Table of Contents

Introduction................................................................................................................................2

Sedition origin, meaning and purpose........................................................................................3

Pre-independence and post independence implementation........................................................5

Debate on sedition in 21st century India.....................................................................................8

Analysis....................................................................................................................................12

Conclusion................................................................................................................................13

1
 Introduction
It has been 72 years since India gained independence from Britain, but sedition remains
entrenched not only in law (Section 124-A of the Indian Penal Code), but also in the mindset
of successive governments. In 1922, Mahatma Gandhi, leader of the Indian independence
movement, was tried and prosecuted for “bringing or attempting to excite disaffection
towards the British Government established by law in British India”, under Section 124-A.

“Affection cannot be manufactured or regulated by law,” Gandhi said while on trial. “If one
has no affection for a person or system, one should be free to give the fullest expression to his
disaffection, so long as he does not contemplate, promote, or incite to violence.”

‘In India, you can be charged with sedition for liking a Facebook post, criticising a yoga
guru, cheering a rival cricket team, drawing cartoons, asking a provocative question in a
university exam, or not standing up in a cinema when the national anthem is being played’.1

The authorities in India today are using Section 124-A to stifle dissent. A Manipur student
activist was arrested over a social media post on the contentious Citizenship Bill, 14 students
of Aligarh Muslim University were arrested for raising anti-national slogans on campus, and
four students of Kashmiri origin in Rajasthan were charged with sedition over social media
posts about last month’s terror attack in Jammu and Kashmir2.

The constitutional validity of the provision of sedition has been settled by the Supreme Court
and thus this paper does not argue the provision itself but rather tries to understand its origins
and the development in the mind of the population regarding the same.

By this paper, the author tries to show that the provision itself is not evil but rather the
application of the definition by different regimes for political gains is. Therefore, author does
not argue for the provision to be stuck down but only applied where it is most needed.

1 Soutik Biswas, WHY INDIA NEEDS TO GET RID OF ITS SEDITION LAW,
https://www.bbc.com/news/world-asia-india-3718220, (visited on July 12, 2019).
2 Arpitha Desai, INDIA’S SEDITION LAW IS A DANGEROUS HANGOVER FROM BRITISH
COLONIALISM,https://www.indexoncensorship.org/2019/03/india-sedition-hangover-british-colonialism/
(Visited on July 12, 2019).

2
 Sedition-origin, meaning and purpose
Sedition is overt conduct, such as speech and organization, that tends toward insurrection
against the established order. Sedition, as per the law means that when someone 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.3

The word “Sedition” does not appear in Section 124-A of the Indian Penal Code. It is only
found as a marginal note to Section 124-A, and is not an operative part of the section but
merely provides the name by which the crime defined in the section will be known.

The term sedition in its modern meaning first appeared in the Elizabethan Era (c. 1590) as the
"notion of inciting by words or writings disaffection towards the state or constituted
authority". "Sedition complements treason and martial law: while treason controls primarily
the privileged, ecclesiastical opponents, priests, and Jesuits, as well as certain commoners;
and martial law frightens commoners, sedition frightens intellectuals.4

Since the working definition of the word ‘disaffection’ changes from regime to regime and
region to region, the crime of sedition do not appear to be of a uniform-universal nature. For
example in Saudi Arabia, you can be arrested or fined if you say anything negative to the
government or the rulers. Punishment here ranges from deportation to death penalty.

Sedition was defined by Fitzgerald J. in R. v. Sullivan5

“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.”

Sir James Stephen defined a seditious intention as “an intention to bring into hatred or
contempt, or to excite disaffection against, the person of his Majesty, his heirs or successors,

3 Section 124A, The Indian Penal Code, 1860.

4 C. Breight, SURVEILLANCE, MILITARISM AND DRAMA IN THE ELIZABETHAN ERA, 1996, pp.89.
5 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‖.

