five specific heads of sedition may be enumerated according to the object of the accused. This may be either

1. to excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice;

2. to promote, by unlawful means, any alteration in Church or State;3. to incite a disturbance of the peace;4. to raise discontent among the King's subjects;5. to excite class hatred.

It must be observed that criticism on political matters is not of itself seditious. The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner's conduct is to promote public disorder.” 16. This statement of the law is derived mainly from the address to the Jury by

Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan . In the course of his 8

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address to the Jury, the learned Judge observed as follows: “Sedition is a crime against society, nearly allied to that of treason and it

frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing, which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the Government and the laws of the empire. The objects of sedition generally are to induce discontent and insurrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder.” 17. That the law has not changed during the course of the centuries is also

apparent from the following statement of the law by Coleridge, J., in the course of his summing up to the Jury in the case of Rex v. Aldred :

“Nothing is clearer than the law on this head — namely, that whoever by language, either written or spoken, incites or encourages others to use physical force or violence in some public matter connected with the State, is guilty of publishing a seditious libel. The word ‘sedition’ in its ordinary natural signification denotes a tumult, an insurrection, a popular commotion, or an uproar; it implies violence or lawlessness in some form….”

In that case, the learned Judge was charging the Jury in respect of the indictment which contained the charge of seditious libel by a publication by the defendant.

18. While dealing with a case arising under Rule 34(6)(e) of the Defence of India Rules under the Defence of India Act (35 of 1939), Sir Maurice Gwyer, C.J., speaking for the Federal Court, made the following observations in the case of Niharendu Dutt Majumdar v. King-Emperor and has pointed out that the language of Section 124-A of the Indian Penal Code, which was in pari materia with that of the Rule in question, had been adopted from the English Law, and referred with approval to the observations of Fitzerald, J., in the case quoted above; and made the following observations which are quite apposite;

“… generally speaking, we think that the passage accurately states the law as it is to be gathered from an examination of a great number of judicial pronouncements.

The first and most fundamental duty of every Government is the preservation of order, since order is the condition precedent to all civilisation and the advance of human happiness. This duty has no doubt been sometimes performed in such a way as to make the remedy worse than the disease; but it does not cease to be a matter of obligation because some on whom the duty rests have performed it ill. It is to this aspect of the functions of Government that in our opinion the offence of sedition stands related. It is the answer of the State to those who, for the purpose of attacking or subverting it, seek (to borrow from the passage cited above) to disturb its tranquillity, to create public disturbance and to promote disorder, or who incite others to do so. Words, deeds or writings constitute sedition, if they have this intention or this tendency; and it is easy to see why they may also constitute sedition, if they seek, as the phrase is, to bring Government into contempt. This is not made an offence in order to minister to the wounded vanity of Government, but because where Government and the law cease to be obeyed because no respect is felt any longer for them, only anarchy can follow. Public disorder, or the reasonable anticipation or likelihood of public disorder, is thus the gist of the offence. The acts

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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.”

This statement of the law was not approved by Their Lordships of the Judicial Committee of the Privy Council in the case of King-Emperor v. Sadashiv Narayan Bhalero . The Privy Council, after quoting the observations of the learned Chief Justice in Niharendu case while disapproving of the decision of the Federal Court, observed that there was no statutory definition of “sedition” in England, and the meaning and content of the crime had to be gathered from many decisions. But those were not relevant considerations when one had to construe the statutory definition of “sedition” as in the Code. The Privy Council held that the language of Section 124-A, or of the Rule aforesaid, under the Government of India Act, did not justify the statement of the law as made by the learned Chief Justice in Niharendu case . They also held that the expression “excite disaffection” did not include “excite disorder”, and that, therefore, the decision of the Federal Court in Niharendu case proceeded on a wrong construction of Section 124-A of the Penal Code, and of sub-para (e), sub-rule (6) of Rule 34 of the Defence of India Rules. Their Lordships approved of the dicta in the case of Bal Gangadhar Tilak and in the case of Annie Beasant v. Advocate-General of Madras which was a case under Section 4 of the Indian Press Act (1 of 1910), which was closely similar in language to Section 124-A of the Penal Code.

19. The Privy Council also referred to their previous decision in Wallace-John-son v. King which was a case under sub-section 8 of Section 326 of the Criminal Code of the Gold Coast, which defined “seditious intention” in terms similar to the words of Section 124-A of the Penal Code. In that case, Their Lordships had laid down that incitement to violence was not a necessary ingredient of the crime of sedition as defined in that law.

20. Thus, there is a direct conflict between the decision of the Federal Court in Niharendu case and of the Privy Council in a number of cases from India and the Gold Coast, referred to above. It is also clear that either view can be taken and can be supported on good reasons. The Federal Court decision takes into consideration, as indicated above, the pre-existing Common Law of England in respect of sedition. It does not appear from the report of the Federal Court decision that the rulings aforesaid of the Privy Council had been brought to the notice of Their Lordships of the Federal Court.

21. So far as this Court is concerned, the question directly arising for determination in this batch of cases has not formed the subject-matter of decision previously. But certain observations made by this Court in some cases, to be presently noticed, with reference to the interrelation between freedom of speech and seditious writing or speaking have been made in the very first year of the coming into force of the Constitution. Two cases involving consideration of the fundamental right of freedom of speech and expression and certain laws enacted by some of the States imposing restrictions on that right came up for consideration before this Court. Those cases, reported in Romesh Thappar v. State of Madras and Brij Bhushan v. State of Delhi were heard by Kania, C.J., Fazl Ali, Patanjali Shastri, Mehr Chand Mahajan, Mukherjea and Das, JJ. and judgments were delivered on the same day (26-5-1950). In Romesh Thappar case the majority of the Court declared Section 9(1-A) of the Madras Maintenance of Public Order Act (Madras Act 33 of 1949), which had authorised imposition of restrictions on the fundamental right of freedom of speech, to be in excess of clause (2) of Article 19 of the Constitution authorising such restrictions, and, therefore, void and unconstitutional. In Brij Bhushan case the same majority struck down Section 7(1)(c) of the East Punjab Public Safety Act 1949, as extended to the Province of Delhi, authorising the imposition of restrictions on the freedom of speech and expression for preventing or combating any activity prejudicial to the public safety or the maintenance of public order. The Court held those provisions to be in excess of

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the powers conferred on the legislature by clause (2) of Article 19 of the Constitution. Mr Justice Patanjali Sastri, speaking for the majority of the Court in Romesh Thappar case made the following observations with reference to the decisions of the Federal Court and the Judicial Committee of the Privy Council as to what the law of Sedition in India was:

“It is also worthy of note that the word ‘sedition’ which occurred in Article 13(2) of the Draft Constitution prepared by the Drafting Committee was deleted before the article was finally passed as Article 19(2). In this connection it may be recalled that the Federal Court had, in defining sedition in Niharendu Dutt Majumdar v. King-Emperor held that ‘the acts 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’, but the Privy Council overruled that decision and emphatically reaffirmed the view expressed in Tilak case to the effect that ‘the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small’ — King-Emperor v. Sadashiv Narayan Bhalerao. Deletion of the word ‘sedition’ from the draft Article 13(2), therefore, shows that criticism of Government exciting disaffection or bad feelings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press, unless it is such as to undermine the security of or tend to overthrow the State. It is also significant that the corresponding Irish formula of ‘undermining the public order or the authority of the State’ [Article 40(6)(i) of the Constitution of Eire, 1937] did not apparently find favour with the framers of the Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was ‘the leading spirit in the preparation of the First Amendment of the Federal Constitution’ that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits: “(quoted in Near v. Minnesotta)”.

These observations were made to bring out the difference between the “security of the State” and “public order”. As the latter expression did not find a place in Article 19(2) of the Constitution, as it stood originally, the section was struck down as unconstitutional. Fazl Ali, J., dissented from the views thus expressed by the majority and reiterated his observations in Brij Bhushan case . In the course of his dissenting judgment, he observed as follows:

“It appears to me that in the ultimate analysis the real question to be decided in this case is whether ‘disorders involving menace to the peace and tranquillity of the Province’ and affecting ‘public safety’ will be a matter which undermines the security of the State or not. I have borrowed the words quoted within inverted commas from the preamble of the Act which allows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then the impugned law which prohibits entry into the State of Madras of ‘any document or class of documents’ for securing public safety and maintenance of public order should satisfy the requirements laid down in Article 19(2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other

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hand, the document is calculated to disturb public tranquillity and affect public safety, its entry connot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan v. State I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on Criminal Law like Sir James Stephen has classed sedition as an offence against public tranquillity.”

In Brij Bhushan case Fazl Ali, J., who was again the dissenting judge, gave his reasons in greater detail. He referred to the judgment of the Federal Court in Niharendu Datt Majumdar case and to the judgment of the Privy Council to the contrary in King-Emperor v. Sada Shiv Narayan . After having pointed out the divergence of opinion between the Federal Court of India and the Judicial Committee of the Privy Council, the learned Judge made the following observations in order to explain why the term “sedition” was not specifically mentioned in Article 19(2) of the Constitution:

“The framers of the Constitution must have therefore found themselves face to face with the dilemma as to whether the word ‘sedition’ should be used in Article 19(2) and if it was to be used in what sense it was to be used. On the one hand, they must have had before their mind the very widely accepted view supported by numerous authorities that sedition was essentially an offence against public tranquillity and was connected in some way or other with public disorder; and, on the other hand, there was the pronouncement of the Judicial Committee that sedition as defined in the Indian Penal Code did not necessarily imply any intention or tendency to incite disorder. In these circumstances, it is not surprising that they decided not to use the word ‘sedition’ in clause (2) but used the more general words which cover sedition and everything else which makes sedition such a serious offence. That sedition does undermine the security of the State is a matter which cannot admit of much doubt. That it undermines the security of the State usually through the medium of public disorder is also a matter on which eminent Judges and jurists are agreed. Therefore, it is difficult to hold that public disorder or disturbance of public tranquillity are not matters which undermine the security of the State.” 22. As a result of these differences in the interpretation of Article 19(2) of the

Constitution, the Parliament amended clause (2) of Article 19, in the form in which it stands at present, by the Constitution (First Amendment) Act, 1951, by Section 3 of the Act, which substituted the original clause (2) by the new clause (2). This amendment was made with retrospective effect, thus indicating that it accepted the statement of the law as contained in the dissenting judgment of Fazl Ali, J., insofar as he had pointed out that the concept of “security of the State” was very much allied to the concept of “public order” and that restrictions on freedom of speech and expression could validly be imposed in the interest of public order.

