Sedition under Section 124A v Freedom of Speech and Expression

Sedition

Section 124A of the Indian Penal Code, 1860 defines sedition. As per this definition, anyone who brings into hatred, excites or attempts disaffection towards the Government which is established by law in India, is guilty of offence of sedition.

This definition brings forth the following essential ingredients of sedition-

  1. The manner in which seditious activities can be carried out is by words, either spoken or written, or by signs or by visible representation, or otherwise.

While the terms ‘words’ and ‘signs’ are very easy to understand, it is the term ‘visible representation’ that presents a difficulty. This term is not defined. It means any form of communication which is visible to eye including pictures, mime performances etc. The term ‘otherwise’ indicates the universality of the means by which the offence may be committed.

It was held in Raghubir Singh v. State of Bihar[1] that distribution or circulation of seditious material also constitutes sedition.

  1. This representation should be exercised in such a manner so as to bring or attempt to bring into hatred or contempt or excite or attempt to excite disaffection towards the government established by law.

The term ‘disaffection’ includes disloyalty and all feelings of enmity, however there should be incitement to violence and not mere abusive words. In Balwant Singh v. State of Punjab[2], the accused were government servants who raised some slogans on the day of the assassination of Smt. Indira Ghandi, the then Prime Minister, in a crowded place. However, there was no response from the public. It was contended that they raised the slogans a couple of times but since there was no disturbance whatsoever, the Supreme Court held that mere raising of casual slogans, once or twice, by two individuals cannot be held seditious.

  1. Government established by law

It is vital to understand that ‘Government established by law’ is distinct from the government formed by a particular ruling party or the bureaucracy running the government.  Thus criticism of a particular government will not amount to sedition.

Freedom of Speech and Expression

Article 19 (1) (a) says that all citizens shall have the right to freedom of speech and expression. This means the right to express one’s opinions freely by words of mouth, writing, printing, pictures etc. It includes expressions of one’s ideas through any communicable medium or visible representation, such as gestures, signs, and the like. This freedom also includes the right to publish the ideas, opinions or views of other people otherwise this freedom would not include the freedom of the press.

This freedom of speech and expression aims to serve the following main four purposes-

  1. It helps an individual to attain self fulfillment
  2. It assists in the discovery of truth
  3. It strengthens the capacity of an individual in participating in decision making
  4. It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.

Constitutional Validity of Section 124A in regard to Article 19 of the Constitution

The provision of sedition was brought in the India Penal Code, far back in the year 1860. It was originally drafted by Thomas Macaulay. Many freedom fighters and protestors like Mahatma Gandhi and Bal Gangadhar Tilak were booked under this provision.

After the Constitution acme into operation, the constitutional validity of this provision came into question on the grounds that it contravenes the freedom of speech and expression guaranteed under Article 19 of the Constitution of India.

The validity of Section 124A was first questioned in Tara Singh Gopichand v. State[3]. It was argued that this section is against the spirit of freedom of speech and expression i.e. against Article 19 of the Constitution of India. The East Punjab High Court declared this section ultra vires as it curtailed the freedom of speech and expression in a manner not allowed by the Constitution.

The Court observed: “India is now a sovereign democratic state. Governments may go and be caused to go without the foundations of the State being impaired. A law of sedition though necessary during a period of foreign rule has now become inappropriate by the very nature of the change which has come about.”

However, the Constitution First (Amendment) Act, 1951, added the words “in the interest of” and “public order” in Article 19(2). This made it clear that restrictions can be put through law on the freedom of speech and expression and that the freedom is not absolute.

But even after the addition of these words, the Allahabad High Court, in Ram Nandan v. State of Uttar Pradesh[4] held that the restrictions imposed by Section 124A on this freedom of speech and expression is not in the interest of the general public and hence infringed a fundamental right. It was therefore held that this section cannot be included in the purview of “interest of public order” and is ultra vires. 

There remained an ambiguity in regard to the constitutional validity of this section but this was finally put to rest in Kedar Nath v. State of Bihar[5]. It was held that with the addition to the words “in the interest of” and “public order”, the Article 19 allows for reasonable restrictions and that any law which is enacted in the interest of public order can be saved from the vice of constitutional validity.

But at the same time the Court also said, “if 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 Section would make it unconstitutional in the view of Article 19(1)(a) read with clause (2).

The Court also observed that it is clear that the section aims at making only the activities that intend or have the tendency to create disorder or disturbance of public peace by resorting to violence, an offence.

Thus, criticism of a Government action is under the reasonable limits and is consistent with the freedom of speech and expression. However, it is not very easy to decide when something comes under this reasonable criticism and when it doesn’t.


[1] AIR 1987 SC 149 at p 158.

[2] AIR 1995 SC 1785

[3] AIR 1951 East Punjab 27.

[4] AIR 1959 All 101

[5] AIR 1962 SC 955

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