3
or the Government and the constitution of the United Kingdom by law established, or either
House of Parliament, or the administration of Justice or to excite his Majesty’s subjects to
attempt otherwise than by lawful means, the alteration of any matters in Church or State by
law established…..or to raise discontent or disaffection amongst his Majesty’s subjects, or to
promote feelings of ill will and Hostility between different classes of such subjects.”

The offence of sedition can be traced to the Statute of Westminster, 1275 when the King was
considered the holder of Divine right. 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‘. 6 The De Libellis
Famosis,7 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. 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.

The British argued in favour of introducing this section that in the absence of such provision,
this offence would be penalised under the more severe common law of England. 8 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’. 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.9

6 William T. Mayton, ―Seditious Libel and the Lost Guarantee of a Freedom of Speech‖ 84 Colum. L. Rev. 91
(1984).
7 77 Eng. Rep. 250 (K.B. 1606).
8 Queen Emperor v. Jogendur Chandra Bose (1892) 19 ILR Cal 35.
9 A TREATIES ON THE LAW OF SEDITION,
http://archive.org/stream/onlawofsedition00dono#page/2/mode/2up (Visited on June 02, 2019).

4
 Pre-independence and post independence implementation
Section 124A IPC was extensively used to curb political dissent in British India. Jogendra
Chandra Bose,10 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. 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.11

In Queen Empress v. Bal Gangadhar Tilak 12, 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:

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

10 Ibid.
11 Ibid.
12 ILR (1898) 22 Bom 112.

5
 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…...

Where a speaker said that the Govt. had wounded the feelings of the Sikhs in the matter of
Sis Ganj Gurdwara at Delhi and any one could see the grief-provoking picture showing
thousands of bullet marks on the walls of the Gurdwara and that in the name of law and order
bullets were showered on the people: held, that the reference to the Sis Ganj Gurdwara and to
the motive of the authorities to rain bullets under the cover of maintaining law and order was
undoubtedly such as to bring the Govt. established by law in India into hatred and the speaker
guilty of sedition.13

After independence, the provisions of sedition were kept. Section 124A IPC came up for
consideration for the first time in the case of Romesh Thapar v. State of Madras 14. The
Supreme Court declared that unless the freedom of speech and expression threaten the
security of or tend to overthrow the State’, any law imposing restriction upon the same would
not fall within the purview of Article 19(2) of the Constitution. The court in Romesh Thapar ,
had held that ‘freedom of speech and expression could be restricted on the grounds of threat
to national security and for serious aggravated forms of public disorder that endanger national
security and not relatively minor breaches of peace of a purely local significance’.

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 purpose of
broadening the definition.

In a Supreme Court case it has been held that the casual raising of slogans once or twice by
two individuals alone cannot be aimed at exciting or attempt to excite hatred or disaffection
towards the Govt. as established by law in India.15

In Kedar Nath Singh v. State of Bihar 16, SC had to give the decision based on
constitutionality of section 124A of IPC and Article 19(2).

The Supreme Court in this case clarified what is not sedition.

13 Nirinjan Das v. Emperor, AIR 1931 Lah 31.
14 AIR 1950 SC 124.
15 Balwant Singh v. State of Punjab, (1995) 3 SCC 214, 1995 SCC (Cri) 432.
16 AIR 1962 SC 955.

6
 1. Mere “strong words used to express disapprobation of the measures of Government
with a view to their improvement or alteration by lawful means” is not sedition.
2. “Comments, however strongly worded, expressing disapprobation of actions of the
Government, without exciting those feelings which generate the inclination to cause
public disorder by acts of violence” is not sedition.
3. “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” is not sedition.

The two essential ingredients required to establish the crime of sedition under Section 124A
are:

1. The acts complained of must be intended to have the “effect of subverting the
Government” by violent means; and
2. The acts complained of must be intended, or have a tendency, to create disorder or
disturbance of public peace/ law and order by resort to violence and must incite
violence.

Therefore, mere slogan shouting against the State or the Government established by law
which is not intended to have the “effect of subverting the Government” by violent means;
and which is not intended to, nor has the tendency, to create disorder or disturbance of public
peace/ law and order by resort to violence; and which does not incite violence will not
amount to the crime of sedition under section 124A.