23. Again the question of the limits of legislative powers with reference to the provisions of Articles 19(1)(a) and 19(2) of the Constitution came up for decision by a Constitution Bench of this Court in Ramji Lal Modi v. State of U.P. In that case, the validity of Section 295-A of the Indian Penal Code was challenged on the ground that it imposed restrictions on the fundamental right of freedom of speech and expression beyond the limits prescribed by clause (2) of Article 19 of the Constitution. In this connection, the Court observed as follows:

“The question for our consideration is whether the impugned section can be properly said to be a law imposing reasonable restrictions on the exercise of the fundamental rights to freedom of speech and expression in the interests of public order. It will be noticed that the language employed in the amended clause is ‘in

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the interests of’ and not ‘for the maintenance of’. As one of us pointed out in Debi Saran v. State of Bihar, the expression ‘in the interests of’ makes the ambit of the protection very wide. A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order.”

Though the observations quoted above do not directly bear upon the present controversy, they throw a good deal of light upon the ambit of the power of the legislature to impose reasonable restrictions on the exercise of the fundamental right of freedom of speech and expression.

24. In this case, we are directly concerned with the question how far the offence, as defined in Section 124-A of the Indian Penal Code, is consistent with the fundamental right guaranteed by Article 19(1)(a) of the Constitution, which is in these terms:

“19. (1) All citizens shall have the right—

(a) to freedom of speech and expression….” This guaranteed right is subject to the right of the legislature to impose reasonable restrictions, the ambit of which is indicated by clause (2), which, in its amended form, reads as follows;

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

It has not been questioned before us that the fundamental right guaranteed by Article 19(1)(a) of the freedom of speech and expression is not an absolute right. It is common ground that the right is subject to such reasonable restrictions as would come within the purview of clause (2), which comprises (a) security of the State, (b) friendly relations with foreign States, (c) public order, (d) decency or morality, etc. etc. With reference to the constitutionality of Section 124-A or Section 505 of the Indian Penal Code, as to how far they are consistent with the requirements of clause (2) of Article 19 with particular reference to security of the State and public order, the section, it must be noted, penalises any spoken or written words or signs or visible representations, etc. which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law. Now, the expression “the Government established by law” has to be distinguished from the persons for the time being engaged in carrying on the administration. “Government established by law” is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State. That is why “sedition”, as the offence in Section 124-A has been characterised, comes, under Chapter VI relating to offences against the State. 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

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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.

25. It has not been contended before us that if a speech or a writing excites peopleto violence or have the tendency to create public disorder, it would not come within the definition of “sedition”. What has been contended is that a person who makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government or acts of public officials, might also come within the ambit of the penal section. But in our opinion, such words written or spoken would be outside the scope of the section. In this connection, it is pertinent to observe that the security of the State, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a 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 qua non of a democratic form of Government that our Constitution has established. This Court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case. 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. The Court has, therefore, the duty cast upon it of drawing a clear line of demarcation between the ambit of a citizen's fundamental right guaranteed under Article 19(1)(a) of the Constitution and the power of the legislature to impose reasonable restrictions on that guaranteed right in the interest of, inter alia, security of the State and public order. We have, therefore, to determine how far the Sections 124-A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation. If it is held, in consonance with the views expressed by the Federal Court in the case of Niharendu Dutt Majumdar v. King-Emperor that the gist of the offence of “sedition” is incitement to violence or the tendency or the intention to create public disorder by words spoken or written, which have the tendency or the effect of bringing the Government established by law into hatred or contempt or creating disaffection in the sense of disloyalty to the State, in other words bringing the law into line with the law of sedition in England, as was the intention of the legislators when they introduced Section 124-A into the Indian Penal Code in 1870 as aforesaid, the law will be within the 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 words of the section, divorced from all the antecedent background in which the law of sedition has grown, as laid down in the several decisions of the Judicial Committee of the Privy Council, it will be true to say that the section is not only within but also very much beyond the limits laid down in clause (2) aforesaid.

26. In view of the conflicting decisions of the Federal Court and of the Privy Council,referred to above, we have to determine whether and how far the provisions of Sections 124-A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency

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or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of clause (2) of Article 19, Sections 124-A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Article 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), quoted above, the expression “in the interest of … public order” are words of great amplitude and are much more comprehensive then the expression “for the maintenance of”, as observed by this Court in the case of Virendra v. State of Punjab . Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1)(a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment 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. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also 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 [vide (1) Bengal Immunity Company Limited v. State of Bihar and (2) R.M.D. Chamarbaugwala v. Union of India ]. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

27. We may also consider the legal position, as it should emerge, assuming that the main Section 124-A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not open to this Court to construe the section in such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in the case of R.M.D. Chamarbaugwalla v. Union of India has examined in detail the several decisions of this Court, as also of the courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between

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a definition of the expression “Prize Competitions” as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (42 of 1955), with particular reference to Sections 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose 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.

28. We do not think it necessary to discuss or to refer in detail to the authorities cited and discussed in the reported case (R.M.D. Chamarbaugwalla v. Union of India at pp. 940-52. We may add that the provisions of the impugned sections, impose restrictions on the fundamental freedom of speech and expression, but those restrictions cannot but be said to be in the interest of public order and within the ambit of permissible legislative interference with that fundamental right.

29. It is only necessary to add a few observations with respect to the constitutionality of Section 505 of the Indian Penal Code. With reference to each of the three clauses of the section, it will be found that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under Section 505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that clause (2) of Article 19 clearly saves the section from the vice of unconstitutionality.

30. It has not been contended before us on behalf of the appellant in Cr. A. No. 169 of 1957 or on behalf of the respondents in the other Appeals (Nos. 124-26 of 1958) that the words used by them did not come within the purview of the definition of sedition as interpreted by us. No arguments were advanced before us to show that even on the interpretation given by us their cases did not come within the mischief of the one or the other section, as the case may be. It follows, therefore, that the Criminal Appeal No. 169 of 1957 has to be dismissed. Criminal Appeals Nos. 124-26 of 1958 will be remanded to the High Court to pass such order as it thinks fit and proper in the light of the interpretation given by us.

——— Appeal by Special Leave from the Judgment and Order dated 9th April, 1956, of the Patna High Court in Cr. A.

No. 445 of 1955.

Appeals from the Judgment and Order dated 16-5-1958, of the Allahabad High Court in Criminal Appeals Nos. 76 and 1081 of 1955 and Cr. Misc. Writ No. 2371 of 1955

(1958) ILR 2 ALL 84

(1942) FCR 38

(1892) ILR 19 Cal 35

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(1898) ILR 22 Bombay 112

25 IA 1

ILR (1898) All 55

(1898) ILR 22 Bombay 152

(1867-71) 11 Cox's Criminal Law Cases, 44 at p. 45

(1911-13) 22 Cox's Criminal Law Cases, 1 at p. 3

74 IA 89

46 IA 176

(1940) AC 231

(1950) SCR 594

(1950) SCR 605

(1957) SCR 860

(1958) SCR 308 at p. 317

(1955) 2 SCR 603

(1957) SCR 930

Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The authenticity of this text must be verified from the original source.

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GOVERNMENT OF INDIA

LAW COMMISSION OF INDIA

Consultation Paper on

“SEDITION”

30 August 2018

ANNEXURE-P-2 39

ii

Consultation Paper on

Sedition

Table of Contents

Preface .......................................................................................................................................... i

Acknowledgements ...................................................................................................................... ii

1 BACKGROUND ..................................................................................................................... 1

2 PREVIOUS REPORTS OF THE COMMISSION .................................................................. 2

3 SEDITION LAWS IN INTERNATIONAL JURISDICTION ................................................ 3

A. United Kingdom ................................................................................................................... 3

B. United States ........................................................................................................................ 5

C. Australia ............................................................................................................................... 8

4 SEDITION LAWS IN INDIA: PRE-CONSTITUTION ERA ................................................ 9

A. History of Sedition law in India. .......................................................................................... 9

B. Pre-Constitution Rulings .................................................................................................... 11

C. Constituent Assembly Debates .......................................................................................... 14

5 POST CONSTITUTIONAL DEVELOPMENTS .................................................................. 16

6 FREEDOM OF SPEECH AND SEDITION.......................................................................... 19

A. Expression not amounting to sedition ................................................................................ 24

B. Private Member‘s Bill Suggesting Amendment ................................................................ 26

7 SEDITION VIS-À-VIS OTHER STATUTES....................................................................... 27

8 THE WAY FORWARD ........................................................................................................ 30

40

i

Preface

The Law Commisison of India was asked to consider section 124A of the Indian

Penal Code, 1860 which deals with sedition. Accordingly, a study was undertaken to

examine the various pros and cons of the provision. The subject was discussed by the

Commission on sevaral occasions. In its meeting held on 5 July 2018 and it was that for

making the final recommendations, more discussions need to take place. Hence, it has

been decided to put up a Consultation Paper in public domain, for wider discussions.

This Consultation Paper contains the various aspects of the sedition law as it existed in

the pre-independence era, in the international jurisdiction and the present scenario, in the

country. The Commission solicits the valuable suggestions from the cross section of the

society.

***

41

ii

Acknowledgements

The Commission gratefully acknowledges the commendable assistance provided

to it in preparation to this Consultation Paper, by Ms. Anumeha Mishra, Asstt. Professor,

Campus Law Centre, Delhi University, Shri Setu Gupta, Asstt. Professor, Amity Law

School, Noida, Dr. Saumya Saxena and Ms. Preeti Badola, who worked as Consultants.

The Commission is also grateful for the valuable inputs provided by Shri Abhay, Director

General, Narcotics Control Bureau and Ms. Shivani Luthra Lohiya, Advocate.

***

42

1 BACKGROUND

1.1 Free speech is one of the most significant principles of democracy. The

purpose of this freedom is to allow an individual to attain self-fulfilment, assist in

discovery of truth, strengthen the capacity of a person to take decisions and

facilitate a balance between stability and social change.1 The freedom of speech

and expression is the first and foremost human right, the first condition of liberty,

mother of all liberties, as it makes the life meaningful. This freedom is termed as

an essence of free society. The Universal Declaration of Human Rights, 1948, in

its Preamble and Article 19 declared freedom of speech as a basic fundamental

right.2

1.2 The freedom of speech often poses difficult questions, like the extent to

which State can regulate individual conduct.3 Since, individual‘s autonomy is the

foundation of this freedom; any restriction on it is subject to great scrutiny.

However, reasonable restrictions can always be imposed on this right in order to

ensure its responsible exercise and to ensure that it is equally available to all

citizens. According to Article 19(3) of the International Covenant on Civil and

Political Rights 1966 (ICCPR), this freedom may be subjected to restrictions,

provided they are prescribed by law and are necessary for ‗respecting the rights or

reputation of others‘ or for the protection of national security, public order, public

health or morals.4

1.3 Article 19(1)(a) of the Constitution of India guarantees freedom of speech

and expression to all citizens. However, this freedom is subjected to certain

restrictions namely, interests of the sovereignty and integrity of India, the security

of the State, friendly relations with foreign States, public order, decency or

morality or in relation to contempt of court, defamation or incitement to an

offence.

