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Freedom of Speech and Expression and Sedition law in India

The right to freedom of speech and expression is provided under the article 19(1) (a) as fundamental right under part III of the constitution of India, subject to reasonable restrictions[i]. This article provides free delivery of ideas and views of the individuals. The essence of this article is to permit the citizens of India their desire of accomplishing a perception of self-fulfillment.

The major trait of a liberal democracy is self-governance and to empower the citizens to exhibit their opinions in all aspects. In a society like this, a conflict of views between an individual's ideas and the state is deemed to exist. In order to regulate the same the law of sedition was incorporated under the Indian penal code. Since its inception in the 1870's the law has been shrouded in controversy.

Sedition under Indian Law:
The etymology of the word Sedition, comes from the word seditio which means going aside, hence all separatist tendencies in the state may be defined under Sedition. Sedition has been described as a crime against the state and is allied to the barbaric crime of treason, but is much less in intensity to it.

This offence comes under Chapter VI of the Indian Penal Code (Hereinafter, IPC) under offences against the state. Section 124-A of the IPC defines Sedition as:
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 5[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.

Sedition is a crime against the state, nearly allied to that of Treason, preceding it in most cases. Explanation to the aforementioned section describes Disaffection as disloyalty and feelings of enmity. In the Indramani Singh case[ii], it was held that Sedition is a comprehensive term and includes all those practices either by word or deed that usurp discontent among the people regarding the government and that try to disturb the tranquility of the state. The object of Sedition is to induce Insurrection and rebellion.

History of the Section:
Section 113 of Macaulay's draft of the Indian Penal code, was the section corresponding to this section in the present act. By some curious omission it was left out when the IPC finally came into force in 1860. Upon some verbal alteration it was added to the Code by S 5 of the Act 27 of 1870, ‘as substantial representation of the law of England of the present day, though much more compressed and more distinctly expressed'. The Section has been amended since then from time to time, to bring it in consonance with standards of jurisprudence.

The Section played an important role in furtherance of British divide and rule policy in India, with many nationalist leaders being caught up in the rigmarole of such litigation. It is also imperative to note that these cases formed the basis for the interpretation of Section, as we know it today in contemporary Jurisprudence. The most notable of them are:

Queen-Empress v Jogendra Chunder Bose [iii] (Bangobasi case)
In this case Sir Comer Petheram CJ, while charging the jury, explained the law in the following terms, i.e.- Disaffection is a feeling contrary to affection, in other words dislike or hatred. Disapprobation simply means disapproval. In this he goes on to explain that the meaning of the two words is completely different. If the person uses any meansto create in the minds of the person to whom they are addressed a disposition to not abbey the lawful authority, or to subvert the lawful authority, if the situation may arise, and if he does so with the intention of creating such an impression in the minds of his audience, he will be guilty under the said section.

Queen-Empress v Bal Gangadhar Tilak [iv]
In this case, just like the previous one Strachey J while charging the jury, agreed with the meaning of disaffection, as explained in the Bangobasi case, and stated that the word disloyalty would best explain the intention behind adding the word disaffection to the section. It was also explained that the amount or intensity of disaffection is completely immaterial, except in deciding punishment. The section also puts on the same footing the successful and unsuccessful attempt of exciting feelings of disloyalty or enmity towards the government. For Operation of the said section it is completely immaterial whether the accused was successful or unsuccessful in being able to excite such feelings among his audience, only his intention in doing the same plays a part.

Empress vs Ramchandra Narayan Shastri [v]
In this case there was a slight departure from the definition of disaffection, the full bench held that the word did not just mean contrary to affection or disloyalty, but rather a positive feeling of aversion, which is akin to ill will. However, all other interpretations of the section were held to be as valid.

Free speech and constitutional morality Jurisprudence:
In India there are two paths in relation to free speech. One of them being the liberal autonomous approach[vi] and other being the moral paternalistic. The former approach being liberal respects individual's ideas and views and has comparatively less restrictions obtrude on the citizens, the liberal autonomous approach views individuals as self-sufficient and competent and the approach relies on Kant's ideology of equality. On the other hand the moral paternalistic approach restricts freedom of views, opinions and speech and depicts individuals as violent and corrupted with an urge to draw oneself into violence.

Constitutional Basis:
Clause (1) of article 13 of the Constitution provides that any law that is in derogation with part III (Fundamental Rights), will be held as void till the extent of that derogation. Furthermore Article 19 (1)(a) provides to every citizen throughout the territory of India the Fundamental Right of Freedom of Speech and Expression, hence it may seem as if Sedition Law violates this right. For this reason, Article 19(2) has been inserted, which provides for reasonable restriction on these rights.

This article allows the state to make any such law that curbs People's freedom of Speech and expression in so far as those restriction arein the interests of Sovereignty and integrity of India, security of state , friendly relations with foreign states , Public order , decency , or in relation to contempt of court, defamation or incitement to an offence.

Hence this article provides for a reasonable restriction, against the right of freedom of Speech and expression. This was also discussed in the case of Kedar nath v. State of Bihar (1962)[vii], wherein the Supreme Court explained that where a law is capable of two interpretations, the one which makes it constitutional should be adopted. The Court also made it clear that sedition is not an offence against Public order, and the gist of the offence is incitement to disorder, or the tendency or likelihood of Public disorder or the reasonable apprehension thereof.

Moreover, every citizen has the right to say whatever he wants about the government as long as it does not incite people to violence. However, when a person does incite people to commit violence or use means that usurp disaffection, enmity and disloyalty towards the established government, he loses his right to Freedom and is to be held liable. The Court has also said thisto be in the interest of Public order and within the ambit of permissible legislative interference.