7
 Debate on sedition in 21st century India
In 2010, writer Arundhati Roy was sought to be charged with sedition for her comments on
Kashmir and Maoists.17 Binayak Sen, an Indian paediatrician, public health specialist, and
activist was found guilty of sedition.18 He is national Vice-President of the People's Union for
Civil Liberties (PUCL). On 24 December 2010, the Additional Sessions and District Court
Judge B.P Varma Raipur found Binayak Sen, Naxal ideologue Narayan Sanyal (politician)
and Kolkata businessman Piyush Guha, guilty of sedition for helping the Maoists in their
fight against the state. They were sentenced to life imprisonment, but he got bail in Supreme
Court on 16 April 2011.19

On 10 September 2012, Aseem Trivedi, a political cartoonist, was sent to judicial custody till
24 September 2012 on charges of sedition over a series of cartoons against corruption.
Trivedi was accused of uploading "ugly and obscene" content to his website, also accused of
insulting the Constitution during an anti-corruption protest in Mumbai in 2011. Trivedi's
arrest under sedition has been heavily criticised in India.20

In February 2016, JNU student union president Kanhaiya Kumar was arrested on charges of
Sedition & raising voice for “Kashmir” under section 124-A of Indian Penal Code. His arrest
raised political turmoil in the country with academicians and activists marching and
protesting against this move by the government. He was released on interim bail on 2 March
2016 for a lack of conclusive evidence.21

On 17 August 2016, Amnesty International India was booked in a case of "sedition" and
"promoting enmity" by Bengaluru police. A complaint was filed by ABVP, an all India
student organisation affiliated to Nationalists RSS.

In September 2018, Divya Spandana, the Congress Social Media chief was booked for
sedition for calling Narendra Modi, the prime minister of India, a thief.22 On 13 January 2019,
The Delhi Police filed a chargesheet on Monday against former Jawaharlal Nehru University

17 SEDITION AND TREASON: THE DIFFERENCE BETWEEN THE TWO, IBN Live, October 25, 2010.
18 It’s the first step towards justice, says Sen Release Committee. Indian Express (16 April 2011), Retrieved on
2019-06-19.
19 Ibid.
20 Cartoonist Aseem Trivedi sent to judicial custody, govt faces flak Archived 12 September 2012 at the
Wayback Machine. Hindustantimes.com. Retrieved on 19 June 2019.
21 Mathur, Aneesha "JNU row: Kanhaiya Kumar gets bail and a lesson on thoughts that 'infect… (like)
gangrene'", THE INDIAN EXPRESS, March 03, 2016,(Retrieved 29 June 2019).
22 "Hours after sedition case, Congress' Divya Spandana again tweets 'PM Chor Hai'" DECCAN CHRONICLE,
Mumbai. 27 September 2018, (Retrieved 9 June 2019).

8
Students' Union (JNUSU) president Kanhaiya Kumar and others in a sedition case lodge in
2016.23

On 10 January 2019, a sedition case was registered suo-motto against Noted Cambridge
Scholar and Assamese Intellectual Dr Hiren Gohain and 2 others for their remarks against the
Citizenship (Amendment) Bill. Dr. Gohain (80) called the move “a desperate attempt by a
cornered government.”24

All the above mentioned instances show the change in the nature of cases from the British
period to these times. Repeated cases of similar nature such as anti-majority or anti- govt.
speeches are termed seditious and reputations destroyed. The courts have for long said that
mere dissatisfaction does not amount to sedition.

The court in Kamal Krishna Sircar v. Emperor,25 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.