1.4 The offence of sedition is provided under section 124A of the Indian Penal

Code, 1860 (hereinafter IPC). The relevance of this section in an independent and

1 Stephen Schmidt, Mack C. Shelly et. al, American Government and Politics Today 11 (Cengage

Learning, USA, 2014). 2 See also Article 19 of International Covenant on Civil and Political Rights, 1966 (ICCPR);

Article 9 of African Charter on Human and Peoples‘ Rights,1981; Article 10 of European

Convention for the Protection of Human Rights and Fundamental Freedoms,1950; Article 13 of

American Convention on Human Rights,1969. 3 S. Sivakumar, Press Law and Journalists 18-20 (Universal Law Publishing Co. Lexis Nexis,

Gurgaon, 2015). 4 Article 19 of the International Covenant of Civil and Political Rights 99 U.N.T.S. 171 (1966)

reads as:

The exercise of the rights provided for in paragraph 2 of this article carries with it

special duties and responsibilities. It may therefore be subject to certain restrictions, but

these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

b) For the protection of national security or of public order (order public), or of public

health or morals.

43

2

democratic nation is the subject of continuous debate. Those opposing it see this

provision as a relic of colonial legacy and thereby unsuited in a democracy. There

is an apprehension that this provision might be misused by the government to

suppress dissent. During a Conference on Freedom of Speech and Expression on

5-6 November 2016, organised by the Law Commission in association with the

Commonwealth Legal Education Association and Lloyd Law College, Greater

Noida, Justice A P Shah and Dr. Subramaniam Swamy suggested that even

without section 124A IPC, there are sufficient constitutional and statutory

safeguards. On the other hand, it is also argued that amidst growing concerns of

national security, this section provides a reasonable restriction on utterances that

are inimical to the security and integrity of the nation.

1.5 According to the National Crime Records Bureau 35 cases of sedition (all

over India) were reported in 2016.5 The courts have stressed on the importance of

contextualising the restrictions while ascertaining the permissibility of expression.

Balancing freedom of expression with collective national interest is one of the key

ingredients of this law. Though it is argued that this law is a colonial vestige, the

Indian courts have upheld its constitutionality.

2 PREVIOUS REPORTS OF THE COMMISSION

2.1 The issue of revisiting ‗sedition‘ has been taken up by the Law

Commission previously as well. The Commission, in its 39th

Report (1968) titled

―The Punishment of Imprisonment for Life under the Indian Penal Code‖

recommended that there are certain extremely anomalous situations where certain

offences have been made punishable with severe punishment and it was suggested

that ―offences like sedition should be punishable either with imprisonment for life

or with rigorous or simple imprisonment which may extend to three years, but not

more.‖

2.2 Further, in its 42nd

Report (1971) titled ―Indian Penal Code‖, the

Commission made three crucial suggestions to be incorporated in section 124A,

IPC. They were:

Incorporation of mens rea in the section,

The scope of the section be widened, incorporating Constitution of

India, Legislatures and the administration of justice (Judiciary),

along with the executive Government, against whom disaffection

would not be tolerated, and,

bridging the ‗odd‘ gap between ‗imprisonment for life‘ and

‗imprisonment which may extend to three years‘, or fine, by fixing

the maximum punishment for sedition at ‗seven years rigorous

imprisonment and fine‘.

5 Crime in India - Statistics, National Crime Records Bureau, Ministry of Home Affairs (2016).

44

3

However, the Government did not accept the revision proposed by the

Commission.

2.3 The 43rd

Report of the Law Commission on ―Offences Against the

National Security‖, (1971), also dealt with the ‗sedition‘ as part of the National

Security Bill, 1971. Section 39 of this Bill dealt with ‗sedition‘, which was merely

a reiteration of the revised section proposed by the 42nd

Report (1971).

2.4 The 267th

Report of the Commission on ―Hate Speech‖,(2017),

distinguished between ‗sedition‘ and ‗hate speech‘, providing that the offence of

hate speech affects the State indirectly by disturbing public tranquillity, while the

sedition is directly an offence against the State. The Report adds, that to qualify as

sedition, the impugned expression must threaten the sovereignty and integrity of

India and the security of the State.

2.5 Further, it is required to be noted that we have certain sets of established

tests for understanding what speech amounts to sedition and what would be

merely an expression of dissatisfaction or disaffection which may even be

productive criticism or a necessary indication of problems in the state and society.

Laws governing both hate speech and sedition must preserve the right to ‗offend‘.

3 SEDITION LAWS IN INTERNATIONAL JURISDICTION

A. United Kingdom

3.1 The offence of sedition can be traced to the Statute of Westminster 1275

when the King was considered the holder of Divine right.6 In order to prove the

commission of sedition, not only the truth of the speech but also intention was

considered. The offence of sedition was initially created to prevent speeches

‗inimical to a necessary respect to government‘.7 The De Libellis Famosis,

8 case

was one of the earliest cases wherein ‗seditious libel, whether ‗true or false was

made punishable‘. This case firmly established seditious libel in United

Kingdom.9 The rationale of this judgment was that a true criticism of government

has a greater capacity to vilify the respect commanded by the government and

cause disorder, and therefore needs a higher degree of prohibition.

3.2 Sedition was defined by Fitzgerald J. in R. v. Sullivan,10

as:

6 See English PEN, A Briefing on the Abolition of Seditious Libel and Criminal Libel (2009).

7 William T. Mayton, ―Seditious Libel and the Lost Guarantee of a Freedom of Speech‖ 84 Colum.

L. Rev. 91 (1984). 8 77 Eng. Rep. 250 (K.B. 1606).

9 Supra note 7.

10 R v. Sullivan (1868) 11 Cox C.C. 44 at p. 45 cited in United Kingdom Law Commission,

―Codification of the Criminal Law: Treason, Sedition and Allied Offences‖, Working Paper no.

72, available at : http://www.lawcom.gov.uk/wp-content/uploads/2016/08/No.072-Codification-

of-the-Criminal-Law-Treason-Sedition-and-Allied-Offences.pdf (last visited on Jan. 5, 2017) at 4.

45

4

Sedition in itself is a comprehensive term and it embraces

all those practices, whether by word, deed or writing,

which are calculated to disturb the tranquillity of the State,

and lead ignorant persons to endeavour to subvert the

Government and the laws of the Empire. The objects of

sedition generally are to induce discontent and

insurrection and to stir up opposition to the Government,

and bring the administration of justice into contempt; and

the very tendency of sedition is to incite the people to

insurrection and rebellion.

3.3 The United Kingdom Law Commission while examining the need of law

on seditious libel in modern democracy,11

in 1977 referred to the judgment of the

Supreme Court of Canada in R. v. Boucher,12

wherein it was opined that only

those act that incited violence and caused public order or disturbance with

intention of disturbing constitutional authority could be considered seditious.13

The Commission in its working paper remarked:

Apart from the consideration that there is likely to be a

sufficient range of other offences covering conduct

amounting to sedition, we think that it is better in principle

to rely on these ordinary statutory and common law

offences than to have resort to an offence which has the

implication that the conduct in question is ‗political‘. Our

provisional view, therefore, is that there is no need for an

offence of sedition in the criminal code.

3.4 This marked the beginning of the movement to abolish seditious libel in

United Kingdom. With the enactment of the Human Rights Act, 1998, the

existence of seditious libel, started being considered in contravention to the tenets

of the Act and the European Convention on Human Rights14

. The global trend has

largely been against sedition and in favour of free speech. While abolishing

sedition as an offence in 2009, the then Parliamentary Under-Secretary of State at

the Ministry of Justice of the United Kingdom reasoned that:

Sedition and seditious and defamatory libel are arcane

offences – from a bygone era when freedom of expression

wasn‘t seen as the right it is today… The existence of

these obsolete offences in this country had 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

11

Working Paper No. 72, supra note 11. 12

[1951] 2 D.L.R.369. 13

Working Paper No. 72, supra note 11. 14

European Convention on Human Rights, 1950, 213 UNTS 221.

46

5

offences will allow the UK to take a lead in challenging

similar laws in other countries, where they are used to

suppress free speech.15

3.5 Finally, the seditious libel was deleted by section 73 of the Coroners

and Justice Act, 2009.16

One of the reasons given for abolishing seditious libel

was:

Having an unnecessary and overbroad common law

offence of sedition, when the same matters are dealt with

under other legislation, is not only confusing and

unnecessary, it may have a chilling effect on freedom of

speech and sends the wrong signal to other countries

which maintain and actually use sedition offences as a

means of limiting political debate.17

B. United States

3.6 The United States Constitution proscribes the State from enacting any

legislation curtailing the first amendment – right to expression. There has been a

debate among the jurists whether first amendment guarantee was aimed at

eliminating seditious libel.18

It is argued by many that this doctrine ‗lends a

juristic mask to political repression‘.19

Despite the conflicting views and the

attempts by courts to narrow the scope of sedition, it survives as an offence in the

United States, though it is very narrowly construed and can even be said to have

fallen in disuse.20

15

―Criminal libel and Sedition Offences Abolished‖, Press Gazette (Jan. 13, 2010). 16

Section 73: Abolition of common law libel offences etc

The following offences under the common law of England and Wales and the common law of

Northern Ireland are abolished—

(a)the offences of sedition and seditious libel;

(b)the offence of defamatory libel;

(c)the offence of obscene libel. 17

Liberty‘s Report Stage Briefing and Amendments on the Coroners and Justice Bill in the House

of Commons (March 2009) available at: https://www.liberty-human-

rights.org.uk/sites/default/files/liberty-s-coroners-and-justice-report-briefing-excluding-secret-

inquests-.pdf (last visited on Jan. 5, 2017). 18

Supra note 8 19

Judith S. Koffler and Bennett L. Gershman, ―New Seditious Libel‖ 69 Cornell L. Rev. 816

(1984). 20

Centre for the Study of Social Exclusion and Inclusive Policy, National Law School of India

University, Bangalore and Alternative Law Forum, Bangalore, Sedition Laws and Death of Free

Speech in India, available at:

https://www.nls.ac.in/resources/csseip/Files/SeditionLaws_cover_Final.pdf (last visited on Jan. 5,

2017).

