The Indian Penal Code, 1860 deals with offences against the State under Chapter VI (Section 121 to Section 130). And, the sedition law in India is defined under Section 124 (A) of IPC
Waging war is provided under Sections 121 to 123 and Section 125 of Indian Penal Code. It is one of the rare offences which is punishable at all stages viz, preparation, attempt, conspiracy and commission.
Section 121 of the Indian Penal Code, 1860 deals with the offence of waging, or attempting to wage war or abetting waging of war, against the Government of India. It states that- “Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to be fined”.
Meaning of war
War can be defined as a state of armed conflict between different countries or different groups within a country. It may include all acts of terrorism, armed aggression, civil war or rebellion and coups.
Acts of terrorism have been held to come under the ambit of offence of waging war or attempting to wage war or abetting waging of war under Section 121 IPC. This was held by the Delhi High Court in the case State (NCT) of Delhi v. Mohd. Afzal and Ors. This judgment of the Delhi High court was confirmed by the Supreme Court on appeal. Mohd. Afzal also known as Afzal Guru was convicted by the Supreme court under this section. He was one of the conspirators of the terrorist attack on the Indian Parliament in December 2001.
There has been some confusion however whether the word “whoever” in this section includes foreign nationals. In Mohd. Afzal’s case it was held that section 121 IPC applies to foreign nationals as well. The position of the Delhi High Court in this regard was reaffirmed by the Supreme Court when it held that
“We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government.”
The same view was taken by the Special Court set up for the 2008 Mumbai terror attack trial. The special judge agreed with the prosecution that the attacks amounted to waging war against India, and accepted the contention raised by the prosecution that Section 121 of the Indian Penal Code, 1860 was applicable to Ajmal Kasab, the sole attacker captured alive and went on to hold that “An offence under Section 121 of the Indian Penal Code,1860 can be committed by both Indian nationals and foreign nationals. Therefore the position whether Section 121 of the Indian Penal Code,1860 applies to foreign nationals has been now confirmed by the courts.
Understanding What is Sedition Law in India (Sec. 124A)
Section 124 A, IPC provides as follows:
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, 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 meas•ures 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 admin•istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
DEFINING ‘DISAFFETION’ UNDER THE COLONIAL REGIME
The sedition law that was introduced in India, despite being partly deduced from the provisions of the Treason Felony Act, was less severe and yet more precise. Sir James Stephen, while introducing the amendment, justified its inclusion in the Act by asserting that it was “free from a great amount of vagueness and obscurity with which the Law of England was hampered.” However, when this provision came to be interpreted by the Indian courts, there was great uncertainty as to the precise definition of the term ‘disaffection’. This was sought to be resolved in various cases, which will be discussed in this part of the paper.
The first recorded state trial for sedition is that of Queen empress v. Jogendra Chunder Bose (‘Jogendra Bose’). The Court, in its much debated judgment, laid down the distinction between ‘disaffection’ and ‘disapprobation’. Disaffection was defined as the use of spoken or written words to create a disposition in the minds of those to whom the words were addressed, not to obey the lawful authority of the government, or to resist that authority. It was also observed that:
“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 an intention to create such feeling.”
Another significant case which had a direct bearing on the 1898 amendment was that of Queen empress v. Bal Gangadhar Tilak (‘Tilak’). Allegations of sedition against Bal Gangadhar Tilak were first forwarded when the magazine Kesari published detailed reports of the proceedings that had taken place at the Shivaji Coronation Festival, during the celebration of which several patriotic lectures and speeches were delivered. It was alleged that these speeches made references to Shivaji’s call for Swarajya (independence) and al- luded to the trials of the people under the British rule. Although the Coronation Ceremony in itself was peaceful, the weeks following the publication of the re- port on June 15, 1897, saw the murder of two eminent British officials.
In perhaps one of the most comprehensive expositions of the law in colonial India, the Court, transcending the arguments from both sides, interpreted S. 124A mainly as exciting ‘feelings of disaffection’ towards the government, which covered within its ambit sentiments such as hatred, enmity, dislike, hostility, contempt, and all forms of ill-will. It expanded the scope of the offence by holding that it was not the gravity of the action or the intensity of disaffection, but the presence of feelings that was paramount and mere at- tempt to excite such feelings was sufficient to constitute an offence.