Recently a private member Bill titled The Indian Penal Code (Amendment) Bill, 2015 26, was
introduced in Lok Sabha by Mr. Shashi Tharoor to amend 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

23 JNU case: Delhi Police charge Kanhaiya Kumar, others with sedition, THE TIMES OF INDIA,
https://timesofindia.indiatimes.com/city/delhi/sedition-case-delhi-police-file-chargesheet-against-kanhaiya-
kumar/articleshow/67525192.cms, (January 24. 2019).
24 Naresh Mitra, SEDITION CHARGES ABSURD AND GROTESQUE: HIREN GOHAIN,
https://timesofindia.indiatimes.com/india/sedition-charges-absurd-and-grotesque-hiren-
gohain/articleshow/67507023.cms (Visited on July 12, 2019).
25 AIR 1935 Cal 636.
26 The Indian Penal Code (Amendment) Bill, 2015, available at
http://164.100.47.4/BillsTexts/LSBillTexts/Asintroduced/2535LS.pdf (Visited on June 20, 2019).

9
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.

The United Kingdom Law Commission while examining the need of law on seditious libel in
modern democracy,27

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.

This marked the beginning of the movement to abolish seditious libel in United Kingdom.
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 offences will
allow the UK to take a lead in challenging similar laws in other countries, where they
are used to suppress free speech.28

27 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-Codificationof-the-Criminal-Law-Treason
Sedition-and-Allied-Offences.pdf (last visited on June. 5, 2019) at 4.
28 Criminal libel and Sedition Offences Abolished‖, Press Gazette (Jan. 13, 2010).

10
 Literature review- law commission consultation paper on ‘sedition’
The Law Commission of India published its Consultation Paper on Sedition on August 30,
201829. The Paper did not make any recommendations. The Paper also highlighted the need
for an informed debate on the law “so that a public friendly amendment could be brought
about.”

The Commission has opined "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".

One of the reasons for abolishing the law of sedition was stated as

“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.”

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.

29 Law commission of India consultation paper on sedition, 30/08/2018 available at

http://www.lawcommissionofindia.nic.in/reports/CP-on-Sedition.pdf

11
 Analysis
It is true that it is not sedition to criticize administrative machinery or the officers of Govt.
but where the speaker exceeds the limits of fair criticism and his object in attacking the
existing Govt. is to create disaffection the speech amounts to sedition.

In cases under Section 124-A, I.P.C., the Courts have not to see the effect on the mind of the
people and they are concerned with the construction of the speech, and the speech has to be
taken as a whole and not just in pieces. A man may criticize or comment upon any measure or
act of the Govt. and freely express his opinion upon it. He may express condemnation but so
long as he confines himself to that he will be protected, but if he goes beyond that he must
pay the penalty for it. The question of intention is always an important factor in such cases 30.
Authorship of seditious material alone is not the gist of offence of sedition. Distribution,
circulation of seditious material may also be sufficient.31

The section places absolutely on the same footing the successful exciting of feelings of
disaffection and the unsuccessful attempt to excite them. It is not an essential ingredient of
sedition that the act done should be an act which is intended or likely to incite to public
disorder.

30 Vishambhar Dayal v. Emperor; AIR 1941 Oudh 33.

31 Raghuvir Singh v. State of Bihar, AIR 1987 SC 149.

12
 Conclusion
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 section.124A in IPC?

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.

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.

13
Statutes
 The Indian Penal Code, 1860.

Bibliography
 PSA Pillai, CRIMINAL LAW, 13th ed. 2017, Lexis Nexis.
 Dr. Hari Singh Gour, Penal Law of India, vol. 2, 11th edn., Law Publishers (India)
Pvt. Ltd., Allahabad, 2011, p. 1232

Webliography
 https://homegrown.co.in/article/47919/5-landmark-cases-that-changed-the-way-we-
look-at-indias-sedition-law, visited 19 june 2019.
 https://www.bbc.com/news/world-asia-india-37182206, visited june 2019.
 Congress manifesto promises to do away with British-era sedition law- available at
https://www.indiatoday.in/elections/lok-sabha-2019/story/congress-manifesto-
sedition-law-section-124a-1492013-2019-04-02, visited on june 2019.
 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-Codificationof-the-Criminal-Law-Treason-Sedition-
and-Allied-Offences.pdf (last visited on June. 5, 2019).

14