47

6

3.7 It was argued by many that the first amendment aimed at abolishing

seditious libel.21

However, this view has been opposed on grounds that the first

amendment does not protect speech of all kind; therefore, suggesting that law on

sedition was abolished by it would amount to interpreting history through one‘s

own civic sensibilities.22

3.8 Sedition was made a punishable offence in the United States through the

Sedition Act of 1798.23

This Act was repealed in 1820. In 1918, Sedition Act was

again enacted by the U.S. Congress to protect American interests in the First

World War.24

In Schenck v. United States,25

the court while adjudging the validity

of Sedition Act 1918, laid down the ―clear and present danger‖ test for restricting

freedom of expression.

Words which, ordinarily and in many places, would be

within the freedom of speech protected by the First

Amendment may become subject to prohibition when of

such a nature and used in such circumstances as to create a

clear and present danger that they will bring about the

substantive evils which Congress has a right to prevent.

3.9 The Supreme Court in Abrams v. United States,26

held that distribution of

circulars appealing for strike in factories to stop manufacturing of machineries to

be used to crush Russian revolutionaries could not be protected under the First

Amendment. Justice Holmes‘ dissenting opinion, however championed the wide

ambit of free speech liberty in United States. He remarked:

It is only the present danger of immediate evil or an intent

to bring it about that warrants Congress in setting a limit

to the expression of opinion where private rights are not

concerned.

3.10 Sedition was also brought as an offence under Alien Registration Act 1940

(also known as Smith Act) which penalised advocacy of violent overthrow of the

government. The constitutional validity of this Act was challenged in Dennis v.

21

Supra note 8 at 4-8. 22

L. Levy, ―Legacy of Suppression‖ 10 (1960) in Mayton, supra note 8 at 6-8. 23

Section 2 of the Sedition Act, 1798 defines sedition as : To write, print, utter or publish, or

cause it to be done, or assist in it, any false, scandalous, and malicious writing against the

government of the United States, or either House of Congress, or the President, with intent to

defame, or bring either into contempt or disrepute, or to excite against either the hatred of the

people of the United States, or to stir up sedition, or to excite unlawful combinations against the

government, or to resist it, or to aid or encourage hostile designs of foreign nations. 24

This Act was a set of amendments to enlarge Espionage Act, 1917. 25

249 U.S. 47 (1919). 26

250 U.S. 616 (1919).

48

7

United States.27

Applying the ―clear and present danger‖ test, the court upheld the

conviction on the grounds that:

…the words [of the act] cannot mean that, before the

Government may act, it must wait until the putsch is about

to be executed, the plans have been laid and the signal is

awaited. If Government is aware that a group aiming at its

overthrow is attempting to indoctrinate its members and to

commit them to a course whereby they will strike when

the leaders feel the circumstances permit, action by the

Government is required. The argument that there is no

need for Government to concern itself, for Government is

strong, it possesses ample powers to put down a rebellion,

it may defeat the revolution with ease needs no answer.

For that is not the question. Certainly an attempt to

overthrow the Government by force, even though doomed

from the outset because of inadequate numbers or power

of the revolutionists, is a sufficient evil for Congress to

prevent. The damage which such attempts create both

physically and politically to a nation makes it impossible

to measure the validity in terms of the probability of

success, or the immediacy of a successful attempt.

3.11 The restriction on free speech has, however, been narrowly construed in

subsequent cases. In Yates v. United States,28

the Supreme Court distinguished

advocacy to ‗overthrow as an abstract doctrine from an advocacy to action‘.29

It

was reasoned that the Smith Act did not penalise advocacy of abstract overthrow

of the government and the Dennis (supra) did not in any way blur this distinction.

It was held that the difference between these two forms of advocacy is that ‗those

to whom the advocacy is addressed must be urged to do something, now or in the

future, rather than merely to believe in something‘.

3.12 In New York Times v. Sullivan,30

the Supreme Court remarked that speech

must be allowed a breathing space in a democracy and government must not be

allowed to suppress what it thinks is ‗unwise, false or malicious‘.

3.13 In Brandenburg v. Ohio,31

the Supreme Court categorically held that

‗freedoms of speech and press do not permit a State to forbid advocacy of the use

of force or of law violation except where such advocacy is directed to inciting or

producing imminent lawless action and is likely to incite or produce such action‘.

27 341 U.S. 494 (1951).

28 354 U.S. 298 (1957)

29 Ibid.

30 376 U.S. 254, 273-76 (1964).

31 395 U.S. 444 (1969).

49

8

This decision overruled the Supreme Court decision in Whitney v. California,32

wherein the court had held that ‗to knowingly be or become a member of or assist

in organising an association to advocate, teach or aid and abet the commission of

crimes or unlawful acts of force, violence or terrorism as a means of

accomplishing industrial or political changes involves such danger to the public

peace and the security of the State, that these acts should be penalised in the

exercise of its police power.‘ Legislations penalising such acts were not

considered an arbitrary and unreasonable exercise of State power.

3.14 Pursuant to Brandenburg case (supra), restrictions on expression are

subject to intense scrutiny. Thus, criticism or advocacy must lead to incitement of

immediate lawless action in order to qualify for reasonable restriction of first

amendment.

3.15 The U.S. Constitution though forbids apparent restrictions on speech, there

are various doctrines that are practised to avert hate speech. The doctrines such

as-―reasonable listeners test‖, ―present danger test‖, ―fighting words‖ are just

examples. The chilling effect concept had been recognised most frequently and

articulated most clearly in decisions chiefly concerned with the procedural aspects

of free speech adjudication.

C. Australia

3.16 The first comprehensive legislation that contained sedition offence was the

Crime Act 1920. The provisions on sedition in this Act were broader than the

common law definition as subjective intention and incitement to violence or

public disturbance were not the sine qua non for conviction under these

provisions. The Hope Commission constituted in 1984 recommended that the

Australian definition of sedition should be aligned with the Commonwealth

definition.33

Subsequently, the sedition provisions were again reviewed by the

Gibbs Committee in 1991. It was suggested that while the offence of sedition

should be retained, convictions should be limited to acts that incited violence for

the purpose of disturbing or overthrowing constitutional authority. In 2005

amendments were made in Schedule 7 of the Anti-Terrorism Act (No 2) 2005,

including the sedition as an offence and defences in sections 80.2 and 80.3 of the

Criminal Code Act 1995. The Australian Law Reform Commission (hereinafter

ALRC) reviewed whether the use of the term sedition was appropriate to define

the offences mentioned under the 2005 amendment. After a detailed study the

ALRC Report suggested that:34

32

274 U.S. 357 (1927). 33

Royal Commission on Australia‘s Security and Intelligence Agencies, Report on the Australian

Security Intelligence Organization (1985) cited in Australian Law Reform Commission, ―Report

on Fighting Words: A Review of Sedition Laws in India‖ (July 2006). 34

―Report on Fighting Words‖ supra note 34.

50

9

The Australian Government should remove the term

‗sedition‘ from federal criminal law. To this end, the

headings of Part 5.1 and Division 80 of the Criminal Code

(Cth) should be changed to ‗Treason and urging political

or inter-group force or violence‘, and the heading of s 80.2

should be changed to ‗Urging political or inter-group force

or violence‘.

3.17 The Recommendation of the ALRC was implemented in the National

Security Legislation Amendment Act 2010 wherein the term sedition was

removed and replaced with references to ‗urging violence offences‘.

4 SEDITION LAWS IN INDIA: PRE-CONSTITUTION ERA

A. History of Sedition law in India.

4.1 Macaulay‘s Draft Penal Code 1837 consisted of section 113 that

corresponded to section 124A IPC. The punishment proposed was life

imprisonment. Sir John Romilly, Chairman of Second Pre-Independence Law

Commission commented upon the quantum of the punishment proposed for

sedition, on the ground that in England the maximum punishment had been three

years and he suggested that in India it should not be more than five years.35

However, this section was not included in the IPC when it was enacted in 1860.

This was surprising for many. Mr. James Stephens when asked about this

omission referred to the letter written by Sir Barnes Peacock to Mr. Maine, where

he had remarked that:

―I have looked into my notes and I think the omission of a

section in lieu of section 113 of the original Penal Code

must have been through mistake […] I feel however that it

was an oversight on the part of the committee not to

substitute for section 113‖.36

4.2 Mr. James Stephen thereafter set out to rectify this omission. Consequently,

sedition was included as an offence under section 124A IPC through special Act

XVII of 1870.37

This section was in line with the Treason Felony Act 184838

that

penalised seditious expressions.39

One of the reasons cited by Mr. Stephen for

35

Dr. Hari Singh Gour, Penal Law of India, vol. 2, 11th

edn., Law Publishers (India) Pvt. Ltd.,

Allahabad, 2011, p. 1232 36

Quoted in Arvind Ganachari, Nationalism and Social Reform in a Colonial Situation (Kalpaz,

2005). 37

Ganachari in his book opines that this section was included in the penal code to counter the

Wahabi activities. 38

Available at: http://www.legislation.gov.uk/ukpga/Vict/11-12/12/section/3 (last Visited on Jan.

21, 2016). 39

Section 3 of the Act stipulated that :

51

10

introducing this section was that in the absence of such provision, this offence

would be penalised under the more severe common law of England.40

Therefore,

the adoption of this section was projected as an obvious choice for protecting

freedom of expression from the stricter common law. According to Mr. Stephen,

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 was hampered‘.41

The intent of the section was to punish an act of

exciting feelings of disaffection towards the government, but this disaffection was

to be distinguished from disapprobation. Thus, people were free to voice their

feelings against the government as long as they projected a will to obey its lawful

authority.42

4.3 Section 124A 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.43

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.

4.4 The West Minster Parliament enacted the Prevention of Seditious Meetings

Act, 1907, in order to prevent public meetings, likely to lead the offence of

sedition or to cause disturbance as in many parts of India, meetings were held

against the British rule, with the main objective of overthrowing the Government.

4.5 The Prevention of Seditious Meetings Act, 1911, repealed the Act 1907.

Section 5 thereof enabled the statutory authorities to prohibit a public meeting in

case such meeting was likely to provoke sedition or disaffection or to cause

―If any person whatsoever shall, within the United Kingdom or without, compass, imagine, invent,

devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour,

or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty‘s

dominions and countries, or to levy war against her Majesty, within any part of the United

Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in

order to put any force or constraint upon or in order to intimidate or overawe both Houses or either

House of Parliament, or to move or stir any foreigner or stranger with force to invade the United

Kingdom or any other of her Majesty‘s dominions or countries under the obeisance of her

Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them,

shall express, utter, or declare, by publishing any printing or writing or by any overt act or deed,

every person so offending shall be guilty of felony, and being convicted thereof shall be liable to

be transported beyond the seas for the term of his or her natural life.‖39

40

Queen Emperor v. Jogendur Chandra Bose (1892) 19 ILR Cal 35. 41

Available at: http://archive.org/stream/onlawofsedition00dono#page/2/mode/2up (last visited on

Jan.2, 2017). 42

For detailed discussion see W.R. Donogh, A Treatise on the Law of Sedition and Cognate

Offences in British India (Thacker, Spink and Co., Calcutta, 1911). 43

See K.I. Vibhute, P.S.A. Pillai’s Criminal Law 335 (Lexis Nexis Butterworths, Nagpur, 2012).