The meaning of ‘disaffection’ and ‘disapprobation’ was further clarified by the court in Queen empress v. Ramchandra Narayan in which accusations against the editor and proprietor of the Pratod newspaper for publishing an article entitled “Preparation for Becoming Independent”. The Court did not agree with the notion that ‘disaffection’ was necessarily the opposite of affection, but it advocated that an attempt to excite disaffection amongst the masses was to be construed as an attempt to “excite political discontent and alienation from their allegiance to a foreign sovereign.” In Queen empressv. Amba Prasad, the Court, however, held that even in cases of ‘disapprobation’ of the measures of the government, if it can be deduced from a “fair and impartial consideration of what was spoken or written”, that the intention of the accused was to excite feelings of disaffection towards the government and therefore it could be considered a seditious act. Thus ‘disaffection’ would include the “absence” or “negation” of affection as well as a “positive feeling of aversion” towards the government.
A conflict arose when the Federal Court of India, the highest judicial body of the country till the establishment of the Supreme Court, overturned the conviction of Majumdar in Niharendu Dutt Majumdar v. King emperor (‘Niharendu Majumdar’). Charges of sedition law in India had first been pressed against Majumdar on account of him allegedly delivering violent and provocative speeches in the Bengal legislative assembly highlighting the inefficiency of the State Government to maintain law and order in the aftermath of the Dacca riots.52 Sir Maurice Gwyer, Chief Justice of the Federal Court at the time, held that the mere presence of violent words does not make a speech or publication seditious. Instead, he was of the belief that in order to be brought under the ambit of sedition, “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.”
Subsequently, the soundness of the decision given by the Federal Court in Niharendu Majumdar came to be discussed in great detail in King emperor v. Sadashiv Narayan Bhalerao (‘Sadashiv Bhalerao’). This case, pertaining to the publication and distribution of leaflets containing prejudicial reports, was heard before the Privy Council. The Judicial Committee of the Privy Council opined that Niharendu Majumdar was decided on the basis of a wrongful construction of S. 124A( sedition law in India ). In acknowledgement of the model of literal interpretation followed by Strachey, J., in Tilak case, it asserted that the view proposing the imposition of the offence of sedition only on the basis of suggesting rebellion or forcible resistance to the government was inadmissible.
DEVELOPMENTS IN SEDITION LAW IN INDIA POST- INDEPENDENCE
After India attained independence in 1947, the offence of sedition (sedition law in India ) continued to remain in operation under S.124A of the IPC. Even though sedition law in India was expressly excluded by the Constituent Assembly as a ground for the limitation of the right to freedom of speech and expression, this right was still being curbed under the guise of this provision of the IPC. On three significant occasions, the constitutionality of this provision was challenged in the courts. These cases shaped the subsequent discourse in the law of sedition.
Following the decision in Niharendu Majumdar, S. 124A was struck down as unconstitutional in Romesh Thappar v. State of Madras, Ram Nandan v. State, and Tara Singh v. State (‘Tara Singh’). In Tara Singh, the East Punjab High Court relied on the principle that a restriction on a fundamental right shall fail in toto if the language restricting such a right is wide enough to cover instances falling both within and outside the limits of constitutionally permissible legislative action affecting such a right.
During the debates surrounding the first amendment to the Constitution, the then Prime Minister Jawaharlal Nehru was subjected to severe criticism by members of the opposition for the rampant curbs that were being placed on the freedom of speech and expression under his regime. This criticism, accompanied by the rulings of the courts in the aforementioned judgments holding S.124A to be unconstitutional, compelled Nehru to suggest an amendment to the Constitution.
Thus, through the first amendment to the Constitution, the additional grounds of ‘public order’ and ‘relations with friendly states’ were added to the Article 19(2) list of permissible restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a). Further, the word ‘reasonable’ was added before ‘restrictions’ to limit the possibility of misuse by the government. In the parliamentary debates, Nehru stated that the intent behind the amendment was not the validation of laws like sedition. He described S.124A, sedition law in India as ‘objectionable and obnoxious’ and opined that it did not deserve a place in the scheme of the IPC.
The decision of the Supreme Court in Kedar Nath v. State of Bihar, laid down the interpretation of the law of sedition as it is understood today. In this decision, five appeals to the Apex Court were clubbed together to decide the issue of the constitutionality of S.124A( sedition law in India ) of the IPC in light of Article 19(1)(a) of the Constitution. In the Court’s interpretation the incitement to violence was considered an essential ingredient of the offence of sedition. Here, the court followed the interpretation given by the Federal Court in Niharendu Majumdar. Thus, the crime of sedition was established as a crime against public tranquility as opposed to a political crime affecting the very basis of the State.