Critical Analysis:
For critically analyzing the section, it is imperative to break down its various constituents.

There are three main essentials of Sedition:
  1. (Whoever) Bringing or attempting to bring disaffection or hatred towards the government established by law
  2. The person does this through
    1. Words- Spoken or written
    2. Signs
    3. Visible Representations or
    4. Otherwise (portraying universality of the act)
  3. The act must be intentional ( Mens rea )

Under explanation 1 to the section disaffection includes disloyalty and feelings of enmity. The word, as such, has not been defined anywhere in the IPC, and has been subject to years of judicial interpretation. For the purposes of this section it is imperative to construe the dichotomy between Disaffection and Disapprobation (explanation 2 and 3).

Disapprobation means disapproval which may consist of severe condemnation, even though unreasonably, perversely, or unfairly expressed, and the distinction between this and disaffection is the essence of the section, the object of the second and third explanations being to protect honest journalism and bona fide criticism of public measures and institutions with a view to their improvement, and to the remedying of grievances and abuses, and to distinguish this from attempts, whether open or disguised, to make the people hate their rulers, and to impair the confidence imposed by the public in the government.

Whether a particular representation will be regarded as disaffection or disapprobation, is a question of fact and will have to be seen by the magistrate, in light of the surrounding circumstances. In the Manmohan Gose case, it was held that even innuendos will be held to be seditious as long as the cause incitement in the audience and have been made intentionally. Hence it falls upon the magistrate to construe whether the act of the accused was intentional and was it done with the intent of inciting the public and arousing feelings of enmity.

The Section starts with the word whoever, this the supreme court in various judgements has held that this would include writer, editor, printer, publisher and composer, for whatever purposes they may use the writing for.

Government Established by law
Section 17 of IPC defines the term government, as the central or the state government, this is in contrast to what the definition was before the amendment in 1951. In this sense the meaning of government has to be distinguished from the people that are running the administration. Government established by law, is the visible symbol of the state and its continued existence is essential for the stability of the state.

Bringing or attempting to bring
This portrays that the Section pays emphasis on the intention of the accused, and not whether his attempt is successful or not. In one such case, a packet containing seditious material was sent to the addressee, however it was intercepted before that, it was held that this would still amount to Sedition. Hence it is immaterial under this section, whether the attempt has affected its purpose or not, because it is the attempt that is made punishable. This was explained in the case of R v. Burns and Ors[viii] , wherein the court explained that a person would not be exonerated just because his audience was too wise to pay any heed to his incitement.

By words, signs or visible representations
In deciding whether a speech is seditious or not, regard must be paid to the speech as a whole. Anyone has the right to say anything that he wants, unless he does that with disregard to the law. In the Naurang Singh[ix] case, the propaganda secretary of a Gurdwara addressed a gathering of Sikhs. In his speech without any direct incitement, he exaggerated the figures of casualties following army action in Punjab. It was held by the court that if we take the Speech as a whole and the tenor with which it was made, it was undoubtedly made with the intent to bring the Government into contempt.

Scope for improvement
Sedition is an offence which works almost both ways, it curbs the freedom of people to ensure peace and tranquility in the state, the offence is an oil between the state machinery and the people and allows for proper working of a representative government in a democracy. The section in its present form has gone through various amendments i.e.- 1898,1937,1948,1950,1951 and 1955, and as such the law makers have tried their best to reconcile freedom of people and honor of the state against contempt, while maintaining judicial intervention through various interpretations by the court.

Scope for improvement so to say, might only lie, in identifying and disposing, frivolous suits filed by people for fulfillment of their personal feuds. A perfect example of this would be a suit filed against a news reporter / journalist who is constructively criticizing the government on any bad policy decision that they have made and politicians or the respective party workers filing a suit against them in pursuance of this.

This not only creates an extra burden on the already overburdened judicial mechanism but also promotes misandry against anti-incumbent journalism, which is not to say that it incites violence in any manner whatsoever. Hence the duty falls upon the court to judge the facts of the case and the circumstances under which the alleged seditious statement was made, and only allow the case to be argued further.

Sedition is one of the most important sections in the entire IPC, in the sense that it ensures the proper working of the state and maintains peace and tranquility throughout. It works as an essential tool to safeguard the right to freedom of speech and expression.

Through judicial decisions spanning across centuries, the judiciary has tried its best to strike a balance between individual rights and legislative interference, in a way that the citizens are able to express their criticism constructively, and also disparaging them from abusing this power, so as to maintain the stability of the state.

The section has sufficient safeguards i.e. - explanation 2&3 to the section, allowing people, especially journalists from expressing their bona fide views about government policies. Hence seen from the prism of the common man and how it affects them, Sedition seems to have been successful till quite an extent in striking the balance between rights and responsibilities.

  1. INDIA CONST. art.19, cl.2
  2. Sagolsem Indramani Singh And Ors. vs State Of Manipur,1955 CriLJ 184
  3. Queen-Empress vs Jogendra Chunder Bose And Ors (1892) ILR 19 Cal 35
  4. Queen-Empress v. Bal Gangadhar Tilak (1897) I.L.R. 22 Bom.
  5. Emperor vs Ramchandra Narayan Shastri,(1931) 33 BOMLR 1169
  6. Bhatia Gautam,Offend, Shock, or Disturb:Free Speech under the Indian Constitution, 1st edn,2016
  7. Kedarnath Singh v. State of Bihar, AIR 1962 SC 955
  8. R v. Burns and Ors,[1994] 1 SCR 656
  9. Naurang Singh v/s Union Territory, Chandigarh, Cr LJ 846 (P&H)

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