52

11

disturbance of public tranquillity. Violation of the provisions of the Act was made

punishable with imprisonment for a term, which could extend to six months or

fine or both. The said Act 1911 stood repealed vide Repealing and Amending

(Second) Act (Act No. IV of 2018).

B. Pre-Constitution Rulings

4.6 Section 124A IPC was extensively used to curb political dissent in India.

Jogendra Chandra Bose,44

was charged with sedition for criticising the Age of

Consent Bill and the negative economic impact of British colonialism. While

directing the jury on the case, the Court distinguished sedition as was understood

under the Law of England at that time, from section 124A IPC. It was observed

that the offence stipulated under section 124A IPC was milder, as in England any

overt act in consequence of a seditious feeling was penalised, however in India

only those acts that were done with an ‗intention to resist by force or an attempt to

excite resistance by force‘ fell under this section.

4.7 It was opined that section 124A IPC penalised disaffection and not

disapprobation. Disaffection was defined as a feeling contrary to affection; like

dislike or hatred and disapprobation as merely disapproval. The following

interpretation was ascribed to the term disaffection under section 124A IPC:

If a person uses either spoken or written words calculated

to create in the minds of the persons to whom they are

addressed a disposition not to obey the lawful authority of

the Government, or to subvert or resist that authority, if

and when occasion should arise, and if he does so with the

intention of creating such a disposition in his hearers or

readers, he will be guilty of the offence of attempting to

excite disaffection within the meaning of the section,

though no disturbance is brought about by his words or

any feeling of disaffection, in fact, produced by them.

No verdict was announced as the jury did not reach a unanimous decision. Later

the case was withdrawn after Bose had tendered apology.45

4.8 In Queen Empress v. Bal Gangadhar Tilak,46

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. In this case Justice

Strachey placed relevant material before the jury for interpreting ‗disaffection‘ by

saying:

44

Supra note 41. 45

Supra note 41. 46

ILR (1898) 22 Bom 112.

53

12

It means 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 amount or 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. In the next place it

is absolutely immaterial whether any feelings of

disaffection have been excited or not by the publication in

question. ……….the section places absolutely on the

same footing the successful exciting of feelings of

disaffection and the unsuccessful attempt to excite

them…...

4.9 The interpretation that, only acts that suggested rebellion or forced

resistance to the Government should be given to this section was expressly

rejected by the court.47

This judgment influenced the 1989 amendment to section

124A IPC wherein the explanation defined disaffection to include disloyalty and

feelings of enmity.48

4.10 Two important decisions pursuant to Tilak judgement were, Queen

Empress v. Ramchandra Narayan,49

and Queen Empress v. Amba Prasad.50

In

Ramchandra Narayan (supra), 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 their allegiance‘.51

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 support Government‘.52

4.11 A similar interpretation was given to disapprobation in Amba Prasad

(supra), who was booked under section 124A IPC, for publishing an article in a

newspaper called Jami-ul-ulam. The court after analysing the meaning of

disaffection held that any disapprobation will only be protected as free speech if it

did not lead to disloyalty or subverting the lawful authority of the State. The court

remarked that:

47

Supra note 43. 48

Supra note 21. 49

ILR (1898) 22 Bom 152. 50

ILR (1897) 20 All 55. 51

ibid. 52

Supra note 51.

54

13

… the disapprobation must be 'compatible' with a

disposition to render obedience to the lawful authority of

the Government and to support the lawful authority of the

Government against unlawful attempts to subvert or resist

that authority.

4.12 Following the literal interpretation under section 124A IPC, the court

categorically held that it is not necessary that an actual rebellion or mutiny or

forcible resistance to the Government or any sort of actual disturbance was caused

by the act in question.53

Stressing on this point, the Court remarked that:

(Sedition) makes the exciting or attempting to excite

certain feelings, and not the inducing or attempting to

induce to any course of action, such as rebellion or

forcible resistance, the test of guilt.54

4.13 These cases brought to light the ambiguity being created by the

explanation in interpreting the term disaffection. In order to remove any further

misconception in interpreting section 124A, the legislature introduced

Explanation III to the section, which excluded ‗comments expressing

disapprobation‘ of the action of the Government, but do not intend to lead to an

offence under the section. The main intention behind adding another explanation

was to make the law more precise. The Select Committee, while considering the

law of sedition, explained this addition in the following words:

We have added a further explanation to clause 124A. The

second explanation was intended to protect fair and honest

criticism which had for its object the alteration of the

policy pursued by the Government in any particular case.

Some people were apprehensive that the express

declaration of this principle might be held impliedly to

negative the right of people to criticise Government action

when that criticism could not lead to a reversal of such

action; for instance criticism on past expenditure, or

criticism on an appointment which the critic may think

objectionable. I think this apprehension was quite

unfounded, but in order to allay it we have introduced the

third explanation. 55

4.14 The discussions of the Select Committee indicate that the British

Government was not keen on granting freedom of expression to India to the

extent enjoyed in England. The British found it difficult to limit the scope of

53

Ibid. 54

Ibid. 55

Supra note 43 at 65.

55

14

sedition to direct incitement to violence or to commit rebellion in view of the fact

that the landscape was under foreign rule and inhabited by many races, with

diverse customs and conflicting creeds56

.

4.15 While the British Government was justifying enlarging the ambit of laws

on sedition, the court in Kamal Krishna Sircar v. Emperor,57

refused to term a

speech that condemned Government legislation declaring Communist party of

India and various trade unions and labour organisations illegal, seditious. It was

opined by the court that imputing seditious intent to such kind of speech would

completely suppress freedom of speech and expression in India.

To suggest some other form of government is not

necessarily to bring the present Government into hatred or

contempt... That does not mean that one may not make

speeches of this kind. I do not like quite a lot of things the

people do constantly from day to day. That is no reason

for suggesting that those people are guilty of sedition or of

attempting to bring the Government into hatred or

contempt.

4.16 The case reflects the tendency of the then Government to use sedition to

suppress any kind of criticism. Recognising this aspect of section 124 A IPC, in

Niharendu Dutt Majumdar v. the King Emperor58

the court digressed from the

literal interpretation given to section in 124A IPC in Bal Gangadhar Tilak

(supra). 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.59

Thus, the crux of the defence argument in Bal Gangadhar Tilak

(supra) was affirmed. The appellant was consequently acquitted by the Federal

Court opining that all unpleasant words cannot be regarded ‗actionable‘.

4.17 Later on, this definition was overruled in the case of King-Emperor v.

Sadasiv Narayan Bhalerao.60

The reading of ‗public order‘ in section 124 A IPC

in Niharendu (supra), was not accepted and the literal interpretation in Bal

Gangadhar Tilak (supra), and later in Ramchandra Narayan (supra), and Amba

Prasad (supra), was upheld.

C. Constituent Assembly Debates

4.18 From the Constituent Assembly Debates it is understood that there had

been serious opposition for inclusion of sedition as a restriction on freedom of

56

Supra note 43 at 66. 57

AIR 1935 Cal 636. 58

AIR 1942 FC 22. 59

Ibid. 60

AIR 1947 PC 84.

56

15

speech and expression under the then Article 13 of the draft Indian Constitution.

Such a provision was termed as a shadow of colonial times that should not see

light of the day in free India. The Constituent Assembly was unanimous in having

the word ‗sedition‘ deleted from Article 13 of the draft Constitution. During the

discussions Shri M. Ananthasayanam Ayyangar said:

If we find that the government for the time being has a knack of

entrenching itself, however bad its administration might be it

must be the fundamental right of every citizen in the

country to overthrow that government without violence, by

persuading the people, by exposing its faults in the

administration, its method of working and so on. The word

'sedition' has become obnoxious in the previous regime. We had

therefore approved of the amendment that the word 'sedition'

ought to be removed, except in cases where the entire state

itself is sought to be overthrown or undermined by force or

otherwise, leading to public disorder; but any attack on the

government itself ought not to be made an offence under the

law. We have gained that freedom and we have ensured that no

government could possibly entrench itself, unless the speeches

lead to an overthrow of the State altogether61

(Emphasis added).

4.19 Shri K M Munshi62

, while speaking on his motion to delete the word

‗sedition‘ from Article 13, quoted the following words of the then Chief Justice of

India, in Niharendu Dutt Majumdar v. King63

wherein a distinction between

―what ‘sedition’ meant when the Indian Penal Code was enacted and ‘Sedition’

as understood in 1942.‖:

This (sedition) is not made an offence in order to minister to the

wounded vanity of Governments but because where Government

and the law ceases to be obeyed because no respect is felt any

longer for them, only anarchy can follow. Public disorder, or the

reasonable anticipation or likelihood of public disorder is thus the

gist of the offence. The acts 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.

4.20 As a result of the vehement opposition in the Constituent Assembly, the

word ‗sedition‘ does not find a place in our Constitution.

61

Constituent Assembly of India, 2nd

December 1948; Constituent Assembly Debates Official

Report, Vol.VII, Reprinted by Lok Sabha Secretariat, New Delhi, Sixth Reprint 2014. 62

Constituent Assembly of India discussions held on 1st December 1948, Ibid.

63 Supra note 59

57

16

4.21 Presently, section 124 A IPC defines sedition as an act that brings or

attempts to bring into hatred or contempt, or excites or attempts to excite

disaffection towards the Government established by law in India by words, either

spoken or written, or by signs, or by visible representation, or otherwise.

5 POST CONSTITUTIONAL DEVELOPMENTS

5.1 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

Madras64

. 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.

5.2 The Punjab High Court in Tara Singh Gopi Chand v. The State,65

declared

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

about‖.

5.3 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 (supra), 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 significance‘.

5.4 In the case of Ram Nandan v. State of Uttar Pradesh66

the Court quoted

Pt. Jawaharlal Nehru, who while introducing the first Constitution of India

(Amendment) Bill 1951, referred to sedition and stated:

Now so far as I am concerned that particular Section 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. The sooner we get

rid of it the better. We might deal with that matter in other

ways, in more limited ways, as every other country does

but that particular thing, as it is, should have no place,

because all of us have had enough experience of it in a

64

AIR 1950 SC 124. 65

AIR 1951 Punj. 27. 66

AIR 1959 All 101

58

17

variety of ways and apart from the logic of the situation,

our urges are against it.

