In my last piece, I had continued with my discussion on Section 124A of the IPC with reference to Constituent Assembly Debates to demonstrate that the framers of the Constitution were aware of the limitations imposed on the interpretation of the provision by British Indian Courts. This awareness led to the replacement of the term ‘sedition’ by Shri K. M. Munshi in Draft Article 13 of the Draft Constitution, which later became Article 19, with the words “which undermines the security of, or tends to overthrow, the State”. Shri Munshi underscored the point that the only reason for the replacement was to ensure against misuse of sedition and not to give free pass to acts against the State (which was distinguished from the government). Following are a few more relevant excerpts from the Debates of December 1, 1948:

“Shri K. M. Munshi: I was pointing out that the word ‘sedition’ has been a word of varying import and has created considerable doubt in the minds of not only the members of this House but of Courts of law all over the world. Its definition has been very simple and given so far back as 1868. It says “Sedition embraces all those practices whether by word or deed or writing which are calculated to disturb the tranquility of the State and lead ignorant persons to subvert the Government”. But in practice it has had a curious fortune. A hundred and fifty years ago in England, holding a meeting or conducting a procession was considered sedition. Even holding an opinion against, which will bring ill-will towards Government, was considered sedition once. Our notorious Section 124-A of Penal Code was sometimes construed so widely that I remember in a case a criticism of a District Magistrate was urged to be covered by Section 124-A. But the public opinion has changed considerably since and now that we have a democratic Government a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State. Therefore the word ‘sedition’ has been omitted. As a matter of fact the essence of democracy is criticism of Government.

The party system which necessarily involves an advocacy of the replacement of one Government by another is its only bulwark; the advocacy of a different system of Government should be welcome because that gives vitality to a democracy. The object therefore of this amendment is to make a distinction between the two positions. Our Federal Court also in the case of Niharendu Dutt Majumdar Vs King, in III and IV Federal Court Reports, has made a distinction between what ‘Sedition’ meant when the Indian Penal Code was enacted and ‘Sedition’ as understood in 1942. A passage from the judgment of the Chief Justice of India would make the position, as to what is an offence against the State at present, clear. It says at page 50:

“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.”

This amendment therefore seeks to use words which properly answer to the implication of the word ‘Sedition’ as understood by the present generation in a democracy and therefore there is no substantial change; the equivocal word ‘sedition’ only is sought to be deleted from the article. Otherwise an erroneous impression would be created that we want to perpetuate 124-A of the I.P.C. or its meaning which was considered good law in earlier days. Sir, with these words, I move this amendment.”

In light of the above, critics of Section 124A can, at best, rely on the Debates to demonstrate that the framers dropped the word ‘sedition’ from the Constitution and replaced it with “which undermines the security of, or tends to overthrow, the State” to strike a balance between the right to free speech and the reasonable restrictions that may be imposed on it. However, the intent of the framers was never to do away with the essence of sedition, which is to seek to undermine the edifice of the State. Simply put, Section 124A, as it stood in 1950, was meant to be interpreted in line with the words “which undermines the security of, or tends to overthrow, the State”.

What strengthens the case for Section 124A after 1950 is the fact that the scope of restrictions on free speech under Article 19(2) was enlarged by way of the first amendment to the Constitution which was effected in 1951 under the Prime Ministership of Shri Jawaharlal Nehru with the Dr. Ambedkar as the Law Minister. Following was the language of Article 19(2) as it stood in 1950:

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law insofar as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any other matters which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

After the first amendment of 1951, Article 19(2) reads as under till date:

“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, in so far 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.”

Taking this amendment into account, the history of Section 124A and its treatment by British Indian Courts, following were the observations of a Constitution Bench of the Supreme Court in the landmark judgement of Kedarnath Singh v. State of Bihar (1962) wherein the constitutional validity of Section 124A was upheld:

“With reference to the constitutionality of s. 124A or s. 505 of the Indian Penal Code, as to how far they are consistent with the requirements of cl. (2) of Art. 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” has to be distinguished from the person’s 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 s. 124A has been characterised, comes under Chapter VI relating to offences against the State. 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. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’, have been made penal by the section in question.

But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.

It has not been contended before us that if a speech or a writing excites people to 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 quo 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 again 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 Art. 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 ss. 124A and 505 of the Indian Penal Code could be said to be within the justifiable limits of legislation.

…Now, as already pointed out, in terms of the amended cl. (2), quoted above, the expression “in the interest of…public order” are words of great amplitude and are much more comprehensive than the expression “for the maintenance of”, as observed by this Court in the case of Virendra v. The State of Punjab….. 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.”

The judgement in Kedarnath Singh remains valid till date. Therefore, to cite instances of deliberate abuse by governments to question the constitutional validity of Section 124A is a strawman argument against the provision. Unfortunately, instead of taking the middle path of seeking amendments to the provision to bring greater clarity and specificity to its language, the critics of Section 124A are often seen arguing against the very idea of sedition itself on tenuous constitutional grounds. Going by this logic, every provision which has been misused either by Governments or its intended beneficiaries must be scrapped, which, needless to say, is an absurd position to take. It would be a textbook case of throwing the baby out with the bathwater. One hopes that arguments on such sensitive issues are presented with some degree of concern for larger issues such as security of the state instead of resorting to populism and sensationalism.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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