The law of sedition, specifically Section 124A of the Indian Penal Code (IPC), has been the subject of intense debate over the last few years. By and large, the criticism against the existence of the provision has been that it is a colonial instrument which is way past its shelf life, and that although the framers of the Constitution consciously rejected the use of the word “sedition” in the Constitution, sedition remains in the IPC. In short, the argument against the provision is that its presence in the IPC is at loggerheads with the express intent of the Constituent Assembly to do away with it.
Based on my reading of (a) the Constituent Assembly Debates, (b) the language of Article 19 (Article 13 of the Draft Constitution 1948), and (c) the history of Section 124A and its judicial treatment, I am unable to come to the conclusion that the opposition to the presence of Section 124A is historically or constitutionally sound. This is apart from the need for such a provision, which is a different issue altogether. I hope to address these issues in this piece and the next few pieces.
A good document to read in order to understand the history of Section 124A as well as the treatment of the subject in the UK, the USA and Australia is a 35-page Consultation Paper on Sedition prepared and published by the Law Commission of India on August 30, 2018. The issue appears to have been dealt with by the Law Commission previously in its 39th Report in 1968, the 42nd and 43rd Reports in 1971 and the 267th Report in 2017.
In Bharat, a provision relating to sedition was first included as Section 113 of the Draft Penal Code of 1837 prepared by the First Pre-Independence Law Commission under the Chairmanship of Thomas Babington Macaulay. The Commission recommended, among other things, codification of the Penal Code and the Criminal Procedure Code. However, the provision was omitted by oversight when the Indian Penal Code was finally promulgated in 1860. That the absence of sedition as an offence in the IPC of 1860 was due to oversight, and not deliberate, does not appear to be a matter of debate.
Within a decade, to clamp down on the rising Wahabi radicalism in the subcontinent, sedition was introduced in the IPC in 1870 as “Exciting Disaffection”. Following is the text of the originally introduced provision:
124A. 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 measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.
The provision was amended in 1898 wherein the title of the provision was changed to “sedition” while the content of the provision continued to use “excite disaffection” apart from “bringing into hatred or contempt”. Post the amendment, the provision read as follows:
124A. SEDITION
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 Her Majesty or the Government established by law in British 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
After a slew of amendments between 1937 and 1955, the provision as its stands today reads thus:
124A. SEDITION
Whoever by words, either spoken or written, or by signs or by visible representation, or otherwise, brings or attempts to bring into hatred to 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 exiting or attempting to excite hatred, contempt or disaffection do not constitute an offence under this section.
Explanation 3. Comments expressing disapprobation of the administrative of other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
For all practical purposes, the core content of the provision remains the same between 1898 and its current version. The purpose of the Explanation, in all three versions, has been to shed light on the metes and bounds of what constitutes “disaffection”.
Given that the constitutionality of Section 124A appears to be the primary bone of contention in contemporary debates, it becomes important to understand the judicial treatment of “disaffection” prior to the coming into force of the Constitution and before certain restrictions on free speech and expression under Article 19(2) came into force i.e. under the version of Section 124A as it existed before January 26, 1950. This will help us understand the treatment of the provision after the Constitution came into force, including after the First Amendment to the Constitution in 1951 which amended Article 19(2).
Accordingly, in the next piece, I will discuss a few judgements on Section 124A which were delivered before January 26, 1950.
J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.