5.5 This amendment echoed the logic in dissenting opinion of Justice Saiyid

Fazl Ali, in Brij Bhusan v. State of Delhi67

. In his opinion, serious and grave

instances of public disorder and disturbance of public tranquillity might affect the

security of public and State. The reason the term ‗sedition‘ was absent from

Article 19(2) was because the framers of the Constitution had included terms with

wider connotation which includes the activity of sedition along with other

activities ‗which are detrimental to the security of the State as sedition‘.

5.6 The constitutional validity of section 124A IPC came to be challenged in

the case of Kedar Nath Singh v. State of Bihar68

. 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‘ observing:

'Government established by law' is the visible symbol of the State.

The very existence of the State will be in jeopardy if the

Government established by law is subverted. Hence, the continued

existence of the Government established by law is an essential

condition of the stability of the State. That is why 'sedition', as the

offence in Section 124-A has been characterised, comes, under

Chapter VI relating to offences against the State. 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.

5.7 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

67

AIR 1950 SC 129 68

AIR 1962 SC 955.

59

18

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. (emphasis added)

5.8 After the pronouncement in the case of Kedar Nath (Supra) by the

Supreme Court, public disorder has been considered to be a necessary ingredient

of section 124A IPC by the courts. In Bilal Ahmed Kaloo v. State of Andhra

Pradesh69

, the court quashed the charges under the said section, as it was not

established before the court that the appellant had done anything, which would

threaten the existence of the Government, established by law or might cause

public disorder. In Nazir Khan & Ors. v. State of Delhi,70

the court reiterated this

principle by stating:

Sedition has been described as disloyalty in action, and the

law considers as sedition all those practices which have

for their object to excite discontent or dissatisfaction, to

create public disturbance, or to lead to civil war; to bring

into hatred or contempt the Sovereign or the Government,

the laws or constitutions of the realm, and generally all

endeavours to promote public disorder.

5.9 A prayer was made in the case of Common Cause & Anr. v. UOI71

, to issue

directions for review of pending cases of sedition in various courts, where a

superior police officer may certify that the ‗seditious act‘ either led to the

incitement of violence or had the tendency or the intention to create public

disorder. The court granted the prayer and directed the authorities that while

dealing with section 124A IPC, they are to be guided by the principles laid down

in Kedar Nath Singh (supra).

5.10 The Supreme Court, in the case of Raghubir Singh v. State of Bihar72

, held

that in order to constitute an offence of conspiracy and sedition, it not necessary

that the accused himself should author the seditious material or should have

actually attempted hatred, contempt or disaffection. Similar was the view taken in

69

AIR 1997 SC 3438 70

AIR 2003 SC 4427. 71

(2016) 15 SCC 269 72

AIR 1987 SC 149

60

19

the case of Dr. Vinayak Binayak Sen v. State of Chhattisgarh,73

where the

Chhattisgarh High Court held that, to hold a person guilty of sedition, it is not

necessary that the person himself be an author of seditious material, under this

section, even circulation of such material can be penalised.

5.11 In the case of Kanhaiya Kumar v. State (NCT of Delhi),74

the petitioner,

charged under section 124A IPC approached Delhi High Court for grant of bail.

Deciding upon the issue, the Court observed that while exercising the right to

freedom of speech and expression under Article 19(1)(a) of the Constitution, one

has to remember that Part-IV Article 51A of the Constitution provides

Fundamental Duties of every citizen, which form the other side of the same coin.

5.12 In V.A. Pugalenthi v. State,75

the case of the prosecution was that the

petitioner along with others, distributed pamphlets containing seditious and

defamatory statements. The Madras High Court held that calling out public to

demonstrate and agitate against the Central and State Governments on the issue of

NEET Examination would prima facie constitute the offences of sedition and

defamation. At the same time, the Court cautioned the government not to take

action against any peaceful protest or criticism or dissent observing that every

citizen of the country had a fundamental right to register her/his protest peacefully

and to demonstrate, not causing a situation resulting in violence to paralyse the

law and order situation.

5.13 The aforesaid judicial pronouncements have been discussed to get an

idea as to what amounts to seditious acts. In the light thereof, it could be

stated that unless the words used or the actions in question do not threaten the

security of the State or of the public; lead to any sort of public disorder which

is grave in nature, the act would not fall within the ambit of section 124-A of

IPC.

6 FREEDOM OF SPEECH AND SEDITION

6.1 Giving voice to the importance of the freedom of speech, John Stuart Mill

advocated for the free flow of the ideas and expressions in a society. He argued

that for the stability of a society one must not suppress the voice of the citizens,

how so ever contrary it might be. To reach a point of conclusion and that too a

right conclusion, in certain cases, open public discussions and debates are

inevitable. According to Mill, this could be achieved through the right to freedom

of speech. The right not only makes it possible to highlight the popular opinion of

a society but also provides a platform to the suppressed and unheard people who

73

2011 (266) ELT 193 (Chhattisgarh). 74

(2016) 227 DLT 612. 75

Crl. O.P. No. 21463 of 2017, decided on 9/11/2017

61

20

wish to voice against any celebrated culture. Mill further points out that a good

government is the one where the ‗intelligence of the people‘ is promoted.

6.2 The Apex Court of India, while crystallising the relationship between a

democratic society and freedom of speech In Re Harijai Singh76

opined that

In a democratic set-up, there has to be an active and intelligent

participation of the people in all spheres and affairs of their

community as well as the State. It is their right to be kept informed

about current political, social, economic and cultural life as well as

the burning topics and important issues of the day in order to

enable them to consider and form broad opinion about the same

and the way in which they are being managed, tackled and

administered by the Government and its functionaries. To achieve

this objective the people need a clear and truthful account of

events, so that they may form their own opinion and offer their

own comments and viewpoints on such matters and issues and

select their further course of action.

6.3 Democracy is not another name of majoritarianism, on the contrary it is a

system to include every voice, where thought of every person is counted,

irrespective of the number of the people backing that idea. In a democracy, it is

natural that there will be different and conflicting interpretation of a given account

of an event. Not only viewpoints which constitute the majority are to be

considered, but at the same time, dissenting and critical opinions should also be

acknowledged. Free speech is protected because it is necessary to achieve some

greater, often ultimate, social good. In the unforgettable words of Charles

Bradlaugh:

―Better a thousand fold abuse of free speech than denial of free speech.

The abuse dies in a day but the denial slays the life of the people and

entombs the hopes of the race.‖77

6.4 In the case of S. Khusboo v. Kanniamal & Anr.78

, observing that the morality

and criminality do not co-exist, the Supreme Court opined that free flow of the

ideas in a society makes its citizen well informed, which in turn results into the

good governance. For the same, it is necessary that people be not in a constant

fear to face the dire consequences for voicing out their ideas, not consisting with

the current celebrated opinion. In the case of Tata Press Ltd. v. Mahanagar

76

AIR 1997 SC 73 77

Jewish Supremacism, Freedom of Speech and My Book Jewish Supermacism , available at

http://davidduke.com/freedom-of-speech/ 78

AIR 2010 SC 3196

62

21

Telephone Nigam Ltd. & Ors.79

, emphasising the importance of the freedom of

speech the Supreme Court observed:

Freedom of speech goes to the heart of the natural right of an

organised freedom-loving society to ‗impart and acquire information

about that common interest‘.

6.5 In the case of Shreya Singhal v. Union of India80

, section 66A of the

Information and Technology Act, 2000, was declared unconstitutional on the

ground that it was in direct conflict with the fundamental right of freedom of

speech and expression. The Supreme Court held that under the Constitutional

scheme, for the democracy to thrive, the liberty of speech and expression ―is a

cardinal value and of paramount importance‖81

.

6.6 The freedom of speech does not only help in the balance and stability of a

democratic society, but also gives a sense of self-attainment82

. In the case of

Indian Express Newspaper (Bombay)(P) Ltd. v. Union of India83

, following four

important purposes of the free speech and expression were set out:

(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

participating 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.

6.7 Having discussed the importance of free speech and expression, one cannot

deny the fact that the right to free speech and expression in isolation is not

enough. It has to be understood that to speak or to express a thought it is

necessary to be aware of all the aspects and fundamentals of the issue in

discussion. One cannot be supposed to form his/her opinion without having the

true account of an event and debates about the matter in question. Here comes

another aspect of the free speech and that is the right to listen, followed by the

free flow of the information available.

6.8 It was observed by Alexander Meiklejohn that freedom of speech makes a

democracy vibrant. The focus of Meikeljohn was not free speech, but rather he

was an advocate of ‗right to hear‘. He argued that to let people self-govern it is

very important for them to make an informed and well-researched decision and

79

AIR 1995 SC 2438, see also LIC of India v. Prof. Manubhai D. Shah & Cinemart Foundation,

AIR 1993 SC 171 80

AIR 2015 SC 1523 81

Id. Para 8 82

Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR

1995 SC 1236 83

AIR 1986 SC 515

63

22

that is only possible when they will be able to hear every voice raised in the

society84

. In the case of S. P Gupta v. Union of India85

, the Supreme Court held

that the right to know is inherent in the right to freedom of speech and expression

under Article 19(1) (a)86

.

6.9 In the case of Union of India & Ors. v. The Motion Picture Association &

Ors, etc. etc.87

, the Supreme Court observed:

…free speech is the foundation of a democratic society. A free

exchange of ideas, dissemination of information without restraints,

dissemination of knowledge, airing of differing view points, debating

and forming one shown views and expressing them, are the basic

indicia of a free society.

6.10 The Bombay High Court in the case of Kamal R. Khan v. State of

Maharashtra88

, while dealing with the validity of the ban imposed by the State on

the release of a motion picture, pronounced that blocking ‗the free flow of

information, ideas and knowledge‘ renders a society ‗inhibited‘ and ‗repressed‘.

6.11 The Supreme Court in the case of Cellular Operators Association of India &

Ors. v. Telecom Regulatory Authority of India & Ors.89

, held that right to

information rests upon the right to know, which ultimately was an inseparable

part of the freedom of speech guaranteed under Article 19(1)(a).

6.12 The other important aspect to be kept in mind is reasonable restriction on the

speech and expression which enables the State to impose certain restrictions on

the right to free speech. The restrictions are tried to be justified on the ground of

‗harm‘. For example, Mill explains ‗harm principle‘, stating that until and unless a

speech does not result into some sort of harm, the same cannot be supressed.

However, the yardstick on which this harm is to be measured has to be high. The

harm is to be of such a potentiality that it threatens the very existence of the

society; it disturbs the public order and results into the chaos in the society.

Justice Holmes, in Gompers v. Buck’s Stove & Range Co.90

opined:

In the name of freedom of speech and expression, the protection is

not extended to the ones who utter words that may have all the effect

of force.