The Court looked at the pre-legislative history and the opposition in the Constituent Assembly debates around Article 19 of the Constitution. Here, it noted that sedition had specifically been excluded as a valid ground to limit the freedom of speech and expression even though it was included in the draft Constitution.
This was indicative of a legislative intent that sedition not be considered a valid exception to this freedom. As a consequence, sedition could only fall within the purview of constitutional validity if it could be read into any of the six grounds listed in Article 19(2) of the Constitution. Out of the six grounds in Article 19(2), the Court considered the ‘security of the state’ as a possible ground to support the constitutionality of S.124A of the IPC. The Court made use of the principle that when more than one interpretation may be given to a legal provision, it must uphold that interpretation which makes the provision constitutional. Any interpretation that makes a provision ultra vires the Constitution must be rejected. Thus, even though a plain reading of the section does not suggest such a requirement, it was held to be mandatory that any seditious act must be ac- companied by an attempt to incite violence and disorder.
However, the fact that the aforementioned Irish formula of “undemining the public order or the authority of the State” that been rejected by the members of the Constituent Assembly was ignored by the Court. This was despite making a reference to this fact earlier in the judgment. The reasoning of the Court was that since sedition laws would be used to maintain public order, and the maintenance of public order would in turn be in the interests of the security of the state, these laws could be justified in the interests of the latter.
Distinction between Government and People engaged in Administration.
While defining the contours of the crime of sedition, the court in Kedar Nath also sought to distinguish between ‘the Government established by law’ as used in S.124A of the IPC from people engaged in the administration for the time being. The former was said to be represented by the visible symbol of the State. Any attempt to subvert the government established by law would jeopardise the very existence of the State. However, any bona fide criticism of government officials with a view to improve the functioning of the government will not be illegal under this section. This exception was introduced to protect journalists criticising any government measures.
It is submitted, however, that on closer scrutiny, this distinction is murky and is difficult to practically implement. Any persons involved in the daily administration of the government or acting as a representative of the people in the government would also necessarily constitute a visible symbol of the state. As a result of this tenuous distinction, a conflicting situation is created. While calling all the bureaucrats of a government “thugs and profiteers” does not qualify as a seditious act, attributing the same qualities to the government as a whole would bring the speech within the ambit of sedition.
It must be noted that the Court was still driven by the notion of sedition as a crime that affected the very basis of the State. It had thus been included under the section related to ‘Offences against the State’ in the IPC. The rationale for the criminalization of such acts is generally that it fosters “an environment and psychological climate conducive to criminal activity” even though it may not incite a specific offence.
Given that sedition is a crime against the state, one must take into consideration the changing nature of the State with time. At the time when sedition was introduced in the IPC, India was still a part of the British Empire and was ruled by the British monarchs. Since all authority emanated from the Crown and the subject owed personal allegiance to the Crown, it was considered impermissible to attempt to overthrow the monarchs through any means. Subsequent to the attainment of independence, however, all authority is de- rived from the Constitution of India, rather than an abstract ‘ruling state’. The ‘State’ now consists of the representatives of the people that are elected by them through democratic elections. Thus, a crime that is premised on preventing any attempt to alter the government loses its significance. It is possible for governments to come and go without the very foundations of the State being affected.
In fact, in Tara Singh, while striking down S.124A as being ultra vires Article 19(1)(a) of the Constitution, the Court drew a distinction between a democratically elected government and a government that was established under foreign rule. In the former, a government may come in power and be made to abdicate that power, without adversely affecting the foundations of the state. This change in the form of government has made a law of the nature of sedition obsolete and unnecessary.
Lastly, it has also been emphasized that the courts must take into consideration the growing awareness and maturity of its citizenry while deter- mining which speech would be sufficient to incite them to attempt to overthrow the government through the use of violence. Words and acts that would endanger society differ from time to time depending on how stable that society is. Thus, meetings and processions that would have been considered seditious 150 years ago would not qualify as sedition today. This is because times have changed and society is stronger than before.
This consideration becomes crucial in determining the threshold of incitement required to justify a restriction on speech. Thus, the audience must be kept in mind in making such a determination. In S. Rangarajan v. P. Jagjivan Ram the Court held that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who present danger in every hostile point of view.
It gives an indication of what sort of acts might be considered seditious, when it observes that the film in question did not threaten to overthrow the government by unlawful or unconstitutional means, secession or attempts to impair the integrity of the country.
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