84

A. Meiklejohn, Free Speech and its relation to Self- Government, Washington: London, 1948,

cited in Anushka Sharm, Sedition in Liberal Democracies, Oxford, 2018 85

AIR 1982 SC 149 86

See also PUCL v, Union of India, AIR 2003 SC 2363 87

AIR 1999 SC 2334 88

2009(4) BomCR 496 89

AIR 2016 SC 2336 90

221 U.S 418(1911)

64

23

6.13 The Supreme Court has been consistently pronouncing in various judgments

that the right to free speech and expression is not absolute in nature. It is subjected

to the reasonable restrictions as enshrined in Article 19(2) and other laws, such as

section 124A of IPC. In the case of A.K. Gopalan v. State of Madras91

, the

Supreme Court observed:

―man, as a rational being, desires to do many things, but in civil

―society his desires have to be controlled, regulated and reconciled

with the exercise of similar desires by other individuals… Liberty

has, therefore to be limited in order to be effectively possessed.‖

6.14 A similar view was taken by the United States Supreme Court in the case

of Snyder v. Phelp92

s wherein Mr. John G. Robert, Chief Justice said:

―speech is powerful. It can stir people to action, move

them to tears of both joy and sorrow, and … inflict

great pain. Hence, it is to be delivered rightfully.‖

6.15 Thus, whenever there is a need to interfere with the most important natural

rights of the human beings, the Courts have laid down certain rules as

touchstones. In the case of S. Rangarajan v. P. Jagjivan Ram93

it was held that

unless there is danger to the society and public order, the right to freedom of

speech and expression cannot be restricted. The Court further held:

The anticipated danger should not be remote, conjectural

or far-fetched. It should have proximate and direct nexus

with the expression. The expression of thought should be

intrinsically dangerous to the public interest. In other

words, the expression should be inseparably locked up

with the action contemplated like the equivalent of a

"spark in a powder keg".

6.16 Similarly in the case of Ramesh v. Union of India94

the Court again

cautioned that while determining the impact of the words uttered, the standard of

a ‗reasonable, strong minded, firm and courageous men‘ is to be applied; and not

of a ‗weak and vacillating mind‘.

6.17 In the case of Shreya Singhal (supra) the Court observed:

There are three concepts which are fundamental in

understanding the reach of this [freedom of speech and

91

AIR 1950 SC 27 92

562 U.S. 443 (2011) 93

(1989) 2 SCC 574; see also The Superintendent, central prison, Fatehgarh v. Dr. Ram Manohar

Lohia, AIR 1960 SC 633 94

AIR 1988 SC 775

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expression] most basic of human rights. The first is

discussion, the second is advocacy, and the third is

incitement. Mere discussion or even advocacy of a

particular cause howsoever unpopular is at the heart of

Article 19(1) (a). It is only when such discussion or

advocacy reaches the level of incitement that Article

19(2) kicks in. It is at this stage that a law may be made

curtailing the speech or expression that leads

inexorably to or tends to cause public disorder or tends

to cause or tends to affect the sovereignty & integrity

of India, the security of the State, friendly relations

with foreign States, etc. (emphasis added)

6.18 In a number of cases, scepticism has been expressed about the potential

misuse of the sedition law. Justice A P Shah, in one of his articles95

, warns about

the very basis for the logic of a sedition law. He compares the idea of sedition to a

parochial view of nationalism which often endangers the diversity of opinions

rather than protect against rebellion.

6.19 In the case of Ramesh Yashwant Prabhoo v. Prabhakar Kashinath Kunte &

Ors.96

, the use of religion in electoral campaigns was challenged under section

123 of the Representation of the People Act, 1951. It was contended that repeated

use of open threats to India‘s constitutional commitment to secularism could be

construed as ‗disloyalty‘ and the threat of public nuisance this would generate was

also palpable. However, the Court did not accept it and held that the candidate

expressed at best a ‗hope‘ for creation of a monolithic rashtra than, in fact, acting

on elimination of minorities and thus threatening to eliminate other religions.

Significantly, Section 123 of the Act, 1951 covers use of such speech in

campaigns and therefore there is no question of invoking the provisions of 124A

IPC. Thus, expression of a particular image of the country does not alone amount

to a threat to the security of the nation.

A. Expression not amounting to sedition

6.20 The court has been categorical in expressing that every criticism does not

amount to sedition and the real intent of the speech must be considered before

imputing seditious intent to an act. In the case of Balwant Singh v. State of

Punjab,97

the Court refused to penalise casual raising of slogans few times against

the State by two persons (Khalistan Zindabad, Raj Karega Khalsa, and Hinduan

Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan

Da). It was reasoned that raising of some lonesome slogans, a couple of times by

two individuals, without anything more, did not constitute any threat to the

95

A P Shah, Free Speech, Nationalism and Sedition, Economic & Political Weekly, Vol. 52, Issue

No. 16, 22 Apr, 2017 96

AIR 1996 SC 1113 97

AIR 1995 SC 1785.

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Government of India as by law established nor could the same give rise to

feelings of enmity or hatred among different communities or religious or other

groups.

6.21 Similarly, in Javed Habib v. State of Delhi,98

it was held:

Holding an opinion against the Prime Minister or his

actions or criticism of the actions of government or

drawing inference from the speeches and actions of the

leader of the government that the leader was against a

particular community and was in league with certain other

political leaders, cannot be considered as sedition

under Section 124A of the IPC. The criticism of the

government is the hallmark of democracy. As a matter of

fact the essence of democracy is criticism of the

Government. The democratic system which necessarily

involves an advocacy of the replacement of one

government by another, gives the right to the people to

criticize the government. In our country, the parties are

more known by the leaders. Some of the political parties

in fact are like personal political groups of the leader. In

such parties leader is an embodiment of the party and the

party is known by the leader alone. Thus, any criticism of

the party is bound to be the criticism of the leader of the

party.

6.22 The need to look into the context of the speech was reiterated in the case

of Pankaj Butalia v. Central Board of Film Certification & Ors.99

, the Delhi High

Court held that while judging sedition, intention is extremely important. An

offence under section 124A IPC has to be ascertained by judging the act

‗holistically and fairly without giving undue weight to isolated passages‘.100

6.23 In the case of Sanskar Marathe v. State of Maharashtra & Anr.,101

a

cartoonist Aseem Trivedi was booked under section 124A IPC for defaming the

Parliament, the Constitution of India and the National Emblem and attempting to

spread hatred and disrespect against the Government through his cartoons. The

court distinguished between strong criticism and disloyalty observing:

… 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

98 (2007) 96 DRJ 693.

99 (2015) 221 DLT 29.

100 Ibid.

101 2015 Cri LJ 3561.

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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.

6.24 In the case of Arun Jaitley v. State of U.P.,102

the Allahabad High Court

held that a critique of a judgment of the Supreme Court on National Judicial

Appointment Commission does not amount to sedition. It was merely a fair

criticism. While interpreting section 124A, IPC the court observed:

Hence any acts within the meaning of s. 124A 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.

6.25 Thus, expression of strong condemnation towards the State or State

institutions can never amount to sedition for the simple reason that no institution

or symbol alone embodies the whole country in entirety. In many cases the

critique over a failed law expressed through for instance, the burning of

Constitution, or expression of disappointment with members of Parliament

through a visually disparaging cartoon or an image of Parliament cannot amount

to sedition because often the protests may be routed in an idea of India which has

been frustrated by its elected representatives, or a law that has demeaned or

disappointed citizens of India.

B. Private Member’s Bill Suggesting Amendment

6.26 In the year 2011, a private member Bill titled the Indian Penal Code

(Amendment) Bill, was introduced in the Rajya Sabha by Mr. D. Raja. The Bill

proposed that section 124A IPC should be omitted. It was reasoned that the

British Government used this law to oppress the view, speech and criticism

against the British rule. But the law is still being used in independent India,

despite having specialised laws to deal with the internal and external threats to

destabilise the nation. Thus, to check the misuse of the section and to promote the

freedom of speech and expression, the section should be omitted.

6.27 Another Private member Bill titled The Indian Penal Code (Amendment)

Bill, 2015103

, was introduced in Lok Sabha by Mr. Shashi Tharoor to amend

102 2016 (1) ADJ 76.

103The Indian Penal Code (Amendment) Bill, 2015, available at:

http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/2535LS.pdf (last visited on Jan 20,

2017).

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section 124A IPC. The Bill suggested that only those actions/words that directly

result in the use of violence or incitement to violence should be termed seditious.

This proposed amendment revived the debate on interpretation of sedition. The

courts through various judgments have settled that the language of this section

does not imply that only words, either spoken or written, or signs, or visible

representation that are likely to incite violence should be considered seditious.

7 SEDITION VIS-À-VIS OTHER STATUTES

7.1 Potentiality and impact of expression has always been looked into by the

court to determine the permissibility of its restriction.104

In order to qualify as

sedition, the act must be intentional and must cause hatred.105

Disturbance of

public order has been recognised as an important ingredient of sedition in India106

.

The term ‗public order‘ has been defined and distinguished from ‗law and order‘

and ‗security of State‘ in Ram Manohar Lohiya v. State of Bihar.107

The Court

observed the difference between the three of them is that of degree.

One has to imagine three concentric circles. Law and

order represents the largest circle within which is the next

circle representing public order and the smallest circle

represents security of State. It is then easy to see that an

act may affect law and order but not public order just as an

act may affect public order but not security of the State.

7.2 It has been suggested that sedition is many a times used to stem any sort of

political dissent in the country, and also any alternate political philosophy which

goes against the ruling party‘s mindset.108

7.3 Since sedition is an offence against the State, higher standards of proof

must be applied to convict a person for this offence. This is necessary to protect

fair and reasonable criticisms and dissenting opinions from unwarranted State

suppression. Legitimate speech must be protected and care must be taken that the

grounds of limitation are reasonable and just.109

Section 124A IPC must be read in

consonance with Article 19(2) of the Constitution and the reasonableness of the

restriction must be carefully scrutinised on the basis of facts and circumstances of

the case. On the other hand, there have also been instances where people have

been charged with sedition for making statements that in no manner undermine

the security of the nation.

104 See S. Sivakumar, ―Freedom of Press vis-a-vis Working of the Constitution‖ 2 Journal of

Indian Legal Thought 163-64 (2004). 105

B.S. Chauhan, ―Freedom of Speech and Expression‖ 3 Lexigentia 4 (2016). 106

Kedarnath v. State of Bihar, AIR 1962 SC 955 107

AIR 1966 SC 740. 108

Supra note 21. 109

Meera Mathew, ―Expression, Advocacy and Incitement‖ Working Paper submitted to the Law

Commission of India (2017).

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7.4 Indian Penal Code, 1860, within its ambit covers a wide range of actions

threatening the peace of the society. For instance, Chapter VI includes the

offences against the State, inter alia, waging or attempting to wage war (section

121), collecting arms, etc. with intention of waging war against India (section

122), concealing with intent designed to wage war (section 123), covering a wide

range of malicious intentions against the State. Chapter VII covers provisions

relating to abetting mutiny (section 131 and 132). Further, Chapter VIII, titled ‗of

offences against the public tranquillity‘ covers actions which, if allowed, would

disturb the peace of the society. Section 141 defines the unlawful assembly and

section 143 provides for the punishment for the same; section 153A prohibits the

actions ‗promoting enmity between different groups on grounds of religion, race,

place of birth, residence, language, etc., and acts prejudicial to maintenance of

harmony‘; so on and so forth. These provisions take care of any activity which

might be indulged into for the purpose of waging war against India or causing

disruption of public order.

7.5 The Unlawful Activities Prevention Act, 1967, was enacted in view of various

resolutions passed by the Security Council of the United Nations to prevent

terrorist activities and to freeze the assets and other economic resources belonging

to terrorists. The object as explained in the Statement of Objects and Reasons had

been to enable the State authorities to deal with ―activities directed against the

integrity and sovereignty of India‖. The Act also deals with the demands/

assertions of ―cession of a part of territory of India from the Union‖ [section 2

(i)].

7.6 The Act 1967 was amended in 2004110

, by which certain provisions of

Preventions of Terrorism Act, 2002 (POTA) were incorporated therein. In 2008

the Act 1967 was further amended111

whereby provisions of POTA, and Terrorist

and Disruptive Activities Act, 1987 (TADA), regarding maximum period in

police custody, detention without a chargesheet and restrictions on bail were

added. The Act 1967 was also amended in 2012112

, removing the vagueness in the

definition of ‗terrorist act‘ to include offences which may threaten the economic

security of the nation.

7.7 In the case of N.R. Narayana Murthy v. Kannada Rakshana Vakeelara113

,

the Karnataka High Court observed:

According to Article 51A(a), it shall be the duty of every citizen

of India to abide by the Constitution and respect its ideals and

institutions, the National Flag and the National Anthem.

National Flag, National Anthem and the Constitution of India

are the symbols of sovereignty and the integrity of the Nation.

Public acts of insults to these symbols must be prevented. The

Prevention of Insults to National Honour Act, 1971 was enacted

and brought on the Statute book. ……. Section 2 of the National

110 The Unlawful Activities (Prevention) Act, 2004 (29 of 2004) (w.e.f.21.09.2004)

111 The Unlawful Activities (Prevention) Act, 2008 (35 of 2008) (w.e.f.31.12.2008)

112 The Unlawful Activities (Prevention) Act, 2012 (3 of 2013) (w.e.f.01.02.2013)

113 AIR 2007 Kant 174

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Honour Act deals with insult to Indian National Flag and

Constitution of India. Section 3 of the National Honour Act says

that whoever intentionally prevents the singing of the Indian

National Anthem or causes disturbance to any assembly

engaged in such singing shall be punished with imprisonment

for a term which may extend to three years, or with fine, or with

both". Section 3A prescribes enhanced penalty on second and

subsequent convictions under Sections 2 and 3 of the National

Honour Act.

7.8 The Supreme Court of India has reiterated the need to contextualise the

form of expression before restricting it.114

Similar acts can affect public order in

different manner in different context. Stressing on the importance of context, the

apex Court in the case of Arun Ghosh v. State of West Bengal,115

held that before

limiting any speech the following question must be asked:

Does [the speech] lead to disturbance of the current of life

of the community so as to amount to a disturbance of the

public order or does it affects merely an individual leaving

the tranquillity of the society undisturbed?

7.9 Constitutional and statutory provisions confer various privileges and

immunities on the legislatures and their members116

. Articles 129 and 215 give

powers to the Supreme Court and High Courts to punish for the contempt of

court117

. The Contempt of Courts Act, 1971, provides the procedure to deal with

the issue. Section 2 of the Prevention of Insults to National Honour Act, 1971,

makes an insult to the National flag and the Constitution in the manner set out

therein, a punishable offence.

7.10 The Criminal Law Amendment Act, of 1961 was enacted with the purpose

of curbing activities that are ―likely to jeopardise the security of the country and

its frontiers point‖118

. Section 2 of the Act, deals with cases where someone

questions the territorial integrity or frontiers of India, which is likely to prejudice

the safety and security of the country, and provides for punishment up to three

years. It is notable that under section 3(1), the Central Government may by

notification declare ‗any area adjoining the frontiers of India‘, as a notified area.

In which case, no person shall enter the notified area, without the permission of

the designated magistrate notified under section 3(3). The Act empowers under

section 3(4) the police officer, not below the rank of sub-inspector of police, to

search any person entering or attempting to enter or being in or leaving a notified

area. Further section 4 (1), empowers the State Government that if it is of the

114 See Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.

115 AIR 1970 SC 1228.

116 See also the opinion of Supreme Court in Special reference No. 1 of 1964 AIR 1965 SC 745.

117 See Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act), (2018)

118 Statement of Objects and the reasons, the Criminal Law Amendment Act, 1961.

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opinion that any newspaper or book contains material which is in contravention of

sections 2 and 3(2) of the Act, it may, by notification and reasons recorded, order

the forfeiture of the same. The Act of 1961 was amended in 1990 by Act of 1990

and made publication Map of India by any person which is not in conformity with

the map published by the Survey of India, a punishable offence.

7.11 Therefore, before branding any act as seditious, the gravity of the action

must be diligently looked into. If the act does not fall within the ambit of sedition,

rather attracts the provisions of some other law, such act may be booked under the

same.

8 THE WAY FORWARD

8.1 In a democracy, singing from the same songbook is not a benchmark of

patriotism. People should be at liberty to show their affection towards their

country in their own way. For doing the same, one might indulge in constructive

criticism or debates, pointing out the loopholes in the policy of the Government.

Expressions used in such thoughts might be harsh and unpleasant to some, but

that does not render the actions to be branded seditious. Section 124A should be

invoked only in cases where the intention behind any act is to disrupt public order

or to overthrow the Government with violence and illegal means.

8.2 Every irresponsible exercise of right to free speech and expression cannot

be termed seditious. For merely expressing a thought that is not in consonance

with the policy of the Government of the day, a person should not be charged

under the section. Expression of frustration over the state of affairs, for instance,

calling India ‗no country for women‘, or a country that is ‗racist‘ for its obsession

with skin colour as a marker of beauty are critiques that do not ‗threaten‘ the idea

of a nation. Berating the country or a particular aspect of it, cannot and should not

be treated as sedition. If the country is not open to positive criticism, there lies

little difference between the pre- and post-independence eras. Right to criticise

one‘s own history and the right to ‗offend‘ are rights protected under free speech.

8.3 While it is essential to protect national integrity, it should not be misused

as a tool to curb free speech. Dissent and criticism are essential ingredients of a

robust public debate on policy issues as part of vibrant democracy. Therefore,

every restriction on free speech and expression must be carefully scrutinised to

avoid unwarranted restrictions.

8.4 In order to study revision of section 124A further, the following issues

would require consideration:

(i) The United Kingdom abolished sedition laws ten years back citing that

the country did not want to be quoted as an example of using such

draconian laws. Given the fact that the section itself was introduced

by the British to use as a tool to oppress the Indians, how far it is

justified to retain s.124A in IPC?

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(ii) Should sedition be not redefined in a country like India – the largest

democracy of the world, considering that right to free speech and

expression is an essential ingredient of democracy ensured as a

Fundamental Right by our Constitution?

(iii) Will it be worthwhile to think of an option of renaming the section

with a suitable substitute for the term ‗sedition‘ and prescribe

punishment accordingly?

(iv) What is the extent to which the citizens of our country may enjoy the

‗right to offend‘?

(v) At what point the ‗right to offend‘ would qualify as hate speech?

(vi) How to strike a balance between s.124A and right to freedom of

speech and expression?

(vii) In view of the fact that there are several statutes which take care of

various acts which were earlier considered seditious, how far would

keeping section 124A in the IPC, serve any purpose?

(viii) Given the fact that all the existing statutes cover the various offences

against the individual and / or the offences against the society, will

reducing the rigour of s.124A or repealing it be detrimental or

beneficial, to the nation?

(ix) In a country, where contempt of Court invites penal action, should

contempt against the Government established by law not invite

punishment?

(x) What could be the possible safeguards to ensure that s.124A is not

misused?

8.5 The Commission hopes a healthy debate will take place among the legal

luminaries, lawmakers, Government and non-Government agencies, academia,

students and above all, the general public, on the above issues, so that a public

friendly amendment could be brought about.

***

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IN THE SUPREME COURT OF INDIA

CIVIL WRIT JURISDICTION

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

WRIT PETITION (CIVIL) NO. OF 2021

IN THE MATTER OF:

S.G. VOMBATKERE …PETITIONER

Versus

UNION OF INDIA …RESPONDENTS

APPLICATION FOR EXEMPTION FROM FILING DULY

ATTESTED AFFIDAVIT

To,

The Hon’ble Chief Justice of India and His Companion Justices of the

Hon’ble Supreme Court of India.

MOST RESPECTFULLY SHOWTH:

1. The present Petition under Article 32 of the Constitution of India is

being filed by the Petitioner Petition, in the nature of public interest

litigation, challenging the constitutionality of Section 124A of the

Indian Penal Code, 1860, that defines sedition and makes seditious

speech punishable under the Code.

2. That the facts and circumstances giving rise to the submissions and

contentions in support of this Application are fully set out in the

Transfer Petition. For the sake of brevity, the Applicant craves leave to

refer to and rely upon the said facts and circumstances and submissions

and contentions as if they are reproduced herein.

3. The Petitioner is not a resident of Delhi and is unable to come to Delhi

in view of COVID-19. He is also unable to get the Petition the Affidavit

74

in support of the present Application, notarized and duly attested. The

Applicant is therefore constrained to file the present Application for

seeking exemption from filing a duly notarized/ affirmed affidavit. The

petitioner undertakes to file the same alongwith physical copies of the

Petition.

4. That the Application is being made bonafide and in the interest of

justice.

PRAYER

It is, therefore, most respectfully prayed that this Hon’ble Court in the interest of justice, may graciously be pleased to:-

a) Exempt the Petitioner from filing duly attested affidavit and;

b) Pass such other and further order(s) as this Hon’ble Court may deem fitand proper.

AND FOR THIS ACT OF KINDNESS THE PETITIONER (S) IS DUTY BOUND SHALL EVER PRAY

PLACE : NEW DELHI DATED: 23.06.2021

FILED BY:

PRASANNA S Advocate for the Petitioner CC: 2919

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